w S5 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES .4 THE ^» •^ LAW OF NATIONS AFFECimG COMMERCE DURING WAR: WITH A EEVIEW OP TDK JFEISDICTION, PEAOTICE AKD PEOCEEDINGS PRIZE COURTS. BT FKANCIS H. UPTON, LL. B. NEW YORK: JOHN S. VOORHIES. LAW BOOKSELLER AND PUBLISHER, NO. 20 NASSAU STEEET. 1863. Entered, according to Act of Congress, in the year 1861. By FRANCIS H. UPTON, In the Clerk's Office of the District Court of the United States for the Southern District of New York. O. A. ALVOED, 6TERK0TYPER AKD PBINTEK. Jx 52(1 .V7IJI I?t3 INTfiODUCTORY CORRESPONDENCE. United States Coitrt, Kew Yokk, June 3, 1861. F. H. Upton, Esq. : , Z>ear Sir : — It seems certain that the unfortunate civil conflict in which our country is engaged, will call into exercise to no inconsid- erable extent the prize jurisdiction of our Courts of Admiralty. If this be so, a work which shall include a summary of the Practice and Proceedings in Prize Courts, will be of great value to the pro- fession and to suitors before the Prize Courts ol the country, Ejiow- ing the interest which you have heretofore taken in the study of this subject, and your past experience in the practice in prize causes, we suggest to you, if you may control your time for suc4i purpose, that you undertake the preparation of such a work as shall supply, in this respect, the urgent want of the profession and of the community. Yours, respectfully, Sam. E.. Betts, Judge of the Dist. Court of the United States. Henky H. Elliott, E. H. Owen, Prize CommissionerB. To the Honorable Samuel R. Betts, Judge of the Distkict Coukt of the United States, and E. H. Owen and Henry H. Elliott, EsQS., Prize Commissioners. The suggestion, formally communicated to me in your note of the 3d of June last, was informally made by one of you, in a conversation had directly after the organization of the Federal Court for the exer- cise of its prize jurisdiction. Pursuant to that suggestion, it was my original purpose to limit my labors to the endeavor to supply what seemed to be an urgent necessity, namely : a review of the origin and character of the jurisdiction of Prize Courts, and of the Practice and Proceedings ifie948n IV INTEODUCTOEY COEEESPONDEjS'CE. adopted by them, in the administration of the international law of maritime warfare. In tlie progress of mj labors to this end, I became persuaded that a preliminary review of the law of nations, so far as they relate to the interests of commerce in time of war, was essential to the just appreciation of the peculiar jurisdiction and practice of prize tribunals. It is now nearly a half century since there has existed, in our country, any immediate practical necessity of a familiarity with the principles and rules of this law. It is, therefore, not surprising, that in the recent discussions, resulting from the present emergency, upon the interesting subjects of lawful belligerents and their rights, of the rights and obligations of neutrals, of the law of blockade, of contra- band traffic, and of other kindred topics, vague and imperfect notions should be found to be prevalent. In view of this, I hope that you may justify a departure from my first intention, although it has occasioned some delay in a compliance with vour suo-o-estion. In the review of the important questions of international law, con- tained in the preliminary chapters of the work which I now present to you, no attempt at originality has been ventured, other than that involved in the arrangement and method of presenting the subjects — and as to tliat portion of the work which treats of the jurisdiction, prac- tice and proceedings of prize courts — it is, and could be, little else than a methodized arrangement of the rich materials already fm-- nislied from the abundant stores of Lord Stowell and Mr. Justice Story. Thus methodized and arranged, these subjects are now, for the first time, connected in one treatise. I sincerely trust that the result, while meeting your approval, may prove to be, not of mere tempo- rary interest, to cease with the termination of the civil discord which has prompted it, but of substantial and permanent utility — as well to the statesmen and merchant as the lawyer. Yours, respectfully, F. H. Upton. New York, July, 1861. PREFACE TO THE SECOND EDITION. It was fortunate for the wellbeing of the United States, wlien the standard of rebellion was raised to overtlirow the govennnent, that the direction and management of its naval affairs should have been committed to the present distinguished head of that department. Under the judicious guidance, incomparable energy, and rare ad- ministrative capacity, which he has brought to the service, tlie world has witnessed with admiring wonder, the amazing change which a few brief months have wrought in the naval power of the nation. From a condition of humiliating insignificance and inethciency, in which he found it (induced mainly by the jealous and uniform hostility to its encouragement and increase, on the part of the slave- holding section of the Union, which, in the name of democracy, had hitherto controlled the affairs of the government), out of the great exigencies and boundless resources of the nation, it has suddenly started into life — a gigantic and invincible power — even as Minerva is said to have sprung, all armed, from the head of Jove. Its achievements in the reduction of fortresses, hitherto deemed im- pregnable to the assault of naval armaments, have become memorable epochs in naval history. Its agency in the enforcement of the government interdict of com- mercial intercourse with the insurgent population, over thousands of miles of coast upon the Atlantic Ocean and the Gulf of Mexico, has been not only of inestimable value to the nation, but wholly unpre- cedented in the annals of blockading service. The curse of slavery, and its withering influences, being happily withdrawn from the cou/trol of the government — by God's blessing never to be restored — a complete revolution in the policy of the nation is as immediate as it was inevitable ; and hereafter, the nation's navy will become and remain the great right arm of the nation's defence. Henceforth, all subjects, in any manner connected with the man- agement and interests of this great power, will assume an importance hitherto unackno\yledged or unknown. The numerous and important (y.iestions in the law of nations affect- ing the interests of neutral commerce, which have grown out of the civi^ war in the United States — ^the luomentous issues discussed iand VI PREFACE TO THE SECOJSD EDITION. determined in tlie recent adjudications by the Federal courts, upon the maritime caj)tures made bv the naval forces of the government in the prosecution of the war — the many interesting subjects involved in those adjudications, connected with the practice and proceedings of courts, organized for the administration of the law of prize — and the recent congressional legislation upon matters incident to maritime warfare, have combined to render desirable, if not necessary, the new and greatly enlarged edition of this work, which is now presented to the profession and the public. The additions, which exceed in volume the original text, are placed at the termination of the respective chapters of the first edition, which treat of subjects cognate to those of the addenda, instead of being given the awkward and inconvenient position of foot-notes, or the more undesirable form of an appendix. The opportunity has not been neglected to correct several errors which had escaped notice in the original text, to supply a more copi- ous and convenient index, or table of contents, for reference, and also a coni])lete list of cited authorities. The author desires to avail of this occasion, to express his acknowl- edgments for the many kind and flattering notices of his work, by the press of the country, as well as for its gracious and favorable recep- tion in the navy and by the profession ; and he ventures to indulge a hope, that his larger labors in the preparation of this edition, will be amply rewarded, by its greatly enhanced value and utility, as a text- book for future reference. LIST OF CASES CITED IN THIS VOLUME. Alexander, the, 24. Abbey, the, 31. Ann Greene, the, 42, 110, 119, 201, 246. Anna Catherina, the, 112, 125, 405, 409, 424. Ann, the, 1 14. Aurora, the, 138. Ariadne, the, 138. Anoydt Gedacht, the, 141 . Amor Parentiim, the, 178, 416, Amiable Nancy, the, 188. Acteon, the, 188, 200. Anne, the, 190, 200. Audacious, the, 207. Amitie, the, 211. Assievedo vs. Cambridge, 238. Adelaide, the, 279. Arthur, the, 284. Adonis, the, 285. Active, the, 286. Apollo, the, 331, 400, 423. Atlanta, the, 333. Antelope, the, 336. Anna Maria, the, 336, 292. Ariadne, the, 339, 412. An then vs. Fisher, 389. Arabella and Madeira, the, 390, 420. Alexander, the, 394, 408, 412. Adeline, the, 406. Aver3% the, 403. Abbey, the, 403, 412. Amidie, the, 404. Ann, the, 409. Antouia .Johanna, the, 410. Arco, the, 411. Atlas, the, 41], 412, Aurora, the, 411, 412. Adonis, the, 412. Adeline, the, 421. Actif, the, 420. Asa Grande, the, 423. Adriana, the, 426. Alligator, the, 432. Arthur, the, 297. Admiral, the, 295, 323. Amy Warwick, the, 151, 156, 82, 459. .\ctor, the, 441. A. .1. Yieu, the, 441. Anna, the, 439, 254. Agnes H. Ward, the, 463. Aigburth, the, 467. B. Bella Gnidita, the, 23. Bell vs. Gibson, 30. Bagloholc, ex parte, 36. Brown, ts. U. S., 40. Boussomaker, ex parte, 43. Benson rs. Boyle, 110. Bell vs. Reid, 1 14. Bernou, the, 115. Bromley rs. Hazeltine, 118. Boedes'Lust, the, 167, 412. Botlinia and Janstoff, the, 202. Belle Coquette, the, 211. Bellona, the, 213. Buenos Ayres, the, 219. Briti.sh Guiana, the, 228. Bon A venture, the, 232. Betsy, the, 241, 391, 403. Belle, the, 243. Bellona, the, 245. Barbara, the. 247. Betsy, the, 276, 393, 422. Betsy, the, 280, 432. Betsy and George, the, 286. Brutu.s, the, 231. Mende Brodee, 331. Bingham vs. Cabot, 391, 416. Bolch vs. Barrel, 403. Bernou, the, 409, 411. Babillon, the, 417. British Empire, the, 436. Crawford, ts. The Wm. Penn, 27. Charlotte, the, 195. Constautia Harlasten, the. 201. Codex Maritima, the, 202. Canada, the, :i07. Cape of (iood Hope, the, 225. Constant Mary, the, 238. Charlotte Caroline, the, 244. Carlolta, the, 247. Carolina, the, 26:;. VUl LIST Ui CASES CITED. Calypso, the, 4:1, 1:79, 339. Columbia, the, 28.'. Charlotte Christien, the, 283. (,:hristiansberg, tlie, 424, 287. Columbia, the. 287. Cross vs. Harrison, 304. Charlotte Fox, the, 328. Commcrceu, tlie, 330. Charlotte, the, 33 1. Constitution, the, 333. Cotistaiitia, the, 333. Carolina, tlie, 333. Concordia, the, 395, 338. Catherine Elizabeth, the, 343. Christoi)he, the, 390. Comet, the, 3'.I0. Copenhagen, the, 431, 391, 405. Cossack, the, 392. Catlierine and Ann, the, 393. Cornelius and Maria, the, 403. Countess of Lauderdale, the, 407, 420. Celt, the, 409. Commerce, the, 410. Carl Walter, the. 429, 411, 431. Clorinde, the, 117. Ceylon, the, 42ti. Cosmopolite, tlie, 420. Christina Mari;i, the, 423. Catharine and Anna, the, 423. Charlotte Caroline, the, 428. Cheshire, the, 202, 441. Cienshaw, the, G7, 153. Captain Speddon, the, 441. Circassian, the, 439. D. De Bilboa, the, 33. Dree Gebroeders, the, 34. De Luneville vs. Phillips, 113. Danou.s, the, 113. Dias vs. Revenge, the, 187. Dash, the, KS9. Diligcntia, tiie, 103. Donna Barbara, the, 196. Die l-'riodamur, the, 391. Del Col )v. Arnold, 392. Divina Pastor, the, 12. Diafjie, the, 26. Diana, the, 422, 117, 201, 202, 429. Dos liermanos, the, 119. Dree Uebroedcrs, 12(). 410. Denkliaar African, the, 141, 411. De Bilboa, the, 113, 411. Dordrecht, the, 228. Dickenson, tlio, 241. Dorothy Foster, the, 245. Die Frienden, the, 285. Drummond, the, 333. Duckworth vs. Tucker, 391, 413, 415. Diana, the, 406. Danaous, the. 412. Dispatch, the, 412, 415. Decatur vs. Chew, 410. Diomede, the, 416. Delta, the, 154, 192. Delight, the, 441. E. Eliza Ann, the, 5. Endraught, the, 126, 229, 409. Khzabeth, the, 135. Eagle, the, 194. Eole, L' the, 202. Eleauora, the, 203. Etoile, the, 213, 230. El Kayo, the, 221. Empress, the, 230. Edward and Mary, the, 245. Eleanor Catheriua, the, 247. Emanuel, the, 262. *' Edward, tb.e, 2G3. Ebenezer, the, 263. Edward, the, 330. , Endraught, the, 331. Eleonora Wilhelmina, the, 331. Evart Evarts, the, 331. Eleonora, the, 336. Elizabeth, the, 338. Eliza, tlie, 389. Elsebe, the, 401, 394, 412. Eliza and Katy, the, 395, 400. Etrusco, the, 403. Exeter, the, 417. Einighedeu. the, 422. Eenrom, the, 286, 427. Emily St. Pierre, the, 254. Empress, the, 292, 316, 455. Ellis, the, 441, 439. Elizabeth, the, 439. Ella AVarlcy, the, 439. F. Franklin, the, 30, 242, 425. Francis, the, 140, 201. Fann\-, the. 186. Faderlandt, the, 200, 213, 414. Felicity, the, 200. 202. Elorc, the, 21 \. ' Forsigheid, the, 213. I Financier, the, 216. ■ Flad Oyen, the, 238, 385, 420. I Frederick Molke, the, 277. Fortuna, the, 285, 400. LIST OF CASES CITED. IX Fleming vs. Page, 304. Falcon, the, 390. Francis, the, 403, 405, 409, 411, 423. Frederick, the, 409. Fanny, the, 412. Fitzsimmons vs. Mar. Ins. Co., 293. Forest King, the, 67. F. W. Johnson, the, 76. G. Gist vs. Mason, 22, 30. Gloire, the, 26. Gertrude, the, 169. Grotius, the, 190. Galen, the, 198, 229. George, the, 200. Guillaume Tell, the, 216. Genereux, the, 218. Goss vs. \Yithers, 238. Goodrich vs. Gordon, 248. Gerard vs. Hare, 248. Gute Erwarb, the, 283. General Hamilton, the, 284. Gute Geselschaft, 328, 423. George, the, 337, 392, 403. Graff Bernstaff, the, 404, 427. Ghertighet, the, 428. Green vs. Wood, 312. General Green, the, 316, 67. General Parkhill, the, 55, 150. H. Hoop, the, 17. Hermann, the, 129, 229. Hiram, the, 138. Herstelder, the, 167. Haase, the, 178. Hercules, the, 190. Harmony, the, 115, 409. Helen, the, 233, 243. Hope' the, 243. Henry, the, 243. Huntress, the, 247. Hoffnung, the, 263. Hector, the, 269. Henrick and Maria, the, 277, 385, 390. Hartig Hane, the, 282. Haabet, the, 328. Hope, the, 333. Hoop, the, 412, 338, 405. Hudson vs. Guester, 389. Home vs. Camden, 389. 413. Herkimer, the, 399, 416. Huldah, the, 394, 403. Harrison, the, 403. Ilatsdelda, the, 411. Hiram, the, 412. Haase, the. 416. Hill vs. Ross, 417. Horatio, the, 421. Haabet, the, 428. Hoffnung, the, 429. Hiawatha, the, 316, 321, 153, 66, 453. HaUie Jackson the, 316, 321. Hannah M. Johnson, the, 316, 67. Henrj"^ Lewis, the, 439, 254. Henry C. Brooks, the, 249. Indian Chief, the, 112, 119, 409. Imena, the. 299. Invincible, the, 336. Indiana, tlie, 409. Imena, the, 412, 423. Industrie, the, 423, 430. J. Joseph, the, 24. Jonge Pieter, the, 29. Jonge Ruiter, the, 123. Jonge Klassina, 127, 409. Jacobus Johannes, the, 132. Julia, the, 138. Jan Fredrick, the, 141. Josephine, the, 146, 409, 411. Joseph, the, 178. John, the, 201, Jaggernaich, the, 226. John and Jane, the, 243. Joanna Tolen, the, 263. Juliana, the, 263. Jonge Thomay, the, 272. Josephine, the, 273. Juffrow Maria Schroeder, the, 277. Jonge Petronella, the, 279. Jonge Pieter. the, 285, 407, 427. Jonge Margaretha, the, 327, 331, 429. Jonge Hermaney, the, 328. Jonge Tobias, tlie, 328, 333. Jonge Andrews, the, 330. Jonge Jan, the, 331. Jaffrow Anna, the, 339. Jennings vs. Carson, 391. Julia, the, 408, 412. Joseph, the, 408, 412. Jenny, the, 411. Jan Frederik, the, 411. John, the, 414. Jefferson, the, 425. Juffrow Anna, the, 427. Julia, the, 441, 439. s LIST OF CASES CITED. K. Kertigheit, the, 420. Lawrence, the, 24. Lord Wellington, the, 24. Lindsay Rodney, 168. Lively, the, 200, 202. 392. Lowestofl; the, 207. La France, 223. L'amitit'. the, 229. Lord Middleton, the, 230. Lucretia, the, 232. Lord WeUington, 248, 412. Lucy, the, 269. Lisette, the, 287, 333. Louis, the, 336. Lands vs. Rodney, 388, 391. Le Caux vs. Eden, 389, 391. Louis, the, 389. La dame Cecile, 390. La Reine des Anges. 392. La Flora, 405, 414. Le Franc, 415. L'Alcrte, 417. Lively, the, 424. London Packet, the, 429. Liverpool Packet, the, 429. Lynchburg, the, 316, 67. Louisa Agnes, the, 442. Lizzie Weston, the, 449. M. Mary, the, 24. Mary Folger, the, 27. Madonna delle (jirazie, 34. McConnel rs. Hector, 113. Milton vs. Do Mello, 113. ^[ariana, the, 146. Melomanc, the, 178, 195. Mariamne, the, 185. Mary and Susan, the, 186, 411. Maiasouaire ca'. Keating, 189, 248. Mariamne Flora, the, 194. Mcrcurius, the, 196. Mentor, the, 200. Mariamne, the, 201. Madonna del Burso, the, 202. Mars, the, 218. Minerva, the, 229. Mars, the, 230. Marguerite, tlie, 232. Miller vs. Resolution, 248, 406. Moodie vs. Brig Harriett, 248. Margaretha Magdalcna, the, 269. ] Maria, the, 336. , I Minerva, the 411, 272. \ Mariamne, the, 393, 273, 403. f Mercurius, the, 277. Magnus, the, 410, 406, 286. Martin vs. Mott, 306. Maria, the, 429, 341, 328. Margaret, the, 332. Madison, the, 333. Madonna del Burso, the, 494. Mentor, the. 403. McConnel vs. Hector, 409. Merrimack, the, 411. Mary, the, 423, 412. Mars, the, 412. Matilda, the, 417. Maria Powloua, the, 422. Magnus, the, 429. Madieros vs. Hill, 326. Major Barbour, the, 291. Mersey, the, 290. McCluskie vs. CromweU, 313. Mersey, the, 152. Mary Alice, the, 249. Memphis, the, 439. Magnolia, the,' 439. N. Neptune, the, 28. Nereide, the, 123. Negotie en Zeevart, the, 141. Nuestra Senora de los Dolores, the, 186, Nancy, the, 211. Niemen, the, 212. New Adventure, the, 269. Nancy, the, 276. Neptunus, the, 279, 409. Neutralitet, the, 283. Nostra Senora de Begona, the, 331. Nelly, the, 408. Noyt Gcdnacht, the 411. Naiade, the, 412. Neptunus, the, 412. Nereide, the, 412. Nostrado Con;'cicas, the, 420. Nostra Signora do Rosano, 421. Nancy, the, 427. Newell vs. The People, 313. Nostra Signora de Regla, the, 439. Nassau, the, -139. North Carolina, the, 67. 0. Ocean, the, 118, 285. 0' Mealy vs. Wilson, 118. Odin, the, 208. LIST OF CASES CITED. XI Oiituibiis, the, 411. • Oswell vs. Vigne, 41 2 Oster Reiser, the, 429. Osceola, the, 441. OUve, the, 441. Potts vs. Bell, 18, 130, 159, 412. President, the, 409, 111. Portland, the, 409, 129. Princessa, the, 133, 410. Purissima Ooncepcion, the, 202. Polly, 232. I'urissima Ooncepcion, the, 394, 421, 239. Progress, the, 242. Providence, the, 245. Plioenix, the, 410, 263. Provideutia, the, 269. Polly, the, 427, 270. I'utsdam, the, 284. I'riiice Frederick, the, 336. Piziirro, the, 339. Pomona, the, 390, 389. PLacock, the, 422, 389. I'rincipe, the, 423, 394. I'ort Mary, the, 405. Planter's Wench, the, 410. Peuhallow vs. Doane, 416. Printz Henry, the, 417. Princessa, the, 417. Perseverance, the, 420. Prosper, the, 429. Parkmaa vs. Allen, 288. Patras, the, 439. Pioneer, the, 67. R. Rapid, the, 23. Rose in Bloom, the, 26, Ro.siue, the, 27. Rebecca, the, 178, 190. Resolution, the, 191. Robert, the, 219. Rattlesnake, the, 230. Rose, the, 268. Rendsburg, the, 269, 409. Roll a, the, 277. Rose vs. Himely, 307. Ranger, the, 320. Richmond, the, 331. Ringaude Jacob, the, 331. Rapid, the, 412, 333. Ringaude .Jacob, the, 333. Resolution, the, 394., Recovery, the, 403. Rosalie and Betty, the, 412. Roberts vs. Hartley, 415. Rendsburg, the, 423. Romeo, the, 426. Rising Sun, the, 427. Richmond, the, 429. Rendsburg, the, 431. Randers Bye, the, 288. Revere, the, 316, 320, 465. S. Santissima Trinidad, the, 13, 183, 306. Samuel, the, 29. San Jose Indiano, the, 125. Sechs Geschwestern, the, 141. Sally Griffiths, the, 143. Sisters, the, 146. Santa Cruz, the, 190. Short Staple, the, vs. United States, 194. San Juan Battista, the, 202. Susannah, the, 202. Senor Don Josef, the, 206. Santa Brigida, the, 213. San Damaso, the, 220. Sirius, the, 228. Stella del Norte, the, 228, 413. Sparkler, the, 229. Sophie, the, 238 Santa Cruz, the, 241, 420. San Francisco, the, 241. Sedulous, the, 245. Samson, the, 247. Sally, the, 269. Stest, the, 277. Spes and Irene, the, 280. Shepherdess, the, 285. St. Nicholas, the, 286. Sarah Christina, the, 331. Staadt P^mbden. the, 332. Sally Griffiths, the, 333. Susan, the, 333. Ships taken at Genoa, the, 388. Smart vs. Volf, 389, 391. St. Juan Battista, the, 391, 392. Speculation, the, 393, 490. Stadt Embden, the, 403. Susannah, the, 403. SaUy, the, 404, 411, 412. St. Lawrence, the, 408, 409, 425, 430. Susan Christina, the, 409. Susa, the, 409. St. Jose Indiana, the, 410. Success, the, 410. Sechs Geschwestern, the, 411. Shepherdess, the, 412. San Jose, the, 414, 417. Sophie, the, 420. Statira, the, 422. Xll LIST OF CASES CITED. Sarah, the, 423, 42G. Sacra Familia, the, 430. Stoddard vs. Read, 431. Sarah Starr, the, 147, 467. Shark, the, 441. Stephen Hart, the, 439. Tobago, the, 146, 201, 403. Twee Gesuster, the, 178, 223. Thomas Gibbons, the, 185. TwQley Right, the, 201. Two Friends, the, 233, 241, 246, 388. Twee Gebroedcn, the, 285. Twee Gefroen, the, 328. Trinde So.stre, the, 332. Two Brothers, the, 339. Talbot vs. Johnson, 391. Twee Juffrowen, the, 407. Twende Broeder, the, 423. Two Susannah.s, the, 424. Tropic Wind, the, 96, 47. Trent, the, 349. Toone, the, 291. 148, 439. U. United States ws. Palmer, 411. Urania, the, 414, 243. United Stales vs. Peters, 391. Union, the, 414. V. Yenus, the, 25, 409, 44. Virginie, the, 1 1 9, 409. Vigilantia, the, 128, 131, 339, 400. Vroede Schottys, the, 136. Vrow Margaretha, the, 140, 411. Vrow Catherina, the, 146, 405. Yryheid, the, 204. Virginie, the, 229. Victoria, the, 390, 420. Vigilantia, the, 409, 412. Vrow Judith, the, 412, 422, Vrow Catherina, the, 109. '*- Venus, the, 110. Vestal^ the. 206. Vryheid, the, 211. Volant, the, 271. Vrow Judith, the, 282. Vrow Hermina, the, 427. W. "Ware vs. Hilton, 40. Woodbridge, the. 193, 196. Wilhelmsburg, the, 202. Washington, the, 202, 394. Waaksamheid, the, 229. Walsingham Packet, the, 240, 403, 427. Waansted, the, 245. Waronskau, the, 247. Wilhelmina, the, 263. William, the, 260. Wolvaart von Pmaw,the, 279, 427. Willis vs. Commissioners of Prize, 389. William, the, 393, 403, 422. Wilcocks vs. Union Ins. Co., 393. Wilhelmsburg, the, 394. s WUliam and Mary, the, 400, 414. Waakemsheid, the 414. Wilder, the, 439. Winnifred, the, 67. Zuchman, the, 328. Zelden Rust, the, 330. TABLE OF CONTENTS. CHAPTER I. OP WAR, AJTO ITS DECLARATION, AND HEREIN WHO ARE LAWFUL BELLIGERENTS. PAGE. War defined 1 Tlie war-making power 1 In iho Uniied States vested solely in the Federal Congress 2 Formal declaration requisite in early ages 4 Not requisite by the existing law of nations 5 Proclamation requisite for guidance of citizens and neutrals 5 In the United States an act of Congress considered equivalent to a formal declaration. 6 Legal commencement of hostilities 7 t\'ho are lawful belligerents 8 Question considered in connection with, the civil war in the United States 8 Proclamation of Great Britain on the subject 9 Its effect under the law of nations 9 Legislative and judicial precedents in the United States 10 Legislative precedents not of binding authority 13 The rebellion against the United vStates government being without precedent in the history of nations, in all its circumstances, no existing precedent can indicate the obligation of nations to acknowledge the revolters as lawful belligerents 14 CHAPTER IL OP THE LEGAL OBLIGATIONS OF BELLIGERENTS AND THEIR ALLIES. War terminates commerce between belligerents 16 The foundation of this doctrine 16 Rev'iew of judicial decisions on this subject 17 Contracts suspended between belligerents 20 Courts closed against their enforcement 20 Relaxation of the rule of suspension of commerce ia certain cases 21 Strictness of the rule by the decisions of United States courts 23 Necessity tor its rigid enforcement 24 Penalty for its violation 24 Truce or cartel ships » . 25 Rule of suspension of commerce applicable to allies as well as to belligerents 27 Attempts to evade the rule of suspension of commercial intercourse 28 Unilbrmity of existing law of nations on this subject 30 Rule applicable as well to commerce on land as by water 30 Rigorous enforcement of the rule within its just limits 31 Cases illustrating its enforcement 31 Mitigation in cases of great hardship. ... 3-1 Le;,'al e!uc't of v.n.r ou the persons, property, and rights of citizens '. 30 General right of captures, reprisals, &c. . ... 3"; XIV TABLE OF COT^TEISTTS. PAGE Rule in the early ages 38 Treaty stipulations 38 Modern rule in absence of treaty 39 Property exempt from capture or confiscation ; public funds 40 Private debts 40 Not conliscaiotl, but remedy suspended 41 Treaties on this subject 41 ADDENDA TO CHAPTER II. THE CIVIL "WAR IN THE UNITED STATES. Review of the judicial discussions and determinations of the rights and liabilities re- sulting therefrom 44 Belligerent rights exercised by the United States in the conduct of the war 44 Wisdom of the policy of the belligerent blockade of the insurgent ports 45 Preference to a municipal regulation of closing the ports as ports of entry 45 Objections raised to the validity of captures for the violation of the blockade 46 Judicial determinations of these objections 47 Case of The Tropic Wind. United States District Court for the District of Columbia 48 Opinion of Justice Dunlop 4.8 Case of The General Parkhill. United States District Court for the Eastern District of Pennsylvania 55 Opinion of Justice Cadwallader 5G Cases of The Iliuwatha, North Carolina, Pioneer, Crenshaw, Winnifred, Hannah M. m Jolmson, Lynchburg, General Green, Ilallie Jackson. Forest King. United States Dis- trict Court ibr the Southern District of New York 67 Opinion of Justice Betts 69 Case of The F. W. Johnson. United States District Court for the District of Maryland 76 Opinion of Justice Giles • 77 Case of Tlie Amy Wariuick. United States District Court for the District of Massachusetts 82 Opinion of Justice Sprague 83 CHAPTER III. OF THE KIOHTS OF BELLIGERENTS TO INTERFERE WITH THE COMMERCE, AND TO CAPTURE AND CONFISCATE. THE PROrERTY 01' OTHER THAN ADVERSE BELLIGERENTS; AND HEREIN WHAT CONSTITUTES HOSTILITY OF CHARACTER, BOTH AS REGARDS PERSON AND PROPERTY. Alien enemy defined 108 Hostile character cast upon persons not alien enemies 109 Hostile character impressed upon property 109 Residence in hostile jurisdiction 110 Uniformity of rule as to impression of hostile character 110 Rule apf)lied in common-law courts , 113 What conslitules residence in a hostile country to impress ahostUe character 114 Personal residence not requisite 124 Hostile character impressed by the character of tiie trade 124 Doctrine of the United Stales courts 125 Residence by implication from official cliaractcr 12G Importance of iho animus manendi in dcteriniuing residence 126 Hostile character resulting from nature of tin' Iraflic 127 National character of ship generally detormiiied by the residence of the owner 130 Liability to capture determined l>y the Hag or jiass. . , 130 Sometimes by the nature of her employment 131 By employment in commerce ordinarily confined to the adverse belligerent 133 Kspecially when by authority of the adverse government 134 TABLE OF CONTENTS. XV PAGE Character of the flag impresses the vessel 135 Reason of this rule 137 Attempcs to evade the rules which impress hostility of character upon persons or property 138 Transfers in transitu 138 Transfers in general 141 Reservations of risk 141 ADDENDA TO CHAPTER IIL Recent American decisions on the doctrme of hostile character by hostile residence . . 147 Case of The Sarah Starr. United States District Court, New York 147 Case of The Joseph H. Toone. United States Court, New York 148 Case of The General Parkhill. United States Court, Pennsylvania 149 Case of The Revere. United States Court, Massachusetts 149 Case of The General Parkhill. United States Court, Pennsylvania 150 Case of The Amy Warwick. United States Court, Massachusetts 151 Transfers by enemies to neutrals during war void, as a fraud on belligerent rights. . . 152 Secret liens disregarded by courts of prize 153 Case of The Areola. United States District Court, Maryland 155 Case of The Amy Warwick.. Claim of John L. Phipps & Co. United States District Court, Massachusetts 156 CHAPTER IV. OF THE RIGHTS OF BELLIGERENTS TO INTERFERE WITH EACH OTHER'S COMMERCE, AND CAP- TURE EACH other's PROPERTY ; AND HEREIN OF EMBARGO ; OP LETTERS OF MARQUE AND REPRISAL; OF CAPTURE, AND JOINT-CAPTURE, AND RECAPTURE; OP POSTLIMINIUM AND MILITARY SALVAGE. The commerce of the enemy the legitimate prize of war 159 Leading principles of national law on this subject 159 The right as applied to slave property resulting from the civil war in the United States 161 Professor Parson's opinion upon this subject 162 Embargo defined 1 64 Warlike and civil 1(J5 Modern practice as to embargo 165 Operation and effect of embargo 166 Civil embargo ; 168 The embargo of the United States of 1807 169 Its oppressive effects on the commerce of the nation 169 Submitted to when pronounced constitutional by the courts 170 Reprisals generally 170 To redress individual wrongs 171 Right acknowledged by all nations 175 Acted upon by the United States 175 Capture — its definition 175 By public vessels , 176 By privateers ]76 Their authority, power, and rights 176 Privateers must be commissioned 177 Doctrine of United States courts on tins subject 178 Character of privateermg 178 In conflict with the spirit of the age 178 Efforts of the United States government to discountenance privateering 179 Revocation of commissions of privateers , . . . 1 85 Validity of capture not affected by reason of the captor bemg an alien enemy 186 X\'l TABLE OF CONTENTS. PAGE Distinction between privateers and letters of marque 186 Registered owner of privateer the person liable 186 This rule not applicable to foreigners 1 87 Liability of owners of privateers 187 Basis of liability 187 Limitation of liability 187 Owners liable jointly and severally 188 Privateers not considered private property on capitulation 188 Limitation of the authority of letters of marque by the law of nations 189 Legality of captures dependent on government orders 189 Intention to seize requisite to a valid capture 189 Capture in neutral waters valid as between belligerents 190 Question of time of capture considered 190 And whether actual possession necessary 190 Liability for mistakes in engagements with friendly vessels 194 Lawful captures — only by public armed vessels or private armed vessels commissioned 194 Capture l;y boats belonging to men-of-war , 195 Restitution no bar to a second capture 196 Lawful capture by a convoying ship 197 "Wrong-doer only liable for illegal capture 198 Vindictive damages never given but in extraordinary cases 200 Prize property subject only to visible and immediate encumbrances. . .* 201 Prize must be sent to convenient port 201 Rule as to this 201 Duty of captors on arrival ; 202 To proceed forthwith to adjudication 202 Prize master and crew 203 Joint-Captuue. — Doctrine of constructive assistance 204 Vessels in sight 205 Doctrine of constructive assistance as between public and private armed vessels 209 The rule ^. . . 211 The reasons of the rule 211 Joint-enterprise as affecting the question of constructive assistance 213 Rights of revenue cutters as joint-captors 213 No joint-capture when in siglit only from the masthead 219 The being in sight to be affirmatively proved 220 Mere intimidation, without co-operation, insufScient to establish rights as joint-captors 221 Nor mere association 221 Unless in a direct military capacity 221 Whether army forces can be entitled as joint-captors with naval forces 225 Material service requisite 226 Rights of joint-captors not vitiated by the fraud of actual captors 228 Previous concert, sufficient basis to entitle as joint-captor, if not abandoned at the time of capture 230 Recaptuiie and Rbscue. — Defined and distinguished 233 To recapture — a d\ity 233 To rescue — a meritorious act 233 Postliminium. — The right considered 234 To change property in favor of vendee 234 Sentence of condemnation necessary 238 Termination of the rights of postliminium 239 The right of postliminium by the laws of the United States 240 Salvagk. — Right of salvage on restitution by recaptors 241 Rate of compensation 241 Salvaije in cases of rescue as well as in cases of recapture 242 No commission requisite for recapture 242 Nor to entitle to salvage 242 TABLE OF CONTENTS. XVll PAGE Salvage not due to a national vessel on the recapture of another national vessel 243 No hazard requisite as basis of right of salvage 243 Every person aiding in a rescue has a lien for salvage 243 The doctrine of vessels in sight applicable to recaptures as basis of salvage claim .... 244 Not allowed to privateers in sight when the recapture is made by a national ship 244 Revenue cutters entitled as private ships 245 Freight earned contributes to salvage 245 Salvage due as neutrals 24C Ransom. — Prohibited in Great Britain by statute 247 Valid under law of nations when not prohibited by statute 247 Not prohibited in the United States 248 Its effect 248 ADDENDA TO CHAPTER IV. Recapture and Military Salvage 249 Joint-Capture 253 Rescue 254 CHAPTER V. OF THE EFFECT OP "WAR UPON THE COMMERCE OP NEUTRALS; AND HEREIN OF BLOCKADE; OF CONTRABAND OF WAR; AND OF THE RIGHT OF VISITATION AND SEARCH. Who are neutrals 259 Their general commercial rights 259 Coasting and colonial trade 259 Neutrals excluded therefrom 260 Character and reason of this rule of exclusion 260 Consequences of its violation 262 Confiscation in cases of fraud 263 Rule the same as to the colonial and the coasting trade of belligerents 263 Rule of exclusion does not operate, if it would deprive the neutral of his accustomed commerce 267 The rule relaxed after, and by reason of the rise of the United States government.. . . 267 The application of the rule, and the exceptions in particular cases 268 Where direct trade is unlawful, cannot be pursued circuitously 270 Penalty for violation of this rule 272 The armed neutrality 274 Doctrine of the United States on the subject of ','free ships free goods" 275 Blockade. — Its definition 275 A beihgerent right 275 Requisites to its validity •. 276 Actual and effective 276 Knowledge of blockade 278 What is a violation of blockade 283 What excuses a violation 284 Penalty for violation 287 Case of r/ie Chrisiiansberr/ 288 Case of The Elizabeth 290 Cases of The Cheshire and The Delta 291 Blockade of the southern ports of the United States 298 Judicial Construction of the Executive Proclamation 309 Opinion of Justice Grier 323 Contraband of War 32T Contraband commerce prohibited to neutrals 327 Contraband defined 327 XVlll TABLE OF CONTENTS. PAGE Question as to prorisions 328 Pre-emplion substituted for confiscation as to provisions 329 Destined use — important consideration in determining questions of contraband 330 "Where innocent goods are mixed with contraband, confiscation attaches to all 332 Hostile dispatches contraband, subjecting vessel to confiscation 332 And cargo, if owned by the owner of the ship 333 Confiscation of entire property, the ancient penalty for deaUng in contraband — relaxa- tion of its rigor in the modern practice 333 Treaty provisions on the subject. 333 Visitation and Seap.cii 334 Belligerent right established in the law of nations 334 Confiscation the penalty of resistance 335 Applies only to merchant vessels 336 How exercised 336 Treaty provisions 331 Ship's papers proper to be examined 33T The right as apphcable to merchant vessels sailing under convoy 339 The right as applicable to ships of war 343 The right in aid of the suppression of the slave trade 345 Neutral Territory. — Inviolable by belligerents 346 Captures illegal made within neutral jurisdiction 347 Neutral states no power to release captures brought within their jurisdiction 348 Treaties on this subject 348 addenda to chapter v. Case op the Tbent 349 CHAPTER YI. OK THE PRIZE JimiSDICTION OF COURTS OP ADMIRALTY, AND OP THE PRACTICE AND PRO- CEEDINGS OF PRIZE COURTS. Prize jurisdiction exclusively vested in admiralty courts 383 In United States and Great Britain 383 Exclusive in courts of the captor 384 Jurisdiction may be exercised while the prize is in a neutral port 385 Decree of condemnation requisite to complete a transfer of the property 385 Decree final between the parties 385 Not between the governments , 385 Letter of Lord Stowell and Sir John NichoU to John Jay 386 Judge Story's notes in Wheaton 386 Prize Jurisdiction 381 Its extent, character, and peculiarity 388 Rules as to first duty of captors on securing possession of prize 393 To exercise proper care in its safe custody 393 Liable for negligence or misconduct 393 Duty to send prize into a convenient port 394 With prize-master and prize crew, unless captured crew consent to navigate 394 Captors prohibited from converting cargo, or breaking bulk 394 Except in case of overruhng necessity • . 395 Duty of captors to send in the master and officers and some of the crew of the prize vessel 395 Importance of tliis rule and the consequence of its violation 395 1 )uty of prize-master to notify the admiralty immediately on arrival 396 And to deliver up papers found on board the prize, with an affidavit that they are in the condition in which they were found, and all that were found 396 TABLE OF CONTENTS. XIX PAGE Prize Commissioners. — Their appointment, powers, and duties 396 To take possession of and place their seals upon the prize property 397 To take the testimony of captain and officers and prize crew 397 Rules as to examination of witnesses in preparatorio 397 The Prize Libel. — Its proper form, and by whom filed 400 Monition and warrant 401 Service and monition 402 Proceedings on the return-day, if no claim be filed 402 The Claim. — By whom filed 403 The test-affidavit of claimant 404 Not amendable, as of course 404 Papers in the registry not examinable until after claim and affidavit filed 405 Delivery of Property on Bail 405 Never allowed before a hearing 405 Appraisement and sale of property, if perishable, the rule of prize courts 406 The Hearing. — In the first instance, exclusively on the libel and claim — papers found on board — and the testimony taken in preparatorio 4 06 Consequence of sentence of condemnation 406 Legal presumptions in prize courts, and the burden of proof resulting therefrom 407 The national character of prize property generally the principal issue 408 Question of national character 109 As affected by domicile 409 As affected by trade 409 As afl'ected by the ship's flag or pass 41 As affected by transfer of ship during war 41 1 Transfer of cargo in tranaitu 411 Illegal trade affecting proprietary interest 411 The effect of violation of blockade 412 " contraband trade 412 " trade on the enemy's coast 412 '• trade with the enemy's colonies 412 " resistance to search 41 2 The Decree op Condemnation 413 Proceedings thereon 413 Captors and joint-captors 413 Claim of joint-capture — when to be filed 413 Distributive proportions 414 Sale and distribution — where no appeal and no claim of joint-capture 415 Decree op Distribution • 415 Decree requisite in all cases, before distribution 416 Head-Money , 416 Decree of Restitution, on recapture 419 When made — and when on payment of salvage 419 Military Salvage. — Its amount in the United States fixed by statute 420 Question of allowance of costs, damages, and expenses, on decree of restitution 421 How determined 422 How costs, damages, and expenses ascertained 424 Execution of decree 424 Farther Proof. — Order for — when made 426 When not allowed 427 What testimony allowed — when farther proof ordered 428 How testimony taken on such order 428 Judicial Orders pendente lite 429 Unlivery of cargo 429 In what manner effected 429 Removal of ship or cargo, or both 430 Expense of unlivery or removal — ^by whom borne 430 XX TABLE OF CONTENTS. PAGK Order of sale 430 How sale effected on order 430 Expense of sale — by whom defrayed 431 Delivery of property on bail to captors or claimants 431 Stipulations and liability thereon 432 Appeal from Decree 433 Its effect on the possession or control of the prize property 433 ADDENDA TO CHAPTEE VI. further coksideratiox of the practice and proceedings of prize courts, sug- gested by the adjudications upon captures made during the existing war in the united states 435 The Duty of CaptOrs 436 As to the property captured 436 Exceptions to the rule requiring it to be sent in for adjudication 436 Physical impossibility 436 Exception arising from moral restraint 436 Excuse arising from the necessity of the captors 437 Captured property taken for the use of the capturing vessel or the government, must be appraised before appropriation ' 431 The amount of appraisal deemed to be in the treasury 438 No rule requiring its payment by the government before final decree 438 Duty of captors as to the persons taken with the captured property 439 General rule to send them in with the prize, as witnesses 439 Overpowering necessity the only excuse for a failure to comply with this rule 439 Captured persons not to be separated from, but to be sent in with the prize 440 "Wliere crew of captured vessel escape, other inculpatory proof allowed 441 Personal treatment of captured persons 441 Detained as witnesses, not as prisoners of war 441 Case of TM Louisa Agnes. United States District Court, New York >, . . . 442 Duty of captors as to vessel's papers, found on board at the time of capture 449 As to other pajiers, not being the vessel's papers 449 Circular of instructions in this respect to naval commanders, from the United States Secretary of the Navy 450 Duties of TTnitcd States prize commissioners prior to recent legislation 452 Additional duties imposed by act of Congress 453 Construction of the act by United States Circuit Court for the Second Circuit 453 "Witnesses to be examined without the presence of counsel 455 The rule as to the general character of the averments of the libel and the claim, sus- tained by the recent decisions 455 Delivery TO Claimants, on Bail 457 Delivery of captured property to claimants, on bail, before a hearing, subversive of the policy and purpose of maritime capture 457 Reasons for tlie rule of non-delivery still more cogent after hearing and condemnation 457 The doctrine of non-delivery fully sustained by the decision of the United States Dis- trict Court of Massachusetts 459 Reasons for th*^ rulf stated in the case of The Amy Warwick 459 Reasons for Die rule of non-delivery on bail, applicable to non-delivery on payment of appraised vahie > 460 The Captors entitled as Distributees — How determined 460 New rules of distribution Vjy recent act of Congress 460 Vessels within signal distance entitled to share 461 Forfeiture of commander's share of prize money, for certain neglect 461 Armed vessels in government service entitled as if in the navy 462 Merchant vessels making captures not entitled, in strict law — but in practice a share is awarded them commensurate with the meritorious character of the service 462 TABLE OF CONTENTS. XXI PAGE Decree of distribution. How required to be rendered by the act of March 25th, 1862 463 And how and where the same is to be executed 464 Costs and Disbursements in Peize Proceedings 464 Character of the costs and disbursements 464 How to be liquidated 464 Embarrassments resulting from the want of an appropriation to pay the necessary ex- penses of adjudication 465 Attempted remedy by statute provision 465 Reasons for such construction of the statute as shall secure the remedy 465 The statute otherwise construed by th3 Circuit Court of the United States, in the Second Circuit, in the cases of The Sarah Starr and The Aigburth 461 Incongruous legislation rendered inoperative a subsequent attempt to provide a remedy 469 APPENDIX. No. 1. Letter from Sir W. Scott and Sir J. Nicholl to Mr. J&j 471 No. 2. Prize rules 474 No. 3. Standing interrogatories to witnesses examined in preparatorio 479 No. 4. Statute provisions of the United States for the distribution of proceeds of prizes when taken by public armed ships — Act of 1800 484 No. 5. Statute provisions of the United States for the distribution of proceeds of prizes taken by private armed vessels 485 No. 6. The several proclamations relating to the civil war in the United States 485 No. 7. Distribution of prize money — Act of Congress of 1862 489 No. 8. Department circular letters of instructions to naval commanders 490 No. 9. Proclamation of emancipation 493 THE LAW OF NATIONS AFFECTING COMMERCE DUPJNG AVAR. -♦♦-♦-••»- War defined. CHAPTER I. Of War aistd its Declaration — ^and herees^ ayho are lawful belligerents. Public War is tliat state in wliich nations, au- thorized by tlie sovereign power, prosecute tlieir rights by force.^ " It is," says Lord Bacon, " one of the highest trials of right ; for, as princes and states acknowl- edge no superior upon earth, they put themselves upon the justice of God by an appeal to arms."^ An appeal of so momentous a nature, invohang ^j^^ ^ar-mak- the right of judging whether a nation has real and '^s power, just grounds of complaint ; whether she is author- ized -to employ force, and justifiable in taking up arms; whether prudence will admit of -such a coui^se ; whether the welfare of the nation requires it, and cannot otherwise be secured — can be made only by the supreme sovereign power of the state, ■' Grotius, De Jure, Lib. 1., c. i., § 2. Albericus Gentilus, De Jure Belli, Lib. L, c. ii. Bynkershoek, Quaest. Jur. Pub., Lib. L, c. i. Vattel, Lib. IIL, c. i., § 1. Hobbes, De Corpore Politi- co, P. I., c. i., § 2. . ■ ' Bacon's Works, Vol. IIL, p. 40. 1 OF WAR AND ITS DECLARATION. whetlier tliat exist in king, emj^eror, or congress, as the representative of the body of the nation. The right to determine the question of the ne- cessity of an appeal to force for the prosecution or recovery of a national right, for the protection of the national security by the infliction of punish- ment as an atonement for a national injury, or as the means of averting a threatened danger to na- tional interests, is an inseparable incident to a salu- tary government. It has been called " one of the rights of majesty."^ The sovereign power of the state, whether the hereditary or elected rei^resentative of the peoj^le (who constitute the state), can alone be the author of war. By that order it is invoked. In that name it is conducted. By that power alone armies are The war-mak- enlisted, and navies are constructed and manned, mg power. ^^^ ^-^^ ^^^ humau ao;encies of warfare are but instiTiments in the hands and control of that power. "In order to legalize a w^ar, it must be com- menced or declared," says Lord Stowell, " by that particular branch of the state which is invested by the constitution with this important prerog^ive." " If," says Brooke, " all the people of -England would make war mth the king of Denmark, and the king (that is, our king) will not consent to it, this is not war. " In the United States, the power of declaring The war-mak- war, as wcll as that of raising all the requisite thf u.'^state^ means and supplies for its prosecution, 1 )y the ex- vested solely pj-ggg provisions of the constitution of the govern- ' ' Hazlitt's and Roche's Manual of Maritime War, p. 2. ^ Broolve's Abridgment, Tit. Denizen. OF WAR AND ITS DECLAEATION. 3 ment, is confided exclusively to tlie Conoi-ess of the j? *^^^ ^^'^^'"^ ^ ■ JO Congress. nation."^ This right of majesty, this highest attribute of the sovereignty of a state, and ^\4thout which it must of necessity cease to be sovereign, by the positive terms of the wiitten constitution, ordained and established by the people of the United States, " in order to form a more perfect union" than that which had previously existed under the articles of confederation of the several states — is absolutely surrendered by the several states (which, by their people, in convention assembled, adopted and rati- fied that constitution) into the hands of the leg- islative department of the national government. Not only is this done by the provision referred to, expressly conferring the sovereign power upon the federal Congress, which would necessarily exclude the idea of its existence elsewhere,^ but, as if to guard against the possibility of error, resulting fi-om the hitherto prevailing sentiments in favor of the independent sovereignty of the several states, this right of majesty, this sine qua non of sovereign- ty, is declared to be shorn from the several states, l)y the most positive teiins of the federal constitu- tion. By section 10 of the 1st article, it is pro- The sovereign vided, that " no state shall engage in war, or keep SeJe^"" ^y^l^l troops or ships of war in time of peace, or enter in- seTcrai states. to any agreement or compact with another state or with a foreign power," or, in fact, possess the power of doing any of those things which are essential inci- dents of the war-making power, such as " to grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver ' Const, of U. S., Art. 1, S 8. 4 OF WAR AND ITS DECLARATION. coin a tender in payment of debts, or pass 'any "bill of attainder," etc. The dogma of indej^endeut state sovereignty has been adliered to with a pertinacity, which (in view of the carefully exj^ressed and unambiguous pro- visions of the constitution of the United States, re- quires no ordinaiy degree of charitable forbear- ance to designate as honest), until at length it has brought forth its legitimate and bitter fruit, in a foolish, and vdcked, and causeless rebellion of those states whose leaders have adopted it, and which can . only be happily terminated by the utter extinction of this j)ernicious heresy. ra ™n ^onsw- ^^ ^^^ carl}^ agcs of political societies, a war corn- ered requisite menccd without a solemn declaration, was consid- ered infonnal and irregular, and contrary to the established usage of nations. It was so regarded down even to the time of Grotius, who, admitting that a declaration was not requii^ed by the law of nature, declares, nevertheless, that the law of na- tions demands it.^ The Romans granted no tri- umphs for any war which was not j^receded by a formal declaration. During the era of clnvalry, the rules of which required the fullest notice of intention to an adversary, that he might have abundant oj)portunity to prepare for his defence, declarations of war were heralded and proclaimed with the greatest solemnity, and clothed with all those formalities which the habits of knighthood had carried into the customs of general warfare. Witli the decline of chivalry such declarations were gradually di^jcontinued, although Clarendon, in his ■ Grotius, De Jure, Lib. III., c. iii., § 6. DECLAEATIOlSr OF WAE. 5 History oi tlie Rebellion, speaks iu terms of censure of the war in which the Duke of Buckingham went to France, as entered into " without so much as the formality of a declaration by the king, containing the ground and provocation and end of it, according to custom and obligation in the like cases."^ Puifendorif,^ Vattel,^ Emerigon,* each contend for the necessity of a public declaration before the commencement of a war, as required not only by the law of nations but by justice and humanity ; and the former holds acts of hostility not preceded by a formal declaration of war, to be acts of piracy and robbery. Bynkershoek,^ however, maintains that the law of nations does not require a declara- tion of war to precede the act, and cites numerous precedents to sustain his position. Such is the modern doctrine, and the well settled No declaration practice of the nations of Europe as well as of the the existiug TT 'x 1 Oi X law of nations. United fetates. "War," says Lord Stowell, " may lawfully exist without a declaration on either side. It is so laid down by the best writers on the law of nations."^ In the war declared by the United States against Great Britain in 1812, hostilities were commenced by the United States, immediately upon the pas- sage of the act of Congress, and without waiting to communicate any notice of intention to the English governmeiit. But although no previous declaration proclamation of intention to the adversary, be reciuii'ed as a ius- y^'i"'"''^^. ^^^ J ' J- ^ information tification of hostilities, yet such a declaration, by ami Kuidunce _ public act, proclamation, or manifesto, is essentially neutrals. ' Claren, Hist. Reb., Vol. I., p. 40. ' Book VII.. c. vi., § 9 Book III., c. iv., § 51. ^ Traite des Assurancts, I., 5G.3. ° Quest Jar. Pub. Lib. I., c. ii. ^ The Eliza Ann, 1 Dodson, 247. 3 6 DECLARATION OF WAE. necessary for tlie instruction and direction of the citizen, whose individual rights are materially affected, as the direct result of a war in form. Without such a declaration, too, it w^ould be im- possible to determine, whether the rights of the citi- zen are impaired, as a legitimate effect of war, and for which no redi'ess ►can be demanded in a treaty of peace, or whether the injuries that he has sus- tained are such as to demand reparation. But not only is such a declaration requisite for the information and direction of the citizen, but it is equally necessaiy for the instruction of the citi- zens or subjects of neutral powers. The knowledge of the existence of hostilities be- tween belligerents, imposes upon neutrals certain duties and oblio'ations, the strict observance of which alone entitles them to that j^rotection in per- son and property, which is accorded to those who, in time of war, take no part in the contest, but re- main common friends of both parties, without favor- ing the aims of the one to the prejudice of the other. In the United By the coustitntiou of the United States, wai- of'congresp^?s cauiiot la^^iiully be commenced against a foreign '^^forntd decL> powcr, A\dthout au act of the Congress of the nation, ration. and such an act undoubtedly operates as a formal and official notice to all the world, and is, of itself, equivalent to the most solemn and formal declara- tion.^ « "When war is duly declared," says Chancellor Kent,^ " it is not merely a war between this and tlie adverse government, in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a Avar between the ' Ilaz. i"" precedents in the records 01 the highest judicial tribunals of the states.^^ '"'^ United States, and the opinions of the most distin- guished jurist w^ho has ever adorned the American bench (Chief- Justice Marshall), might have found precedents much more to his purpose, though per- haps not more susceptible of being distinguished from the case presented in the present revolt against the integrity of the United States government. One Palmer and others were indicted in the Cir- cuit Coui't of the United States in the district of Massachusetts, for an alleged robbery and piracy on the high seas. They were defended as lawful privateers, acting under the authority and commis- sion of a lawful belligerent. Upon a division, the question certified for the de- termination of the Supreme Court of the United States was as follows : — " Whether any revolted colony, district or peo- ple, Avlio have thrown off their allegiance to the mother country, but have never been acknowledged by the United States as a sovereign and independ- ent nation or power, have authority to issue com- missions to make captures on the high seas, of the persons, property, and vessels of the subjects of the mother country who retain their allegiance; and whether the captures made under such commis- sions are, as to the United States, to be deemed lawful ; and whether the forcible seizing, Avith violence, and by 2:)utting in fear of the persons on board of the vessels, the propertj^ of the subjects WHO AEE LAWFUL BELLIGERENTS. 11 of tlie mother country wlio retain their allegiance, on the high seas, in virtue of such commissions, is not to be deemed a robbery or piracy within the act of Congress." Upon this question, the opinion of the Supreme Court of the United States, pronounced by Chief Justice Marshall, was clear and explicit. " When," says he, " a civil war rages in a foreign nation, one part of which separates itself from the old established government and erects itself into a new and distinct government, the comiis of the Union must view and treat the newly constituted government as it is viewed by the legislative and executive departments of the government of the United States. If that government remain neutral, but recognizes the existence of civil war, the courts of the Union cannot consider as criminal those acts of hostility which are authorized, and which the new government may dii'ect against its enemy." " The government of the United States having re- cognized the existence of the civil War in question, the acts of the defendants were justified under the commission of the revolting territory, as a lawful belligerent, and were in no manner unla^vful or in violation of the act of Congress."^ In a later case, in which the same question arose, the same coui^t says : "The government of the United States having recognized tha existence of civil war between Spain and her cokuiies, our courts are bound to recognize as lawful, those acts which war authorize, and the new government in South America may direct. ' United States vs. Palmer, 4 Curtis, S. C. Decisions ; 3 Wheat, 310 12 WHO AEE LAWFUL BELLIGEEENTS. Captures made under tlieir commissions must be treated by us like other captures. Tlieir legality cannot be determined in our courts unless made in violation of our acts of neutralit}^"^ And in a still later case in tlie same court, in wliicli the same question was discussed witli great learning and ability by distinguislied counsel, the court says: "Another objection has been urged against the admission of this vessel to the privi- leges and immunities of a pul)lic ship, which may as well be disposed of in connection with the ques- tion already considered. It is, that Buenos Ayi-es has not yet been recognized and acknowledged as a sovereign, iudej^endent government by the execu- tive or legislature of the United States, and there- fore is not entitled to have her ships of war recog- nized by our courts as national ships. " We have, in former cases, repeatedly had occa- sion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between thq, parties, and to allow to each the same rights of asylum, and hospitality, and in- tercourse. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respect- ed in the exercise of those rio:lits. We cannot in- terfere, to the prejudice of either belligerent, with- out making ourselves a I3arty to the contest, and departing from the position of neutrality. All cap- tures made by each must be considered as having ^ The Divina Pastor, 4 Curtis, S. C. Decisions, 345 ; 4 Wheat. 62. WHO AEE LAWFUL BELLIGERENTS. IH the same validity; and all tlie immunities wliicli may be claimed by public ships in our ports, under the law of nations, must be considered as equally the rig-ht of each, and as such, must be recoo-nized by our courts of justice until Congi'ess shall pre- scribe a diiferent rule. This is the doctrine hereto- fore asserted by this court, and we see no reason to depart from it."^ Thus it will be seen, that so far as mere precedent is concerned, considered apart from the circum-stan- ces toliich induced it^ that which has l)een estab- lished by the government, and enforced by the ju- diciary of the United States, might sustain the position taken by Great Britain. But though such a precedent, of the recognition Legislative /. -1,. -i if»iiiT , precedents of of a revoitmg people as lawiul belligerents, were no binding a sufficient justification of the course pursued by ^"^^^o^^y- Great Britain toward the nation by which the prec- edent was established, it is not here pretended, that such, or any number of precedents, could impose an imperative law of action upon nations, or that Great Britain, under the existino; circumstances, would not be entirely justified in the eyes of the ci^^lized world, in a de23aii;ure from such a prece- dent. The annals of the world furnish no j^arallel to the iiie rebellion present atrocious combination to overthrow the con- government of stitutional p'ovemment of the United States. In all *'^® ^- states ,.,^ -,, , bemg wliollj those cases to which reference has been made, and unprecedented -\ -\ • • I T 1 • 1 • j_ /. in all its cir- mdeed, m every instance recorded m history, oi a cumstances in people revolting against a government of which it nations^no' "^ forms a part where the revolt has assumed proper- Jsting prece- ^ The Santissima Trinidad, 5 Curtis, S. C. Decisions, 268*; 7 Wheat. 283. 14 "S^-HO ARE LAWFUL BELLIGERENTS. dent can indi- tions eutitlina: it to be reg:arded as sometliinp' otlier cate the obli- ^ . =>. n t i -, ^ [jationof na- tJian the transient aberrations of a deluded mob, tions to ac- ii i • x i • j. r» i knowledge the tiiere nave existed CKCumstances, or more or less revoiters as siOTiificance, wliicli commended the revolt to the lawful beUig- t^ ^ ? ents. sympathies of Christian nations. The impartial reader of history will seek in vain for the record of such a revolt, that may not fairly be referred to some direct, pressing, urgent cause, or, at least, in which the leading spirits of the move- ment were not themselves in perfect accordance, in their assignment of the reasons which impelled them to resistance. But in this unnatural rebellion, against as mild, and benignant, and beneficent a govern- ment as ever existed upon earth, is presented the extraordinary spectacle of grave and apparently well-considered public documents, prepared for sub- mission to the judgment of the world, emanating from the two prominent conspirators in the revolt — one calling himself the president, and the other the vice-president of the Confederate States — in which each sets forth elaborately what he considers the aggregation of causes which have induced the at- tempt to overthrow the government, so utterly dis- cordant, so diametrically differing, each from the other, that one who should, for the first time, read the manifestos, without any previous information of current events, might suppose them to refer to different nations and a different people. It is quite safe to declare that rebellion to be causeless, in which it is scarcely possible to find any two prominent insurrectionists agreeing in their as- signment of the causes wl.d.ch have produced it. It is. quite safe to declare that rebellion to be causeless, that is raised against a government, which, WHO AEE LAWFUL BELLIGERENTS. 15 from its conunencement, to the dawn of revolt, has been controlled and administered, in all its depart- ments, in the interests of those by whom the rebel- lion has been incited. And it is quite safe to de- clare that rebellion to be causeless which has no other avowed basis than a pretended apprehension of a future indisposition of the government to protect the peculiar rights in the peculiar property of the i*evolting people — which, if successful, can have no other end than to leave those rights so utterly with- out all protection, that their eventual annihilation would be inevitable. Revolting people of other nations have risen to throw off the yoke of the oppressor^r-to free them- selves from an odious thraldom — to cast away the burdens heaped upon them by an iron despotism, and to go forth an independent people. Never be- fore, in the world's history, was a rebellion against a constituted government resorted to with the avowed and sole purpose and ol)ject of encouraging, pro- tecting, extending, and perpetuating human slavery, and making the perpetual bondage of a race the chief corner-stone of the social and political fabric. Considerations such as these, might well have justified Great Britain in declaring that such re- cognitions of a revolted people as lawful belliger- ents, which have hitherto been made by nations, before their independence was acknowledged, fur- nish no Drecedent for a case like this. 16 LEGAL OBLIGATIOJS^S OF BELLIGEEENTS. CHAPTER 11. Or THE Legal OBLiGAnoisre of Belligeeents and . THEIR Allies. W&T termin- ates commerce between bel- ligerents. The founda- tion of this doctrine. The existence of war between nations immediate- ly terminates all legal commercial intercourse be- tween their citizens or subjects. This principle is of a character so obviously just, resulting fi'om the very nature of war itself, and having its source in that natural reason and natural justice which are alike binding on the whole community of the civil- ized world, that all the great writers who have treated of the law of nations have assumed if^as in- controvertible.^ There is no such thing, as has been justly said, as a war for arms and a peace for com- merce. The existence of war places each individual citizen of the respective belligerent nations in a con- dition of common hostility. By it, all treaties, all civil contracts, all rights of property, are terminated or suspended. Its existence confers the power, if it does not impose the duty, on every citizen to attack ' Grolius, Lib. III., c. iv., § 8 ; Bynkershoclc, Lib. I., c. iii. ; Vat- tcl, Lib. Ill, c. iv. ; Yalin, Lib. Ill, Tit. 6, Art. 3. COMMEECE SUSPENDED : HE AUTHOEITIES. 17 the enemy and seize Ms property, tliougli, by estab- lished custom, this right is restricted to such only, as are the commissioned iusti-uments of the gov- ernment for such purpose. Trade and commerce presuppose the existence of civil contracts and business relations, and a re- course to judicial tribunals ; and this is necessarily incompatible with d state of war. Trade and commerce, by enriching the merchants of the enemy, and thus enabling them to contribute to the support of their government, as well as by replenishing the treasury of the enemy by the i^ny- ment of export duties upon the merchandise brought from his country, operate directly to aid and assist the enemy, by furnishing him witli the very sinews of war. Besides, any individual profit or advantage which might accrue from the continuance of commercial intercourse, is far outweighed by a consideration of the public welfare, which requires a cessation of the extraordinary facilities which it affords, of con- ducting a traitorous correspondence with the ene- my, and of conveying intelligence that the pul)l4C safety demands should be withheld. A review of the English and American authori- Review of ties, and the luminous and learned commentaries of 100^00 tiie"'' Sir William Scott (Lord Stowell) and of Mr. Jus- '"^'J*"'*- tice Story, illustrating the true character and ex- tent of the principle by which all commercial inter- course is interdicted between belligerents, and of the circumstances under whicli it has been applied and enforced, cannot fail to be instructive, as well to the statesman and lawyer, as the merchtwt. The leading English cases are, ''The Hoop'' (1 2 18 COMJIEECE SUSPEIS^DED THE AUTHOEITIES. Robinson, 196) and ''jPoUsys. Bell et ahr (8 Term Rep, 548). In the case of " The Hoop^'' it appear- ed that Mr. Malcohu of Glasgow, and other r.ier- chants of Scotland, had traded with Holland, for articles necessary for the agriculture and manufac- tures of Scotland. They had several times applied for, and procured, the king's license for this trade during the war ; but, after the passing of certain acts of Parliament, being erroneously informed by the commissioners of the customs at Glaso'ow, that such licenses were no longer necessary, they omitted to procure one upon the occasion in question, and, in consequence of this, the cargo being taken, was condemned as prize. The case of " Potts vs. Bell et alsr was upon a policy of insurance effected by the plaintiff^ a Brit- ish subject, upon goods purchased by him from the enemy, during hostilities, and shi2:)ped from the en- emy's country on board a neutral shij). The policy was held to be illegal and void. "There exists," says Lord Stowell, "a general rale in the maritime juiisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country ; it is laid down by Bynkershoek, as a. universal principle of the law. Ex natura belli commercia inter liostes cessare^ non est disputandum. He proceeds to observe : " The interests of trade, and the necessity of 0I3- taining certain commodities, have sometimes so far overpowered this rule, that different species of traf- fic have been permitted, but it is, in all cases, the act and permission of the sovereign (Bynk. 6, 1 ( COMMERCE SUSPENDED THE AUTHORITIES. 19 3). Wherever that is permitted, it is a suspensiou of the state of Avar, quoad hoc. It is, as he ex- presses il^pro jparte -sic helium^ pro parte pax inter suhditos utriusque principisr " By the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely remoAdng the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a par- tial suspension of the war. There may be occa- sions on which such an intercourse would be highly expedient, but it is not for individuals to determine on the expediency of such occasions, on theii' own notions of commerce, and of commerce merely, and possibly on grounds of private advantage, not very reconcilable with the general interests of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances that may be con- nected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the conse- quences that might follow, if every person in time of war had a right to carry on a commercial inter- • course with the enemy, and under color of that, had the means of carrying on any other species of inter- coui'se he might think fit ? The inconvenience to the public might be extreme, and where is the in- convenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if 20 COMMERCE SUSPENDED. necessary) under tlie eye and control of tlie goverD ment, charged Avitli the care of the public safety ? Contracts Auotlicr principle of law of a less politic nature, suspended be- t. -,1 -, , . . ,. it,- tween beiiig- out equally general m its reception and direct in erents. ^^g application, forbids this sort of communication, as fundamentally inconsistent Avith the relation at that time existing between the two countries, and Courts closed that is, the total inability to sustain any contract enforcement ^^ ^^ appeal to the tribunals of the one country on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicis. The peculiar law of our own country ap- plies this principle with great rigor. "The same principle is received in our courts of the law of nations. They are so far British courts that no man can sue therein, who is a subject of the enemy, unless under particular circumstances, that, pro liac vice, discharge him from the character of an enemy, such as his coming under a flag of truce, a cartel, a pass, or some other act of public au- thority, that puts him in the king's peace, p7'o Jiac vice. But otherwise he is totally ex lex. Even in the case of ransoms, which were contracts, but con- tracts ex jure helli, and tolcrjited as such, the enemy was not permitted to sue in his own proper person, for the payment of the ransom bill, but the pay- ment was enforced by an action brought by the im- prisoned hostage in the courts of his own country, for the recovery of his fi-eedom. A state in which con- tracts cannot be enforced, cannot be a state of legal commerce. If the parties who are to contract have no light to compel the performance of the contract, COMIVIEECE SUSPENDED. 21 nor even to ~ aj^pear in a court of justice for that purpose, can there be a stronger proof tliat tlie law imposes j ^ gal disaLility to contract ? To such transactions it gives no sanction. They have no leo-al existence, and the whole of such commerce is attempted without its protection and against its au- thority. Bynkershoek expresses himself with great force upon this argument, in his first book, chapter ' 7, where he lays down, that the legality of com- merce, and the natural use of courts of justice, are inseparable. He says that cases of commerce ai-e undistinguishable from cases of any other species, in this respect. Si ho-sti semel permitta-s actiones exercere^ difficile est distingiiere, ex qua causa orian- tw\ nee potui animadvertere illam distinctionem unquam usu fiiisse serva tarn. " Upon these, and similar grounds, it has been the established rule of the law of this court, con- firmed by the judgment of the Supreme Court, that a trading with the enemy, except under a royal license, subjects the property to confiscation, and the most eminent persons of the law, sitting in the supreme courts, have uniformly sustained such judgments. " In all cases of this kind which have come be- fore this tribunal, they have received a uniform de- termination. The cases which I have produced, prove that the rule has been rigidly enforced where acts of Parliament have, on different occasions, been made to relax the ua-vdsration law and otlier Relaxation of re venue acts, wiiere the government has authorized, pension of under the sanction of an act of Parliament, a home- particular ^^ ward trade from the enemy's possessions, but has °^^^- not specifically protecte ! an outw; r ! trade to the 22 COMMEECE SUSPENDED. same, tliougli iDtimately connected witli tliat liome- warcl trade, and almost necessary to its existence ; that it has been enforced where strong claim, not merely of convenience, l)ut almost of necessity, ex- cused it on behalf of the individual ; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all ]3ossi- ble diligence to countermand the voyage after the first notice' of hostilities, and that it has been en- forced not only against the subjects of the crown, but likewise against those of its allies in the, war, upon the supposition that the rule was founded on a strong and universal principle, Avhich allied states in war had a right to notice and appl)^ mutually to each other's subjects. Indeed, it is the less neces- sary to produce these cases, because it is expressly laid down by Lord Mansfield that such is the mari- time law of England."^ The rigid interdiction of commercial intercourse between belligerents has, in England, been earned to the extent of prohibiting the remittance of sup- plies to a British colony, while it was under the temporary subjection of the enemy. Grenada, a British possession, had been seized by the I^rench, • but by the ])ul>lic enactments, both of France and Great Britain, the island was not considered to have entirely lost its national character — for French or- dinances had been made reffardino- it, inconsistent with its being considered a strictly French posses- sion ; and it had been enacted by the British Parlia- ment, for the expressed purpose of giving relief to the proprietors of estates there, that no goods of ' Gist. vs. Mason, 1 T. R. 86. COMMERCE SUSPENDED. 23 tlie produce of Grenada, on board of neutral ves- sels, going to neutral ports, should be liable to con- demnation as prize. Notwithstanding these legislative declarations, that the character of Grenada was not to be regard- ed as strictly hostile, and notwithstanding the ex- press permission to export the productions of the island, a neutral vessel sent from England with goods to be imported into Grenada, was seized, as en2:ao'ed in unlawful intercourse with the enemy, and condemned in the vice-admiralty court of Bar- badoes. The sentence of condemnation was con- firmed upon appeal to the privy council.^ A similar strictness has been adopted, in the ap- strictness of plication of the principle, by the courts of admir- ™^^^ ^^^/^"^^^J-^ altv of the United States. An American citizen of the United •^ ... . . states. had purchased goods in a British possession, prior to the commencement of hostilities between the two countries, and had deposited them on an island near the frontier. After the breaking out of hostilities, he chartered a vessel to jproceed to the island and carry his merchandise to a port in the United States. On her return with the cargo, the vessel was captured, and vessel and cargo were con- demned.^ Upon the confirmation of the judgment of con- demnation, on appeal to the Supreme Court, the entire recognition of, the ]:»rinciple of commercial non-intercoui'se between belligerents is thus clearly expressed. " Whatever relaxations of the strict rights of war have been established by the more mild and miti- ' The Bella Gwdita, 1 Rob., 207. * The Rapid, 8 Cratich, 155. 24 COMMERCE SUSPENDED. gated practice of modern times, tliere has been none on this subject. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse Necessity for between the states at war. The whole nation is forcement^of embarked in one common bottom, and must be re- theniie. coucilcd to ouc couimon fate. Every individual of the one nation, must acknowledge every individual of the otlier nation, as his own enemy, because he is the enemy of his country. It is no excuse for such trading with the enemy, that the property was purchased before the war — much less that the goods only, and not the j)urchase, existed before the war, in the enemy's country." In numerous other cases in the American courts the same principle has been invoked and applied with uniform strictness.^ In the case of The Lord Wellington^ 2 GalHson, 103, an American vessel received a carffo from on Penalty of vlo- ' , , . , , ^ lation of the Doard au cncmy s ship, under the pretence ot ran- som. After she had discharged her cargo, and upon her return voyage, she was seized and condemned as lawful prize of war, as having been engaged in inilawful commerce with the enemy. In the case of The Alexander^ 8 Cranch, 169, a ship, owned by citizens of the United States, was captured by the enemy, taken into the enemy's port, and there, upon the hearing of the libel, she was discharged, upon its being made to appear that she was sailing under an enemy's license. A cargo was then purchased antl laden on board of her in the ' The Laiorence, 1 (jlallison, 470 ; The Alexander^ ib., 532 ; The Mary, ib., G20 ; The Joseph, ib., 540 ; The Lord Wi'llinr/to7i, -2 ib., 103. I, COMJVIEKCE SUSPENDED. 25 enemy's country, and on her voyage home she was captured. She was condemned as having been en- o-aged in an illicit trading with the enemy. In the case of ships sent on errands of humanity Truce or cartel in time of war, called truce or cartel ships, the rule ^ ^^ of commercial non-intercourse is enforced with pe- culiar sternness. The Venus was a British vessel, which had gone to Marseilles, under cartel, for the exchange of prisoners. While there, a cargo was laden on board, and on her voyage thence to Poii: Mahon, she was stranded and captured. Upon a full view of all the circumstances of the case, judg- ment of condemnation ^vas j)assed against her by Lord Stowell. " The conduct of ships of this de- scription," he says, " cannot be too narrowly watch- ed. The service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent upon all parties to take care that it should be conducted in such manner as not to become a subject of jealousy and distrust be- tween the two nations." Again, and in another case of a like character. Lord Stowell says : " The employment to which the privilege of cartel is allow^ed, is of a very peculiar nature. It is a mode of intercourse between hos- tile nations, invented for the purpose of alleviating, in some degree, the calamities of war, by restoring to their liberty those individuals who may happen to have fallen into a state of captivity. It is the mutual exchange of prisoners of war, and therefore, properly speaking, it can have place beirween bel- ligerents only." " It is not a question of gain, but one on which depends the recoveiy of the liberty* of individuals who may happen to have become 26 COMMEECE SUSPENDED. prisoners of war ; it is, therefore, a species of navi- gation wliicli, on every consideration of Lumanity and policy, must be conducted with the most exact attention to the original purpose, and to the rules which have been built upon it ; since, if such a mode of intercourse is broken off, it cannot but be followed by consequences extremely calamitous to individuals of both countries." " Cartel ships are subject to a double obligation to both countries, not to trade. To engage in trade may be disadvanta- geous to the enemy, or to their own country. Both are mutually engaged to permit no trade to be car- ried on under a fraudulent use of this intercourse. All trade must therefore be held to be prohibited, and it is not without the consent of both govern- ments, that vessels engaged in that service can be permitted to take in any goods whatever.'" If a ship be really and in good faith going as a cartel, on a voyage for the purpose of bringing pris- oners, she will be protected from condemnation, even although she is without a regular certificate of cartel ; and this protection extends to the return voyage.^ M'hile the rule of prohibition of commercial in- tercourse between belligerents is applied with the utmost rigor to cartel ships, yet, in the interests of humanity, their emj)loyment for the legitimate pur- pose of cartel is encouraged and protected. Contracts made for their equipment and supply are considered as contracts between ' friends, and • The Rose in Bloom, Dodson, GO ; The Caroline Verhage, 6 • Rob., 3:36. « The Diafjie, 3 Rob., 139; La Gloire, 5 Rob., 192. COMMEECE SUSPElsTDED. 37 consequently are enforced in tlie judicial tribunals of either hellio^erent. Such vessels are reo^arded as licensed neutrals, and all persons connected with their navigation, in the particular service in which both belligerents have employed her, are neutral in respect of both, and under the protection of both. Persons placed on board a cartel, with their own consent, by the government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore a capture made by such persons from the enemy, of a vessel of their own country, is not, in contemplation of law, a re- capture, and confers upon them no right as salvors, nor does it restore the former owner to his title to the vessel.^ The j)rinciple which interdicts commercial inte]'- Uuio of sus- course between belligerents, is equally ap]:)licable commCTcM in- to theil' allies. tcrcourse ap- . Tin IT plical^le to al- "It IS well known, says Lord Stowell, "that aiiesasweii as declaration of hostility naturally carries with it an ^ '^^^^" ^' interdiction of commercial intercourse. It leaves the bellio-erent countries in a state which is incon- sistent with the relations of commerce. This is the natural result of a state of war, and it is by no means necessary that there should be a special in- terdiction of commerce to produce that eftect. At the same time it has happened,' since the world has grown more commercial, that a practice has crept in of admitting particular relaxations, and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a single belligerent chooses to weaken ' Crawford v&. The William Penn, Teters, lOG; The Mary Fol- ger, 5 Rob., 00 ; La Rosine, 2 Rob., 372. 28 COMMERCE SUSPENDED. and dilute his own riglits, but it is otherwise when allied nations are pursuing a common cause against a common enemy. Between them it must be taken as an implied, if not an express contract, that one state shall not do any thing to defeat the general object. If one state admits its subjects to carry on an uninter- rupted trade with the enemy, the consequence may be, that it will supply that aid and comfort to the enemy, especially if it be an enemy like Holland, very materially depending on the resources of for- eign commerce, which may be very injmious to the prosecution of the common cause and the interests of its ally. It should seem, therefore, that it is not enough to say that one state has allowed this prac-' tice to its own subjects; it should appear to be, at least, desirable that it could be shown, either that the practice is of such a natui-e as can in no man- ner interfere with the common operations, or that it has the allowance of the confederate state."^ A.ttemptsto The allurement of brilliant profits which may orsuspe^ndou I'^sult from a successful violation of the rule of of commerce, prohibition of Commercial intercourse between bel- ligerents, has led to many individual attempts to evade the rule, or avoid the penalties of its infringe- ment by various artifice ; but no ingenuity has yet succeeded in discovering a mode by which a trade between belligerents can be carried on with impu- nity, without the authorization of the governments. In one case, a cargo was shipped in England, des- tined for the mark.:L of the enemy. An attempt ' The Neptune, 6 Rob., 405. COMMEECE SIJSPEI^DED. 29 was made to protect it by dividing tlie voyage, so that the cargo sliould be taken in the first instance to a neutral port, from wMcli it might or might not thereafter, be carried to the place of its real destination — the port and market of the enemy .^ U2:)on a capture being made, it was condemned to the captors. In his ojiinion in this case. Lord Stowell says: "Without the license of govern- ment, no communication, direct or indirect, can be carried on with the enemy. Where no rule of law exists, a sense or feeling of general expediency, which is, in other words, common sense, may be fairly applied ; but where a rule of law interferes, these are considerations to which the court is not at liberty to advert. In all the cases that have oc- curred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy without the special license of the government. The interj)osition of a prior port makes no difference ; all trade with the enemy is illegal ; and the circumstance that the goods are to go first to a neutral port, will not make it lawful ; the tracle is still liable to the same abuse, and to the same political danger, whatever that may be." In another case, an attempt was made to protect property purchased in the country of the enemy, by the employment of a neutral intermediary ; but upon capture, it was condemned as la^^^ul prize, the neutral being regarded in such case, as the mere agent, the property being considered, in legal in- tendment, as passing directly from the enemy to the purchaser.^ ' The Jonr/e Pieter, 4 Rob., 79. ' The Samuel, 4 Rob., 284 ; 8 Term. R., 548. 30 COMMERCE SUSPENDED. In another case, an attempt was made to elude tlie rule by carrying on the trade -with tlie enemy by a firm consisting j)artly of neutrals and partly of belligerents, but it was held that " even an inac- tive or sleeping partner, as it is termed, cannot re- ceive restitution in a transaction in which he could not lawfully be engaged as a sole trader."^ The earlv decisions in the Ensrlish common law courts in which the doctrine of the illegality of commercial intercourse between bellio:erents was involved, were not in entire conformity with the principle as established in the admiralty.^ But a uniformity of decision was definitively determined by Lord Kenyon in a later case,^ in which he says : Present uni- "The rcasous Urged, and the authorities cited, are formitj^ of law t ... -, i • , and admiralty Ko many, and SO uuitorm, and so conclusive, to thSpoint°^ show that a British subject's trading with an enemy is illegal, that the question may be considered finally at rest, and it is needless to delay giving judgment, for the sake of pronouncing the opinion of the court in more formal terms." Rule of sus- The reasons on which the princi23le is established, pension in which iutcrdicts commercial intercourse between commerce ap- _ ^ • _ n piicabieon bellig^ereuts, make it eqnally applicable, whether ^nd as well as ? x ^ j. j. j m water. that intercourse be conducted upon the land or by water. A note in Rolle has been cited as authority, showing that it was anciently deemed illegal for an English subject to trade with Scotland, then in a general state of enmity with England.^ Lord Stow- ell, in the case of The Hoop, before cited, refen-ing ' Th" Franklin, 6 Rob., 131. ^ Gist vs. Mason, 1 Term R., 84 ; Bell vs. Gibson, 1 Bos. & Pul., 245. 3 Potts vs. Bell, 8 Term R., 548. MloUe's Ab., 173. COMilEECE SUSPENDED. 31 to tlie note in Rolle, says : " Wliat the common law of England may be, it is not necessary, nor perhaps proper, for me to inquii'e ; but it is difficult to con- ceive that it can, by any possibility, be otherwise, for the rule in no degree arises from the transac- tion being on the water, but fr^om principles of pub- lic policy, and of public law, which are just as weighty on the one element as on the other, and of which the cases have more fi'equently happened upon the water, merely in consequence of the insu- lar situation of this country." Although the rule of prohibition of commercial intercourse between belligerents is applied by courts of admiralty in the exercise of prize jurisdiction with the utmost rigor and strictness, yet in many Rigorous en- cases which have arisen, the disposition has been ['J.'Jruirtitb clearly manifested not to extend the rule beyond 'Q its just . , - . . , . ^1 limits. the limits required by a just consideration oi the reasons and policy upon which it is founded. The ship AhUj sailed from a port in England for cases iiiusira the island of Demerara, then a Dutch colony, on JJ"; onts'"^^; the 11th of September, 1795. War was declared forcement. with Holland on the 16th of the same month, and, of course, Demerara became, ipso facto, a hostile possession. The ship was captm-ed off its coast, in May, 1796 ; but in the meanwhile the island had surrendered to a British force, and consequently had become a British colony. It was held by Lord Stowell that, as the port to which the ship was destined did, at the time of her carrying the design into eifect, belong, not to an enemy, but to his Britannic Majesty, the ship was not to be deemed in fact an illegal trader.^ > The Ahhy, 5 Rob., 251. 32 COMMERCE SUSPENDED. " I conceive," said lie, "that there must be an act of trading to the enemy's countr}', as well as the intention ; there must be, if I may so sj)eak, a legal as well as a moral illegality. If a man fires a gun at sea, intending to kill an Englishman, which would be legal murder, and does not kill an Eng- lishman, but an enemy, the moral guilt is the same, but the legal effect is different — ^the accident has turned up in his favor — the criminal act intended has not been committed, and the man is innocent of the legal offence. So, if the intent was to trade with the enemy (which I have already observed cannot be ascribed to the party at the commence- ment of the voyage, hostilities not having then been declared), but at the time of carrying the de- sign into effect, the person is become not an enemy — the intention here wants the corjpus delicti. " No case has been produced in which the mere in- tention to trade with the enemy's country, con- tradicted by the fact of its not being an enemy's country, has enured to condemnation. Where a country is known to be hostile, the commencement of a voyage toward that country may be a sufiicieiit act of illegality; but where the voyage is under- taken without that knowledge, the. subsequent event of hostility will have no such effect. On principle, I am of opinion that the party is free from the charge of illegal trading." English merchants shipped on board a Spanish ' vessel bound from London to Corunna, a quantity of merchandise, to the order of Spanish merchants. Shortly after the shipment, and the voyage had commenced, hostilities were declared between Great Britain and Spain, and on the voyage the vessel was COJVOIEECE SUSPENDED. 83 seized by a Britisli captor.^ Lord Stowell decreed restitution of tlie property to the shippers, sa}dng : "Tiie Engiish merchants who shipped the goods Avere not called upon to know that the injustice of the other party would produce a war before the goods were delivered — ^the goods were to have been at tlie risk of the shipper till delivery — and the contract was perfectly fair." In all cases, however, in which voyages have been commenced for trade with the enemy's coun- try before the breaking out or declaration of hos- tilities, it is incumbent upon the claimants whose pro23crty is captured, to show that on the first notice of hostilities, all diligence possible was employed to effect a countermand of the voyage, or to change the destination of the vessel, so as to avoid the culpability of an illegal trading with the enemy. If such exertions have not been made, and if, either through neglect or design, the goods have been al- lowed to leave the enemy's country, no excuse, based upon individual inconvenience, or the ne- cessity or policy of withdrawing property out of the country of the enemy, can of strict right avail, to avert a judgment of condemnation upon a cap- ture. It was held in the case before cited, of Bell vs. Gibson, that if an Englishman, at the commence- ment of hostilities, have merchandise in an enemy's country, he might withdi'aw it therefrom. But, as we have seen, the later case of Potts vs. Bell., re- versed that doctrine, and it was there definitively established that trading with the enemy is ground ' The Packet De Bilboa, 133. 34 COMllEKCE SUSPENDED. of confiscation, and this without any exception, even upon the fact being shown that the goods were purchased before the war. Mitigation in jj^ cascs w^hich prescut circumstances of extreme cases oi groat _ J- _ ^ hardship.' hardship, courts of admiralty, in the exercise of prize jurisdiction, have manifested a willingness to soften the asperity of the rule, in its application. In the case of ^''Tlie Dree Gehroeders^\ Lord Stow- ell said : " Pretences of withdrawing funds are at all times to be watched with considerable jealousy; but when the transaction appears to have been con- ducted hona fide with that view, and to be dii-ected only to the removal of property which the acci- dents of war may have lodged in the belligerent's country, cases of this hind are entitled to be treat- ed with some indulgence."^ In another case in which an indulgence was al- lowed by the court for the withdrawal of property from the enemy's country, Lord Stowell declared that his decree must be considered as in no degree relaxing the necessity of obtaining a license.^ In another case^ decided by Lord Stowell, it would seem that the rigor of the rule was made to bend to the peculiar circumstances. Upon an examination of the circumstances, it will be found that although the letter of the rule may be relaxed, its spirit is not contravened. The property in question, in that case, consisted of wines, a portion of which had been purchased in S2:)ain, for the supply of the British fleet, before hostilites with that country. After the breaking ' The Dree Gebrocders, 4 Rob., 234. ^ The Juffrow Cathcrina^ 5 Rob., 141. ' The Madonna delle Grazie, 14 Rob., 195. COmiEECE SUSPENDED. 35 out of the war, a secret deposit was made of tlie wines in Spain, and from thence they were removed to Leghorn ; previous to which, however, some new- ly purchased wines were added for mixing, in order to color the stock which had become too pale to be salable. The mixture of the new wine, purchased after the commencement of hostilities, was consid- ered by the learned court so indispensably neces- sary to the disposal of the old cargo, as not to af- fect the legality of the transaction. The coui't then proceeds to excuse the want of a license in that case, as follows : " It is said that Mr. Gregory, the claimant in that case, might have obtained a license. I certainly do not mean to weaken the oblisration to obtain licenses for every sort of communication with the enemy's country, in all cases where the measui'e is practica- ble ; but I think I see great difficulties that might have occurred in applying for a license, or using it, in the present case. How could Mr. Gregory de- scribe his wines as to the place from whence they were to be exported ? They were deposited secret- ly, and could only be exj)orted by particular oppor- tunities. On the other hand, can I entertain a doubt tha^t government would have been very de- sirous to protect him in the recovery of his prop- erty, purchased under a contract with them? Or, on the ground of public utility, is it too much to hold out this encouragement to persons engaged in contracts of this sort, that they shall obtain every facility in the disposing of such stores ? It would be considerable discouragement to per- sons in such situations, at a distance from home, and employed in the public service, if they were to 36 RIGHTS AKD LIABILITIES EESULTIISTG FEOM WAE. know, tliat in case of hostilities intervening, they would be left to get off their stores as well as they could, with a danger of capture on every side. The circumstances of this case may be taken as virtu- ally amounting to a license, inasmuch as if a license had been applied for, it must have been granted." Commerce carried on without license, by a citi- zen resident in an enemy's country, even though he be a representative there of his own country, and even though such commerce be manifestly benefi- cial to his own country, is illegal, and the property whioh is the subject of it may become lawful ])Tize? Under this chapter, which treats of the rights and obligations and liabilities of citizens of belligerent nations and their allies, the effect which a condition Legal effect of War, of itself, produces upon the person, proper- ^iTOTopeSy ' "^y ^^^ rights of the citizen may be briefly consid- and rights of ercd. The property of a nation consists of the property of the aggregation of individuals composing that nation, and therefore, a claim to indemnification for injuries sustained from a foreign state (to enforce which, is the ostensible cause of all international wars), may be satisfied by a seizure of the property of any individual members of that state. Upon this principle, the practice of nations in time of war has always proceeded. Although, as Grotius says, there is no natural responsibility of one person for the offences of another, yet by the law of nations, the ^^jm^e gentiwrn vohmtario^'' the whole propei-ty of the individual members of a state is responsi- ' Ex parte Baglehole, 18 Ves. Jr., 528; 1 Rose, 2'71. RIGHTS AND LIABILITIES RESULTING FROM WAE. SY ble for tlie debts or obligations of the state or sove- reio:n.^ Upon tliis point Vattel is more empliatic. He says, that the property of individuals in the aggre- gate, is to be considered, with respect to other states, as the property of the nation itself. A nation, be- ing regarded by foreign nations as constituting only one whole, one single person, all their wealth together can only be considered as the wealth of the same person. If one nation has a right to any part of the prop- erty of another, she has an indiscriminate right to the property of the citizens of the latter nation, un- til the debt is paid.^ From this principle result many important rio^hts General right of caTDtures. and liabilities, such as captures, reprisals, &c., by reprisals, kc which the property of any citizen of an enemy's state is seized as indemnification for the injuries sustained by the state or the citizens. These ^vill be more fully considered hereafter. Resulting from this principle, also, it is well es- tablished, that the persons and the property of alien enemies, found within the state, when a war breaks out, may be rightfully seized by the govern- ment, the individuals as prisoners of war, and the property to indemnify the nation. The modern practice of nations has greatly mitigated the se- verity of the rule of right, and in some instances, it has been modified by treaty ; but there is no doubt of the right, and that, in the absence of express con- vention, it may be lawfully exercised. By Magna ' Grolius De Jure, Lib. III., c. ii, § 2. * Vattel, Droit des Gens, Liv. II., c. vii., §§81, 82. 38 RIGHTS ATJD LIABILITrES RESULTING FROM WAR. Cliarta of Great Britain, it was provided tliat tlie mercliants of a foreign nation, found in Great Britain, upon the breaking out of hostilities with that nation, should Ibe detained, until it were known how British subjects were treated by the enemy, and then to be released or detained accordingly.^ Pule in the In the Middle Ages, the rule was rigidly enforced, early aged, j^^^ -^^ relaxation commenced with the advance of civilization and the growing appreciation of the im- portance of commerce. As early as 1483, Louis XI. granted protection to the persons and property of the Hanse Towns, with liberty to remain for one year after the war broke out.^ In the sixteenth century it became a common stipulation in commer- cial treaties between nations, that the citizens or subjects of either should be allowed a specified time, varying from three months to two years, from the commencement of a war, during which they mio'ht remain unmolested for the settlement of their afiiiirs, and retire peaceably, at any time within the Treaty stipuia- Period Stipulated. By the treaty of 1786 between tions. Great Britain and France, it is provided that the subjects of either power shall be allowed to con- tinue their residence during war, in the dominions of the other, as long as they comport themselves to the satisfaction of the government.^ An article of a similar character was insei^ted in the treaty of 1795 between the United States and Great Britain. By this it is provided, that the citizens of either power may remain unmolested during war in the ' Blackstone's Law Tracts, XVII.-XXXIIL, LI. * Dumont, IIL, ii., 123. s De Marten's Recueil, IV., 156. EIGHTS AND LIABILITIES EESULTDn-G FEOJM WAR. 39 dominions of tlie other, as long as ttey " behave peaceably and commit no offence against the laws ;" and in case either government thinks j^roper to de- sire their removal, twelve months' notice shall be allowed them for that purpose,^ But, as before re- Modern rule marked, where there is no treaty stipulation to the j^^^^^gjip^ contrary, the right remains. The rule so well es- tions. tablished in Eui^ope has been recognized by the hip-hest federal tribunal in the United States. " However strong," says Chancellor Kent, " the cur- rent of authority, in favor of the modern and milder construction of the rule of national law on this sub- ject, the point seems to be no longer open for dis- cussion in this countiy, and it has been definitively settled in favor of the ancient and sterner rule, by the Supreme Court of the United States. The ef- fect of war upon British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly con- sidered, in the case of " Brown ;" and the Circuit Court of the United States at Boston, decided, as upon a settled rule of the law of nations, that the goods of the enemy found in the country, an\i all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation, and the exercise of the right vested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assume. 1, that war gave to the sovereign the right to take the persons, and confiscate the property of the enemy, wherever ' De Marten's Recueil, V., 686. 40 RIGHTS Al^D LIABILITIES RESULTING FROM WAR. fouud, and tliat tlie mitigation of tliis rigid rule, whicli the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not im- pair the right itself"^ Property ex- There is one description of property of the enemy empt from the , . , . . • ^ t , -i • • ^ *^ rule, pubuc wiiicli IS inYariably respected m time of war, and that is, the sums due from the state to the enemy, such as the property which the enemy may have in the public funds or stock. This property is justly regarded as intrusted to the faith of the nation. Its credit, honor, security, require that it should be held sacred. An attempt was made by Prus- sia in 1752 to apply such property for the pur- pose of reprisals. But it was universally held at the time as an infamous breach of public faith, without example to justify it, and not likely to fui'nish excuse or precedent for future action.^ Private debts. But debts due from individuals to subjects or citizens of the enemy's country, stand in an entirely different position from that of debts due from the state which are under the guaranty of the national honor. Debts due from individuals to the enemy, may undoubtedly be confiscated, by the rigorous application of the rights of war, being the projoerty of the enemy, and therefore liable to confiscation ; but in modern warfare the exercise of this ri^rht has been almost universally discontinued. " The claim of a right to confiscate debts," says Chancellor Kent, "contracted by individuals in ' Kent's Com., Vol. I., 59 ; Broivn vs. The United States, 8 Oranch, 110; Ware vs. Hilton, 3 Dallas, 199. ^ Charles De Marten's " Causes Celeb, du Droit des Gens," Vol. II. RIGHTS AND LIABILITIES EESULTESTG FEOM WAE. 41 time of peace, and whicli remain due to the sul)- Private debts jects of the enemy at tlie declaration of war, rests ^spe^ded but very much, upon the same principle as that concern- gg^^^g^''^ ^°^g ing the enemy's tangible property found in the modern mip. country at the opening of the war. In former times, the right to confiscate debts was admitted as a doctrine of national law, by Grotius,^ Puffendorff,^ , Bynkershoek,^ and Lord Hale.* It had the coun- tenance of the civil law,^ and even Cicero,^ when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favor of the right. But VatteF says that a relaxa- tion of the rigor of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who shoid(} act contrary to it, would violate the public faith, for strangers trusted his subjects only from a fii'm per suasion that the general custom would be observed. There has been frequently a stipulation in modern the subject, treaties that debts or moneys in the public funds should not be confiscated in time of war, and these conventional provisions are evidence of the sense of the governments which are parties to them, that the right of confiscation of debts and things in action is against good policy, and ought to be discontinued. The treaties between the United States and Colombia, in 1825, and Chili, in 1832, and Venezuela in 1836, and the Peru Bolivian Con- ' Grotius B. L, c. i., § 6; B. IIL, c, iii., § 4. ' PiifF. I., 8, c. vi., 19, 20. 3 Byjji,_ i^ j^ (,_ ^^j^ ' Lord Hale, I., 95. " Dig. 41, 1, 49, 15. ' Cic. De Off. I. 3., c. xxvi. ' Vattel B. III., c. v., § 77. 42 EIGHTS A^^D LIABILITIES EESULTIKG FEOM WAE. federation in 1838, and of Ecuador in 1839, con- tained sucli a provision. But tlie treaty between the United States and Great Britain in 1795, went further, and contained the explicit dechxration that it was " unjust and impolitic that the debts of in- dividuals should be impaired by national differ- ences." Vattel says, that everywhere, money lent to the public is exempt from confiscation and seiz- ure in time of war. Emerigon^ and Martens^ make the same declaration. With regard to the United States, however, the cases of Brown vs. The United States^ 8 Cranch, 110, and Ware vs. Hilton^ 3 Dal- las, 199, establish it as a principle of public law, as far as the same is understood and declared by the highest judicial authorities in that country, that it rests in the discretion of the legislature of the Union, by a speci'dl law for that purpose, to confis- cate debts contracted by its citizens and due to the enemy, though, as it is asserted by the same author- ity, this right is contrary to universal practice, and may therefore well be considered as a naked and impolitic right, condemned by the enlightened judgment and conscience of modern times."^ But the modern practice of nations in war, while departing from the ancient rule of confiscation of debts to the enemy, is uniform in suspending their payment, either by absolute prohibition, or by clos- ing the doors of the courts against proceedings for their enforcement. Thus the debt is not annulled, but the remedy to reduce it to possession is sus- ' Emerigon, Des. Ass. I., 567 ; De Martens, B. VIII. c. ii., § 5. ' Kent's Cora., I., 71 ; The Ann Greaie, 1 Gall., 292. EIGHTS AISTD LIABILITIES EESULTESTG FEOM WAE. 43 pended. Tliis doctrine was establislied in a lead- ing Eno-lisli case, in whidi one Boussemaker, a bank- rapt, was indebted to certain alien enemies, whose debts the commissioners refused to admit. On tke return of peace, these creditors filed their petition, praying to be allowed to prove theii' claims, and upon the d ecision of the case in the Court of Chancery, the Lord Chancellor took occasion to explain the distinc- tions of the law and its principles on the important question whether the right of an alien enemy was destroyed, or only suspended by war. " If this " says his lordship, "had been a debt arising from a contract, entered into with an alien enemy during war, it could not possibly stand, for the contract would be void — but if the two nations were at peace at the date of the contract, though, from the time of war taking place, the creditor could not sue, yet, the contract being originally good, uj)on the return of peace the right would revive. It would be contrary to justice, therefore, to confisc^ite this dividend. Though the right to recover is sus- pended, there is no reason why the fund should be divided among the other creditors. The point is of great moment, from the analogy to the case of an action. " The policy of avoiding contracts with an enemy is sound and wise ; but where the contract was orig- inally good, and the remedy is only suspended, the proposition that therefore the fund should be lost is very different."^ ^ Ex parte Boussemaker, 13 Ves. Jun., 71. 44 THE CIVIL WAE IN THE ITNITED STATES. THE CIVIL WAR IN THE UNITED STATES; With a Review of the Judicial Discijssio]S"s ais^d Deteeminations of the Rights and Liabilities Resulting Theeefeom. [In this supplement to the chapter which treats of the rights and lialDilities resulting from war, it is proposed to consider the grave and interesting ques- tions connected with those rights and liabilities, which have constituted the basis of objections to the validity of the maritime captures made during the existing civil war in the United States ; and to recite, at such length as the great importance of the subject may justify, the judicial discussions and de- terminations which have thus far been had upon these questions. Belligerent The government of the United States, in entering cisedbythe upou the performance of its momentous duty of m'th?co!fduct Suppressing an insurrection of its slaveholding citi- nf the civil zcus, wliich had assumed the character and propor- tions of civil war, saw fit to bring into exercise its belligerent rights, so far as they relate to the com- merce and commercial intercourse of the insurgent section, carried on by means of the ports upon its coast or rivers. These rights were asserted by the Executive in- stitution of a blockade of these ports. Having in view the purpose for which the block- ade of the southern ports was established, namely, the cuttinof off the insurs^ents from all means of con- verting their movable property into warlike muni- tions and stores for subsistence, which would enable them to prosecute and prolong the unholy contest RIGHTS AND LIABILITIES RESULTESTG THEEEFROM. 45 upon wLicli tliey had entered, tlie wisdom of the ^^'i'^ wisdom T (^ • TIT 111T 1 °^ ''"^ policy poncy of resorting to a belligerent blockade, rather of the beiiiger- than to the sovereign right of closing the ports by of iheTnsur- miinicipal regulation, cannot be questioned. gent ports; A bellig-erent blockade addresses itself to neutral commerce throughout the world. It speaks to neu- ti'al traders in all quarters of their dispersion, pro- hibiting them from fitting out their vessels for a voyage to any of the invested ports, forbidding their approach to such ports under any pretence whatsoever, and holdins; over them the terrors of capture and its consequences, not only for the act- ual but the attempted offence, and not only upon the voyas^e on which the interdict was evaded, l^ut at any time on the voyage following that of the offence, and not only while in the act of violation, but an}^vhere upon the high seas, out of neutral jurisdiction. The closing of the ports by municipal regulation, in preference ■\ -I ' ,-i 1 , c , T-,T. toa municipal declaring them no longer ports or entr}- and deliv- regulation, ery, is a sovereign right, which can be exercised and ports^L^ports enforced only within the territorial jurisdiction of of entry. the nation. Beyond the few miles fi'om the coast, to which that jurisdiction is limited, it is wholly inoper- ative. The fittins: out of vessels avowedly destined to ports thus closed, is no offence. The approach to, and hovering about, such closed ports, Avith the avowed design of entering whenever opportunity occurs to avoid the revenue cruiser, is not a culpa- ble act, for which any penalty can be imposed ; and seizure must be made of the offending vessel before she reaches that line which marks the restricted 46 THE CIVIL WAE LN" THE UNITED STATES. limits of the sovereign's jurisdiction, or it cannot be made at all. To enforce sucli a regulation, all the naval forces of the world would be ho2:)elessly inadequate. When to this is added the consideration, that pro- ceedings for the forfeiture of property seized for an mft-action of the municipal regulation, must be taken upon the instance side of the Admiralty Courts of the sovereign, and conducted v^ithout any of the summary and speedy action and deter- mination, which may and should distinguish the courts that are organized for the enforcement of belligerent rights under the law of nations, it seems incredible, that any one can have doubted the wis- dom of the policy adopted . to effect the purpose of commercial interdiction, or have seriously proposed its virtual abandonment, by a resort to the munici- pal regulation. Objeciions But, the institution of a blockade, under the law ySfty of Sp- ^^ nations, being the exercise of a purely belligerent tines for tiio riD'ht, prcsupposcs the existence of war — of war violation of ? • i • • , 1 -x xi i? li- the blockade, wliicn carries With it the consequences oi a public war, imposing restrictions upon neutral commerce, and subjecting to confiscation, property impressed with hostility of character ; and, it was urged by distinguished advocates, as a fundamental objection to the validity of captures made either for the vio- lation of the asserted bellig-erent rie-ht, or as the property of public enemies, or impressed with a hostile character, that under the peculiar frame of government and written constitution of the United States, a state of war, carrying with it such conse- quences, could not result merely from the existence of an armed rebellion by a portion of its citizens. IITGHTS AND LIABILITIES RESULTING THEKEFEOM, 4Y whatever its organization, and however formida- ble its dimensions; that even under monarchical or other forms of government, without written con- stitutions, there is no authority for the position, that a state of war, with the incidents of public war, results from an armed insurrection, occupying* portions or districts of an empire or kingdom, in the absence of any decree, edict, or act of legisla- tion of the supreme power. It was further argued, that if war, with its attend- ant consequences, did not exist as the result alone of the armed insurrection, it could not lawfully be called into existence by the mere exercise of the powers confided to the President by the Constitu- tion of the United States, and the laws made in pursuance thereof, for the suppression of insurrec- tion, because, by the tei-ms of the Constitution, war can only be declared or called into existence by an act of the Cono:ress of the nation. It was therefore argued, that captures made prior to any legislative enactment, and which could be U})held solely under the law of nations, as affecting commerce during the existence of public war, were without warrant of law, and should be so decreed, by restitution of the captured property. These positions were presented and illustrated with great ability and learning by the distinguished advocates, who represented the interests of neu- tral or rebel claimants, in the Federal courts of prize. How they were met and answered will l)e best judicial deter- shown by liberal extracts from the opinions of the ^g^'se^'objel- eminent judo^es presiding in those courts. '-io^s- The case first decided was that of The Tropic 48 THE CIVIL WAE IN THE UNITED STATES. Thecaseoftiie JYind, in tlie District Court for the District of Tropic Wind. ' u". s. Distrkc Colum Dia, Court for the rni • j ^' ' j. j. ± i District of Co- JLhis casc assumed a peculiar interest, not only hunbia. because it was the first which arose under the proc- lamation of blockade, but because the prize was a British vessel, and it was understood that Her Brit- annic Majesty's representative at Washington, as- sumed, to some extent, the direction of the defence, in order that the grave questions involved, affecting the rights of neutral commerce, should be thoroughly and ably presented and sustained. The vessel was captured on the 21st of May, 1861, near the mouth of James Kiver, by the United States ship Monticello, for the violation of the blockade of Richmond, by egress from that port, v/hich she had entered prior to the j)roclama- tion. Passing over the incidental, yet interesting ques- tions, which were raised in the case, as to notice of the blockade, the time when it became effective, the time allowed neutral vessels to depart, and the effect of taking in a cargo in a blockaded port, after notice of the blockade ; in this connection it is proposed to limit quotation, to the language of the court in discussing and deciding the fundamen- tal questions involved in the adjudication. Upon these, the learned judge says : ^ Opinion of Mr. " The authority of the President to institute the Justice Dun- iiit-t'itii ~t , i ••, lop. blockade, is denied by the respondents, who insist that this power, under the Constitution of the Uni- ted States, can only be exercised ]->y the national legislature. And this is the first question to be considered. " It is true no department of the Federal govern- EIGHTS AND LIABILITIES EESULTIjSTG THEEJ:FR0]\L 49 meut can exercise any power not expressly confeiTed on it by tlie Constitution of tlie United States, or necessary to give effect to granted powers ; all others are reserved to the states respectively, or to the people. In the second article, second section of the Constitution of the United States, is this provision : ' The President shall be commander-in- ' chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.' " In the war with Mexico, declared by Congress to exist by the act of Mexico (see 9 Statutes at Large, page 9), the Supreme Court have maintained, in two cases, that the President, vntfiout any act of Congress^ as commander-in-chief of the ai'my and navy, could exert the belligerent right of levying contributions on the enemy, to annoy and weaken him. In the case of Fleming et al. vs. Page (9 Howard, 615), the present Chief-Justice says: 'As. commander-in-chief he is authorized to direct the movements of the naval and military forces, placed by law at his command, and to employ them in the manner lie may deem most effectual to harass and conquer and subdue the enemy.' Again, at page 616: 'The person who acted in the character of (Collector, in this instance, acted as such, under the authority of the military commander, and in obe- dience to his orders, and the duties he exacted, and the regulations he adopted, were not those prescrihed hy law^ but by the President^ in Ms character of commander-in-cliief The custom-house was estab- lished in an enemy's country as one of the weapons of war. It was established, not for the purpose of giving the people of Tamaulipas the benefit of com- 50 THE CIVIL V,AR IX THE UNITED STATES. meree with the United States, or with other coun- tries, l)ut as a measure of hostility, and as a part of the military operations in Mexico ; it was a mode of exacting contributions fi'om the enemy to support our army, and intended also to cripple the resources ' of Mexico, and make it feel the evils and the bur- dens of the war. The duties required to b,e paid, were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of war justify, when an army is operating in the enemy's country.' "The other case to which I allude is Cross et cd. vs. Harrison (16 Howard, 189, 190). Judge Wayne in delivering the opinion of the Supreme Court, says : ' Indeed, from the letter of the secre- tary of state, and from that of the secretary of the treasurv, we cannot doubt that the action of the military governor of California was recognized as allo^vable and lawful by Mr. Polk and his cabinet. We think it was a rightful and cori-ect recognition under all the circumstances, and when we say right- ful we mean that it was constitutional, although Congress had not passed an act to extend the col- lection of tonnage and import duties to the ports^of California. California, or the port of San Fran- cisco, had been conquered by the arms of the United States as early as 1846. Shortly after^^vard, the United States had military possession of all the Upper California. Early in 1847 the President, as constitutional comniander-iii-cliief of the army and navy, authorized the militarv and naA^al commanders of our forces in California, to exercise the Ijellio-- erent I'ights of a conqueror, and to form a civil government for the conquei-ed country, and to im- RIGHT] AND LIABILITIES RESULTHSTG THEREFROM. 51 pose duties on imports and tonnage as military contrihutions for the support of tlie government and of the army, wliicli had the conquest in possession, &c. No one can doubt that these orders of the President, and the action of our ^rmy and na\^ commanders in California, in conformity with them, was according to the law of arms,' 'C-i Green, The By consent, they were considered together, so tar EaiueJaci: son. as the fundamental questions were concerned, as ^j^/''''^^7trd one case ; but the utmost latitude of discussion was states District ' ^ T n Court for the accorded by the court, to an array ot counsel or Southern dis- distinguished ability, who represented the vast y^^?^ -^^^^ pecuniary interests of the respective claimants, and the questions raised w^ere presented by them, sev- erally, in exhaustive arguments of nine days dura- tion, and were subsequently enforced by elaborate printed briefs. A statement of the facts of one case will suffice for all. The ship Hiawatha, a British vessel, arrived in ^■» 68 THE CIVIL WAE IN THE UNITED STATES. the James River, at City Point, a little below Ricli- mond, on a voyage from Liverpool, wdtli a cargo of salt, on the 29th of Aj^ril, 1861, one day 2:>rior to the date of the proclamation of Commodore Pen- dergrast, announcing the effectiveness of the block- ade of that river, which was ordered by the Execu- tive proclamation, of the 19 th of April. The voyage of the ship was projected, to include a return to Liverpool, with a cargo of cotton and tobacco. Such cargo was laden on board, in the blockaded port, on and after the 11th day of May ensuing, and on the 16th day of May, the same being after the expiration of the fifteen days from the actual establishment of the blockade (allowed to neutral vessels to leave the blockaded ports, as they were with respect to cargo, at the time they first knew of the blockade), the ship, with her cargo thus laden on board, commenced her voyage out of the river, and was captured outside, by one of the blockading vessels. As will be seen by this statement, there were sub- ordinate questions of interest, involved in this adjudication, as was also the case in the proceed- ings against the other vessels. These ques^tions and their determination, are noticed in their proper connection. That portion only of the opinion of the distinguished judge will be here given, which directly relates to the fundamental questions com- mon to all the cases. After a brief review of the nature and character of the jurisdiction and proceedings of prize courts, and a lucid, preliminary statement of the points raised and presented in the arguments, the learned judge says : RIGHTS AND LIABILITIES KESULTINa THEEEFROM. 69 " It is insisted on tlie part of tlie defence, tliat OpJiion of Mr. the President, nnder tlie Constitntion, liad no power, upon the facts before the court, to institute, de- clare, or recognize, by executive acts, a condition of '' war between the United States and the insurgents and their forces, which will carry with it, in behalf of the United States, the incidents of a public war, in relation to their enemies in this contest, and als^^ to neutral nations, as between them and this gov- ernment. As consequent to that position, it is urged that the steps taken by the President to es- tablish a blockade of ports in the possession of the insurgents, are inoperative and void to that end, because the insurgents cannot be, within the mean- ing of the public law, enemies of the United States, but are only citizens of the same country in a state of internal and domestic contention ; and because the President has no authority, under the Constitu- tion and laws of the United States, to declare and impose a l)lockade of any port or place, and partic- ularly not of one within the limits of the United States ; and further, that the preliminaries and con- ditions indispensable to a valid blockade, by the law of nations, have not been observed and fulfilled in any of the cases now on hearing. " It is first to be observed in respect to the general bearing and features of these defences, which seem grounded on the assumption that the President ini- tiated and inaugurated the war against the rebels or insurgent enemies, that no public or private document or ofiicial act of the President is given in proof, conducing to show that the existing state of hostilities was produced by any authority or act of the government of the United States. The war, so 70 THE CIVIL WAE IN THE U^HTED STATES. far as the government have been proved to be actors in it, and so far as the evidence characterizes it, has been wholly defensive, and in protection of the property and existence of the government itself, and in no particular, up to the captures in question, did it partake of the character of an oifensive and aggressive war, in its conduct on the part of the United States. " The question pressed earnestly during the discus- sion, whether the President, without the authority of Congress, can declare or initiate an offensive war, therefore, becomes merely speculative on the merits of the debates. The inquiry is, if he is, by the Constitution and laws of the country, clothed with power to defend the nation against an aggressive war waged for its extermination by internal ene- mies; and if so, what public condition in relation to the belligerents and neutral powers results from such warfare. " Much stress has been laid in the progress of the argument on the want of an open declaration of war by the President, previous to his adopting and employing forcible means to repel or counteract warlike measures of an enemy, persisting in hostile attacks on the government and its property. " No one can claim as a right that a public declar- ation of war shall be promulgated, unless it be the nation by whose government it is made, and then it serves only as a notice to their own citizens or sub- jects. The declaration by manifestoes, heralds, or nuncios, does not constitute war, and the omission of the declaration can no wa}" impair its justness or efficacy, especially in a case of defensive war. (1 Kent, 51, 54. Wheat., on Captures, 13, 15. The EIGHTS AND LIABILITIES RESULTING THEREFEOM, 71 JEliza An?i, 1 Dod.'s Eep., 247 ; Diipoiiceau, on War, chs. 1, 2.) "A civil war of alarming proportions was waged with extraordinary forces and activity ; to promote the public defence, and impair the resources of the enemy, the President proclaimed the blockade of the ports referred to in the pleadings and proofs before the court. If the competency of a foreign government to question, in a prize court, the power of a belligerent to institute a blockade be conceded, or to do more than exact a strict observance of pub- lic law in maintainino; and enforcing^ such blockade by the belligerent who imposes it, I am not con- vinced by the proofs or argument adduced in oppo. sition to the cases on trial, that the lawfulness or efficiency of the blockade established have been im- peached. I hold, in time of civil war, of insurrec- tion, and rebellion, the nation assailed and attacked by hostile and rebel forces, may rightfully resist war levied against itself, alike by closing, embargo- ing, or blockading ports held by their enemies, as a means of war calculated to weaken and defeat hos- tile oj^erations to its detriment, as to accomplisli the end by direct force and superior power ; and that no sound distinction exists whether such defen- sive proceedings are employed in civil, internal, or domestic warfare, or war between nations foreign to each other. Under the law of nations, the rights incident to a war waged by a government to sub- due an insurrection or revolt of its own subjects or citizens, are the same in regard to neutral powers as if the hostilities were carried on between independ- ent nations, and apph^ equally in captures of prop- erty for municipal offences, or as prize of war 72 THE CIVIL WAR IN THE UE^ITED STATES. {Rose VS. Himely^ 4 Cranch, 241. Ihid.^ appendix, 509. S. C. in Circuit Court, 4 Ihid.^ 293. Hudson vs. Gustien^ 1 Wheat., 306, Santissima Trinidada. " Commercial ports, in time of war, may become efficacious allies to an enemy holding them, through neutral trade. So far as that aid avails the enemy, it is warlike in its nature, and may be repelled by war means. Blockade is the measure recognized by the law of nations as the appropriate remedy, and that in character and operation is peaceful as to neutrals, and warlike in respect to the enemy. The President, as commander-in-chief of the army and navy, is the functionary, under our govern- ment, who has, as incident to his office, the power and right to exercise the i-esisting and repelling means of leaitimate warfare, whenever the exio-en- cies of the case require them. " It certainly can be of no consequence whether the ports blockaded belong technically or in reality to the United States, or were the property of indi- viduals, innocent of any warlike purposes against the United States, or of aidino; its enemies. It is sufficient if the evidence shows the ports to be under the power and use of enemies of the United States. This use may be an usurped one, anU in wrong of the actual proprietary authority of the places. The right of the United States to prevent such use being turned to their prejudice, rests not at all upon the character of the true ownership and rightful authority over the places, but on that of their employment by the occupants. Whilst under the military power of an enemy it is enemy's terri- tory. ( U. S. vs. a ice, 4 Wheat., 253. This consid- eration meets, also, another ground of defence, RIGHTS AND LIABILITIES RESULTING THEREFROM. 73 earnestly ui'ged on tlie part of tlie claimants, tliat these various ports wliicli are subjected to block- ade are portions of states of the Union, and, as such, a portion of the Union itself, and cannot, therefore, be made, territorially, objects of hostile control, but only of municipal regulation and gov- ernment. Nor that more eminently can they be- come, as countries or people, enemies of the govern- ment of which they are constituent parts ; because, in that relation, they also hold an independent sovereignty as states, which cannot be infringed nor molested by authority of the United States, acting directly upon that independency. " The Union is not composed of subtleties and abstractions. The notion of a government con- structed of numerous parts, each part separate and sovereign in itself, and also sovereign of, or as against the whole, was never adopted or declared by the founders of the Constitution, and probably not contemplated or comprehended at that day. " The officers of the United States government, act within particular states, to enforce or defend the laws of the United States the same as if no state demarcation existed. The whole extent of the country is one nation and one government. In respect to the United States and its constitutional laws, there are no state lines, and state sovereignty is a nonentity. " The denominations of states existing for local and domestic purposes, are made use of and apj)lied by the insurgents in the present war, in designation of combinations of persons disrupted, so far as they had material or political power so to do, from their citizenship of and subjection to the government of , 74 THE CIYIL WAR IIST THE UNITED STATES. tlie Uuited States, in disavowal and defiance of that allegiance, and, so far as tlieir own purposes and acts can fix tlieir political status, make themselves as alien and foreign from the United States gov- ernment, as if they assumed the name of citizens and subjects of various states of Mexico or South America. "They thus make themselves avowed enemies, and wage war against the United States to accomplish its dismemberment and destruction. It can be of no consequence under what name or appellation those enemies unite and act, whether as states, secessionists, southerners, or slaveholdei's ; they are, in every just contemplation of our system of govern- ment, insurgents and rebels against a common gov- ernment, and wao'ino; war for its overthrow. " The organism of states which furnishes a form of government for j)eaceful and domestic purposes is thus sought to be perverted by the insurgents into alien sovereignties, which may exercise, under the familiar name of states, independent and coequal capacities with the national government. Such names or pretensions can have no effect to change the intrinsic nature of thino;s, and transform the residents of particular states into any thing else than citizens and subjects of the United States, and, as such, subordinate to its Constitution and laws. " But, by the instrumentality of the j)retences and means employed, the insurrection has become devel- oped into a hostile power of great magnitude and force, disavowing all unity with or subordination to the mother country, and taking to itself the attri- • butes of a distinct nationality. It thus discards all common rights under the Federal government, and, EIGHTS ANB LIABILITIES EESULTING THEKEEEOM. Y5 by force of arms, wages war to establisli one over- powering that of tlie parent nation. Tliey become enemies of the United States government by open hostilities waged against it, without losing their subjection to it individually as citizens. Govern- ment represses their rebellion and treason legiti- mately, by force of arms and war, because the mag- nitude and force of the revolt is beyond the control of the law and civil magistracy. To that end, all the constitutional powers of the President, in his capacity of commander-in-chief of the army and navy, may be rightfully called into exercise. They confront the government in masses of armed men, holding fortified posts, or ports of trade and general commerce, and they thus become belligerents and enemies of the nation, against whom all the means of war allowed by the law of nations may be right- fully employed, as was held by the Supreme Court in the case of the St. Domingo insurgents. (4 Cranch, 241.) For the reasons hereafter suggested, I forbear adding a further support by citation of authorities, than reference to a very few upon funda- mental points, and taken generally from decisions in our own courts. " In my judgment, therefore, every branch of the general defences set up against these suits is inade- quate and insufficient in law and fact to bar the prosecutions pending. I consider that the out- breaks in particular states, as also in the Confeder- ate States, was an open and flagrant civil war, waged against the United States by the insurgents in the several disaffected states, referred to in the pleadings and proofs in these several causes, at the time the several proclamations, so also referred to 76 THE CIVIL WAR IF THE UNITED STATES. and named, were issued and made by tlie President : That such insurrection was maintained by warlike means and forces too powerful to be overcome or restrained by the civil authority of the government, and that it became lawful and necessary to resist and repel hostilities so levied against the United States and its laws, by aid of the arniy and navy of the United States: That the President pos- sessed full competency, under the Constitution of the United States, and the existing laws of Con- gress, to call into service and emj^loy the land and naval forces of the United States, in the manner they were used by him, for the purpose of main- taining the peace and integrity of the Union, and * putting down hostilities waged against them ; and the President had, rightly, power to establish block- ades of ports held by those enemies, and enforced such blockades pursuant to the law of nations." The intelligent reader will find nothing to regret in the length of the preceding quotation. In thought and expression it is alike character- istic of its distin2:uished author. His cotemporaneous decisions in the law of mari- time capture— with this opinion upon the great fun- damental questions involved in all his adjudications, will be preserved as instructive precedents, and as val- uable memorials of the vigorous and comprehensive intellect of him who has long been one of the bright- est ornaments of the Federal judiciary. The case of The F. w. The next case to be considered is that of The F. District Court' W. Jolinson^ decided in the United States District S'ity^anf ' Court for the district of Maryland. EIGHTS AXD LIABILITIES RESULTING THEEEFROM. 77 This vessel was captured for an alleged violation of the blockade of the port of Norfolk, in Virginia, and as enemy's property, being owned by a citizen of Norfolk. The questions raised in the preceding cases, were here discussed with great ability, l)y distinguished counsel. In disposing of them the learned judge says : " It has been contended by the counsel for the Opinion of Mr. claimants tliat, in the joresent unhappy division in ' ^^^^^^ ^^ ®^' our country, the government at Washington has no power, either under the Constitution of the United States, or by the recognized princij)les of the law of nations, to treat the inhabitants of the states which claim to have seceded, as enemies, and to ex- ercise in reference to them those belligerent rights which all concede belong to parties engaged in a public war. And, by a public war, is here meant a war l^etween independent sovereign states. Now, I am sitting in this case, in a prize court, and the Supreme Court said (the case of The Raijid^ 8 Cranch's Reports, 155, and the schooner Adeline and cargo, 9 Cranch, 264), ' that the law of prize is a part of the law of nations.' And I am, therefore, to decide this question by the princij^les of that universal law, to which all civilized princes and states acknowledge themselves to be subject. " In the first place, let us see what is the character of the present contest in this country, and in what light it has been regarded by the executive and legislative departments of the government. In the face of all that is passing around us, it needs no argument to show that a civil war of gigantic dimensions is sweeping over the land. We are 78 THE CIVIL WAE IJS" THE UNITED STATES. almost within sound of tlie cannon of two of the largest armies that have ever been marshalled in hostile array against each other on this continent. More than one-third of the confederacy has claimed to separate from the rest, and they are now fighting about the construction of the organic instrument of the o;overnment — one side alleo-ins; that under a true construction of the Constitution, each state has a right to withdraw from the Union whenever its people so determine ; the other, that no such right exists, and that to attempt to secede is rebellion, and not, the exercise of any constitutional right. And in the states which have claimed the rio-ht to withdraw, there are now open no courts of the United States, and the laws of the United States cannot now be executed in those states, by the ordinary course of judicial proceedings. " Is this not civil war ? And has it not been so regarded by the executive department of the gov- ernment ? This is clear from the proclamations of the President of the 15th of April, of the 19th of April, of the 27th of April, of the 3d of May, and of the 10th of May, all recognizing the fact that the civil power of the government is no longer capable of enforcing the laws, and calling to its kid the power intended to be provided by the acts of 1795 and 1807, and, also, using the power of blockade, a war j)ower belonging only to belligerents either in a civil or foreign war. And the legislative de- partment has also recognized this contest as a war. For, during the last session of Congress, it not only did so by the laws which it passed for the raising of armies and providing means for their support, but in express language, on (four) different occa- EIGHTS AND LIABILITIES KESULTING THEEEFEOM. 79 sions, as will be seen by reference to tlie laws of tlie extra session of July last, pages 268, 274, 315 and 326. And the last law (p. 326), to whicli I refer, not only recognized a war as existing, but it ap- proved and sanctioned all the proclamations of the President, thereby making valid the blockade de- clared by the President in his proclamations of the 19th and 27th of April, if the President alone, ^as comtncmder-in-cldef of tlio army and navy of the United StatesJ did not possess this power under the existing circumstances of the country. " The Supreme Court (Chief-Justice Taney deliv- ering the opinion) in the case of Luther vs. Borden and others, 7 Howard, 45, say : ' Unquestionably a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the pres- ervation of order and free institutions, and is as necessary to the states of the Union as to any other government. The state itself must determine what degree of force the crisis demands, and if the gov- ernment of Rhode Island deemed the armed oppo- sition so formidable, and so ramified throughout the state, as to require the use of its military force, and the declaration of martial law, we see no ground upon w^hich the court can question its authority. It was a state of toar, and the estab- lished government resorted to the rights and usages of war to maintain itself and overcome the unlaw- ful oj)position.' " Now what say the writers on the law of nations ? Vattel says, in book 3d, ch. 18, p. 425, 'When a party is formed in a state who no longer obey the 80 THE CIVIL WAE IX THE U:^riTED STATES. sovereign, and are possessed of sufficient strength to oppose liim, or where, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection agMinst their sovereign, to distinguish that lawful resistance from rebellion which is open and unjust resistance, " ' But what appellation will they give to a war which arises in a republic torn by two factions, or in a monarchy, between two competitors for the crown? Custom appropriates the term civil war to every war between the members of one and the same j)olitical society.' "And Wheaton, in his great work on international law, says, on l3age 365 : " A civil war between the different members of the same society, is what Grro- tius calls a mixed war. It is, according to him, public on the side of the established government, and private on the part of the peojDle resisting its authority. But the general usage of nations regards such a war as entitling the contending parties to all the rights of war as against each other, and even as respects neutral nations.' " Judge Chase, of the Supreme Court, in the case of Ware vs. Hilton and others^ 3 Dallas, 199, speaking of the. effect of the act of the Virginia Convention, in June, 17Y6, and the declaration of independence by Congress, on the 4th of July following, says : 'Before these solemn acts of separation from the crown of Great Britain, the war between Great Britain and the United Colonies, jointly and sep- arately, tvas a civil war ; but instantly, on the great and ever memorable e\'ent, the war changed EIGHTS AJSTD LIx'lBILITEES EESULTIJTG THEEEFEOM. 81 its nature and became a puBlic war between inde- pendent governments ; and immediately thereupon all the other rights of an independent nation attached to the government of Virginia.' " Whether the learned judge be correct in his view, that the w^ar became a pvMic war after the declaration of independence, a view he may be ex- cused from taking, if wrong, as his own name was appended to that imperishable document, we have the sanction of his great name to the doctrine, that to such a contest there belon^-ed all the rio-hts of war. " I am therefore clear in the opinion, that, as a blockade is an acknowledged belligerent right under the law of nations, Avhere war exists, the blockade of the southern ports was lawfidly pro- claimed by the President. " In the discussion of this question, I have said nothing in reference to the sovereign rights of the government : whether it may not at the same time exercise both sovereign and belligerent rights. Such a question does not arise in the case. I have confined myself to the examination of the existence or not of belligerent rights by the .government, in reference to the present unfortunate state of the country. " And Phillimore, in his commentaries on interna- tional law, vol. 3d, page 740, gives us a simple rule by which to determine this question. He says : ' In the case of a civil war, the English law fur- nishes a good criterion as to whether the country is to be considered at peace or at war — that when- ever the king's courts are open it is a time of peace, in ludo-ment of law.' •J O " Judged l)y this standard, then, as the Federal 6 82 THE CIVIL WAll IX THE UNITED STATES. courts are closed in tlie Southern States, there is ^ a state of civil war. And the government is remit- ted to its belligerent rights, to be exercised in accordance with those maxims of humanity, mode- ration, and honor which the law of nations has pre- scribed to be observed by both parties in every civil war." The case of The last case to be considered, but by no means Warwick. the least in interest and importance, in view of the Coifrtfoftl^e eminent character and ability of the counsel, by District of whom the aro-uments were conducted, and the o-reat learning of the distinguished judge, to whom they were addressed, is that of the Amy Warivich^ which was decided in the District Court of the United States for the district of Massachusetts. The vessel, with a cargo of coffee, sailed from Rio de Janeiro (tn the 29th of May, 1861, bound for Hampton Roads, and was captured on the 10th of Jnly, by the United States cruiser Quaker City^ and sent to the port of Boston for adjudication, as prize of war, in the district of Massachusetts. Condemnation was claimed on the ground that the prize was enemy's property, being owned by citizens of Richmond, in the state of Virginia. After a brief consideration of the established rules and principles in the law of nations, as to what shall be deemed enemy's property, the learned juilge proceeds at once to the discussion of the great questions at issue. It is here given in its en- tiret}'. iSTot to do so, would be doing injustice to one of the ablest judicial disquisitions upon the legal character of the civil war in the United States, proceeding from a judge whose long experience, and ?ue. EIGHTS AND LIABILITIES RESULTING THEKEFEOM. 83 exalted reputation as a jurist, give to his opinions the weight of authority : "But it is contended that althouo-h this property Opinion of ilr Justice might be liable to confiscation if the contest were a spragu foreign war, yet that it is otherwise in a rebellion or civil war. This requires attention. As the Con- stitution gives Congress the power to declare war, some have thought that without such previous dec- laration, war in all its fulness, that is, carrying with it all the incidents and consequences of a war, can- not exist. This is a manifest error. It ignores the fact that there are two pai'ties to a war, and that it may be commenced by either. If a foreign nation should send its fleets and armies, to capture our vessels, ravage our coast, and invade our soil, would not this be war — giving to the United States, as a nation, the position and rights of a belligerent % " Such hostilities would impose upon the President the duty of exerting all his powers, as commander- in-chief of the army and navy, to capture or destroy the enemy, and if, under his instructions, an enemy's ship should be taken and sent in for adjudication, the prize court must proceed to decide the question of prize upon the principles of public law. " How this civil war commenced, every one knows. A traitorous confederation, comprising several or- ganized states, after seizing by force several forts and custom-houses, attacked a fortress of the United States, garrisoned with their soldiers, under the sanctity of their flag, and by superior military force compelled those soldiers to surrender, and that flag to be lowered. This was war — open, flagrant, flagi- tious war ; and it has never ceased to be waged by the same confederates, with their utmost ability. 84 THE CIVIL WAE IN THE UNITED STATES. " Some have tlioug-lit tliat because the rebels are traitors, their hostilities cannot be deemed war, in the leo;al or constitutional sense of .that term. But without such war, there can be no traitors. Such is the clear lang^uao-e of the Constitution. It declares that treason against the United States, ' shall con- sist only in levying war against them ; or in ad- hering to their enemies, giving them aid and comfort.' Some have aj)prehended that, if this conflict of arms is to be deemed war, our enemies must have, against the government, all the immu- nities of international belligerents. But this is to overlook the double character which these enemies sustain. They are at the same time belligerents and traitors, and subject to the liabilities of both ; while the United States sustain the double character of a belligerent and sovereign, and have the rights of both. These rights coexist, and may be exercised at pleasure. Thus, we may treat the crew of a rebel privateer merely as prisoners of war, or as pirates, or traitors ; or, we may, at the same time, give to a part of the crew the one character, and to the residue the other. And, after treating them as prisoners of war, we may exercise our sovereign power, and deal with them as traitors. The ^tem- porary non-user of such rights is not a renunciation of them, but they may be called into practical ex- ercise at pleasure. In modern times, if a rebellion has assumed such dimensions as to raise armies and involve great numbers, it has not been usual during the contest, to exercise toward prisoners the sover- eign right of dealing with them as traitors. They have generally been treated as prisoners of war until the contest is over. But this forbearance does not EIGHTS AND LIABILITIES EESULTING THEKEFEOM. 85 preclude tlieir government from afterward inflicting sucli punisliment as justice and policy may require. " Mr. Wheatcto, in his Elements of International Law, p. 365, so strongly maintains belligerent rights in civil war, that some of his language would imply that there are no other rights. This, how- ever, could not have been intended ; for, if sover- eign rights be at an end, the war is merely inter- national. Civil war, ex vi termini^ imports that sovereign rights are not relinquished but insisted on. The war is waged to maintain them. Hose vs. Himely^ 4 Cranch, 272, was a case arising out of the exercise of sovereign rights by France, in her civil war with St. Domingo. The court recognized the coexistence of belligerent and sovereign rights. Cherriot vs. Foussatt, 3 Binney, 252, also arose out of a municipal regulation made by France, in the same ci-vil war, and the court remarked that France was possessed of belligerent rights which might be exercised against neutral nations. Dohvie vs. Na- pie7% 3 Scott's E., 225, arose out of the blockade of the coast of Portugal by the Queen of that country, and the condemnation of a vessel as prize for the breach of it, was holden to be valid. See also the Santissima Irinidad, 7 Wheat., 306, and United States vs. Palmer^ 3 Wheat., 635. " The United States have, during the present war, exercised both belligerent and sovereign rights. "Examples of the former are, receidng capitula- tions^ of the enemy as prisoners of war, and holding and exchanging them as such; and a still more prominent instance is the blockade, which, before the assembling of Congress, was established by the military authority of the commander-in-chief. 86 THE CIVIL WAR 1^ THE UNITED bTATES. " I am satisfied that the United States, as a na- tion, have full and comj)lete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war. " But it is insisted that if these rights exist, still the authority to exercise them, by arresting and condemning enemy's property, must emanate from the legislature, and that there has been no legisla- tion authorizing this ca23ture. "Congress has established permanent prize tribu- nals, and created an army and navy. The Consti- tution declares that the President shall be the com- mander-in-chief of the army and navy of the United States. He is thus clothed with all the power ap- pertaining to that high office, and he is not only authorized, but bound, to exert it, when the exigency for which it was given shall arise. If a hostile power, either from without or within our territory, shall assail and capture our forts, and raise armies to overthrow our government, and invade its soil, and menace the capital of the nation, and shall issue commissions to pu])lic and private armed ships to depredate on our commerce, the President is bound to use the army and navy to carry on the war effectively against such an enemy, both by land and l)y sea. And he may do so in the manner, and by the measures, usual in modern civilized warfare ; one of the most familiar of which, is the capturt; of enemy's property, public and private, on the ocean. " In war, the commander-in-chief is not only author- ^ ized to make captures by sea and conquests by land, l)ut he may even govern the conquered territory until Congress shall have seen fit to interpose by EIGHTS AND LIABILITIES RESULTING THEREFKOM. 87 leo-islatioD. In our last war, California having; been subjugated, the commander-in-chief im23osed duties, established custom-houses, and collected revenues; and this was sanctioned by the Supreme Court as a legitimate exercise of military power. {^Oross et al. vs. Harrison., 16 Howard, 104.) There can be no doubt of the rio-ht of the President to make maritime captures, and suljmit them to judicial in- vestigation. It is one of the best established, and least dangerous, of his powers, as commander-in- chief. Further than this, Congress have legislated upon the subject, although it was not necessary for them to do so. " The statute of 1807, ch. 39, provides that, when- ever it is lawful for the President to call forth the militia, to suppress an insuiTection, he may employ the' land and naval forces of the United States for that purpose. " The authority to use the army and navy is thus expressly confirmed, but the manner in which they are to be used is not prescribed. That is left to the discretion of the President, guided by the usages and principles of civilized war, and these principles and usages undoubtedly authorize the capture of enemy's property at sea. " What is enemy's property, is a judicial question, to be decided by the prize court; "and unless other- wise instructed by their own sovereign, they must be guided by the rules and principles of public law. ' '' Property may be condemned as hostile without proof of the personal sentiments of the owner being disloyal. " Acts which tend to subserve the interests of 88 THE CIVIL WAE IN THE UNITED STATES. the enemy, may impress a hostile character upon property, without regard to the political views or wishes of the owner. Residence of the owner in the enemy's country, may be of such a character as to stamp the property conclusively as hostile. How far residence may, in any case, be open to explana- tion, « r the presumj^tion arising therefrom be re- pelled, I have no occasion to consider. When a hostile character is imputed to property because of the residence of the owner, the court may be com- pelled to decide whether the place of his residence be enemy's country. " What shall be deemed enemy's country is some- times a question of nwich difficulty. Some nations or tribes can hardly be said to have any country. Such are the nomadic Arabs, and such were the children of Israel during some part, at least,' of their migration from Egypt to Palestine. A bel- ligerent nation may invade a neutral province and hold the control of it, and yet the possession be such as not necessarily to impress upon the inhabi- tants a hostile character. Thus, in the case of TJie Gerasimo^ 11 Moore, P. C, 101, it was decided that, although Russia had taken forcible possession of the Danubian Principalities, and for a time lield dominion over them, yet, that a ship of a resident of Wallachia was not liable to capture by a British cruiser as enemy's property ; the occupation of that province Ijy Russia, being not only forcible, against the will of the inhabitants, but avowedly temporary and for a special purpose. If Wallachia, by its lo- cal government, the Hospodar and Divan, had vol- untarily joined with Russia, and made common cause in the war against England, the inhabitants would, EIGHTS AND LIABILITIES RESULTING THEREFKOM. 89 unquestionably, have been enemies, and their prop erty on the ocean, lawful prize. " In cases which may come within the definition of civil war, there may be only an assemblage of individuals, in military array, without political or- ganization or territorial limit ; or, armed l^ands may make hostile incursions into a loyal state, or hold divid'jd, contested, or precarious possession of por- tions of it, as now in Missouri and Kentucky. In such cases, local residence may not create any pre- sumptio;Q of hostility. Far otherwise is it in Vir- ginia. On the 17th day of April, 1861, being im- mediately after the rebel confederates had attached and captured Fort Sumter, a convention of dele- gates, by solemn ordinance, undertook to place all the inhabitants of that state in an attitude of re- bellion, and to join the war, which had been previ- ously begun against the United States. The act of rebellion was to take immediate effect, and an alli- ance makino- common cause with the Confederate enemy was immediately formed and hostilities ac- tively waged by armies raised within, and invited from without the state. All this was, indeed, sub- ject to be disaffirmed by a vote of the whole people of the state, to be taken on the 23d day of May ; but no part of it has been disaffirmed. On the con- trary, the popular vote on that day, apparently by a large majority, ratified the proceedings of the convention, the alliance, and the war. The w^estern counties in the state nobly vindicated their honor atid their fidelity, by refusing submission to rebel mandates, and adhering to the Union. ^ They did not, indeed, change their domicile, but the}^ re- moved the power of rebel Virginia from the place 90 THE CIVIL WAE IX THE UNITED STATES. of their domicile. The Virginia reljellion was not the act of individuals asserting that moral right of revolution which belongs to all subjects, but it was the assertion of a pretended state right. It was founded solely on the deadly doctrine of secession, which claims that a state, as an organized political body, may sever itself from the Union. In attempt- ing this, and carrying on the war, it acted by ma- jorities claiming implicit obedience from the mi- nority. The exterior l^oundaries of the state, and its internal division by counties, have been clearly defined, and the city of Richmond, where these claimants reside, is within the territory over which, by known limits, this political body has, for nine months past, held absolute dominion. " Such residence subjects both property and person to the absolute control of the enemy, and augments his resources and his streno;th. And I see no sufii- cient reason why it is not to be deemed a continued residence in an enemy's country, which subjects property captured on the ocean to condemnation as lawful prize. In this case, it does not appear that the claimants ever had a domicile in any other place than Eichmond ; nor is there any evidence go^ng to explain their continuance there, or to repel the pre- sumption of hostility arising therefrom. " It is not necessary therefore, to decide whether such evidence could be admitted, or what would be its effect. In questions so novel, I do not think fit to go farther than the case before me requires. " But it is objected that the question, what persons or country are to be deemed hostile, is not a judi- cial one; or rather, that the courts cannot con- sider any person or country to be hostile, unless the EIGHTS AND LIABILITIES EESULTING THEEEFEOM. 91 legislature has previously designated tliem as such. This is directly met by the case of The Gerasimo, 11 Moore, P. C, 101, above cited, in which the sole question was, whether the province of Wallachia was enemy's countiy so as to subject the property of a resident therein, to capture as ]3rize. This question the High Court of Admiralty decided in the affirmative, and the Privy Council in the nega- tive. Both decisions were founded exclusively upon the character of the Russian occupation, as exhibited by the evidence, the court having no aid or instruction, by any act either of the Queen or the Parliament. The cause was most elaborately dis- cussed, both by tlie bar and the bench, and yet not a doubt was suggested of the question being strictly judicial. " This objection, that it does not belong to the court to decide who shall be deemed enemies, or rather, that the court can decide only one way, and that again.^t the ca})tors, unless Congress has pre. viously declared who shall be considered enemies, really carries us back to the questions whether there can be war without a declaration by Congress, and, whether, in civil war, the parent country has full belligerent i-ights. Those questions have already been considered ; and it is believed that such rights exist, and, among them, undoubtedly is that of making maritime captures of enemy's property. And when property is bix^ught in for adjudication, th,e court must decide whether it be hostile or not ; and in doing so, it must, in the absence of legisla- tive instruction, be guided by general principles and usage, under which, one criterion of enemy's property is the residence of the owner. This is a 92 THE CIVIL WAE ES" THE FISTFTED STATES. known and well-establislied rule of decision, whicli the court cannot disregard. It is not necessary, however, to determine how the court would deal with these questions, in the absence of any action, by other departments of the government, because there has been such action, "In addition to other important acts, the President by proclamation of the SYth of April, established a blockade of the ports of Virginia. This was the exercise of a great belligerent right, and could have been done under no other. He could not prohibit or restrict the commerce of any state by a mere municipal regulation. The blockade was avowedly established as a bellig-erent act under the law of nations ; and it was accordingly announced that it would be rendered effective by an adequate naval force ; and in all proceedings in relation to it by our own country and other nations, it has been re- garded as a belligerent act. Under it, there have been divers captures by our navy, and* condemna- tions by our courts. Now such a blockade could not be valid unless it be of enemy's country. " Some have thought that it was to be deemed en- ' emy's country, because of the proclamation of the President. It seems to me rather that the proclama- tion and the blockade are to be uj^held as legal and valid, because the territory is that of an enemy. But whichever view is adopted, the result is the same, namely, that the court must regard the coun- try as hostile. " Richmond, where these claimants reside, is one of the places that was thus blockaded. This is not all. The proclamation of a blockade of Virginia, as hostile territory, and the orders of the President RIGHTS AND LIABILITIES EESULTLN^G THEREFKOM. 93 to the navy, under wliicli captures like tlie present have been made, have been expressly confirmed by Congress. " The statute of 6th August last, ch. 63, declares that such acts and orders shall have the same effi- cacy as if they had been previously authorized by legislative enactments. " Without o'oinD- into a discussion of the effect of that confirmation, it is evident that it must have the force of an instruction to prize tribunals, to re- gard those proceedings of the President as legal and valid. " It has been urged that in a civil war, it may sometimes be very impolitic to confiscate the prop- erty of persons resident in the rebel country ; and that the expediency of doing so is a political ques- tion to be determined by the legislature. " We are now dealing only with maritime cap- tures. It is true that policy may sometimes require that the property of such residents should be ex- empted from arrest ; and it is c[uite as certain that sometimes it ought not to be exempted. There should therefore be somewhere lodged a discretion- ary power, to capture this property or not, as vary- ing circumstances and exigencies may require. " This power is now vested in the President. He controls the navy, and directs what captures shall be made. He may instruct inferior officers that particular vessels, or those belonging to certain per- sons, or engaged in a particular trade, are not to be arrested. " What captures shall be made, like other ques- tions of war policy, may safely be left to the dis- cretion of the commander-in-chief. 94 THE CIVIL WAR IjST THE UNITED STATES. "The statute of 1861, ch. 28, has been referred to, as assuming that there are loyal citizens in the rebel states who are to be aided and protected, and it is urged that their property should not be sub- ject to confiscation. That act places two millions of dollars in the hands of the President, to be used at his discretion in arming, organizing, and sustain- ing loyal citizens in rebel districts. This act un- doubtedly contemplates that there may be such loyal citizens, and that it may be expedient so to aid and strengthen them : and it makes an appro- priation for that purpose. But it is wisely left to the unrestricted judgment of the President to deter- mine who are such loyal citizens, if any, and to what extent they shall be treated as such. " It adds to the means of the President, but in no degree detracts from his previous authority, to treat persons or property as he shall deem best. " It has been contended that the proviso in the 24th section of the crimes act of 1*790, ch. 9, should prevent condemnation of this cargo as prize. That act describes certain offences, and prescribes their punishment ; and among them is the crime of treason. "The proviso declares, that no convictiori shall work corruption of blood or forfeiture of estate. This shows that the lawgivers thought that death was a sufficient penalty, without confiscation follow- ing as a legal consequence of conviction. " There is an analogous provision in the Constitu- tion (art. 3, § 3), and, as it has embarrassed some minds, it deserves attention. " In the first place, the objection assumes, that there can be no condemnation unless the claimants EIGHTS AND LIABILITIES EESULTING THEEEFROM. 95 are traitors. This is an error. As already stated, property may be treated as hostile, altliougli the owner has not been guilty of treason. He may be an alien, owing no allegiance; or a citizen, whose opinions or wishes are not proved to be hostile, and yet, he may be so situated, and his property be so used, as to subject it to capture as prize. "A striking case is to be found in The Yenus^ 8 Cranch, 253. In that case a citizen of the United States, residing at Liverpool, shipped property for New York, on the 4th of July, 1812, having no knowledge of the war, which had been previously declared by the United States. This property was captured by an American privateer, and held by the Supreme Court to be lawful prize. The court, in delivering their opinion, say, that although the claimant, being a citizen of the United States, ' can- not be considered an enemy in the strict sense of the w^ord, yet he is deemed such, with reference to the seizure of so much of his property, concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy, although not criminally so.' (See also the cases collected by Sir William Scott, in The Hoop, 1 Kob., 196.) " In the case now before me, it is not contended or offered in proof by either party, that these claim- ants have been guilty of the crime of treason ; and surely the claimants cannot set it up, in argument, as a defence. In the second place, the owner may, by certain acts, have subjected his property to be treated as enemy's, and by other distinct acts, com- mitted the crime of treason ; and confiscation may be inflicted for the former, and the'penalty of death .96 THE CIVIL WAR IIS" THE U2fITED STATES. for the latter. Just as tlie same person may be guilty of larceny, and subsequently of murder, and be fined for tlie first, and afterward convicted of tlie capital offence. " Third, suppose there should be but one act, which is such a use of property as "subjects it to confisca- tion, and, at the same time, constitutes an overt act of treason ; and suppose further, that the govern- ment cannot proceed for both penalties, yet they may elect. They are not bound to prosecute for the crime ; and if they enforce the forfeiture, the most that can be contended is, that they are thereby precluded from subsequently having a conviction for the treason. " The acts passed by Congress last summer have . been referred to, as expressing the views of the legislature upon the subject of confiscation in the present war. As they do not reach cases like the present, it is contended that it was the- intention of the legislature that such j)roperty should not be condemned. It is obvious that, in their general purpose and effect, they were intended to make the prosecution of the war more efficient, to give addi- tional means and power to the President, but in no degree to curtail the authority which he j)re\iously possessed. They embrace some cases in which con- fiscation Avould not follow from the general law, and render others more definite and certain, and provide new modes of procedure. The belligerent fight of capture at sea previously existed, and Con- gress has left it unimpaired. " Further still. This right of maritime capture was not only well known, but had actually and notoriously been exercised. EIGHTS AND LIABILITIES EESULTING THEllEFllOM. 9*7 " The last session of Congress closed on tlie sixtli day of August. Prior to that time divers captures had been made of vessels and cargoes belonging to inhabitants of insurgent districts. In particular, The General ParJcliill was captured on the twelfth day of May, and sent to "Philadelphia, and there condemned as enemy's property, at the June term of the District Court. The Pioneer^ Qrenslmv^ North Carolina^ and Hcdlie Jachson, were sent into the port of New York in the course of May and June, and the "vessels or their cargoes have since been condemned as enemy's property. In this very case of The Amy Warwich, the capture was made on the tenth of July, and the libel was filed on the eighteenth of that month. All these caj)tures were made by ships of war, and of course under orders emanating from the President. Yet, so far from discountenancing these proceedings. Congress, as we have already seen, did, by the act of the sixth of August (chap. 63, sec. 3), expressly confirm all orders, respecting the army and navy, which had been made by the President since the fourth of March last. " The counsel for the claimant has relied upon a recent charge, by Mr. Justice Nelson, to the Grand Jury in the Second Circuit. That learned judge did not enter into any discussion of prize law. The occasion did not call for it. He expressed the opinion, if correctly reported in the newspapers, that loyal citizens of rebel districts were not to be treated as enemies, nor their property confiscated. But he did not undertake to say who were to be deemed loyal citizens, what was to be the evidence of their fidelity, or how the presumptions arising 98 THE CIVIL WAR IIS^ THE UNITED STATES. • from continued residence in tlie enemy's country are to be overcome. " The counsel for the captors has relied upon a remark made by Judge Dunlo]), in the case of The Tropic Wind, and upon the learned decisions of Judge Cadwallader, in "the case of The General Tarhhill, and of Judge Betts, in the cases of The Orensliavj, JVotih Carolina, Pioneer, and Ilallie Jackson. These cases are directly in point, and I might w^ell have rested my decision solely upon the authority of those able and distinguished judges. But as it has been contended that those decisions are not sustained by the authorities which were cited in their support, I have yielded to the earnest invita- tion of the eminent counsel in this cause, to investi- gate the principles and authorities w^hich it involves. " Claim rejected and the property condemned." At a subsequent period, and in the same case, " 071 the claim of Dunlop, Moncitre c& Co.,'''' after the doctrines announced in the foregoing opinions of the several District Courts, had undergone elabo- rate discussion and criticism, as well in the national legislature, as in coordinate and appellate tribunals, the learned judge takes occasion to review his former opinion at great length, and to announce in the following instructive disquisition, that he has " seen no reason to change that opinion :" " The decrees of the District Courts condemnino; property as hostile, have been objected to, on the ground that they pronounce the owners to be ene- mies, when in fact they may be personally loyal. But it is a mistake to suppose that those judgments go beyond the foct of permanent residence, and EIGHTS Al^D LIABILITIES IlESULTI]SrG THEEEFEOM. 99 assert personal guilt in the o^\Tier. This mistake has probably arisen from misapprehending the im- port of certain language, of frequent recurrence in. prize law, such as that property is to be condemned as enemy's, or is to be deemed enemy's, or that it is impressed with a hostile character. These are equivalent expressions. They do not necessarily import that the owner is personally hostile, but only that his property has been placed in such re- lation to the enemy that a court of prize is to deal with it as if it belonged to the enemy. It is quite a mistake to suppose that j)roperty is never to be condemned except for personal delinquency of the owfler. Even under the municipal law, ships and cargoes are liable to condemnation for the use that has been made of them, where there has been no guilty knowledge or intent on the part of the owner ; and in prize law, condemnation is not the infliction of personal punishment on proof of indi- vidual guilt, but it is a matter of belligerent policy, to destroy the commerce of the enemy and dimin- ish his resources. This is emphatically set forth in the case of The Venus (8 Cranch), where property of a citizen of the United States was condemned by reason of his residence, although, as the Supreme Court expressly declare, there was no personal guilt. The same doctrine is found in many other cases. The objection, when scrutinized, involves a denial of the power of the court to make any cour demnation as prize, under the principles and ac- co'i'ding to the rules of the general law, and the practice of nations ; and this is to deny to the United States the exercise of belli o-erent rights. For there is no right of war more clearly established 100 THE CIVIL WAE IN THE UNITED STATES. or more universally exercised, than tliat of inari- time captures ; and no reason can be assigned why the United States should be deprived of the power of exercising this important right in the present war. How far the peculiar circumstances of this, or any other conflict, should induce forbearance, like many other questions of policy, in the conduct of the war, is to be determined by the combiander- in-chief or the legislature. It is for them, or one of them, to say what captures should be made, and what cases or classes of cases shall be sent in, and condemnation sought by prosecution. In adjudi- cating such cases, the courts must be guided and governed by established princi2:>les and rules of de- cision. This is well known to the other depart- ments of the government, and when they send a captured vessel to the court, to be there proceeded against as a prize, they necessarily intend, in the absence of other instructions, that the court shall proceed and decide according to the established rules and principles of prize law. There is no other guide. That the great conflict in which we are now engaged is war, in the legal sense of the term, is sliown by the express language of the Constitu- tion in defining the crime of treason ; that the United States, in this war, have, on the ocean, all the rights of belligerents, has never been distinctly controverted. To deny it, is to break up the block- ade, and every condemnation under it. " Those who have thought that the courts cannot enforce the belligerent rights of the nation without the action of Congress, should, I think, be satisfied that there has been sufficient legislation. In addi- tion to the statutes passed during the last summer, EIGHTS AND LIABILITIES RESULTING THEEEFEOM, 101 and particularly the ratifying act of tlie fifth of August, whicli was adverted to in my former opin- ion, Congress, on the 25th day of March last, passed an act to regulate the mode of procedure in prize cases. The first section relates to the custody and preservation of captured property and the taking of evidence. The second and third sections relate to expenses and the compensation of officers. The fourth section relates to the disposition of prize property after final condemnation. This statute afi:ects only the mode of procedure. It gives no direction as to the principles or doctrines by which the court is to be guided in its adjudications. It does not touch the rule of decision. The title of this statute declares it to be an ' Act for the better administration of the la^v of prize,' The court then is to administer the law of prize, and that must be the general law as known to the prize tribunals of the civilized world, with such modifications as may be made by our own legislature. But to what cases is this general law of prize to be applied ? This question is answered by the fifth section of the stat- ute, which declares that its provisions ' shall apj^ly as well to cases now pending, as to all future cases of maritime captures.' This court is thus expressly directed to administer the prize law in cases now pending, or hereafter to arise in this civil war, as well as in cases of maritime captures in future in- ternational wars. No distinction is indicated be- tween these two classes of captures, or in the rules of law which are to be applied to them. Further still : the legislature expressly recognizes the pen- dency of prize cases. In many of those cases, the only question was, whether property should be con- 102 THE CIVIL WAE IN THE UNITED STATES. demned, by reason of tlie residence of the owner in the enemy's country. This question lias Ijeen decid- ed by the District Court of three judicial districts, all concurrino- in decrees of condemnation. This was well known, and yet Congress, in passing an act for the better administration of the prize law, in cases then pending, or hereafter to arise, does not prescribe any rules of decision, or in any way dis- countenance those which had been adopted by the cotirt^ ; this may be deemed an acquiescence in, or a tacit approbation of those rules. " An objection to the prize decisions of the Dis- trict Courts, has arisen from an apprehension of radical consequences. It has been supposed that if the government have the rights of a 1)elligerent, then, after the rebellion is suppressed, it will have the rights of conquest ; that a state and its inhabit- ants may be permanently divested of all political privileges, and treated as foreign territory acquired by arms. This is an error ; a grave and dangerous error. The' rights of war exist only while the war continues. Thus, if ]^ace be concluded, a capture made immediately afterward on the ocean, even where the peace could not have been known, is un- authorized, and property so taken is not prize of war, and must be restored. (Wheat. Elements of International Law, 619.) Belligerent rights cannot be exercised when there are no belligerents. Titles to property or to political jurisdiction, acquired dur- ing the war, by the exercise of belligerent rights, may indeed survive the war. The holder of such title may permanently exercise, during peace, all the rights whicli appertain to his title ; but they must be rights only of proprietorship or sovereignty; RIGHTS AND LIABILITIES RESULTING THEREFROM. 103 they cannot he belligerents. Conquest of a foreign country, gives absolute and unlimited sovereign rights. But no nation ever makes such a conquest of its own territory. If a hostile power, either from without or within a nation, takes possession and holds absolute dominion over any portion of its territory, and the nation, by force of arms, expels or overthrows the enemy, and suppresses hostilities, it acquires no new title, but merely regains' the posses- sion of which it had been temporarily deprived. The nation acquires no new sovereignty, but me*ely maintains its previous rights. (Wheat. Elements of International Law, 616.) During the war of 1812, the British took possession of Castine, and held exclusive and unlimited control over it, as con- quered territory. So complete was the alienation, that the Supreme Court held that goods imported into it were not brought into the United States, so as to be subject to import duties. ( United States vs. Rice^ 4 Wheat., 246.) Castine was restored to us under the treaty of peace, but it was never supposed that the United States acquired a new title by the treaty, and could thenceforth govern it as merely ceded territory. And if, before the end of the war, the United States had, by force of arms, driven the British from Castine, and regained our rightful possession, none would have imagined that we could thenceforth hold and govern it as conquered terri- tory, depriving the inhabitants cf all preexisting political rights. And when, in this civil war, the United States shall have succeeded in putting down this rebellion, and restoring peace in any state, it will only have vindicated its original authority, and restored itself to a condition to exercise its previous 104 THE CIVIL WAR IN THE UNITED STATES. sovereio'ii rio-lits under the Constitution. In a civil war, the military power is called in only to main- tain the government in the exercise of its legitimate civil authority. No success can extend the powers of any department beyond the limits prescribed by the organic law. That would be not to maintain the Constitution, but to subvert it. Any act of Congress which would annul the rights of any state under the Constitution, and permaTiently subject the inliabitauts to arbitrary power, would be as utterly unconstitutional and void as the secession ordinances with which this atrocious rebellion com- menced. The fact that tlie inhabitants of a state have passed such ordinances can make no difference. They are legal nullities ; and it is because they are so, that war is waged to maintain the government. The war is justified only on the ground of their total invalidity. It is hardly necessary to remark, that I do not mean that the restoration of peace will preclude the government from enforcing any municipal law, or from punishing any offence against previous standing laws. " Another objection to those decisions of the Dis- trict Courts is founded upon the apprehension that they may lead to, or countenance, cruel and ii\ipoli- tic confiscations of private property found on land. This apprehension is unfounded. No such conse- quence can legitimately follow. Those decisions undoubtedly assert that the United States have the rights of a belligerent. But the extent of those rights on land, or the manner in which they are to be exercised, was not discussed. They were not even adverted to, except to say that enemy's prop- erty found by a belligerent on land, within his own EIGHTS AND LIABILITIES RESULTING THEKEEKOM. 105 country, on the breaking out of a war, will not be condemned by tlie courts, although it would be, if found at sea. This distinction, so far as it goes, tends to show that the doctrine of maritime cap- tures is not to be applied to seizures on land. But the danger upon which this objection is founded does not arise from the administration of the piize laws by the courts, or the exercise of belligerent rights by military commanders upon military exi- gencies. The objection really arises from fear of the legislation of Congress. It is apprehended that they may pass sweeping or general acts of confisca- tion, to take practical effect only after the rebellion shall have been supj^ressed; that whole estates real and personal, which have not been siezed dur- ing the war, may be taken and confiscated, upon coming within reach of the government, after hos- tilities shall have ceased. This, as we have seen, would not be the exercise of belligerent rights, the war being at an end. Belligerent confiscations take efiect only upon property of which possession is taken during the war. As against property which continues under the control of the enemy, they are wholly inoperative. If possession be acquired by or after the peace, then previous legislation may take effect, but it will be by the right of sovereignty, not as an act of war. Under despotic governments, the power of municipal confiscation may be un- limited, but under our government, the right of sovereignty over any portion of a state, is given and limited by the Constitution, and will be the same after the war as it was before. When the United States take possession of any rebel district, they acquii-e no new title, but merely vindicate that 106 THE CrVIL WAE IN THE UNITED STATES. wliicli previously existed, and are to do only what is necessary for tliat purpose. Confiscations of property, not for any use that has been made of it, which go not against an offending thing, but are in- flicted for the personal delinquency of the owner, are punitive ; and punishment should be inflicted onl}'^ upon due conviction of personal guilt. What oftences shall be created, and what penalties afiixed, must be left to the justice and wisdom of Congress, within the limits prescribed by the Constitution. Such penal enactments have no connection what- ever with the decisions of j^rize courts enforcing belligerent rights upon property captured at sea during the war." " I have thus noticed the objections which have been made to the former opinion of the court so far as they have come to my knowledge. They do not seem to be well founded." « The claimants, in several of the cases of laro^est pecuniary importance, and involving the great fun- damental questions discussed and determined in the foregoing adjudications, have appealed from the de- crees of condemnation. These appeals, or some of them, having been heard in the Circuit Court of the United States for the circuit in which the district of adjudication is in- cluded, and the decrees having been affirmed therein pro forma, or upon deliberation, the cases are now pending upon further appeal, in the Supreme Court of the United States. Their early discussion, upon the final appeals, is confidently anticipated; and the judicial determina- tion of these momentous questions, by this august EIGHTS AND INABILITIES RESULTING THEREFEOM. lOT trilnmal of the last resort, will be looked for by tlie profession and tlie community witli an interest more deep and absorbing tlian lias attached to any ques- tions submitted to the arbitrament of the judicial power since the formation of the Constitution. 108 ALIEN ENEivrr. CHAPTER III. Of the Rights of Belligerents to Inteefere WITH THE CoMilERCE, AND TO CaPTUEJJ AND CON- FISCATE THE Property of other than Adverse Belligerents — and herein what Constitutes Hostility of Character, both as regards Per- son AND Property. We liave said that from tlie estal)lislied prin- ciple in tlie law of nations whicli recognizes tlie identity between the wealth of the nation and that of the aggregation of individuals composing the nation, many important rights accrue to the citizen in time of war, to enable him to indemnify his own or the state's injuries, by capture and reprisals of the jDroperty of the enemy. Before considering the subject of re23risals, captures, and confiscation, it is important to determine who are, in legal intend- ment, alien enemies, and who are clothed with that hostile character as to subject their property to seizure and confiscation as law^ful prize ; and also who are to be regarded as possessing the character of lawful belligerents, with the rights of such at the hands of neutral nations. AHen enemy An alien enemy is one who is under the alle- defined. • n , , • . t glance oi a government at war with our own. Where the allegiance due is of that permanent character which attaches to the citizen or subject, as such, there is no difficulty in determining his posi- tion and liabilities. His hostility is coeval with, and as permanent as, his allegiance. It begins with HOSTILE CHARACTER. 109 the commencement of his country's quarrel, and ends only with its termination. But there are those who are clothed with such character of hostility as subjects them and their property to all the liabilities and forfeitures to which that of permanent alien enemies are subject, and yet do not owe permanent allegiance to the nation at war with us — and it is important to con- sider the several and various circumstances, of more or less complication, which occasion and determine such a hostile character. Hostile character may be cast upon a person by Hostile char- ,. T./.M'ii 1 j_ i» acter cast upon his ownership of soil m the enemy s country, so tar persons ttIio as to subject the productions of that soil to seizure enlnJies/''^'' as lawful prize. " It cannot be doubted," says Lord Stowell, " that there are transactions so radically and fundamental- ly national, as to impress the national character, in- dependent of peace or war, or the local residence of the parties? " The produce of a person's own plantation in the impressed colony of the enemy, though shipped in time of "p^^p'"^?® peace, is liable to be considered as the property of the enemy, by reason that the proprietor has in- corporated himself with the permanent interests of the nation, as a holder of the soil, and is to be taken as a part of that country in that particular trans- action, independent of his own personal residence and occupation."^ In another case, the same learned judge says: " Certainly nothing can be more decided and fixed than the principle of this court and of ths Supreme ' The Vrow Anna Catharina, 5 Rob., 161. 110 HOSTILE CHARACTER. Court, upon every solemn argument there, that tlie Ownership of possessiou of the soil do«s im]iress upon the owner the character of the country, whatever the local residence of the owner may be. This has been so re2:)eatedly decided, both in this and the Superior Coui't, that it is no longer open to discussion. No question can be made on the point of law at this day. "First, then, it appears that the produce of the hostile soil is to be considered as bearing a hostile character; and certainly, if any property ought to be considered as bearing such a character at all, for purposes of seizure, nothing can be more reasonable than that the products of the enemy's land, one of the greatest sources, and as some have supposed, the sole source of national wealth, should be regarded as legitimate prize. That the interests of friends may sometimes be involved in our vengeance upon enemies, is a matter which it is natural to regret, but impossible to avoid. The administration of • public rules admits of no private exception, and he who clings to the profits of a hostile connection, must be content to bear its losses also. Secondly, it will be found that a settlement in a hostile juris- Residence in a dictiou, whether it be by residence, or merely by diction. ^""^^^ the maintenance of a commercial establishment, impresses on the person so settling, the character of the enemies among whom he settles, in regard to such of his commercial transactions as are con- nected with that settlement. Uniformity of "Tlic American jui'ists and courts have repeatedly rule as to im- •i,i t it t*. j_ pression of recoguized the rule as a reasonable and just one to hostile char- ^^ acceded to by all maritime nations."^ ' Kent's Com. I, 82 ; Bentzon vs. Bogle, 9 Cranch, 191 ; The Ann Greene, 1 Gall, 284; The Venus, 8 Cranch, 253. WHAT COlSrSTITUTES A HOSTILE CHAKACTER. HI The sliip President was captured by an Englisli privateer, on a voyage to Europe from tlie Cape of Good Hope, then iu possession of Holland, with whom Great Britain was at war. A claim was filed on behalf of Mr. J. Emslie, as a citizen of the Unit- ed States. It appeared that he was born in Brit- ain, but had settled at the Cape of Good Hope during the preceding war, and had been employed there as American consul. In pronouncing the de- cree of the court in this case. Lord Stowell said : " The court must, I think, surrender every principle on which it has acted, in considering the question of national character, if it were to restore this vessel. The claimant is described to have been, for many years, settled at the Cape, "with an estab- lished house of trade, and as a merchant of that place, and must be taken as a subject of the enemy's country."^ During the last war between Great Britain and Holland, there seems to have been a very general misapprehension among the merchants of the Unit- ed States, that they were entitled to retain all the, privileges of American citizens, without regard to the fact of their residence and occupation in an- other country. Numerous decisions of the English courts corrected this error, to the not inconsiderable cost of those who had unhappily fallen into it. A ship was captured on a voyage from Curacoa, then a Dutch possession, and claimed in the English court, where she was libeled as prize^ by one who w-as first described as an American merchant, but ^vho, upon further proof being required by the ' The President, 5 Rob., 277. 112 WHAT CONSTITUTES A HOSTILE CHAEACTEE. coui't, was ascertained and described to be a person having a house of trade and actually residing at Cui^agoa. The ship was condemned as lawful prize; — Lord Stowell declarino; : " The claimant is un- doubtedly to be considered an enemy at the com- mencement of the transaction, Holland being, at that period of time, the enemy of this country."^ " No position," said Lord Stowell, in another case, " is more establislied, than this, that if a per- son goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered a member of that country."^ In this last case, a cargo which belonged to Mr. Millar, an x\merican consul resident at Calcutta, and which had been taken in trade with, the enemy, was condemned as the property of a British mer- chant resident at Calcutta, and engaged in illegal commerce. " It is said to be hard," said Lord Stowell, " that Mr. Millar should incur the disabilities of a Britisli subject, at the same time that he receives no advan- tages from that character ; but I cannot concede to that representation, because he is in the actual re- ceipt of the benefit of protection for his person and commerce from Britisli arms and British laws — un- der an existing British administration in the coun- try ;-— he may be subject to some limitations of com- merce incident to such establishments, which would not occur in Europe, but he must take his situation with all its duties, and among those, the duty of not i rading with, tke enemies of this country." ' The Anna Catherina, 4 Rob., 107. ' The Indian Chief, 3 Rob., 12. WHAT COIS^STITUTE.-^ A HOSTILE CHAEACTEE. H;', The common law courts of England have recog- Rule applied IT T T J.1 1 ± ' -[ in common nized and applied the same doctrme/ law courts. In the United States, this principle seems to have been very fully established by numerous decisions. Chancellor Kent says : " This principle, that, for all commercial purposes, the domicil of the party, without reference to the place of birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the United States. If he reside in a belligerent country, his property is as liable to be captured as enemy's prop- erty ; as, if he resides in a neutral country, he enjoys all the privileges, and-*is subject to all the incon- veniences of the neutral trade. The general rule is, that a person living honafide in a neutral country, is fully entitled to carry on a trade to the same extent as the native merchants of the country in which he resides, provided it is not inconsistent with his native allegiance.^ In a case which was determined in the House of Lords, in 1802, the same principle seems to have been established, even beyond the reservation of a native allegiance.' In this case, a British-born sub- ject, resident at the English &ctory at Lisbon, was accorded the privilege of a Portuguese character, so far as to render his trade with Holland (then at war with England, l)ut not with Portugal) unimpeach- able as illicit trade. There is, indeed, one case at law in the English courts,* in wdiich the question was involved, and in " ^ McConnel vs. Hector, 2 Bos. & Pul, 113; De Laneville vs. Phillips, 2 New Rep., 97, M^cnt's Com., I., 83; The Emanuel, 1 Rob., 296. ' The Danous, 4 Rob., 2.55. •» Melton vs. De Mello, 2 East., 234 ; 2 Camp., 420. 8 114 WHAT CONSTITUTES A HOS:<;iLE CHARACTEE. wliicli Lord Ellenborougli takes no notice of tlie preceding decisions; but the observations of his lordsliip in that case, cannot be regarded as at all equivalent to a denial of the doctrine, and the more especially as he advises that the plaintiff go back to the Court of Admiralty, and have the matter set right there. In a subsequent case at law, the rule was applied to a natural-born subject of Great Brit- ain, domiciliated in the United States, and it was determined that he might lawfully trade to a coun- try at war with England but at peace with the United States.-" In this connection, the most important question for determination is, what constitutes residence. This would, at first, ap2:)ear to be a question of very simple solution, but it has been complicated by the subtleties of merchants, to such an extent as to have occasioned much discussion and given rise to several direct decisions. The citizen or subject of one nation may, by his employment and residence in another, acquire a new national character for commercial purposes — although he may not thereby divest himself of his national character for political purposes. His alle- giance is still due to the country of his l)irth ; such a j)erson residing in a neutral state is at liberty to trade with the enemies of his country in all arti- cles except such as are contrnhand — a trade iii such would be in violation of his allegiance.^ What consti- As to the questiou, what constitutes such a resi- dence in a hos- dence as fixes upon the party a hostile character towards that state with which the country of his • Bell vs. Reid, M. & S., 726. * The Ann, Dodson, 222. WHAT COjS^STITUTES A HOSTILE CHAllACTEIt. 115 residence is at war, it appears to be conceded tliat ^^ country to the first point for determination is, tlie true intent tue character, of the party— is it or not a residence with the in- tention of remaining ? '' I do not," says Lord Stow- ell in an early case, "mean to lay down so harsh a rule, as that two voyages from France should make a man a Frenchman — but the claimant appears to have had a continuous residence there durino; the interval of his voyages, and to have had that resi dence also with the intention of remaining."^ In that case, the animus manendi was evidently re- garded by the court as the prominent point to be settled, in determining the question of residence to fix a hostile character. In another case,^ the same learned judge discusses the question at much length, and says : " Of the few principles that can be laid down generally, I may venture to hold, that time is the grand ingre- dient in constituting domicil — I think that hardly enouo:h is attributed to its effects. In most cases, it is unavoidably conclusive. It is not unfrequent- ly said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect had to the time which such a purpose may or shall occupy — -for if the purpose be of a nature that v[iiij prohahly^ or does actually, detain the person for a great length of time, I cannot but think that a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a law- ' The Bernon, 1 Rob., 162. ^ The Harmony, 2 Rob., 324. '116 WHAT CONSTITUTES A HOSTILE CUAEACTEE. suit. It may happen, and indeed is often used, as a ground of vulgar and unfounded reproacli (un- founded as matter of reproacli, tliougli the fact may be true) on the laws of this country — that it may la'st as long as himself Some suits are famous in our juridical history for having outlived generations of suitors. I cannot but think, that against such a long residence, the j)lea of an original special pur- pose could not be averred. It must be inferred, in such a case, that other purposes forced themselves upon him, and mixed themselves with his original design, and impressed upon him the character of the country where he resided. Supj^ose a man comes into a belligerent country at or before tlie beginning of a war, it is certainly reasonable, not to bind him too soon, to an acquired character, and to allow him a fair time to disengage himself^— but if he continues to reside during a good 23art of the war, contributing by payment of taxes, and other means, to the strength of that country, I am of opinion that he could not plead his special purpose, with any effect, against the rights of hostility. If he could, there would be no sufficient guard against the fraud and abuses of mashed, pretended, original and sole purposes of a long continued residence. There is a time which will estop such a plea. No rale can hx the term a priori — but such a time there must be. In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a larger time. Suppose an American comes to Europe with six contempoiar} WHAT CONSTITUTES A HOSTILE CHAEACTER. 117 cargoes, of wMcli lie had the present care and man- asfement, meanino; to return to America immediate- ly — they would form a different case from that of the same American coming to any particular coun- try of Europe, with one cargo, and fixing hinself there to receive five remaining cargoes, one in each year successively. I repeat, that time is the great aojent in this mattei\ It is to be taken in a com- pound ratio of the time and the occupation, with a great preponderance on the article of time. Be the occupation what it may, it cannot happen, but with few exceptions, that mere length of time shall not constitute a domicil." But if the animus manendi he proved aliunde^ the time of the residence becomes of no moment in the determination of the question of hostile character. In another case,' Lord Stowell observed : " Proof of mere recency of establishment, will avail noth- ing, if the intention of making a permanent resi- dence there, was fully fixed upon the party." * In cases where it is shown that there was really no intention of remaining, but on the contrary a frustrated intention of departing, the abode is not considered as a residence to any hostile purpose. A British-born subject had been settled as a merchant - at Flushing, in Holland, but upon the apparent approach of hostilities between that coun- try and Great Britain, he adopted measures for his removal and return to England. In July, 1803, as it appeared in proof, he actually effected his escape and returned to England. He had dissolved his '• Th Diana, 5 Rob., 60. 118 WHAT CONSTITUTES A HOSTILE CHAKACTER. coniiiiercial partnersLip in Hollaiid, and had in trutli only continued to reside there after the war, by reason of the unwarrantable detention by the . government of Holland, of Englishmen found there at the breaking out of hostilities.^ " Under these circumstances," says Lord Stowell, "it would, I think, be going farther than the princij^le of law requires, to conclude this person by his former oc- cupation, and by his constrained residence, so as not to admit him to have taken himself out of the effect of intervening hostilities by the means which he had used for his removal." This doctrine is very clearly recognized, though incidentally passed uj^on, by Lord Ellenbbrough, in two cases subsequently decided by him.^ It is obvious that it should require fewer cir- cumstances to constitute the domicil or residence of which we are treating, in the case of a native citi zen, than to impress the national character, by that means, upon one who is originally of another coun- try. M. Lappiere was by birth a Frenchman, and present in a French colony where he shipped goods for France. The goods were 'captured, and he made claim as a merchant of America, where he had a permanent residence before his coming to the French colony. Lord Stowell said : " If it could be inferred that he had been originally a French merchant, and was, at the time of his shipment, resident in St. Do- mingo, and shipping to old France, I should have hesitation in considering him a Frenchman. Had ' The Oc(an, 5 Rob., 90. ' Bromley vs. Hazcltine, 1 Camp., 6 ; 0' Mealy vs. Wilson, ib., 482. W^AT CONSTITUTES A HOSTILE CHARACTER. Ill) tile shipment been made fi-om America, Ms asserted place of abode, it might have been a circumstance to set in opposition to his present residence, and might afford a presumption that he was in St. Do- mingo only for temporary purposes. But this is a shipment to France from a French colony, and, if the person is to be taken as a native of France, the presumption would be that he had returned to his native character of a French merchant."^ A native-born citizen of the United States, before a declaration of war, emigrated to a neutral coun- try, and there acquired a doraicil. Afterwards, and durins^ the continuance of the war, he retui-ned to the United States and reacquired his native domicil. It was held that he had become a redinteg-rated American citizen, and could not afterwards, jici- grante hello, acquire a neutral domicil by again emi- grating to his adopted country.^ Where the residence is a voluntary one, and en tirely unrestrained, whether it be literal and actual, or only a residence by implication, it is considered, ordinarily, as a complete commercial residence. In the celebrated case already cited,^ it was objected against the right of the captors that the residence of an American in Calcutta was not a residence amons: British bellio-erents ; that the Moojul, havino- the imj^erial rights of Bengal, the king of Great Britain does not hold the British possessions in the East Indies in the right of the sovereignty, and that therefore the character of British merchants does ' The Virginie, 5 Rob., 98. - The Dos Hermanos, 2 Wheat., 76 ; The Ann Greene, 1 Gall., 284. ^ Th Indian Chvf, 3 Rob., 12. , jOQ WHAT CONSTITUTES A HOSTILE CHAKACTER.* m.t uecessarily attach on foreigners, locally resi- dent there. This objection was thus disposed of by Lord Stowell : " Taking it that such a paramount sovereignty on the part of the Mogul princes really and solidly exists, and that Great Britain cannot be deemed to possess a sovereign right there, still it is to be re- membered that, wherever a mere factory is founded in the eastern part of the world, European persons, trading under the shade and. protection of those es- tablishments, are conceived to take their national character from that association under which they live and. carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries, and is different from what prevails or- dinarily in Euroj^e, and the western parts of the world, in which men take their present national character from the general character of the country ill which they are resident, and this distinction arises from the nature and habits of the countries. In the western parts of the world, alien merchants mix in the society of the natives, access and inter- mixture are permitted, and they become incorpo- rated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up, foreigners are not admitted into the general body and mass of the nation. They con- tinue strangers and sojourners, as their fathers were,, not acquiring any national character under the gen- eral sovereignty of the country, and not trading under any recognized authority of their own origi- nal country, they have been held to derive their present character from that of the association or fac- tor}' under whose protection they live and carry ud WHAT CONSTITUTES A HOSTILE CHARACTER. 121 • their trade. With respect to establishments in Tur- key, it was declared in the case of Mr. Fremeaux, in the last war, that a merchant carrying on trade at Smyrna, under the protection of the Dutch consul at Smyrna, was to ,be considered as a Dutchman, and in that case the ship and goods belonging to Mr. Fremeaux, being taken after the order of repri- sals against Holland, were condemned as Dutch property. So in China, and I may say generally throughout the East, persons admitted into a fac- tory, are not known in their own peculiar national character, and not beino; admitted to assume the character of the country, they are considered only in the character of that association or factory. " I remember perfectly well, in the case of Mr. Constant de Rubecque, it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortu- nately quitted before the time of capture, he would have been liable to be considered as a Frenchman. " I am, however, inclined to think that these con- siderations are unnecessary, because, though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists, otherwise than as a phantom. It is not applied in any way for the actual regulation of our establish- ments. This country exercises the jiower of de- claring war and peace, which is among the strong- est marks of actual sovereignty ; and if the high, or, as I might almost say, this empyi'ean sovereign- ty of the Mogul, is sometimes brought down from the clouds, as it were, for pui'poses of policy, it by no means interferes with that actual authority 122 WHAT CONSTITUTES A HOSTILE CHAEACTEE. wliicli this country, and the East India Company — a creature of this country — exercise there with full effect. The law of treason, I ap2:)rehend, would apply to Eiu'opeans living there, in full force. It is nothing to say that some particular parts of our civil code are not applicable to the'religious or civil habits of the Mahomedan or Hindoo natives, and that they are, on that account, allowed to remain under their own laws. I say this is no exception ; for with respect to internal regulations, there is, amongst oui'selves in this country, a peculiar sect — the Jews — that, in matters of legitimacy, and on other important subjects, are governed by their ovm particular regulations, and not by all the municipal laws of this country, some of which are totally in- applicable to them. It is, besides, observable that our own acts of Parliament, and our public treaties, have been by no means scruj^ulous, in later times, in describing the country in question as the terri- tory of Great Britain. " In the American treaty, the particular expression occurs, that the citizens of America shall be admit- ted and hospitably received in all the seaports and harbors of the British territories in India. The late case in the Court of King's Bench ( Wihon vs. Marryat^ 8 Term E., and 1 Bos. and PuL, 430), arising upon the interpretation of that treaty, and in which it appears to have been the inclination of that court to hold our possessions in India to come within the operation of the navigation acts, gave occasion to an act of Parliament in which the term British teiTitory is borrowed fi'om the treaty. "There is, likewise, a general act of 37 Geo. III. c. 117, for the allowance of neutral traders in India, WHAT COlSrSTITUTES A HOSTILE CHAEACTER. 123 wliicli expressly uses tlie same term, reciting that it is expedient that the ships and vessels of countries and states in amity with his majesty, should he al- lowed to import goods and commodities into, and ex2)ort the same from, the British territories in In- dia. It is, besides, an obvious question, to whom are the credentials of this gentleman, as consul, ad- dressed ? Certainly to the British government ; to the East India Company, and not to the Great Mo- gul. What is the condition of a foreign merchant residing there? From attention to the argument of a gentleman whose researches have been partic- ularly turned to subjects connected with the East, I have made inquiry of a person of the greatest authoi'ity on such a subject, who is just returned from the highest judicial situation in that country, and the result is, as on general principles I should certainly have expected — that a foreign merchant resident there, is just in the same situation as a British merchant, subject to the same obligations, bound to the same duties, and amenable to the same ^common authority of British tribunals." Periodical absence, on professional or other avo- cations, will not divest a person of that national character communicated to him by his residence, if that residence be fixed, with the voluntary inten- tion of remainino^.-^ Nor, on the other hand, can a merchant, who has a fixed residence, and is carrying on business at the place of his birth, acquire a foreign commercial .character by occasional visits to a foreign country.^ ' The Junge Euiter, 1 Acton, 116. ' The Nereide, 9 Cranch, 388. 104 WHAT COj^STITUTES A HOSTILE CHAEACTEE. Personal resi- Ju order to clotlie a person with a national char- re^qiSitr' acter, for commercial pui-jDOses, an actual personal residence in the hostile or neutral country, is by no means an overruling necessity. Estabiisiied It is undoubtedly true, that a merchant, engaged agency su ci- .^ ^^^^^^ ^^^ ^ foreign couutry, and while residing in his own, carries on his transactions by means of a resident agent in the foreign country, does not thereby, necessarily, and as a rule, acquire the char- acter of the nation of his agent's residence. But where the employment of the agent is in that pecu- liar service, as to imply that the employer considers himself as vii-tually a resident of the country, in other words, where the agent, instead of acting as the mere business representative, the factor or at- torney of his employer, acts as his deputy, in such cases the employer would undoubtedly be consid- ered as having taken upon himself the national character of the country of such an ao-ent's resi- dence. Hostile char- j^ coutract was made with a hostile government, actcr impress- i •,! i t ed by character aiKi ouc whicli was endowecl With such peculiar privileges as to give to the contractors, who were neutrals, even greater advantages than they would have enjoyed had they been Spanish merchants — Spain being the hostile contracting government. For the pui'pose of executing this contract, the mer- cliaut contractors thought fit to commission a spe- cial agent to reside in the hostile territory. The question was, the effect of such residence by such an agent, upon the national character of the princi- pals; and upon this question Lord Stowell thus speaks in his judgment: " It is nut indeed held, in general cases, that a WHAT CONSTITUTES A HOSTILE CHARACTEE. 123 neutral merchant, trading in an ordinary manner to the country of a belligerent, does contract the char- acter of a person domiciled there, by the mere resi- dence of a stationed agent, because, in general cases, the eifect of such a residence is counteracted by the nature of the trade and the neutral cliaracter of the British merchant himself " But it may be very different where the principal is not trading on the ordinary footing of a foreign merchant, Init as a privileged trader of the enemy. There, the natm'e of his trade does not protect.him ; on the contrary, the trade itself is the privileged trade of the enemy, j)utting him on the same foot, ing as their own subjects, and even above it.'" This same principle is fully recognized by the Doctrine or decisions of the courts of the United States. And t5tate,s^co^lrta without resort to a solution of the question of na- tional domicH, if one embarks in the ordinary or ex- traordinary commerce of an enemy's country, upon the same footing and- with like advantages as a na- tive resident citizen — the property employed by him in that commerce is held to be incorporated into the general commerce of the enemy's country, and subject to confiscation as lawful prize — be the resi- dence of the merchant actual or implied, where it mav.^ In the same case, it was determined, that a shipment made by a house in the enemy's country on account and risk of an exclusively neutral part- ner or house, there being every evidence of good faith in the transaction, was not subject to confisca- tion as prize of war, and equally correct would be • ' The Anna Cathcrina, 4 Rob., 107. ' San Jose Tndiano, 2 Gall., 268. 126 WHAT COjSrSTITUTEb A HOSTILE CHARACTEE. the application of tLe j^rincij^le under converse cir- cumstances — tliat is, a shipment made by a partner or agent domiciled in a foreign country, to a hona fide neutral house or principal, on the exclusive ac count of the latter. Sipiicltion ^^ ^ person holding the office of consul in a foreign from nature of state, as wc have seen in the case of Tlie Indian the omce. , Chiefs before cited, is deemed a resident of that state where his official commission implies a resi- dence. This has been held to be true even where there is no actual residence there by the consul, but his duties are performed there by deputies of his appointment — the appointment of deputies being considered proof that he regards himself as retain- ing the office to which this implied residence at- taches, though he may have found it convenient to avoid the personal burden of its functions. In a case before cited, in another connection,^ the claim- ant represented himself as an American, but in his affidavit stated that the United States government had appointed him consul-general to Scotland, al- though he had acted no farther in that capacity than to appoint deputies. Lord Stowell said : " It will be a strong circum- stance to aifect him with a British residence, as long as there are persons acting in an official station here, and deriving their authority from him." Importance of g^^f as has been repeatedly affirmed, the animus the ammus ' _ ^ ^^ '> ^ ' ' manendi in de- manendi is the decisive proof of residence. To es- dence. ° tablisli this intention of the mind, the circumstances in evidence need not be numerous, nor of a public ' The Dree Gehroeders^ 4 Rob., 232; Vide The En(traught, 1 Rob., 21. WHAT CONSTITUTES A HOSTILE CHAEACTEK. 127 or notorious character. In one case, the claimant urged against the presumption by the proof of his residence in a hostile country, that he had no fixed counting-house there. But Lord Stowell said, "that he had no fixed counting-house in the enemy's coun- try, will not be decisive. How much of the great mercantile concerns of this country is carried on in coffee-houses ? A very considerable portion of the great insurance business is so conducted. It is, in- deed, a vain idea, that a counting-house or fixed es- tablishment is necessary to make a man a merchant of any j^lace. If he is there himself, and acts as a merchant of that place, it is sufficient, and the mere want of a fixed counting-house there, will be no breach in the mercantile character, which may well exist without it."^ Another principle upon the subject of hostile Hostile ciiar- 1 J. jy •! 11 xi acter impress- character tor commercial purposes has been estab- ed by peculiar lished by numerous authorities. It is nearly con- J^afflc*^*^' ^^ nected with the question of residence, but results from the peculiar character of the commerce or traf- fic engaged in. In an early case, it was declared by Lord Stowell, to be "a doctrine supported by strong princi23les of equity and propriety, that there is a traffic which stamps a national character in the individual, independent of that character which mere personal residence may give — and it was laid down in the case of the ' Nancy and other ships,' which was heard before the Lords, on the 9th of April, 1798, that if a person entered into a house of trade in the enemy's country, in time of war, or * The Jonge Klassina, 5 Rob., 297. 128 WHAT CONSTITUTES A HOSTILE CIIAIIACTER. continued tliat connection during tlie war, lie sliould not protect himself by mere residence in a neutral country."^ The maintenance of a commercial house or es- tablishment in a hostile country, either personally or by agent, impresses the person with a hostile character, with reference to so much of the com- merce as is connected with that establishment. The citizen or subject of a belligerent, residing or maintaining a commercial house in the country of the adverse belligerent, is deemed as possessed ■ of a hostile character, so far as to subject to seizure such of his property as is concerned in the com- merce of his foreign estal^lishment. So, too, the citizen of a neutral nation, residing or maintaining a commercial establishment in the territory of a belligerent, is deemed as possessed of a hostile character towards the other belligerent, so ' far as to justify the seizure of his property that is connected with his commerce in the belligerent nation. And a citizen of a belligerent state, resid- ing or maintaining a commercial establishment in a neutral state — is deemed a neutral, both by his na- tive country and by the adverse belligerent — and with reference alike to the trade carried on by him witli the adverse belligerent, and with all the rest of the world. The residence only affects the particular trade. As was said by Lord Stowell in a case before cited :^ " A man having mercantile concerns in two countries, and acting as a merchant of both, must ' The Vigilantia, 1 Rob., 1 3. * The Jonge Klassina, 5 Rob., 297. WHAT CO]!^STITUTES A HOSTILE CHAKACTEE. 129 be liable to be considered as a subject of botli, witli regard to tlie transactions originating respect- ively in those countries." And the same learned judge, in another case^ says: " The personal domicil of the claimant, is at Emb- den, where he resides, and has a house of trade. He is only connected with this country by his part- nership in a house here, which is to be taken in a manner, as collateral and secondary to this house at Embden. That he may carry on trade with the enemy at his house in Embden cannot be denied, provided it does not originate from his house in London, nor vest an interest in that house." In another case, the distinction is very clearly drawn between that trade, as affected with liability to capture and forfeiture, which a merchant may carry on at his hostile, and that which he may car- ry on at his neutral establishment. In this case,^ the claimant resided in a neutral country, l)ut had two commercial establishments, one in a neutral country, and the other at Ostend, in a hostile country. In disposing of this case, in which there were nine other ships involved, besides the Poriland^ Lord Stowell observes: "As to the cii^cumstance of his being engaged in trading with Ostend, I think it will be difficult to extend the consequences of that act, whatever they may be, to the trade which he was carrying on at Hamburgh, and hav- ing no connection with Ostend, because, caU it what you please, a colorable character as to the trade carried on at Ostend, I cannot think it will give The Herman, 4 Rob., 228. "" The Portland, 3 Rob., 41. 9 130 WHAT CONSTITUTES A HOSTILE CHAEACTEE. such a color to his other commerce, as to make that Ka])le for the frauds of his Ostend trade. As far as the person is concerned, there is a neutral resi- dence. As far as the commerce is concerned, the nature of the transaction and destination are per- fectly neutral, unless it can he said, that trading in an enemy's commerce, makes a man, as to all his concerns, an enemy — or, that being engaged in a house of trade in the enemy's country, would give a general character to all his transactions. I do not see how the consequences of Mr. Ostermeyer's trading; to Ostend can affect his commerce in other parts of the world. I know of no case, nor of any principle, that would support such a position as this — that a man, having a house of trade in an enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belonged to Jiis belligerent domicil." Residonce of Xlie national character of a ship is, in general, mining nation- (Ivtermincd by the residence of her owner. There al character of ^ t • , j. i "li xi a ship as gen- ^^^^J, howcver, be circumstauces connected with the erai rule. particular or special conduct of the ship which as ill vary the presumption of character arising from i-esi- dence. » Ship consider- If a, ship, of whatever nation as to her owner's ed of the na- . . • , • , i t /i tion whose resicleuce, IS navigatmg the seas under a pass oi a sh? bearsi^^as foreign iiatioii, she is regarded to all intents, so to habuity to f^p .^g liability to capture is concerned, as a ship of capture. . 7 j. that nation. Sometimes the Upou the Same principle, if a ship be purchased national char- , ii"j_i 1 n ,i -i» acter of vessel by a ueutrai m the country oi the enemy, and is WHAT CONSTITUTES A HOSTILE CHAEACTEK. 131 employed subsequently and habitually in the trade j^ determined -•■ "^ ^ "^ . •11 . by its employ- oi that country, commencing with the war, contmu- ment. ing during the Avar, and on account of the war, she is to be deemed, notwithstanding a honajide change of ownership), a ship of the country where she is thus employed. In pronouncing judgment of condemnation in the case of T/ie VigilaMia^ before cited,^ Lord Stowell says : " Here is a Dutch built vessel — a Dutch fish- ing vessel — that went from Amsterdam regularly and habitually to Greenland, and to return to Am- sterdam, there to deliver her cargo. She is pur- chased in Holland. She is purchased avowedly for the purpose of pursuing the same course of com- merce — the fishing trade of Holland. She is pur- chased at a time when it is said there was a defect of conveniences for carrying on this trade at Embden. But I am satisfied it was the intention of the par- ties to carry on this trade to and from Amster- dam, Now, I ask, upon what ground is it that this vessel, so purchased, and so emj)loyed, is to be con- sidered merely as a Prussian vessel ? Here is a ship as thoroughly engaged and incorporated in Dutch commerce as a ship possibly can be. She is fitted out uniformly fi'om Amsterdam. She is fitted out with Dutch manufacture. She is fitted out for Dutch importation, in all respects employing and feeding the industry of tliat country. She is man- aged by a Dutch ship's husband, and finding occu- pation for the commercial knowledge and industry of the subjects of that country. She is commanded by a Dutch captain; she is manned by a Dutch 1 Rob. 1. 182 WHAT CONSTITUTES A HOSTILE CHARACTEE. crew, and brings back tlie produce of Ler voyage for Dutcli consumption and Dutcli revenue. If to this you add that the vessel is transferred by the Dutch, because they themselves are unable to carry on the trade avowedly in their own persons, it is truly a Dutch commerce in a very eminent degree, not only in its essence, but for the very hostile pur- pose of rescuing and protecting the Dutch fi'om the naval superiority of their British enemy. " There had been a determination last war, in the case of two persons, one resident at St. Eustatius, and the other in Denmark, who were partners in a house of trade at St. Eustatius. The one who resided there, forwarded the cargoes to Europe ; the other received them at Amsterdam, disposed of them there, and then returned to Denmark. It was . decided, in that case, that the share of the person resident in St. Eustatius was liable to condemnation as the property of a domiciled Dutchman, and that the share of the other partner should be restored as the property of a neutral. (The Jacobus Johannes. . House of Lords, Feb. 10, 1785.) " There was also a case in this war of some persons who migrated from Nantucket to France, and there carried on a fishery very beneficial to the French. In that case, the property of a partner domiciled in France was condemned, whilst the property of another partner, resident in America, w^as restored. From these two cases a notion had been adopted, that the domicil of the parties was that alone to which the court had a right to resort ; Ixit the case of Coopman, House of Lords, April 9, 1798, was lately decided on very different principles. It was there said by the Lords that the former cases were WHAT CONSTITUTES A HOSTILE CHAEACTER. 133 cases merely at the commencement of a war ; tliat in the case of a person carrying on trade habitually in the country of the enemy, though not resident there, Jie should have time to withdraw himself from that commerce, and that it would press too heavily on neutrals to say that, immediately on the first breaking out of a war, theii' goods should become subject to confiscation ; but it was then expressly laid down, that if a person entered into a house of trade, in the enemy's country, in time of war, or continued that connection during the war, he should not protect himself by mere residence in a neutral country. " That decision instructs me in this doctrine — a doctrine supported by strong principles of equity and propriety — that there is a traffic which stamps a national character on the individual, independent of that character which mere personal residence may give him." There is still another mode in which a hostile Hostile char- acter impress- character may be imparted to the person, so as to ed by engage- subject his property to capture, and that is, by amerce orru- commerce of that peculiar character as may be re- ^ theTd've'rse garded to be confined to the subjects of the adverse beuigereut. belligerents themselves. The case illustrating this point, is The Princessa^ The facts in this case are stated by the learned judge in his decision. Lord Stowell says: "This is a Spanish frigate, employed as a packet of the king of Sj^ain, to bring bullion and specie fr^om South America to old Spain ; and I think the presump- tion is most strong, that none but Spanish sub- ' 2 Rob., 49. 134: WHAT CONSTITUTES A HOSTILE CHAEACTEE. jects are entitled to the privilege of having money brought from that colony to Spain. I have looked carefully through the manifest, and I perceive there is not one shipment but in the name of Spaniards, Therefore, it appears that this is not an ordinary trade ; and I must take this to be property which must have been considered as Spanish, and which ' could not have been exported in any other char- acter. "It has been decided by the Lords, in several cases, that the property of British merchants, even shi^^ped before the war, yet, if in a Spanish charac- ter, and in a trade so exclusively peculiar to S]3an- ish sul)jects, as that no foreign name could aj^pear in it, must take the consequences of that character, and be considered as Spanish property." EspeciaUy One who is specially authorized by the govern- thority^of ad- ^^^^ o^ the enemy to engage, and, pursuant to govern- ^^q]^ authority, does engage in commercial transac- tions which are, as a general thing, confined to the citizens or subjects of the enemy, must of necessity be regarded as an enemy, is fully established in the case of the Anna Catlierina^ which has been al- ready cited in another connection. Upon this par- ticular subject, in that case, the learned judge sa} s : " It is by nothing peculiar in his own character, that the original contractor would be liable toi be considered as a Spanish merchant, but merely by the acceptance of this contract, and by acting upon it. If other persons take their share, and accept those benefits,, they take their share also in the le- gal effects. They accepted his privileges; they adopted his resident agent. It would l)e mon- strous to say that the effect" of the original contract verse meat. WHAT CONSTITUTES A HOSTILE CHAEACTEE. 135 is to give the Spanisli character to the contracting person, but that he may dole it out to a hundred other persons, who, in their respective portions, arc to have the benefit, but are not liable to the efi:ect of any such imputations. The consequence would be, that such a contract would be protected in the only mode in which it could be carried into effect ; for a contract of such extent must be distributed, and if every subordinate person is protected, then here is a contract which concludes the orio:inal un- dertaker of the whole, but in no degree affects one of those persons who cany that w^hole into execu- tion. On these grounds, I am of opinion that these goods are liable to be considered as the property of the Spanish government : and fuii;her, that these parties are liable to be considered as clothed in this transaction, with the character of Spanish mer- chants." There is another principle which has become character of established by the authorities of the courts, by the vessel. which a hostile character is impressed upon proj)- erty, by virtue of the character of its employment, irrespective of the actual or even the implied or constructive domicil of the owner. It refers to ships or vessels which navigate the ocean under the flag, or the pass, or protection of the enemy. The case which illustrates this principle most directly, is that of Tlie Elizabetli^ in which Lord Stowell says : " By the established rules of law, it has been decided that a vessel sailing under the colors and pass of a nation, is to be considered ' The Elizabeth, S-^ob., 2. 136 WHAT CONSTITUTES A HOSTILE CHAEACTEE. clothed with the national character of that coun- try. With goods it may be otherwise ; but ships have a peculiar character impressed upon them by the special nature of their documents, and have al- ways been held to the character with which they are so invested, to the exclusion of any claims of interest that persons living in neutral countries may actually have in them. In the war before the last, this principle was strongly recognized in the case of a ship taken on a vo} age from Surinam to Amsterdam, and documented as a Dutch ship. Claims were given for specific shares on behalf of persons residing in Switzerland, and one claim was on behalf of a lady to whom a share had devolved by inheritance, whether during hostilities or no, I do not accurately remember ; but if it was so, she had done no act whatever with regard to that prop- erty, and it might be said to have di'opped by mere accident into her lap. In that case, however, it ' was held that the fact of sailing under the Dutch flag and pass, was decisive against the admission of any claim ; and it was observed that as the vessel had 1jeen enjoying the privileges of a Dutch char- acter, the parties could not expect to reap the ad- vantages of such an employment, without being- subject at the same time to the inconveniences at- taching to it." » To this case of Tlie Eldzabetli^ the reporter, Dr. Robinson, has appended a note, embracing a report of the case of the " Vreede SclioUys^'' in which the distinction intimated by the learned judge in the case of The Elizabetli^ as to hostility of character, between ships and their cargoes, is clearly set forth as follows : " A great distinction has always been WHAT CONSTITUTES A HOSTILE CHAEACTER. 137 made by tlie nations of Europe between sliips and goods. Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also ; but this country has never carried the princi- ple to that extent. It holds the ship bound by the character imposed upon it by the authority of the government, from which all the documents issue. But goods which have no such dependence upon the authority of the state maybe differently consid- ered." ' The doctrine, that a ship sailing under the flag and documentary protection of the enemy, clothes her with a hostile character, has been recognized and applied with exceeding strictness by the fed- eral coui'ts of the United States. Indeed the prin- ciple, as established by these decisions goes to the extent of declaring, that sailing under the license and protection of the enemy, in furtherance of his views and interests, is, without reference to the pur- pose of the voyage or its destination, such an ille- gality as subjected both ship and cargo to seizure and condemnation as lawful prize of war. The basis of these decisions is, that the license Reason of the , , rule. granted by the enemy is equivalent to a contract by the licensee, to withdraw himself entirely fr^om the war and enjoy the repose and blessings of • peace. The illegality of such an intercourse for such a purpose is strongly condemned, and it was held, that the moment a vessel sailed on her voyage with an enemy's license on board, the offence was irrevo- cably committed and consummated, and that the delictum was not done away, even by the terminal 138 WHAT CONSTITUTES A HOSTILE CHARACTEE. tion of the voyage, but tliat the vessel and cargo might be -seized after arrival in a port of the United States, and condemned as lawful j)rize.^ persons or property. Transfer in transitu. Attempts to Attempts have been made from time to time, rules which and the ingenuity of merchants has been exercised Sy^'of char- ^^ ©lude the application of the principle which im- acter upon presscs property, whether vessel or cargo, with a hostile chai'acter, making it subject to confiscation — ])y reason of the actual or constructive residence of the owner, or of the peculiar character or mode or manner of its employment. The transfer of the property while in ti'ansit has been frequently resorted to, in the hope of accom- plishing the purj^ose ; but the rule has become set- tled by numerous decisions, that property stamped with a hostile character at the commencement of the voyage, cannot change its character by a mere change of ownership while in trunsitu. The remarks of Lord Stowell, in a case in which the transfer was held to be valid, because actually made by delivery of bill of sale, though not of the property itself, prior to the commencement of hos- tilities, contain a lucid statement of the rule : " The first objection that has been taken is, that the trans- fer is invalid, and cannot be set up in a prize court, where the property is always considered to remain in the same character in which it was shipped till the delivery. If that could be maintained, tliere would be an end to the question; because it has been admitted that these wines were shipped as ' The Julia, 1 (lall., G05 ; 8 Cranch, 181 ; The Aurora, ib., 203 ; The Hiram, ib., 444 ; The Ariadne, 2 Wlieat., 100. WHAT CONSTITUTES A HOSTILE CHAEACTEE. 139 Spanisli property, and tliat Spanisli property has now become liable to condemnation. But I appre- hend it is a position that cannot be maintained in that extent. In the ordinary course of things, in time of peace — for it is not denied that such a con- tract may be made and effectually made according to the usag-e of merchants in time of war — such a trans- fer in transitu might certainly be made, Jt has even been contended that a delivery, of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery — but that a transfer of the bill of lading, with a contract of sale accom- panying it, may transfer the property in the ordi- nary course of things, so as effectually to bind the parties and all others, cannot be doubted. When war intervenes, another rule is set up in admiralty which interferes with the ordinary practice. " In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at thti time of shipment till the actual delivery. This arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in the enemy's country would be protected by trans- fers which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property cannot be converted in transitu, and in that sense I recognize it as a rule of this court. But this, as I have said, arises out of a state of war, which creates new rights in other parties, and can- not be applied to transactions originating, like this, in a time of peace. The transfer must therefore be considered as not invalid, in point of law, at the 140 WHAT CONSTITUTES A HOSTILE CHARACTER. time of the contract — and being made before tlie war, it. must be judged according to the ordinary rules of commerce."^ A ship sailed from Demerara for Middleburgh, in Holland, on the 30th of January, 1781, about six weeks after the commencement of hostilities between Great Britain and Holland. On the 14th of March following, Demerara surrendered to the British forces. The ship was captured at sea on the 25th of March. In pronouncing the judgment of the court in this case, Lord Stowell says : " The terms of capitula- tion were very favorable. The inhabitants were to take the oath of allegiance, to be permitted to ex- port their own property, and to be treated, in all respects^ like British subjects, till his majesty's pleas- ure could be known ; and although this was in the first instance only under the proclamation of the captor, still, that being accepted, it took complete effect. These terms were afterwards confirmed by the king. There was, therefore, as strong a prom- ise of protection as could be, and recognized and confirmed by the supreme authority of the state. " Under these circumstances, the judge of the admiralty thought the claim so strong, that he ordered it restored ; and it was not Ids opinion alone. On appeal, however, the Lords were of opinion that property sailing after declaration of hostilities, and before a capitulation, and taken on the voyage, was not protected by the intermediate capitulation. It was not determined on any ground of illegal trade, nor on any surmise that, when the owners ' The Vrow Manjaretha, \ Kob., 337. WHAT CONSTITUTES A HOSTILE CHARACTEE. 141 became Britisli subjects, the trade in wbicli tlie property was embarked became, ex post facto ^ illegal. Nor was it at all taken into consideration tliat Deme- rara bad again become a Dutcli colony at tbe time of adjudication. It was declared to be adjudged upon tbe same principles as if tbe cause bad come on at tbe time of tbe capture. It was not on any of tbese grounds, but simply on tbe ground of Dutcb property, tbat condemnation was passed. The ship sailed' as a Dutcli sldp^and could not change her character in transitu. Tbis was tbe dictum of a great law lord tben present — Lord Camden,"^ Many cases bave arisen of colorable transfers, made under a great variety of circumstances, sucb as mitWit well be expected from buman ingenuity exer- cised for tbe protection of vast interests. Tbey are interesting only as expositions of tbe acuteness of captors in tracking and developing tbe deceitful and fraudulent cbaracter of tbe transfer, and tbe inge- nuity and skill of claimants in eluding investiga- tion. A transfer made by an enemy to a neutral during Transfers in or in contemplation of war, is illegal, because m fraud of a vested belligerent rigbt. Any reservation of interest in tbe transfer, any tbing sbort of an absolute and unconditional sale, is beld to pass no title wbatever to tbe property, but. tbat it remains in tbe enemy, subject to capture.^ So, too, a reservation of risk to neutral consignors, Reservations ' ' ,^. . . of risk. in order to protect belligerent consignees, are uni- ' TheNegotle m Zeevart, 1 Rob., Ill ; The Dankehaar Afri- can, 1 Rob., 107 ; The Jan Frederick, 5 Rob., 128. ' - The Anoydt Gedacht, 2 Rob., 137 ; The Sechs Geschwistem, 4 Rob., 100. }4:-2 WHAT CONSTITUTES A HOSTILE CHAEACTEE. formly regarded by courts of admiralty as fraudu- lent and invalid. In tlie last war between Great Britain and France, a cargo was shipped on board tlie ship Salk/ GriffiiJis, ostensibly on account of American mer- chants. Upon the examination on the capture, the master testified to his belief that the cargo, upon being unladen, would have become the property of the French government. It was obvious, therefore, that a sale had been legally completed ; and the use of American names as consignees, on whose risk and account the shipment was pretended to be made, was solely to evade the result of a capture, if the cargo had been ship23ed avowedly as French property. " It has always been the rule of the prize court," says Sir P. Arden, in this case, "that property, going to be delivered in the enemy's country, and under a contract to become the property of the • enemy immediately on arrival, if taken m traiisitu^ is to be considered as enemy's property. When the contract is made in time of peace, or without any contemplation of war, no such rule exists. But, in a case like the present, where the form of tlie contract was framed directly for the j)urpose of obviating the danger apprehended from approaching hostilities, it is a rule which unavoidably must 'take place. The bill of lading expresses for the account and risk of American merchants; but papers alone make no proof, unless supported by the deposition of the master. Instead of supporting the contents of his papers, the master deposes, Hhat on arrival, the goods would become the property of the French government ;' and all the concealed papers strongly WHAT CO:!^STITUTES A HOSTILE CHAEACTEE. 143 support liim in tliis testimony. Tlie evidentia rei is too strong to admit of fui'tlier proof. Supposing it to have become the property of the enemy on delivery, captui-e is considered - as delivery; the captors, by the right of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property."^ In the leading case of the packet De Bilhoal which was that of a shipment at the risk of the consignor until delivery, as having been made be- fore the war. Lord Stowell considers the subject with his usual learning and ability. He says : " The statement of the claim sets forth that these goods have not been paid for by the Spaniard. That would go but little Avay; that alone would not do. There must be many cases in which British merchants suffer from capture by our own cruizers, of goods shipped for foreign account before the breaking out of hostilities. The claim goes on to state, ' that according to the custom of the trade, • a credit of six, nine, or twelve months is usually given, and that it is not the custom to draw on the consignees till the arrival of the goods — that the sea risk, in peace as well as war, is on the consignor, that he insures, and has no remedy against the con- signee for any accident that may happen during the voyage.' Under these circumstances in whom does the property reside? The ordinary state of com- merce is, that goods ordered and delivered to the master, are considered as delivered to the consignee, whose agent the master is in this respect — but that general contract of the law may be varied l^y spe- ' The Sally Griffiths, 3 Rob., 133. ^ De JBilboa, 2 Rob. 133. 144 WHAT CONSTITUTES A HOSTILE CHAEACTEE. cial agreement, or hj a particular prevailing prac- tice that ^presupposes an agreement among sucli a description of mercliants. In time of profound peace, when there is no prospect of approaching ^\^ar, there would be unquestionably nothing illegal in contracting that the whole risk should fall on the consignor till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not ; it would, not be at all ille- gal that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shipper. In time of war, this cannot be peimitted, for it would at once put an end to all captures at sea — the risk would, in all cases, be laid on the con- signor, Avhere it suited the purpose of protection. On every contemplation of war, this contrivance would be practised in all consignments from neu- tral ports to the enemy's country, to the manifest ♦ defrauding of all .rights of capture. It is therefore considered to be an invalid contract in time of war, or, to express it more accurately, it is a conti'act which, if made in war, has this effect, that the cap- tor has a right to seize it and convert the property to his own use ; for he, having all the rights which belong to his enemy, is authorized to have his taking possession considered as equivalent to an actual delivery to his enemy, and the shipper, who put it on board during a time of war, jnust be pre- sumed to know the rule, and to secure himself in his agreement mth the consignee against the con- tingency of any loss to himself that can arise from capture. In other words, he is a mere insurer against sea-risk, and he has nothing to do with the WHAT CONSTITUTES A HOSTILE CHAEACTEK. 145 case of captui'e, tlie loss of whicli falls entirely on the consignee. If tlie consignee refuses payment and throws it upon the shipper, the shipper must be supposed to. have guarded his own interest again&t that hazard, or he has acted improvidently and without caution. The present contract, how- ever, is not of this sort. It stands as a lawful agreement being made whilst there was neither war nor prospect of war. The goods are sent at the risk of the shipper. If they had been lost, on whom would the loss have fallen but upon him ? What surer test of property can there be than this ? It is the true criterion of property, that if you are the person on whom the loss will fall, you are to be considered as the proprietor. To make the loss fall upon the shipper in such cases, would be harsh in the extreme. .He ships his goods in the ordinary course of traffic by an agreement mutually understood between the parties, and in nowise in- jurious to the rights of any third party. An event ■ subsequently haj^pens which he could in no degree provide against. If he is to be the sufferer, he is a sufferer without notice, and without the means of securing himself He was not called upon to know that the'injustice of the other party would produce a war before the delivery of his goods." Upon the general rule of the invalidity of trans- fers from belligerents to neutrals made during or in contemplation of war, as affording exemption ft'om liability to confiscation on capture, Chancellor Kent observes : " Such agreements, if tliey could operate, would go to cover all belligerent property, while passing between a belligerent and neutral country, since 10 146 WHAT CONSTITUTES A HOSTILE CHAKACTEE. tlie risk of capture would be laid alternately on the consignor or consignee, as tlie neutral factor should happen to stand in the one or the other of these relations." And again the learned chancellor says, referring to the same subject : " These principles of the Eng- lish admiralty have been explicitly recognized and acted upon by the prize courts of the United States. The great principles of national law were held to require, that in ^var, enemy's property should not change its hostile character m transitu^ and that no secret liens, uo future election, no private con- tracts looking to futui'e events, should be able to cover private property while sailing on the ocean. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost."^ ' Kent's Com. I., 94 ; The Josephine^ 4 Rob., 25 ; The Tohago, 5 Rob., 218; The Mariana, 6 Rob., 24; The Francis, 1 Gall., 445; 8 Cranch, 335 ; The Sisters, 5 Rob. 155; Vrow Catherina, 5 Rob., 161 ; 1 Daer on Insurance, 478. [[During the existing civil war in the United States, there seems to have prevailed among the British merchants there resident, the like misappre- hension in relation to their rights, which so fatally misled American citizens resident abroad during the last war between Great Britain and Holland. They appear to have supposed themselves entitled to retain all the privileges of British subjects, with- WHAT CONSTITUTES A HOSTILE CHARACTEE. 14Y out regard to the fact of their residence and occu- pation in another country. As this misapprehension of American citizens, Recent Ampri- during the war between England and Holland, was on the doctrine taught them to their cost, by the decisions of the "^J^^^t^^^^g^;- courts of Great Britain (as we have seen in the ^^^ residence cases before cited) ; so the same error of the Brit- ish subjects residing in the southern ports of the American Union, has been in like manner corrected, by numerous recent decisions of the courts of the United States. The brig Sarah Sta/rr^ in the month of July, The Sarah 1861, three months after the proclamation of block- states Court, ade by the executive authority of the United ^^®^'' ^^^"^ States, was ■ lying at Wilmington, North Carolina, one of the blockaded ports. She was then owned by Messrs. Monroe, citizens of Bhode Island, having business connections and transactions in North Carolina. Through the agents and correspondents of Messrs. Monroe, in Charles- ton, South Carolina, a negotiation was made, by which the vessel was transferred to one Cowlan Gravely, a merchant, residing and transacting busi- ness at Charleston, but an Englishman by birth, and still owing allegiance to the British crown. This transfer having been consummated, the Brit- ish consul at Charleston supplied the vessel with a provisional register. The vessel was laden with naval stores, and, under a clearance and pass from the insurgent authorities, she left Cape Fear river on the 3d day of August, and shortly after crossing the bar, was captured by the Ignited States steamer Wabash, and sent to the port of New York for adjudication. 148 WHAT CONSTITUTES A HOSTILE CHARACTER. The question of tlie liability of tlie vessel to con- demnation, as impressed with a hostile character, by reason of the residence of Cowlan Gravely in the country of the enemy, as his permanent business domicile, was distinctly raised in the case, and the doctrine, as well settled both in the English' and American authorities, upon this subject, was recog- nized and affirmed. At about the same time, the British consul at Charleston was employed in furnishing with pro- visional registers some five or six other vessels, lying at the different blockaded ports, and which had been in like manner transferred to the same ' Cowlan Gravely. Several of them were captured, and the British title, which had been resorted to, was held to be no protection from condemnation. ( Vide The Aig- hurtli — MS. Decisions of United States District Court of New York. ThQ Joseph H. The Josejyli H. Toone^ captured in October, 1861, States Court, while attempting to violate the blockade of New New York. Orleans, by the United States ship South Ca^olina^ and sent to New York for adjudication, was claimed by one Aymar, who was on board as a passenger at the time of capture. Her previous owner was a citizen of New Orleans ; and the vessel left New Orleans on her preceding voyage, with Aymaa* on board, successfully evading the blockade, and pro- ceeded to Havana. Previous to her departure, the New Orleans owner delivered to the master a power of attorney to sell the vessel; and, under this pow- er, the master executed a transfer to Aymar, in Havana. Aymar being, or claiming to be, a British subject, the British consul supplied the vessel with WKAT CONSTITUTES A HOSTILE CHAEACTER. 149 a Britisli register, wliich evidence of neutral owner- ship was found on board at the time of capture. Aymar was examined as a witness on the stand- ing interrogatories ; and testified that he was a British subject, born at St. Andrews, in tlie British province of New Brunswick, and that he called St. Andrews his place of residence, but had transacted husiness in JSfetv Orleans for eight years past. There were many other grounds upon which this vessel and cargo (which consisted of warlike muni- tions almost entirely) were clearly subject to confis- cation as lawful prize, but the permanent business residence of the claimant of the vessel, as sworn to by himself, was considered quite conclusive, as im- pressing upon the property such hostility of charac- ter as rendered it lawful subject of capture as the property of the enemy. So also the recent adjudications in the United The Genemi States District Court of Pennsylvania, in the case court' Pem. ' of the General Parhhill, and in the United States District Court of Massachusetts, in the case of the Revere. In this latter case, the learned judge says : " Property of persons resident in an enemy's ^^1^^ gp- country is deemed hostile, and subject to condem- Court, Mass. nation, without any evidence as to the individual opinions or predilections of the owner. If he he the sid)ject of a neutral^ or a citizeii of one of the belligerent states, and has expressed no disloyal sentiments toward his native country, still, his resi- dence in the enemy's eonntry impresses upon his property engaged in commerce, and found upon the ocean, a hostile character, and subjects it to con- demnation." 150 WHAT CONSTITUTES A HOSTILE CHAEACTEE. The General In recognition and application of this doctrine, Court, Penii " the learned judge of the United States Court in Pennsylvania, in the case of the General Parhhill, uses the following language : — " One of the purposes of naval warfare is to dimin- ish the power of hostile governments, or of other hostile organizations, by the indiscriminate mari- time capture of the property of all persons residing in places within hostile dominion, or in permanent or temporary hostile occupation. " The capture and confiscation of such property, by destroying or suppressing the maritime trade of such places, diminishes their wealth, and thus reduces the power of their hostile rulers. " The liberation of the property when captured, whether the individual residents who owned it are well or ill affected in feeling toward the govern- ment of the captors, would restore its value in wealth to the hostile place. "The rule of confiscation applies, though the res- ident may owe a duty of allegiance to the captor's government, and may, while in the hostile place, have been perfectly loyal in his own feeling and conduct. " After the declaration of war against England, in 1812, a citizen of the United States, residing in England, before any knowledge of the war, shipped merchandize for the United States, which, halving been captured on the voyage, was condemned as prize. The Supreme Court said, ' although he can- not be considered an enemy in the strict sense of the word, yet, he is deemed such with reference to the seizure of so much of his property concerned in the trade of the enemy, as is connected with his residence.' " WHAT CONSTITUTES A HOSTILE CHAEACTEPv. 151 " Those predatory maritime hostilities, wliicli tlie law of war sanctions, could not be prosecuted with effect, if this rule were not applied with inexorable rigor." So, too, in the case of the Amy Warwick, the TheJi ??i?/War- distinguished judge of the United States Court ingt^tes court" Massachusetts, takes occasion to enforce the familiar ^'^^^■ doctrine, as follows : " What shall be deemed enemy's property is a question of frequent occurrence in prize courts, and on which certain rules and principles are well estab- lished. "Property of persons resident in an enemy's country is deemed hostile, and subject to condem- nation, without any evidence as to the individual opinions or predilections of the owner. If he be the subject of a neutral, or a citizen of one of the belligerent states, and has expressed no disloyal sentiments toward his native country, still, his residence in the enemy's country impresses upon his property engaged in commerce, and found upon the ocean, a hostile character, and subjects it to con- fiscation." {The Venus, 8 Cranch, 253. See also The Hoop, 1 Rob., 196, and the cases there col- lected.) Although, from the numerous adjudications upon captured vessels, transfen^ed by pul)lic enemies to British subjects residing in the enemy's territory, durino" the existing war, the error seems to have been C[uite prevalent, that immunity from capture was, by such transfer, secured; there, nevertheless, seems to have been an apprehension, that a transfer gf a vessel by an enemy to a neutral, in a blockaded port, might be of questionable validity. And thus, 152 WHAT CONSTITUTES A HOSTII.E CHAKACTEE. Transfers by enemies to neutrals dur- ing war void, as a fraud on belligerent rights. The Mersey. U. S. Court, New Tork. as in tlie case of the Toone, the contrivance was re- sorted to of executing the transfer in a foreign port, through the medium of a procuration executed in the blockaded port. Inasmuch as the transferree in thtit, as well as in most of the other cases, was a domiciliated business resident of the country of the enemy, the question of the validity of the transfer, as made in a block- aded port, or during war, by an enemy to a neutral, became of secondary importance. But the ingenuity of man is unequal to the task of rendering valid by indirection, an act which the law invalidates when done directly. The transfer of a vessel by power of attorney, whenever made, is the act of the principal, and although done by the agent in a foreign port, in legal intendment, it is not less the act of the prin- cipal at his own domicile. But subsidiary to all this, is the well settled principle, under which such transfers become mere waste paper; it is that principle, well established in the law of nations, that a transfer by an enemy to a neutral in time of war, or in aid of a contem- plated war, is void, as in fraud of belligerent rights. The undoubted belligerent right of conquering from the adversary an honorable peace, by ii)ijict- ing a blow upon his ocean commerce, is directly in- vaded, and may be wholly destroyed by the acts of neutrals, in becoming possessed of that commerce ; and hence, the law regards such acts as in no man- ner changing the ti'ue ownership of the property. The schooner Mer.sey l^elonged to a citizen of Charleston, South Carolina, and succeeding in get- WnAT CONSTITUTES A HOSTILE CHARACTER. 153 ting out of that port in violation of the l:>lockade, in March 1862, went to the British port of Nassau, where, through a power of attorney executed in Charleston, she was transferred to a British subject residing at Nassau, and thereuj^on clothed with a British register. Being captured on her next voy- age, two days out from Nassau, and sent to New York as prize of war, the learned judge of that dis- trict, in adjudicating upon the questions raised in the proceedings against her, affirms this doctrine in the following emphatic language : — " For aught that appears before the court, this vessel retained the same character and ownership she bore when she left Charleston, and entered the port of Nassau, the last of March, and at the time the British register on board her, was executed at Nassau. Beyond that subsidiar}^ principle is the higher doctrine, that a transfer of property to a neu- tral by an enemy in time of war, or in aid of a con- templated tvar, is illegal, as in violation and in fraud of vested belligerent rights." (The Bernou^ 1 Rob., 86; 2 ibid.^ 114, note a; ^ ihid., 396, note 400 ; 2 ihid., 281 ; The Roscdie and Bettys) ( Vide MS. Decisions in Prize, of United States District Court of New York.) The doctrine that secret liens upon captured Secret iiens property are wholly disregarded in prize courts, by courts^of and that confiscations enure to the benefit of cap- P"^®* tors, discharofed from all such incumbrances as are not visible at the time of capture, has been affirmed and enforced by the Federal courts of the United , States, in recent adjudications. In the cases of the Hiaivatha, the Crenshaw, the 154 WHAT CONSTITUTES A HOSTILE CHAEACTER. Lyncliburg^ and otliers, many of tlie claimants of the captured property were persons wlio had made advances upon portions of merchandize shipped on hoard the vessels captured, and claimed a lien upon the property, by express agreement, as security for the advances. Such claims were held to be inadmissible, except in the instance where the bills of lading were in- dorsed to the person making the advance, giving to him the actual right of possession of the prop- erty, leaving to the shipper only a claim to the sur- plus of proceeds after payment of advances. In the case of the Delta ^ adjudicated in the New York Federal court, citizens of Massachusetts claimed a lien upon the captured vessel to the amount of £1,900, by virtue of a mortgage upon the vessel to that amount, executed in London, by the holder of the legal title, and assigned to them. The claim was rejected by the eminent judge, who, in passing upon the question, say5 : " Preliminary to the question of prize or no prize, to be determined upon the proofs, is one in relation to the character of the claim of Isaac and Setli Adams, and their right to assert the same, as against the captors." "Although the conclusions to which the court lias arrived, upon the main question, cannot be affe9ted by the determination of that of a mortgagee of cap- tured property to assert his mortgage in a prize court, and demand that it be paid out of the pro- ceeds of the property, if condemned, it is neverthe- less proper to consider that question," " Charles W. Adams being the sole owner of the brig, executed a bill of sale to the claimant, Marsh, WHAT CONSTITUTES A HOSTILE CHAEACTEE. 155 in Liverpool, and took back from Mm a mortgage to secure the purckase-money, for £1,900 sterling." " Isaac and Setk Adams, claim solely as tke hold- ers and owners of tkis mortgage." " Now tkere is, perhaps, no doctrine better set- tled in the law of maritime capture, than this — that all liens upon captured property, which are not, in their very nature, open and visible (like that for freight for enemy cargo laden on board a neutral vessel) are disregarded by prize courts. "The great principles of international law re- quire that no secret liens, no mortgages, no bottom- ry bonds, no claims for repairs, supplies, or ad- vances, should be allowed to cover and protect private property while sailing on the ocean. If the door were once opened for the admission of equitable claims and liens, there would l)e no end to discussion and imposition, and the simplicity and celerity of prize proceedings would be alike sacri- ficed. {The Francis^ 1 Gall., 445 ; The Josephine, 4 Eob., 25; The Tobago, 5 Eob., 218; The Mari- ana, 6 Eob., 24; The Sisters, 5 Eob., 161.) " The claim, therefore, of the brothers, Isaac and Seth Adams, is one that cannot be regarded in this court." In the case of the Areola, adjudicated in the Dis- The Areola. trict Court of the United States in Maryland, tlie crstrTct Court, learned judge, while recognizing the correctness of ^fai-yiand. the doctrine, allows the claim of the mortgagee of the vessel, solely because his lien was visible. In reviewing the cases in which liens upon cap- tured property have been disallowed, the learned judge says: " Now these were all secret liens, of Avhich the 156 WHAT CONSTITUTES A HOSTILE CHAEACTEE. captors could learn notliiug when they made the captui-e, and depending for their existence upon the different laws of different countries. The difficul- ties which the examination of such claims would impose upon the prize courts in deciding upon them, have excluded such claims from their consid- eration. But do these considerations apply to the case of a mortgage, regularly recorded under the act of Congress of July 29th, 1850, and indorsed on the certificate of enrolment? Our act of Congress does not require the mortgage or memorandum ' thereof, to be indorsed on the vessel's register or enrolment, as the statute of 6 Geo. IV., ch. 20, and subsequent British statutes do. But it was done in this case, and it is a practice that should be followed in similar cases. It notifies the captors, immediately on inspection of the ship's papers, that there is an interest in the vessel, vested in parties fi'iendly to the government, and puts them to their election whether, under such circumstances, they will proceed in the capture." Upon this ground the claim was allowed, upon terms, as to costs. The Amy War- In the case of the Amy Warivich, on the claim of ':;^tkn'f Mm Z. Phipps, c& Co., decided in the United FMpps&co. g^^^^gg District Court for the District of Massachu- U. S. Court, -, . -, . 1 • . 1 1 Mass. setts, the learned judge, m applymg the law m relation to liens upon captured property, takes occasion to declare the distinction between such liens as may be upheld in a court of prize, and such as cannot be protected, which seems to cover the whole ground. He says : " The counsel for the captors contend that the claimants had only a lien on this cargo. WHAT CONSTITUTES A HOSTILE CHAEACTER. 15 Y and tliat liens will not be protected or regarded in a prize cornet. This position is sustained by the authorities as to certain kinds of liens. The extent of this doctrine and the reasons on which it is founded, are stated by the Supreme Court, in The Francis^ 8 Cranch, 418. It is there said that 'cases of liens created by the mere private contract of in- dividuals, depending upon the different laws of different countries, are not allowed, because of the difficulties which would arise in deciding ujDon them, and the door which would be open to fraud.' Similar reasons are given by Lord Stowell, in The Marianna, 6 Eob., '25, 26, and in several other cases. These reasons are especially applicable to latent liens created under local laws. They do not reach the case now before the court. This coffee was purchased by the claimants at Rio, and shij)ped by them on board this brig under a bill of lading, by which the master was bound to deliver it to their order, and they ordered it to be delivered to J. L. Phipps & Co., that is, to themselves. They then retained the legal title, and the possession of the master was their possession. Being the legal owners of the property, they can hardly be said to have alien upon it; a lien being in strictness an incumbrance on the property of another. Their real character was that of trustees holding the legal title and possession with a right of retention until their advances should be paid. " In The Francis and many other cases it is held that the lien of a neutral carrier for the freight of enemy's goods, is upon capture to be allowed. The general doctrine seems to be that where a neutral has a jus in re; where he is in possession with a 158 WHAT CONSTITUTES A HOSTILE CHAEACTEE. riglit of retention until a certain amount is paid to liim, tlie captor takes Guni onere and must allow tlie amount of such riglit. But wliere the neutral has merely a jus ad rem, which he cannot enforce without the aid of a court of justice, his claim will not be recognized by a prize court. (^Tlie Tobago, 6 Kob., 218.)" ge]o:eal eight to capture enemy's property. 159 CHAPTER ly. Of the Rights of Belligerents to Interfere with EACH other's Commerce, and Capture each other's Property — and herein of Embargo — OF Letters of Marque and Reprisal — of Cap- ture AND Joint-Capture and Recapture — of Postliminium and Military Salvage. A remark attributed to tlie king's advocate in the early case of Potts vs. Bell^ that " there is no such thing as a war for arms and a peace for com- mcT-ce," has since been adopted by the elementary writers, us a happy statement of an axiom in the law of nations. The commerce of the enemy has, in all ages, been The com- i -IT ill', -J • ^ merce of the regarded as the legitimate prize oi war. enemy the le- The character and effects of what are considered of war.^ ^"^^ the several rights of war relative to hostile com- merce, will form the subject of this chapter. As a starting point, it will be instructive to con- sider the great leading principles, as they have been Leading prfn- laid down by the early authoritative writers, as subject in na- forming the basis of the existing law of nations. '^^^'^^ ^^' " A state, taking up arms," says Grotius,^ " in a just cause, has a double right against her enemy — first, a right to obtain possession of her property withheld by the enemy, to which must be added the expenses incurred in the pursuit of that object — the charges of war and the reparation of damages — for, were she obliged to bear those expenses and ' 8 Term Rep., 548. * Grotius, B. IIL, c. vi. 160 GENEEAL EIGHT TO CAPTURE ENEMy's PEOPEETY. losses, she would not fally recover lier property nor obtain her due. Secondly, slie has a right to weak- en her enemy, in order to render him incapable of supporting his unjust violence, a right to deprive him of the means of resistance. " Hence, as from this source originate all the rights which war gives us over things belonging to the enemy, we have a right to deprive him of his pos- sessions — of every thing which may augment his strength and enable him to make war. This, every one endeavors to accomplish in the manner most suitable to him. Whenever we have an opportu- nity, we seize on the enemy's property, and convert it to our own use, and thus, besides diminishing the enemy's power, we augment our own, and ob- tain at least a partial indemnification or equivalent either for what constitutes the subject of the war, or for the expenses and losses incurred in its prose- . cution — in a word, we do ourselves justice." Professor Martens, of Gottingen, in his "Sum- mary of the Law of Nations,"^ makes the following condensation of the elementary doctrines: "The conqueror has a right to seize on the property of the enemy, whether movable or immovable. These seizures may be made ; 1st, in order to ob- tain what he demands as his due or equivalent ; 2d, to defray the expenses of the war ; 3d, to force the enemy to an equitable p^ace ; 4th, to deter him, or by reducing his strength, to hinder him, from repeating, in future, the injuries which have been the cause of the war. And, with this last object in view, a power at war has a right to de- ' Marten's Lib. VIII., c. iii., 8 9. GETTEBAL EIGHT TO CAPTUEE EXEMy's PEOPEETY. 161 stroy the possessions and property of the enemy, for the express purpose of doing him mischief. However, the modern laws of war do not permit the destruction of any thing, except, 1st, such things as the enemy cannot be deprived of by any other means than those of destruction, and which it is at the same time necessary to deprive him of ; 2d, such things as, after being taken, cannot be kept, and which might, if not destroyed, strengthen the enemy; 3d, such things as cannot be pre- served without injuiy to the military operations. To all these we may add, 4thly, whatever is de- stroyed by way of retaliation." The subject of the belligerent right of the de- struction or confiscation of the property of the en- emy, acquires a peculiar interest in its connection with the insurrection against the government of the United States, raised by certain malcontents in the southern portion of the country, and in its applica- tion to the negi'oes held as slave property by a small portion of the people in the insurgent territory. The solution of this question assumes a moment- ous importance, when it is considered in connection with the obvious and imperative duty of the gov- ernment, in the suppression of a rebellion, which, in any event must involve a pecuniary loss of many millions to the people, and may entail a loss of greater magnitude than the highest estimated value of the entire negro population held as slave property — to remove all possible ground or occa- sion for future domestic commotion, from the same real or pretended cause. It would be out of place, in a work of this char- 11 « 162 GENERAL RIGHT AS APPLIED TO SLAVE PROPERTY. acter, to enter into a discussion of the subject, eitlier in its moral aspects, or as one of political expediency. In its legal bearings, it has been recently stated with much brevity, but with great ability and pre- cision, by the learned and distinguished jurist who so worthily succeeds the late Mr. Justice Story in the Dane professorship of law, in the university at Harvard. We are permitted to extract this statement from a lecture lately delivered by Professor Parsons in the coui'se of his professorial duties : " Many of you have asked of me what would be the law or the legal rights which an army, advanc- ing by order of the President into a state in organ- ized rebellion, would carry with it, as to the slaves. I will endeavor to answer this question. "In the first place, that army must have the rights, and all the rights of war. Because, if a state puts itself into that position with reference to the United States, the government of the United States must necessarily accept that position while carrying on the conflict, although the general gov- ernment prosecute the war with no desire of sub- jugation, but only for the purpose of bringing that state back to its original position. " There are four ways in which that army might deal with slaves. One is, to seize and use them in its military labors. That they might do this, seems to me as certain as that they might seize horses or oxen to draw their wagons, or shovels to dig their trenches. How far compensation should be made must depend upon circumstances. It is a common opinion that civilization has so far mitigated war, GENERAL EIGHT AS APPLIED TO SLAVE PROPERTY. 163 that it is no longer one of the laws of war that an invading army may seize, use, or destroy private property. This is a mistake, according to all the authorities on the law of nations. It is undoubted- ly true, however, that the modern usages and pro- prieties of war — and there are such things — would justify the exercise of this right only on the ground of military necessity. " The second way, is to receive and harbor all run- away slaves. And the third is but a step further in the same direction, although it may seem to be a wide step : it is to liberate them, not, as it were, passively, but by proclamation, or other active measures. As a matter of law, I have not the least doubt of the right of an invading army to do this.^ It would, regarded as a mere question of law, stand on the footing of a destruction of private property in an enemy's country ; and like that, it would be ^an unquestionable right ; but if the usages of war were to govern it, it would be a right to be exer- cised only as a military necessity, and for the pur- pose of weakening the enemy, and lessening his means of attack or resistance. And the existence of this necessity must be determined by the com- manding officer, or by the supreme authority at home, in view of all the circumstances of the case. Should there be a war between two slave states, say Georgia and South Carolina, and Georgia should invade South Carolina, I have no doubt that the in- vading forces might and would claim and possess the right to exercise these means of weakening their enemy, if they thought proper. . • " The fourth way of dealing with slaves would be to put weapons into their hands and incite them * Vide Appendix, No. ix. 164 EMBAEGO. to armed insurrection. If any sucli right as this can ever exist, it can only spring from the extremest necessity, and from a condition of things which it would be difficult and painful to imagine. With my understanding of what an armed servile insur- rection must be, I may illustrate my view of tlie law thus : an army which invested a city that was supplied with water by a stream flowing into it, would have a military right to cut off the stream and so reduce the city to submission. But it would have no right, military or other, to poison the waters. There seems to me, as matter of law, a good test for this. The commander of an invading army might certainly, as a military necessity, liberate the slaves and make any use of them which he could make of his own soldiers, but nothing more. " Questions of a moral nature, and others of ex- pediency, gather around this topic of the treatment of slaves by an invading force. I have avoided all reference to them, not because I am insensible to their existence or force. But it is my business here to speak to you, as well as I can, of the law^, and I believe I can speak of it more accurately, if I speak only of the law." The first mode which we shall consider, and usu- ally the first in order of time, upon the breaking out of a war, in which a belligerent proceeds to assail the commerce of the enemy, is by what is Embargo de- called an embargo — the purpose and effect of which is, to detain vessels in the ports where they may be lying. There are two kinds of embargoes ; and although eivAi is an act of hostility designed to weaken the EMBARGO. 165 commerce of the enemy, they have been distin- ^^^^^^ and giiished by designating the one as warlike, as oper- ating directly upon the vessels of the enemy ; and the other as civil, as operating upon those of the citizens or subjects of the nation proclaiming the embargo. Vattel says •} " The sovereign can neither detain the persons nor the property of those subjects of the enemy who are found within his dominions at the time of the declaration; they came into his country under the public faith. By permitting tfiem to enter and reside in his territories, he tacitly promised them full liberty and secuiity for their return ; he is, therefore, bound to allow them a reasonable time for withdrawing with their effects, and if they stay beyond the term prescribed, he has a right to treat them as enemies — as unarmed enemies, however. But if they are detained by an insurmountable impediment, as by sickness, he must necessarily and for the same reason, grant tlieni a sufficient extension of the term. At pres- ent, so far from being wanting in this duty, sov- ereigns carry their attentions to humanity still fur- ther, so that foreigners who are subjects of the state against which war is declared, are very fre- quently allowed full time for the settlement of their affairs. This is observed in a particular man- ner with regard to merchants, and the case is, more- over, carefully provided for in commercial treaties." It would, on first consideration, appear that the Modtin prac- rule of justice and public faith thus laid down by bargo. Vattel, was violated by the modern practice of the ' Lib. III., c. i., § 63. 166 EMBAEGO. t imposition of embargoes upon tlie commencement of hostilities; but it must be remembered that declarations of war, under the present law of na- tions, are not merely the formal notification of hos- tilities. There are always preceding acts of a hos- tile character, which, to sonie intents, are deemed to be equivalent to formal declarations ; these acts may be subsequently satisfactorily explained, and by a reconciliation be annulled. When therefore, a nation receives certain injuries* from another, for which she can see no prospect of redress, she is forced to regard such injuries as tantamount to a declaration of hostilities, and therefore proclaims an embargo upon the commerce of the offending state then lying within her ports, in order to in- demnify herself in the only way in which, perhaps, it may be possible for her to obtain indemnification, at all. In such cases, the hostile property which comes to her possession after the commission of the injurious acts, may very justly be regarded as having so come after the declaration of hostilities, although there may have been no formal notifica- tion or declaration of war. Operation and Upou this right of seizurc, under such an implied CU6Ct 01 GDI- , rtT •i»« -■ T f^-i rt bargo. declaration of hostilities, and upon the enect of such seizure, in the event of an adjustment of diffi- culties, before any formal declaration is made, liord Stowell makes some instructive comments, in a case before him, in which the subject was involved.^ In that case, an embargo upon Dutch property had been declared by Great Britain, prior to any formal or open declaration of war against Holland ; ' The Boedas Lust, 5 Rob., 246. EaiBARGO. 1 ( but after the commission of certain acts of injustice by tliat government, as were regarded equivalent, in their hostile character, to a declaration of war a^rainst Great Britain. The fonnal declaration of war, which was subsequently made, was held to have a retrospective effect, as rectifying and confirm- ing whatsoever had been done pui'suant to the embargo, ordered in consequence of the implied declaration. " The seizure," says the learned judge, " was at fii'st equivocal ; and if the matter in dispute had terminated in a reconciliation, the seizure would have been converted into a mere civil embargo, so termed. " That would have been the retroactive effect of that coui'se of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is dii'ectly the other way. It imj)resses the direct hostile character upon the original seizure. It is declared to be no embargo. It is no longer an .equivocal act, subject to two interpretations. There is a declaration of the animus by which it is done ; that it was done Tiostili animno^ and is to be considered as a hostile measure ah initio. The property taken is liable to be used as the property of trespassers, ab initio^ and guilty of injuries which they have refused to redeem by any alteration of theii' measures. This is the necessary course, if no compact intervenes for the restitution of the property taken before a fonnal declaration of hos- tilities." In another case,^ the same learned judge observed : " Actual hostilities are not to be reckoned ^ TheEerHtelder,\Y.o\i.,\\\. ) I 1 68 CIVIL EldBAKGO. merely from tlie date of tlie declaration, but such dec- laration has been applied with a retroactive force." There is no doubt that embargo, as practised in modern times, is sanctioned by the uniform usage of nations. It substantially conforms to that practised by the Syracusans in the time of Dionysus the Elder (w^hich Mr. Mitford, in his History of Greece, con- siders a gross violation of the law of nations), who, having declared war against Carthage, at once seized the effects of Carthaginian traders in their warehouses, and Carthaginian vessels in their har- bors, and then sent a herald to Carthage to nego- tiate. This act of the Syracusans is not distinguishal:)le fi'om the ordinary practice of Great Britain, as declared by Lord Mansfield •} " Upon the declara- tion of war or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made." * CivU embar- The Consideration of the subject of civil embar- ^^' g^6s, as they are called, would be apart from the purpose of this treatise. It is sufiicient here to say, that the authority of the government to enforce an embargo uj)on the ships and merchandise of its citizens and subjects, has been made a subject of grave discussion, both in the United States and in Great Britain. " The civil embargo," says Beawes,'^ " is laid on ships and merchandise in the ports of this kingdom by virtue of the king's proclamation, ' Lindo vs. Rodney ^ Doug., 613. * Lex Mercatoria, 27"i. CIVIL EMBAEGO. 169 and is strictly legal, when the proclamation does not contravene the ayicient laws, or tend to estalUsli new ones, but only to enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary." The same diocivivnd, with the liJce qualifications, is laid down by Blackstone.^ But it has been held that a civil embarp-o cannot be enforced upon British ships in a foreign port, unless by the consent of the nation to which that port belongs ; for the reason that such an embargo would operate to the prejudice of the rights of neighboring nations, which cannot lawfully be dis- turbed, however much such an act might operate for the benefit of the nation seeking to enforce it.^ Whetlier the civil embargo imposed by the Con- The embargo gress of the United States in 1807 was sanctioned unuS? states by the constitution of the sjovernment, was made a pvernment '' ^ ^ ... "1 1807. subject of much learned discussion in the federal tribunals at that time, and of much angry contro- versy in the political assemblages of the people. It is certain, that without in any manner accom- its oppressive plishing the hostile purpose towards Great Britain, commerce oi which led to its adoption, it inflicted injuries upon *'^® nation. the commerce of the northern and eastern states of the Union, of a tenfold greater severity than all the combined injuries received by the southern states, in consequence of an insufficient protection of their peculiar property. It was contended that the power conferred upon Congress to regidate commerce, did' not carry with it the power to destroy, to put an ' Blaclcstone's Com., I., 7 ; vide also 4 Mod., 17Y ; Skinner, 93 ; 1 Selkekl, 32. « The Gertrude, 2 Rob., 211. 170 EEPEISALS. end to commerce altogether. Tliat regulation was a guidance, a control, an establishment of rules for the government of commerce, and not the power of extinguishing it absolutely and without limitation of time. But the people whose interests were in- wh^T^ro *° vaded by this measui'e of the government, the thou- nounced con- sauds and hundreds of thousands who were utterly stitutional by. •it tt ti'j_ i,tt the courts, impoverished and beggared by its results, did not nullify the law — they did not rebel against the government — they did not seize upon the public property — they did not trample upon the constitu- tion and the insignia of their common country, and undertake to erect themselves into a separate con- federacy. They referred the question to the solemn decision of the federal tribunals ; and when those tribunals pronounced the enibargo act constitu- tional, they acquiesced in that decision. The great commercial interests of the United States believed the embargo act to be unconstitutional, clearly, pal- pably so; but they did not seek to take the law into their own hands, '''' because tliey did not wish to hring about a revolution nor to breah iip tlie Uiiion" They saw that " between submission to the decisions of the constituted tribunals, and revolution or dis- union, there was no middle ground, no ambiguous condition, no half allegiance and half rebellion." The principle upon which the law of nations le- cognizes the right of a sovereign state to impose a warlike embargo, forms the basis of what are called repf-isals. Reprisals gen- " Reprisals,"^ says Vattel, " are used between na- eraUy. ^-^^ ^^^ uatiou, in Order to do themselves justice, ' Vattel, B. IL, c. xviii., § 342. EEPEISALS. ITl when tliey cannot otherwise obtain it. If a nation ^^^/P^^f^ . ^ , , , 1 • ^ individual lias taken possession of what belongs to another, if wronga. she refuses to pay a debt or repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to her own advantage, till she obtains payment of what may be due to her, together with interest and dam- ages, or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or seizure, than a reprisal — ^but they are frequently confounded in common language. The effects thus seized are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated and then the reprisals are accomplished. If the two na- tions, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused, from the moment war is declared or hostilities com- menced, and then also the effects seized may be confiscated." " In reprisals," continues the same author, " we seize i>n the property of the subject, just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject of repri- sals whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the propri- etor has placed in tile good faith of the government that such a deposit happens to be made, it ought to be respected even in open war — such is the con- duct observed in England and elsewhere, with re- spect to the money which foreigners have placed in the public funds." The sovereign or supreme power of a nation ia 172 REPEISALS. alone vested witli the autliority of making or order- ing reprisals. This is tlie universal rule of all civ- ilized comninnities. It is not doubted that the right to authorise reprisals, exists as well for the redress of wrongs inflicted upon the citizen of a state, as upon the state itself. Commissions, or letters of marque, however, to secure individual redress, are rarely issued, and never but in a case of undoubted and flao-rant WTong. U^Don this interesting question, the re- marks of Viscount Palmerston, made in the British Parliament in 1847, upon the motion of Lord George Bentnick for the " adoption of such meas- ures as might secure for the British holders of un- paid Spanish bonds, redress fi'om the government of Sj^ain," are particularly instructive. He said : " My noble friend has quoted passages from the law of nations, laying down the doctrine that one government is entitled to enforce from another, re- dress for all wrongs done to the subjects of the government making the application for redress, and that if redress be denied, it may justly be obtained by reprisals from the nations so refusing. I fully admit to this extent, the principles which my noble friend has laid down. At the same time, I am sure the house will see that there may be a difference and distinction drawn in point of expediency) and in point of established practice, as to the applica- tion of an indisputable principle to particular and different cases. Now, if the government of Spain had, we will say, for example, violently seized the property of British subjects, this country being on terms of amity with Spain, under treaties, no man will for a moment, hesitate in declaring, that it REPKISALS. 1?.^ witants or 180 CAPTUEES. any of them, from any prince or state witli which the United States shall be at war; nor shall any citizen, subject, or inhabitant of the said United States, or any of them, apply for or take any com- mission or letters of marque for arming any ship oi' ships to act as privateers against the subjects of the most Christian king, or any of them, or the proper- ty of any of them, from any prince or state with which the said king shall be at war ; and if any person of either state shall take such commission or letters of marque, he shall be punished as a pi- rate. It shall not be lawful for any privateers, not belonging to the subjects of the most Christian king, nor citizens of the said United States, who have commission from any other prince or state at enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other way whatsoever to exchange their ships, mer- chandise, or any other lading, neither shall they be allowed to purchase victuals, except such as shall be necessary for their going to the next port of that prince or state from which they have commissions." In the message of President Jefferson to Con- gress, in December, 1805, in referring to the acts of privateers oif the American coast, he says : " Some of them are without commissions, some with illef^al commissions, others with legal form, but committing piratical acts beyond the authority of their com- missions;" and then he proceeds to apprise the Congress that he has equipped a force to capture all vessels of this description and " to bring the of- fenders in for trial as pirates." In 1812, eight days after the declaration of war CAPTUEES. 181 against Great Britain, tlie Congress of tlie United States passed a law, limiting and defining tlie rights of privateers, and endeavored, as far as practicable, to assimilate tliem to national vessels. Tlie fii'st section confers npon tlie President tlie power to annul, at pleasure, all licenses or commis- sions which he might grant under the act of June, 1812. The second section is as follows : " All persons applying for letters of marque and reprisal, pursu- ant to the act aforesaid, shall be required to state in writing the name, and description, and tonnage and force of the vessel, and the name and residence of the owner, the intended number of the crew, etc. ;" and the third section provides for ample se- curity to be given for the strict and due observance of the treaties and laws of the United States, and of the instructions given them for their conduct ; and the remaining sections require the captures which may be made, to be brought into port for adjudication by the court of admiralty; prohibit their sailing without special instructions; compel the commanders to keep regular journals of all that occurs, daily, and transmit them to the gov- ernment ; and impose upon the commanders of public armed vessels the duty of examining these journals when meeting the privateer at sea, and to compel their commanders to obey their instructions, and all this under penalty of forfeiture of all inter- est in any captures which they may make. * In 1846, during the war between Mexico and the United States, President Polk, in his message to Congress, in- December of that year, held the fol- lowing language : 182 CAPTURES. " Information lias been received at tlie depart- ment of state, that the Mexican government lias sent to Havana blank commissions to j)rivateers, and blank certificates of naturalization, signed by General Salas, the present liead of the Mexican government. There is also reason to apprehend that similar documents have been transmitted to other parts of the world. As the preliminaries re- quired by the practice of civilized nations for com- missioning privateers and regulating their conduct, have not been observed, and as these commissions are in blank, to be filled up with, the names of citi- zens and subjects of all nations who may be will- ing to purchase tliem, the whole proceeding can only be construed as an invitation to all freebooters to cruise a2:ainst American commerce. " It will be for our courts of justice to decide whether, under such circumstances, these Mexican letters of marque and reprisal shall protect those who accept them, and commit robberies upon the high seas under their authority, from the pains and penalties of piracy. If the certificate of naturali- zation thus granted, be intended to shield Spanish subjects from the guilt and punishment of pirates, under our treaty with Spain, they will certainly prove unavailing." The laws of the United States, prohil)iting the enlistment of American citizens in the service of foreign powers, under severe penalties, are more rigorous than those of any other nation ; and the act of April 20th, 1818, among other things, pro- vides that it shall be a misdemeanor for " any citi- zen of the United States to fit out aild arm or to increase or augment the force of any armed vessel, CAPTUEES. 183 witli intent tliat sucli vessel shall he employed in tlie service of any foreign power at war ^\atli an- otlier power witli whom we are at peace — or Le concerned in fitting out any vessel to cruise or com- mit hostilities against a nation at peace with us." These laws expressly punish by fine and imprison- ment, any citizen of the United States, found on board of letters of marque, cruising against the commerce of a neutral power, or who shall leave the American jurisdiction with the intent of being so employed. In the case decided in the Supreme Court of the United States, already cited in another connection,^ it was held that " captures made by vessels so il- legally fitted out, whether a public or a private armed ship, are tortious — and the original owner is entitled to restitution when brouo-ht within our jurisdiction." But the early policy and disposition of the Unit- ed States government was fully and eloquently ex- pressed by her distinguished minister. Dr. Franklin, in his language to Mr. Oswald, the British commis- sioner, in negotiating the treaty of peace of 1783, at the Court of St. James. "It is," said he, "for the interest of humanity in general, that the occasions of war and the induce- ments to it should be diminished. If rapine is abolished, one of the encoura2rements of war is taken away, and peace, therefore, more likely to continue and be lasting. The practice of robbing- merchants on the high seas, a remnant of the an- cient piracy, though it may be accidentally bene- ' The Santissima Trin'dad, 7 Wheat., 283. i^-i CAPTURES. ficial to particular persons, is far from being pro- fitable to all who are engaged in it, or to the nation that authorizes it. In the Ijeiiinnino; of a war, some rich ships, not upon their guard, are sm^prised and taken. This encourages the first adventurers to fit out more armed vessels, and many others do the same. But the enemy, at the same time, become more careful, arm their mer- chant ships better, and render them not so easy to be taken ; they go also more under the protection of convoys. Thus, while the privateers to take them are multiplied, the vessels sul)ject to be taken and the chances of profit are diminished, so that many cruises are made, wherein the exj)enses over- go the gains, and, as is the case in other lotteries, though some have good prizes, the mass of adven- turers are losers — the whole expense of fitting out all privateers dui^ing a war, being much greater than the whole amount of o-oods taken. Then there is the national loss of all the labor of so many men, during the time they have been employed in robbing, who, besides spending what they get in riot, drunkenness and debauchery, lose their lial>its of industry, are rarely fit for ^ny sober business after peace, and serve only to increase the number of highwaymen and housebreakers. Even the un- dertakers who have been fortunate, are, by .suddjen \vealth, led into expensive living, the habits of which continue when the means of supporting it cease, and finally ruin them — a just punislunent for their having w^antonly and unfeelingly I'uined many honest, innocent traders and families, whose subsistence was obtained in serving the common in- ti'iests of mankind." CAPTURES. 135 Pursuant to the policy thus early announced, treaties have been made by the United States with many foreign ^powers, by which it has been ' agreed that if the subjects of either party take let- ters of marque from the enemies of the other, the}' shall be considered and j)unished as piraUs — such is the treaty made with France in 1778 ; with the Netherlands in 1782; with Sweden in 1783; with Prussia in 1785, and again in 1789; with Great Britain in 1795 ; with Spain in 1795 ; with Central America in 1825 ; and with Colombia in 1824. The learned compilers of the latest English work on the law of maritime warfare very candidly de- clare, and the justice of the observation is patent to all familiar with the diplomatic history of the United States : " The government of the United States has the merit of having been the first power in modern times, which has endeavored to put down this relic of the private wars which disgraced the middle aii^es."^ Some of the general principles established in the law of capture will be here stated, but will be more fully considered in that portion of this treatise de- voted to the subject of prize jurisdiction and pro- ceedings. The coi^imission of a privateer is always taken Revocation of subject to the power which grants it. It may be privateers. vacated either by express revocation, with or with- out cause, by a cessation of hostilities between the nations which they affect, or by the misconduct of the grantees.^ ^ Hazlitt & Roche's Manual of the Law of Maritime Warfare, 1 04. ' The Mariamne, 5 Rob., 9 ; The Tho^nas Gibbons, 8 Cranch, 421. 186 CAPTUEES. Validity of The Validity of a capture made by a privateer, is capture not iiipi i . -.. affected by not atfected by the tact that the master is an ahen a^en enemy. Guemy, although the effect of that might be the condemnation to the government of what other- wise would have been his interest in the prize. The owners and crew are as much parties in a prize court as the captain, and his national charac- ter can in no manner affect their rights.^ Distinction be- There is a distinction between a privateer and a tears and let- letter of marquc in this, that the former are always terso maique. gq^^jppg^j fQj. ^j^g sole purpose of War, while the lat- ter may be a merchantman, uniting the pui'poses of commerce to those of caj)tm'e. In popular language, however, all private vessels commissioned for hostile pm'i^oses, uj)on the enemy's property, are called let- ters of marque. A ship furnished with letters of marque is deemed a ship of war. Lord Stowell says : " A ship fm'- nished with a letter of marque is manifestly a ship of war, and is not otherwise to be considered be- cause she acted also in a commercial capacity. The mercantile character being superadded, does not pre- dominate over or take away the other."^ Registered ^g ^q ^]^q claims of British subiects, it has been owner of pri- " ' vateer person held that the pcrsou whosc name appears on the regis- ter of the privateer, must be regarded as the owner. Rule not ap- Xsut forei^-ners are not affected by this 'limitation, pUcable to for- => . *' ' eignera. auQ may sustaiu a claim against any oona jidb owner whose name does not apj)ear on the register. In the case deciding this point,^ Lord Stowell says : " It appears that Mr. Parry was actively and ' The Mary and Susan, 1 Wheat., 46. ' The Fanny, 1 Dodson, 448. ^ The Neustra Senora de los Dolores, 1 Dodson, 290. CAPTURES. 137 directly concerned in the purchase and outfit of this vessel, and that the appointment of the master took place under his directions. There is a series of let- ters, too, which show that he continued afterward to bestow his time and attention in the manao-e- ment of this property, as property in which he was interested. Nothing, therefore, can be more clear than that he is to be considered as a proprietor, and that he would, in all justice, be entitled to the bene- fit which might be acquired in that character, and consequently that he must be responsible for all the loss that may be sustained. Mr. Parry, having con- tributed his money in the purchase and outfit of the vessel, had a legal right to have his name inserted in the register, and he can have no right to plead his own laches in order to relieve himself from a claim." It is well settled that the owners of a privateer Liaboity of T.-iTP .. i«i - ,^ ,^ -\ ' owners of pri- are liable lor any injury which, either through ig- vateers. norance or illegality, has been inflicted either by the officers or crew, in the execution of the business of their employment. But when that business is departed fr^om, by a violation or excess of orders, and injuries result in consequence, the owner is not liable. There must be a capture, as prize of war, as the Basis of ua- basis of the owner's responsibility, except to the amount of the bond given on receipt of the com- mission and the forfeiture of the vessel. To this extent the owners are liable, even for a piratical seizure and spoliation.^ But where, in the performance of lesritimate acts, Limitatiou of ' -•■ o ' liability. * Dias vs. The Revenge, 3 Washington, 262. 188 CAPTUEES. tlie master or crew commit acts of outrage in excess of their autliorit}', tiie owners are liable to the full value of the property injured or destroyed, though not to damages for the loss of a voyage; the prin- ciple "being, to absolve the owTiers from liability to vindictive damage for trespasses committed by a crew/ Although a captor, in the destruction of property which he has taken, acts under a sense of duty to his government, this does not make him any the less bable to the fullest extent, to the claimant. In such a case the captor must seek his indemnifica- tion from his government.^ Owners Uabie The owuers of a privateer are liable in solido ; ieTCr^y '^'^ and a joint-owner cannot absolve himself by show- ing compensation to the extent of his proportionate interest.^ A sentence of condemnation by a prize court is absolutely essential, in all cases, to complete the transfer of title to maritime prizes from the original owners to the captors. So that, if a ship be taken by a privateer and not carried into port and con- demned, the captors acquire no property in the prize, and can confer no property whatever upon a purchaser.^ Privateers not Privateers are not considered within the terms of vate'pro'pefty a capitulatiou, by the provisions of which private on capituia- ppope^ty generally is to be protected. The iJasli^ carrying sixteen guns, with tackle, bolts, ut by no means essential to constitute a capture. If the merchantman was obliged to lie-to, and obey the direction of the French lugger, and await her further orders, she was completely under the do- minion of the enemy ; there was no ability to resist and no prospect of escaj)e. There have been many instances of capture where no man has been put on board, as in ships driven on shore and into port. I remember particularly, a famous case of a British vessel, armed with two swivels, which took a French privateer row-boat from Dunkirk. Having only three men on board, and only armed with the swivels, she was afi^aid to board the row-boat, which was full of men armed mth muskets and cutlasses — but by the terror of her swivels she com- pelled their submission, and obliged them to go into the port of Ostend, then the port of an ally, she following them all the way at a proper dis- tance."^ A privateer, finding enemy's property on board a neutral vessel, put two men on board, and the mas- ter of the vessel promised to proceed into a port of the captain, without resistance to the force put in his possession. It was held that the capture was suffi- cient, as against the claim of another privateer of dike commission as the first, who captured the vessel on finding her proceeding to the poii; of an enemy.^ " Though the privateer," said Lord Stowell, " had no right to compel such an engagement, if the neu- ' The Hercules, ubi sup. ; La Esperanza^ 1 Haggard, 91. ' The Resolution, G Rob., 13. CAPTUEES. 193 tral master voluntarily promised to go into the Brit- ish port, without more force being put upon him, I am of opinion that the act of seizure, under such circumstances, would be fully sufficient in law to constitute a capture. The engagement being made, the neutral nation sustains no injury from it, and it is fully competent for the master of the privateei- to act under it. It is a mere question of prudence, whether he will trust to the word of the neutral master, or whether he will take the more effectual precaution of putting an adequate force on board." But if one privateer takes a vessel, and afterward abandon her, and then another takes the same ves- sel, the last seizor is, in law, the only captor, and the act of a commander in relinquishing that which would otherwise have been good prize, to himself and his crew, is binding upon the interests of all under him. Commenting upon the circumstances of a case like this. Lord Stowell says : " As it is im- possible that the claims should coexist, the court is bound to decide upon them according to their legal merits, which must depend upon this question — which of them was the actual captor ? That is, not only who was the person by whom the seizure was actually made, but which is the party legally enti- * tied to the character of captor ; for there may be many successive caj^tors, but only one can be le- gally entitled, as captor, to the benefit of the prize. If a captor dismisses what he has seized upon, the interest of himself and all under him is concluded by this act, and the same vessel lies open to seizure by any other captor who may exercise a similar dis cretion.'" ' The Diligentia, 1 Dod., 404 ; vide also The Woodhridge. i Haggard, 74. 13 194 CAPTUEES. Liability for mistakes in engagements of friendly vessels. Lawful cap- tures can only be made by public armed vessels or pri- vate armed vessels com- missioned. An officer placed in possession of a vessel cap- tured by a national vessel, by the captor, may not be dispossessed by tlie officer of anotLer national vessel for the purpose of enabling the latter to make a capture for his own use and benefit.^ If a neutral vessel be captured by a superior force, and a small force be placed on board her with a prize-master to carry her into port, it is not the duty of the master and crew of the captured vessel to attempt to effect a rescue, for, by doing so, they subject the vessel to condemnation, which would otherwise be entitled to restitution.^ If two armed ships should meet upon the ocean, and under mutual mistake, and without any want of reasonable care, should go into' an engagement, neither would be liable to the other for any injury re-^ultina; from the combat. But if an attack were wanton, or in consequence of gross negligence on tlie part of either, it would subject the offending party to liability for the most ample remunera- tion.^ Lawful captures can only be made by national vessels of war, or vessels commissioned for that })urpose. A seizure was made by a hired armed revenue cutter, said to have been placed under the command of The Eiiridice man-of-war as a tender. " In order to support that averment," said Lord Stowell, " it must be shown, either that there has 'been some express designation of her in that char- acter, by the orders of the admiralty, or that there has been a constant employment and occupation, ' The Eagle, 1 W. Rob., 245. ■•' The Short Staple vs. The United States, 9 Cranch, 55. ' The Mariamm Flora, 3 Masou, 116. CAPTURES. 195 in a manner peculiar to tenders, equivalent to an express designation, and sufficient to impress that character upon her. The former species of proof would undoubtedly be most desirable.'" In another case, a capture was made by a rev- enue cutter, which had been fitted out as a tender by the captain of a man-of-war, and put in com- mand of a midshipman, and manned by a crew from the man-of-war, but without any commission or or- der from the admiralty.^ "It is not to be maintained," says Lord Stowell, in his opinion in this case, " that an officer, by put- ting his men on board, can constitute a ship to be a part of the navy of Great Britain. Such a chtirac- ter is not to be impressed without the intervention of some public authority. If the contrary could be held, this must follow, that an officer of a large ship might form out of these tenders as many ships of war as he pleased — he might comp<»>;e a fleet. Whatever may have been the case in remote sta- tions — where the principal persons in command must necessarily be intrusted with a greater lati- tude of discretion — at home, where an officer has it in his power instantly to refer to the admiralty, the case is very different." Unless the commission so granted by the com- mander, be afterward confirmed by the admiralty, the prize is condemned as a droit of admiralty. In cases however of boats belonging to men-of- Capture by -. 1 T • iY» , • . T 1 bo3,ts belong- war, and employed in enecting a capture, Lord mg to men-of- Stowell said : " The court would certainly be dis- ^'^''' posed to extend, as far as it could, with propriety, » The Charlotte, 5 Rob. ' The Melomane, 5 Rob., 50. 196 CAPTIJEES. to sMpR of war, tlie benefit of captures made by their boats acting distinctly in that capacity. There must be situations in which the captures could not otherwise be made, and many considera- tions of convenience require that they should be allowed to take, in whatever manner their judg- ments may deem expedient, according to the cir- cumstances of the case, either by their whole force, or by a part detached on that particular service. The court would therefore not be disposed to nar- row the legal effect of the operation of their boat's crew."^ Restitution no The voluntar\' restitution of a prize, does not bar bar to second , . -', . . .,t ,i capture a second seizure by other parties, either on the sani" or on other evidence, but such second capture is made at the peril of being subjected to costs and damages as made against the presumption of ille- gality resulting from the first restitutioiL'^ A ship, although incapable of going out upon a cruise, may nevertheless, make an effectual capture by her boats. " It is not to be said," says the learned court, in a case in which this question arose, " that because the ship was incapable of going out on a cruise, that therefore she could not make a seizure in port. She had arms which she could stretch out for such a purpose. She had her boats, which might be employed on a service of this kind. Is the court in every case, to enter upon a consideration of the exact state and condition of the ship by which a ' The Charlotte^ ubi supra ; vide also The Donna Barbara, 2 Haggard, 373. ' The Mercarius, 1 Rob., 80 ; vide also The Woodhridge, 1 Hagg;ird, 74. CAPTURES. 197 selzui'e is effected. Suppose the vessel is in dock and undergoing repairs, the circumstance would not suspend the right of the officei' in conmiand of h«r, to act by himself and men, in boats. The seizui-e may be legally effected by means of boats, or indeed, without them, by a mere summons to the parties."^ A huvful capture may be made by a ship em- Jjre^nlay^^be ployed in the convoy of merchantmen, provided it ^^^^ ^y ^^^^ is done without a desertion of the convoying duty, convoy. Upon this question, the rule is thus stated l)y Lord Stowell ; " The first and great object of the attention of an officer appointed to a service of this kind, is the care of his convoy. He is not at liber- ty to desert it for the purpose of acquiring any ad\"antage to himself, nor is he to volunteer any attack upon the enemy, if it takes him away from his first great duty. But, as far as it is consistent with that duty, he may pursue his own interest, and may attack and annoy the enemy, in any way that may appear to him advantageous. He may capture the ships and goods of the enemy, provided he does not withdi'aw himself from the duty of protecting the vessels under his care, and may tfike the benefit of prizes which he has the good fortune to make. ■ There is no pretence for saying, that a convoying ship may not legally and effectually make a prize as well as any other of his majesty's ships — nor is there more objection in the case of a convoying ship to constructive than to actual capture. A convoy- ing ship is no more disabled from rendering assist- ' The Charlotte, 1 Dodson, 220. 198 CAPTUEES. ance to others, than from making an actual captiin^ herself. The service on which she is employed makes no disqualification in either case, supposing only that the capture can be effected without any breach of the principal duty, the care of the con- voy,"^ ^rTabbfor Where a wrong is committed in a capture, the injury result- wrong-cloer is the only person who is" responsible ture. ^ for the injuries resulting therefrom. After the cessation of hostilities between the United States and Great Britain, in 1*783, but before the fact of such cessation had come to the knowl- edge of parties in the Vnited Stsites, The Me7ito?% an American ship, was destroyed, while off the Delav/are, by The Centurion and Vidture^ two Brit- ish ships-of-war, part of the squadron of Admiral Digby. In 1799, this was made the subject of a suit against Admiral Digby, in the admiralty court in Eno'land. In rendering judgment in this case. Lord Stowell says : " It is an entire novelty in a prize cause, to call to adjudication, not the immediate alleged wrong-doer, but a person who was neither present at, nor coo-nizant of the transaction, and who is to be affected in responsibility merely on this ground — that the person alleged to have done the injury \f as acting under his general authority ; for, as to par- ticular orders applied to this transaction, it is not pretended that any were given, or could be given. He was only the admiral on the station, and the ships which committed the alleged outrage, were ' The Gnlen, Dodson, 429-440. CAPTURES. 199 under liis general command, but at a great distance from liim. " This is tlie first time tliat an attempt has been made in a prize cause, to pass over the person from whom the alleged injury has been received, and to fix it on another person, on the ground of a remote and consequential responsibility. The actual wrong-doer is the man to answer in judgment. To him responsibility is attached in this court. He may have other persons responsible over to him, and that responsibility may be enforced. As, for instance, if a captain made a wi'ong seizure, under the express orders of the admiral, that admiral may be made responsible in the damages occasioned to the captain by that improper act ; but it is the constant practice of this court to have the actual wrong-doer the party before the comt ; and every man must see the propriety of that practice, be- cause, if the court was once to open the door to complaints founded on a remote and consequential responsibility, where is it to stop ? If a monition is to go against the admiral for not issuing his revocatory orders, a monition might, in like man- ner, go against the lords of the admiralty for a simi- lar neglect, or against the secretary for not issuing a similar direction to the lords of the admiralty ; and these persons might be made parties in a prize cause, and called upon to proceed to adjudication. " If the legal responsibility is to be shifted from the actual captor, to whom is the claimant to look ? Where is he to find the responsibility in the chain of persons who may be, somehow or other, involved in the different stages of the transaction ? Where is he to find the wrong-doer, if you once take olf 200 CAPTXJEES. that character from the person who immediately commits the injury ? Where is he to resort, if j(m take from him that easy and direct resort, wil\- which, in the present understanding of the law, he is provided ? I am most clearly, on this ground, of opinion, that Admiral Digby alone cannot be com- pelled to proceed to adjudication under this moni- tion. The loss which the claimant has sustained is extremely to be lamented ; but I cannot give relief on mere grounds of humanity. " Humanity is only the second virtue of courts Justice is unquestionably the first ; and justice would be grossly violated by providing relief for one innocent man at the expense of another, who is not legally subject thereto."^ Sma^S"^ iv Vindictive damages are never given in cases of en only in ex- illegal Capture, unless the misconduct has been causes. '^^^^ gross, and wholly without excuse or palliation. ^luch indulgence is extended to errors, and even to improprieties of captors, where no malignity or cruelty is justly chargeable.^ If a captor destroy a ship which is protected by the license of his government, he or his government is responsible for the loss occasioned by such de- struction .'^ But a captor is protected by the com-t, who a^ts in good faith in pursuance of his rights, in an ig- norance, honest and invincible on his part, of a for- ' The Mentor, 1 Rob., 180; vide also Thp Faderlandt, 5 Rob., 123. ^ The Lively and cargo, 1 Gall., 29 ; The Anne, 3 Wheat., 435 ; The George, 1 Mason, 24. ■' The Felicit;/, 2 Dod., 381 ; The Aclcenn, ib., 52. CAPTURES. 201 eign fact, not governed by Lis own domestic law, with wliicli lie is unavoidably unacquainted till it is actually communicated to him.^ It is a general rule that the captor takes liis ^J'^^^g.JJ^J^^*^ prize cum onere. but the onus must be one which is immediate in- T . T ,..,,. , , cumbrauces immediately and visibly incumbent. only. Thus, if a captor take the cargo of an enemy on board the ship of a friend, he takes it subject to the liability for freight due to the owner of the ship, because by the general law of merchants, the cargo in the possession of the owner is subject to that liability, independent of contract. But to claims which rest in action merely, such as bottom- ry bonds, liens by contract, etc., the rule has no application — for these are claims which no admiral- ty court can examine with effect. The captor has no access to the original private understandings of the j)arties by whom such contracts are made, and it is therefore held that he should not be affected by them. Several cases have been decided, involv- ing this principle, relating to fr'eight, liens, etc., both in England and the United States.^ The captor must send his prize to some conveni- Prize must be ent port for adjudication. Although some latitude vt^ent port' is necessarily allowed in the selection of the port, the captor cannot exercise an arbitrary discretion ; it must be a convenient port, and it is the duty of Rule as to this. ' The John, 2 Dodson, 339. ' The Tohago, 5 Rob., 218; The Diana, ib., 67; The TwU- hieg Rvict, 5 Rob., 82 ; The Marianna, 6 Rob., 24 ; The ConH'tn- cia Harlasten, 1 Edw., 2G2 ; The Ann Green, 1 Gall., 293 ; The Francis, 8 Cranch, 418. 202 CAPTTJEES. Duty on arri- val. To proceed forthwith to adjudication. the captor to regard tlie convenience of the claim- ant in proceeding to adjudication.-^ Where it is not possible to bring the enemy'^J property into port, and it is beyond all doubt the property of the enemy, the captor's duty is to de- stroy it ; where a reasonable doubt exists as to the character of the property, the more safe and proper course is to dismiss it.^ Until an adjudication, captors have no right to convert the property, nor even to break bulk. In cases, however, of an overruling necessity, as in the case of a capture of perishing property in a dis- tant part of the world, the rule is necessarily re- laxed, and the property may be sold.^ On anival at the port, it is the duty of the cap- tors forthwith to deliver, upon oath, into the regis- try of the court, all papers found on board the cap- tured ship.* It is also their duty to bring on the prize crew, or at least the master and j)rincipal officerh*, with the prize, for adjudication.^ With all practicable celerity, the captors are bound to proceed to adjudication. Demurrage, damage and compensation have been frequently awarded on the ground of unreasonable delays in the proceedings of the captors.® ' The Wilhclmshurg, 5 Rob., 143; The Washington, 6* Rob., 275; The Lively^ 1 Gall., 318. * The Felicity, ubi supra. ' L'E'jU, 6 Rob., 220. " The Diana, 2 Gall., 95. * The Bothne'i and the Janstoff, 2 Gall., 88. * The Madonna del Bursa, 4 Rob., 169; The San Juan Bat- tista and The Furissima Conception, 5 Rob., 38 ; The Corier Man- tima, 1 Rob., 287 ; The Sw'annn, 6 Rob., 51. JOIlSrT-CAPTURE. 203 " Unless the captor," says Lord Stowell, in tlie first case here cited, "can exculpate himself with respect to the delay in this matter, he is guilty of no inconsiderable breach of duty. It would be highly injurious to the commerce of other countries, and disgraceful to the jurisprudence of our own, if any persons, commissioned or non-commissioned, could lay their hands on valuable foreign ships and cargoes, without bringing such act to judicial notice with promptitude." It is the duty of the captor immediately to com- Prize-master . -, • ; , 1 n ' and crew. mit tne prize to the care oi a competent prize-mas- ter and crew, not for the reason that the prize or original crew, when left on board in the case of a seizure of a citizen or neutral, are released from their duty without the assent of the master, but because the captured crew are not subject to the authority of the caj)tor's oificer.-^ The right to capture enemy's property on board a neutral ship, and neutral property on board an enemy's ship, has been the subject of discussion by the elementary writers, and has frequently been passed upon by the courts both of the United States and Great Britain. Although a subject connected with that of cap- ture, it may be more properly reviewed when we come to consider the effect of war upon the com- merce of neutrals. Besides the capture de facto, which we have been considering, there is another capture, by construc- tion, or joint-capture. Joint-captors are those who, ' fhe Eleanor, 2 Wheat., 345. 204 JOINT-CAPTUEE. "not having contributed actual service, are still sup- posed to have rendered a constructive assistance, either by conveying encouragement to the captors, or intimidation to the enemy." Who are entitled to be considered joint-captors is a question of exceeding interest and importance. Like most other questions in the law of nations, Doctrine of ^^g affcctinsr Commercial interests duiins: war, it will constructive '-' . assistance dis- be fouud uowhcre so' learnedly considered and illustrated as by the invaluable opinions of that great luminary of this law — Lord Stowell. He says '} " The benefit of prize is given to the takers, by which term are naturally to be under stood those wJio actually tahe possession, or those .aifording an actual contribution of effort to that event ; either of these persons is naturally included under the denomination of taTcers, but the courts of law have extended the term takers to another de- scription of persons ; to those who, not having con- tributed actual service, are still supposed to have rendered a constructive assistance, either by convey- ing encouragement to the captor, or intimidation to the enemy. Capture must therefore be divided into capture de facto and capture by construction. "Capture by construction must remain on the terms the law has already recognized, and not a new unauthorized construction — for as the }vord has already traveled a considerable way beyond the meaning of the act of Parliament, the disposi- tion of the court will be, not to extend it still fur- ther, but to narrow it and bring it nearer to the terms of th(3 act than has been done in former cases. ' The Vryheid, -J Rob., 21. • . JOINT-CAPTTJEE. 205 The case of the Mars is a strong authority in point, in which the claim to joint-capture was not allowed to ships not in company, but stationed at different outlets to watch for the enemy, who were known to be under the necessity of passing through one of them. " In all cases, the onus p'obandi lies on those set- ting up the construction, because they are not per- sons strictly within the words of the act, but let in only by the interpretation of those having authority to interpret it. It lies with the claimants in joint- capture, therefore, either to allege some cases in which their construction has been admitted in for- mer instances, or to show some principle in their favor so clearly recognized and established as to have become almost a first principle in cases of this nature. " The being in sight, generally, and with some few Vessels in exceptions, has been so often held to be sufficient to entitle parties to be admitted joint-captors, that where that fact is alleged, we do not call for partio ular cases to authorize the claim — but where that circumstance is wanting, it is incumbent on the party to make out his claim, by an appeal to de- cided cases, or at least to principles, which are fairly to be extracted from these cases." The Vestal frigate claimed to share in the pro- ceeds of the capture of the Dutch fleet by Captain Trollope, in October, 1798, on the ground that al- though not taking part, or even in sight of the en- gagement, she was one of the ships under the cap- tor's command on that station, and was only absent on the occasion, in consequence having been dis- patched by him on a special mission. In disallowing the claim. Lord Btowell said: 2<^6 JOrNT-CAPTUEE. "There are no cases cited as Ibeing directly in point, but tlie case of The Senor San Josef (House of Lords, May 4, 1Y84), Las been alluded to. That is a case which I perfectly recollect — having been concerned in arguing it — but it was, in its principal circumstances, entirely different from the present case. That was a case of two vessels detached from the fleet, under the command of Admiral Pigot, in the West Indies, to chase two strange ships appear- ing in sight, the fleet bearing up all the time as fast as possible to support them. The chasing vessels took the two ships first appearing, and also a third, on which the dispute arose. There was much con- trariety of evidence whether the fleet, which was continuing to sail in the same direction, was not up and in sight, and the chief doubt arose owing to the night coming on, for if it had been day, the fleet would clearly have been in sight, and it was at all events known to be at hand, and ready to have given any support that might be wanting. Under these circumstances, the Court of Appeals aflfirmed the sentence of the court below, pronouncing for joint-capture — and in that sentence it is, I believe, true, as it has been stated by the counsel, that some mention was made of the words joint-enterprise. But, taking the case together, it can by no means be said to go the length of the present claim. " As far as cases go, then, there is an entire failure of authority on the part of The Vestal. But the usage of the navy has been resorted to, and a case has been cited of The Audacious, one of the fleet under command of Lord Howe, being permitted to share in the victory of the first of June, 1794. " It is admitted, and it is certainly true, that the JOINT-CAPTURE. 207 practice of the navy, in opposition to the words of the act of Parliament, or a proclamation, or to the established law, cannot weigh or be of any author- ity. . " At the same time, the court would be extremely unwilling to break in on any settled and received notions of the navy, or to disturb a practice gener- ally prevailing among themselves. But the case cited is different from the present. The Audacious had actually engaged in the enemy's fleet, and had separated only in chase of one of their ships. " The Canada, another case which has been men- tioned, chased from the fleet, on signal, on the prize coming in sight. T/ie Laivestoff, which is another case stated to have happened in the Mediterranean, was not detached from the Mediten'anean fleet till after the chase had actually begun. "The circumstances, therefore, materially distin- guish these cases from the present; and I am at liberty to say, that no case in point or authority has been produced. Is there, then, any admitted principle 'I The gentlemen have resorted to the general principle of common enterprise, and it has been contended that, where ships are associated in a common enterprise, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made ; but certainly that cannot be maintained to the full extent of these terms. Many cases might be stated in which ships so associated would not share. Suppose a case that ships, going out on the same enterprise, and using all their en- deavors to effectuate their purpose, should he sepa- , rated by storm or otherwise, who would contend that they should share in each other's captm^es I 208 JOINT-CAPTUEE. There is no case in wMcli sucli persons have been allowed to stare after separation, being not in sight at tlie time of cliasing. It cannot be laid down to that extent ; and, indeed, it wonld be extremely in- commodious that it should. Nothing is more diffi- cult than to say precisely where a common enterjDrise begins. In a more enlarged sense, the whole navy of England may be said to be contributing in the joint- enterprise of annoying the enemy. In particular expeditions, every service has its divisions and sub- di\dsions. Operations are to be begun and con- ducted at different places. In the attack of an island, there may be different ports, and different fortresses, and different ships of the enemy lying before them. " It may be necessary to make the attack on the opposite side of the island, or to associate other neighboring islands as objects of the same attack. The difficulty is, to say where the joint-enterprise actually begins. Again, is it every remote contri- bution, given with intention or without intention, that is sufficient ? I apprehend that is not to be maintained. An actual service may be done with- out intention ; or there may be a general intention to assist, and yet no actual assistance given. Can an3^body say that a mere intention to assist, with- out actual assistance, though acted upon with 'the most prompt activity, would, in all cases, be suffi- cient ? If persons, under such claims, could share, there would be no end to dispute. No captor would know what he was about ; whether, in every prize he made, there might not be some one, iifty leagues distant, working very hard to come up, and even acting under the authority of the admii'alty, JOIi^T-CAPTURE. 209 to co-operate with him. In serving his country, ever}^ captor would be left in uncertainty, whether some person whom he never saw, and whom the enemy never saw, might not be entitled to share with him in the rewards of his labor. The great intent of prize is to stimulate the present contest, and to encourage men to encounter present fatigue and present danger; an effect which would be infinitely weakened if it were known that there might be those not present, and not concerned in the danger, who would entitle themselves to share. " What is the true criterion in these cases ? The being in sight, or seeing the enemy accidentally a day or two before, will not be sufficient ; it must be, at the commencement of the eno;ao;ement, either in the act of chasing, or in preparation for chase, or afterward, during its continuance. If a ship was detached, in. sight of the enemy, and under preparation for chase, I should have no hesitation in saying she ought to share. But if she was sent away after the enemy had been descried, but before any preparations for chase, or an}^ hostile move- ments had taken place, I think it would be other- wise. There must be some actual contribution of endeavor, as well as a general intention." The ship Odin ^as captured off St. Helena by Doctrine of boats sent from the British ship of war TJie Trusty, assistance^ as A claim to share in the proceeds of the prize was 5]f ynd^p,.i^"te made on behalf of 27te Royal Admiral, a private armed vessels. The rule laid ship of war, on the ground that her boats, which had down. been sent out from the harbor of St. Helena to aid in effecting the capture, were in sight when the capture was in fact made by the boats from The Trusty. 14 210 " JOINT-CAPTURE. Lord Stowell said : " I know of no case that would sustain sucli a claim. The principle of con- structive assistance lias been thought to have been carried somewhat far, and the later inclination of courts of justice has been rather to restrain than extend the rule. Between private ships of war and king's ships, the rule of law has been always held more strictly, and it has not been the doctrine of ihe admiralty to raise constructive assistance so easily between them as between king's ships. If the competition had been between two king's ships, it would, in my opinion, be highly questionable, whether a boat so sent out, could support a claim to share, on the mere principle of being in sight. There is, I think, a very solid ground of distinction between the claims of a boat in the different cases of an actual and a constructive capture. Where a boat actually takes, the ship to which it belongs, has done, bv means of this boat, all that it could have done by the direct use of its own force. « In the case of mere constructive capture, the construc- tion which is laid upon the supposed intimidation of the enemy, and the encouragement of a friend, from a ship of war being seen, or within sight of a capture, applies very weakly to the case of a boat, an object that attracts little notice upon the water, and whose character, even if discerned by either of the parties, may be totally unknown to both'. " More unreasonable still would this be upon actual captors, if the constructive co-operation of such an object would give an interest to the entire ship to which it belonged. Where a ship is in sight, she is conceived to co-operate in the propor- tion of her force. But what room is there for such JOINT-CAPTURE. 211 a presumption wliere she co-operates only by tlie force of her boat ? " I am of opinion, both on principle and author- ity, that where no antecedent agreement is proved to have taken place, a vessel lying in harbor, cannot be entitled to share in a capture made out of the harbor, by the circumstance of her boat being merely in sio;ht."^ The distinction between public and private armed '^^ '^'®- ships of war ^\'ith reference to claims as joint-cap- tors, alluded to by Lord Stowell in the case of The Odin^ is more distinctly laid down by him in an- other case, in which the claim was made on the part of two privateers. The Larh and General Coote, to share in the prize of the public ship of war The Gannet? He says : " The rule of law on this subject, which has long been established in this court and the Court of Ap- peals in various cases, is, that it must be shown on the part of the privateers that they were construct- ively assisting. " The being in sight is not sufficient with respect to them, to raise the presumption of co-operation in the captui'e. They clothe themselves with commis- sions of war, from views of private advantage only. They are not bound to put their commissions in ase on eveiy discovery of the enemy, and therefore P/rui?°°^°^ the law does not presume in their favor, from the mere circumstance of being in sight, that they were ' The Odin, 4 Rob., 318; vide also La Belle Coquette, 1 Dod., 18; The Nancy, 4 Rob., 327; The Vryheid, 2 Rob., 16; The , Niemen, 1 Dod., 16. - The Amitie, 6 Rob., 261. 212 JOLNT-CAPTUEE. tliere witli a design of contributing, assisting, and eno-ao-iiifT in tlie contest. There must he tlie aniinvs capiendi^ demonstrated by some overt act, by som(^ variation of conduct, wbicli would not liave taken place but with reference to that particular object, and if the intention of acting against the enemy had not been effectually entertained." Again, in another case,^ with reference to king's ships, Lord Stowell said : " They are under a constant obligation to attack the enemy wherever seen ; a neglect of duty is not to be presumed, and therefore, from the mere cii'- cumstance of being in sight, a presumption is suflS- ciently raised, that they are there, animo capiendi In the case of privateers, the law does not give them the benefit of the same presumption. Ships of this description go out very much on speculation of private advantage, which, combined with other considerations of public policy, are undoubtedly very allowable, but which do not lead to the same inference, as that which the law constructs on the known duty imposed on king's ships. A privateer is under no obligation to attack all she meets, but acts altogether on views of private advantage. She may not be disposed to engage in every contest, and therefore the presumption does not arise in any instance, that she is present animo capiendi^ " A contrary route, if proved, would defeat the claim of a king's ship, but if nothing appears on the one side or the other, as to that fact, the mere presence would, I think, be sufficient to entitle the king's ship to the character of a constructive captor." ' La Flore, 5 Rob., 268. JOINT-CAPTURE. 2 1 3 A case alieady cited/ establislies tlie principle, tliat in a case of joint-capture, grounded on tlie be- ing in sight, it is necessary that the claiming vessel should have been seen by the actual captor, and aiso by the captured vessel, one of v^hich facts, must be established by evidence other than that of the claiming vessel, and the other by implication and necessary inference. When two vessels are associated for the pur- Joint-euter- . . ■*• prise as affeot- pose of effecting a capture, the continuance of the ing question oi 1 • fvi • J. I • ii •ixi?*"j. J. constructive chase is sumcient to give the right oi joint-capture, assistance. and the being in sight at the time of the capture is, under such circumstances, not essential.^ It has been determined also, that ships are entit- led as joint-captors, that have been in chase during the day, and continuing the pursuit in a proper direction, that is, in the direction taken by the prize, 'although prevented by darkness from seeing the actual capture, or by the thickness of an inter- vening fog, or an interposing headland, at the mo- ment of surrender, because the impulse and im- pression in the mind of the enemy who is to be in- timidated, or of the friend who is to be encouraged, continue in full force, and thus supjDort the prin- ciple on which the doctrine of constructive assist- ance is based.* As to rights of revenue-cutters to be joint-cap- tors, in a case involving the question,* Lord Stow- ell says : "It is a known rule of law, that the mere ^^^^^''£7^ of being in sight would be sufficient to entitle a jVint-captora. • ^he Faderhndt, 5 Rob., 120. ' The Forsir/hcid, 3 Rob., 316. UFtoih; 2 Dodson, 106. " The Bellona, 1 Edw., 64. 214 JOLNT-CAPTUKE. king's sliip, l^ecause in ships fitted out by the stat'^, for the exj^ress purpose of cruising against tlu enemy, the animus capiendi is always presumed — but this presumption does not extend to privateer . In the one case, the duty is obligatory, in the other where private individuals make captures at theii' own expense, they are engaged in a mere commei'- cial speculation, to be carried into effect by military means, but dependent upon their own will in the particular acts and exercises of their authority. Although they are authorized they are not com- manded to capture. It is a matter in which they are left to their own discretion. But these vessels employed in the service of the revenue, are a class of ships of an anomalous kind, j)artaking in some degree of both characters. They belong to the government, and are maintained at the public ex- pense, but not for the purpose of making captures from the enemy. On the other hand, they have commissions of war, but these are private commis- sions, which impose no peculiar duties upon them. They are not bound to attack and pursue the ene- my more than other private ships of war — and they are likewise unfavorably distinguished in this re- spect — that the advantages of capture are not held out to them, the interest in all captures made by them being reserved to the crown. , " Primarily, their duty is to protect the revenue, and the capture of the enemy's vessels is engrafted on the original character. All they derive from these commissions, is, an authority to attack the enemy, in addition to other authorities that belong to their original and proper employment; on princi- JOINT-CAPTUKE. 215 pie, therefore, they can only be considered as private ships of war. " They are under no injunction to cruise against the enemy, and are employed generally for fiscal purposes. It is true that there is the addition of a military commission in time of war ; but that does not designate them anew, it merely j)uts them on a footing with other private ships of war." A private ship of war made claim as joint-cap- tors to share in the prize of a valuable Spanish galleon, taken by The Triton frigate, on the ground that she was not in sight at the time of the capture, but had placed herself in such a position as to be effectual in cutting off the retreat of the galleon into a fi'iendly port.^ Lord Stowell said : " The beins:' in sisiht will not be sufficient; it would open the door to very fre- quent and practicable frauds, if, by the mere act of hanging on upon his majesty's ships, to pick up the crumbs of the captures, small privateers should be held entitled to an interest in the prize which the king's ships took." A Spanish register ship of eight hundred tons and twenty-six guns (twelve-pounders), was taken on the 29th of November, 1799, by The Hussat\ Captain Salter. The Resolution^ a privateer of sixteen six-pounders, put in a claim of joint-capture, and it was allowed, on the ground of highly meri- torious gallantry and perseverance in keeping the prize in chase, from the 5 th to the 20th of Novem- ber; of having fought her several times, notwith- ' The Santa Brigada, 3 Rob., 52. 2 1 1) JOINT-CAPTURE. standing tile great disparity of force; and having kept constantly up with her, burning false lights etc., during the night, to attract the notice and as- sistance of some British cruiser. In a case where it appeared that one of two joint-chasers had been ordered to pick up the boats of the other, and by reason of the delay occasioned by the performance of this service, had lost sight of the prize, and a third ship came up and made the capture, it was held that no right existed to share with that ship.^ Lord Stowell said : " To obey the lawful com- mands of their superiors, is the first duty of the king's ofiicers, and views of mere private advan- tage are of secondary consideration only, and must give way to the imperative requisitions of the pub- lic service." In support of the blockade at Malta, in 1800, the British national ships of war, Oulloden and NoHlbumhevland^ were stationed at different ports. They preferred a claim as joint-captors, which was resisted on the ground that they had been unable to take actual part in the capture, in consequence of unfavorable weather.^ In the opinion of the court allowing the claim. Lord Stowell says : ' "It is objected that they had not the physical means of pursuing, because the state of the wind was such that they could not quit the bay. " Whether they would have pui'sued if it had The Financier, 1 Dod., 67. The Guillaume Tell, 1 Edw., 112. JOINT-CAPTURE. 217 been physically possible, it is not necessary to in- quire. In tlie case of chasing by a fleet, the ani- mus pei^sequendi in all, is sufficiently sustained by the act of those particular ships which do pursue. It is, I think, highly probable, that even if the wind had been fair, the Oalloden and Northumberland^ as some of the other ships off Valetta did, would have re- mained in a state of inactivity, reasonably judging from the precautions taken, and from the flashes of the guns, that a sufficient force had already gone up- on the service. Therefore, unless it can be main- tained, which it certainly cannot, that the whole of a squadron must, in all cases, pursue, and that the other ships which remain inactive off Valetta are not entitled to share, upon what principle are these two ships to be excluded ? But it has been urged, as the wind then was, ships of their burden could not have cleared the shoals so as to get out ; and it comes, therefore, to a question of law, whether such an intervention of physical impossibilities will ex- clude a ship from being held part of a squadron as- sociated for the express purpose of making the cap- ture. There have been cases in which it has been held that physical impossibilities of some perma- nence, and which could not be removed in time,^ would have such an effect ; as, for instance, in the case of a ship lying in harbor, totally unrigged, which has been held to be as much excluded as one totally unconscious of the transaction, because, by no possibility could that ship be enabled to co- operate in time. But I take it, that in no case, the mere intervention of a circumstance so extremely local and transitory as the accidental state of the wind, has been made the ground of exclusion. The 218 JOINT-CAPTURE. interests of joint-captors would be placed on a ver}' precarious and uncertain footing, if a doctrine wore admitted, wliicli referred tliem to the legal opera- tions of a casualty so variable in itself, and so lit- tle capable of being accurately estimated. " It being proved in this case, that the whole fleet were acting with one common consent, upon a pre- concerted j^lan, for the capture of this prize, it was as much a chasins; from the orders of the officer in command, as if it had actually taken place in open sea. It was a chasing by signal, and in sight of these two ships ; which, even if they had not been incapacitated by the state of the wind, in all prob- ability would not have thought it necessary or proper to join in the pursuit. " The cases which have been cited are very differ- ent from this. The Genereux (Lords, May 7th, 1803) was captured upon the coast of Sicily, at the distance of twenty-two leagues from Malta, by a part of the squadron which was sent to look out for her, while the rest kept their station off Valetta ; there was no sight, and the utmost they could bring the case up to was, that a firing of the guns was heard by one of the stationed ships. " In the case of the Mars^ there was neither sight nor association ; and in the Frantmansdorff (Lords, 1st August, 1795), there was the same efiectA^f a want of association. " Now, in this case, there was not only an actual sight, not only a perfect conusance of what was going forward, but as complete, and uniform, and persevering an association in this particular object, as well as in the general object of the blockade, as can be imagined. I am therefore of opinion, that JOINT-CAPTURE. 2 \ tlie Cidloden and Nortliumherland are entitled to share, and tliat tlie same right will extend to the other shij)S which remained off Valetta, although they have not made themselves parties to this suit. But the national shij) Leda was sent forward to the coast of South America to obtain information there for the guidance of the expedition against Buenos Ayres. She left the station before the armament arrived, and again returned a few days after the capture of the settlement made by the fleet. She was held not to be entitled to share as joint-captor, either by virtue of antecedent or of subsequent service in the enterprise.' ii\ The ship of war Defence was in sight from the masthead on the occasion of a captui'e being made by another vessel, and on that ground claimed the privilege of joint-captor. Lord Stowell said: " I J^°,3-'th;n^^; am not aware of any one instance in which the sight only -, » • • , , 1 • from the mast- court has pronounced for a joint-capture on being head. in sight only from the masthead. I do not say that such a case would be entirely and absolutely out of the reach of the principle on which the being in sight is admitted to constitute an interest of joint- capture ; but this may be safely affirmed — that if the court was to pronounce for such a claim, upon such evidence, it would be, in all respects, a very extreme case indeed."^ The ships Alfred, Dictator, Bittern, Zephyr and Pelican claimed to share in the property taken on land, and in the capture of one vessel, and in the t ' Buenos Ayres, 1 Dod., 28. ' The Robert, 3 Rob., 194. 220 JorNT-a^PTUEE. distribution of "bounty for the destruction of others, upon the capture of the isLand of Trinidad by the British. The claim was based on the averment that these vessels were in sight, and the admiral (Harvey) in command of the fleet, expressed an opinion that these vessels must have been in sight the evening before the enemy's ships were set on fii^e and the capture made. The being in Lord Stowcll Said : " The grounds of this opinion ftfmauve?7 "" ' Seem to be very rational and just, and if supported proved. ^^ ^-j^^ ^^j,^ ^£ ^i^g vessels themselves, they might have been very material. But the court is bound to expect that the being in sight should be proved by some direct evidence applied to the fact, and not • merely by opinion, formed upon the conjectures of any persons, however respectable they may be. " It is said that they heard the explosion. But it is a common phrase, not more contemptible for being common, that hearing is not seeing. " The explosion of such a body as a ship of war would be heard at a stupendous distance. ' " It is a well-known fact that, in the famous bat- tle in the Downs, the explosion was heard in St. James's Park, and was made the foundation of a mathematical calculation by Sir William Petty, with respect to the velocity of the progress of sound. So, with regard to the conflagrationj the atmosphere would be illuminated to a prodigious distance ; but it would be ludicrous to say that all who were within the reach of these appearances, produced by the fire, are to be taken in law as present at the occurrence itself."^ ' The San Damaso, 3 Rob., 234. JOINT-CAPTURE. 221 Three days after tlie battle of Trafalgar, a Spanish luan-ofwar was taken by the British ship The Don- egal, and The Leviathan, though in sight at the time, ^v;\s not admitted as joint-captor, because she was actually employed in taking care of other ships and prizes captured in the l^attle, and in watching the movements of The Monarch, another Spanish ship.^ Mere intimidation without co-operation or active Mere mtimida- ., . , /¥>•,! "p -i - n • ' , tion without assistance is not sumcient basis tor a claim ot joint- cooperation in- f-anfnrp sufficiont to Certain East India ships were employed to trans- ^'^s'^ts of joint port a number of troops to the Cape of Good Hope, and claimed to share in the capture of that posses- sion made in 1795. Lord Stowell said : " If they had been associated to act in conjunction with the fleet, and did so act, they might acquire an interest which, on proper application, Avould be sure to meet with due atten- tion. The question for me to consider, then, will be, whether they have acquired that military char- acter or not ? " Tlioir pretensions have been put forward on sev- eral grounds. " It is first said that they were associated with the Nor mere as- fleet. Mere association will not do — the plea must go further, and show in what capacity they were as- • sociated, and that capacity must be du'ectly military. Unless in a . . •/ r* direct milit .. , Transports are associated "with fleets and armies f)r capacity, various purposes connected with, or subservient to, the military uses of those fleets and armies. But if they are transports merely, and as such are em2)loyed simply in the transportation of men or stores — they ' The El Rayo, 1 Dod., 42. -22 JOINT-C APTU RE. do not rise above their proper mercantile character, in consequence of such employment. The employ- ment must be that of an immediate application to the purposes of direct military operations, in which they are to take a part. "It is next placed on the ground of intimidation, and, it is said, that when the enemy is proved to have been intimidated, where it is not matter of in- ference, but of actual proofs the assistance arising from intimidation is not to be considered construc- tive merely, but an actual and effective co-opera- tion. " But I take that to be not quite correct, for a hundred instances might be mentioned, in which actual intimidation might be produced, without any co-oj^eration having been given. Suppose the case of a small frigate going to attack an enemy's vessel, and four or five large merchant ships, un conscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that such a terror would entitle them to share : though the fact of terror was ever so strongly proved, there would not be that co- operation and active assistance, which the law requires to entitle non-commissioned vessels to be • considered as joint-captors. What is the intimida- tion alleged ? That the Dutch forces were ^bout to make an attack on the British army, but, on the appearance of these fourteen ships, desisted. This was an intimidation of which the ships were totally unconscious, and which would have been just as efl'ectually produced by a fleet of mere transports : and I see no principle on which I could pronounce these ships entitled, on which I should not also be JOINT-CAPTUEE. 223 obliged to pronounce any fleet of mercliantmen entitled, in a similar situation ; for any number of large ships, known to be Britisli, and not known to be merchantmen, would have produced the same effect. The intimidation was entirely passive, there was no animus nor design on their part, nor even knowledge of the fact; for it was not till tiie next day, when their commodore returned from Lord Keith, that they knew any thing of the matter, or even thought of the terror that they had assisted in exciting. I take it to be incontrovertibly true, that no case can be alleged, in which a terror so excited has been held to enure to the benefit of a non-commissioned vessel. Another ground on which it is put, and which it may be proper for me to advert to, is the ground of analogy. That it is a case of assistance, analogous to that of joint-chas- ing, on which it is said to be sufficient, if the non- commissioned ship puts itself in motion, and the cases of the Twee Gesiistei\ in the last war, and the La France have been relied upon. I see no ground on which the analogy can be supported. The cases cited were of a very different nature. In both of them, the non-commissioned ships chased, animo capiendo and contributed materially, di- rectly and immediately in the caj)ture. In the. present case, these ships approached, it is true, the Cape of Good Hope, but with no animus capi- endi^ with no hostile purpose entertained by them- selves, for they were totally ignorant of the objects of the expedition. It is moreover, obvious, to re- mark, that all cases of joint-chasing at sea, differ so materially from all cases of conjunct operations upon land, that they are with great danger of in 224 JOnTT-CAPTURE. accuracy, applied to Tlustrate eacli other. In joint- chasing at sea, there is tlie overt act of pursuing, hy whicli the design and actual purpose of the party may be ascertained, and much intimidation may be produced, but in cases of conjunct opera- tions upon land, it is not the mere intrusion, even of a commissioned ship, that would entitle parties to share. The interest of the prize is given to the fleet and army, and it would not be the mere vol- untary interposition of a privateer that would en- title her to share. It would be a very inconveni- ent doctrine, that private ships of war, by watching an opportunity, and intruding themselves into an expedition which the public authority had, in no degree committed to them, should be at liberty to say, ' we will co-operate,' and that they should be permitted to derive an interest from such a spon- taneous act, to the disadvantage of those to whom tlie service was originally intrusted. Expeditions of this kind, designed by the immediate authority of the state, belong exclusively to its own instru- ments, whom it has selected for the purpose, and it might be attended with very grave obstruction to the public service of the country, if jirivate indi- viduals could intrude themselves into such under- takings, uninvited, and under color of their letter of marque. I think, therefore, that the cases of chasing at sea and of conjunct operations on land, stand on different principles, and that there is little analogy which can make them clearly applicable to each other. " It is next said, that they were directed to hoist pennants, and that it was the opinion of a very high military officer in a former case, that the per- JOINT-CAPTURE. 2 2 5 mission to wear the pennant did give tTie character of king's ship ; but the decision in the very case in which that opinion was offered (in the capture of ISTec^^apatam), hehl, that a ship, which, in that case had worn a pennant, was not to be considered in a military character, but as a transport ; the mere circumstance, therefore, that these ships, which were large ships, and had before carried pennants, and had taken them down only out of respect to the king's ships, and were desired to hoist them again, I cannot hold to be a sufficient proof that they were, by that act, taken and adopted into the mili- tary character. I can attribute no such effect to a mere act of civility and condescension. In the next place, it is argued, that these ships were actually employed in military service, although there is no such averment in the plea. It comes out in evi- dence only, that their boats were employed in carrying provisions and military stores on shore. That was a service certainly, but not a service be- yond the common extent of transport duty. They landed them probably at the same time with the troops, for whose use they were intended ; and if not at the same time, still it is no more than what they were bound to do with the stores and pro- visions they carried."^ A claim of joint-capture was made on behalf of land forces, said to have co-operated with the fleet in the taking of the Dutch fleet in Saldanah bay in 1796. In rejecting the claim Lord Stowell said: " The Th^e^. qup^s^tion question is, whether such a case has been made out, whether army * The Cape of Good Hope, 2 Rob., 282. 15 226 JOIIS^T-CAPTUEE. forces can be Oil the part of the army as will support their claira *;,oiit-laptors ^^ ^^6 considered joint-captors ? In the first place, with the nava! ^^ jg j^^^ pretended that it is a case which comes forces. .... within the provisions of the prize act (33 Geo. III. c. 16), which directs the army to share in some cases in conjunction with the fleet. In the next place, it is not argued, that this is a case of con- certed operations. That the army and navy might have similar views is not contested, but whatever was done was done separately, and without concert or communication. Thirdly, it cannot be denied that it lies with the army to make out a case of joint-capture, and to show a co-operation on their part, assisting to produce the surrender — for the surrender was made to the fleet alone, possession was taken by the fleet ; the army could not take it ; therefore, the onus prolmndi lies on them to prove that there was an actual co-operation on their part : for it is, I think, established by judicial au- thority, and particularly in the late case of Jag- gernaiclh (Lords, January 26, 1799), that much more is necessary than a mere being in sight, to entitle an army to share jointly with the navy in the capture of an enemy's fleet. The mere presence, or being in sight, of different parties of naval force, is, with few exceptions, suflicient to entitle them to be joint-captors, because they are always conceived to have that privity of purj)Ose which may cdnsti- tute a community of interest; but between land and sea forces, acting independently of each other, and for different pui'poses, there can be no such Material ser- j^rivity presumed ; and therefore to establish a vice requisite -,. !•••/; i- .i ,1 to entitle the claim 01 joiut-capture between them, there must b'-uefit of ?int '"^^ ^ Contribution of actual assistance, and the mere JOINT-CAPTURE. 227 presence, or heino; in sio-lit, will not he sufficient, capture with Fourtlily, 1 am strongly inclined to hold, that when less in case o*" there is no preconcert, it must not be a slight ser- Concert ^ ^'^^ vice, nor an assistance merely rendering the capture more easy or convenient, but some very material service, that will be deemed necessary to entitle an army to the benefit of joint-capture. Where there is preconcert, it is not of so much consequence that the service should be material, because then, each j)arty performs the service that is assigned to him, and whether that is important or not, is not so ma- terial. The part is performed, and that is all that was expected. But where there is no such privity of design, and where one of the parties is of force equal to the work, and does not ask for assistance, it is not the interposing of a slight aid, insignificant, perhaps, and not necessary, that will entitle the other party to share. "Tlie principle of terror, to support this claim, must be a terror operating not mediately and with re- mote eftect, but directly and immediately influencing the capture. I will not say that a case might not, under possible cii*cumstances arise, in which troops on shore might be allowed to share in a capture made in the first instance by a fleet. I will put this case. Suppose a fleet should come into a hostile l)ay, with the design of capturing a hostile fleet ly- ing there, and a fleet of transports should also acci- dentally arrive with soldiers on board; suppose these soldiers made good their landing, and gained possession of the hostile shore, and hj that means should prevent the enemy from running on shore and from landing, and thereby influence them to ■ surrender. I will not say that troops in such a 228 JOINT-CAPTUEE. situation might not entitle tliemselves to share, al- though the surrender had been made actually to the fleet. But, suppose the troops to land on a coast not hostile, but not on their own coast — I do not suppose that the possession of such a shore would draw the same consequences after it, for what difference would it make whether there were troops on shore or not ? The enemy must know, that in a day or two the landing on a shore, to them hostile, must be followed by sure and certain captivity, whether there was a party of military O]' not. " What additional terror does an army hold out ? The consequences of captivity would be the same in either case, and unless there had been a notice and denunciation of particular severity, I do not under- stand that by the laws of war they would be ex- posed to more than a rigorous imprisonment.^ " Where a caj^ture is made by a conjoint expedi- tion, composed of a British naval force and an army of allies, the case is not within the provisions of the British prize act, and therefore the captors must al- together depend upon the government bounty for reward for such a capture.^" Rights of joint- The claim of joint-captors is not invalidated by vMatedbythe the fraudulent couduct of the actual captors. fraud of the ^pj^g master of Tlie Sirius, the capturina: frio-ate actual captors. _ ^ ' j. & o j was charged with having, " contrary to the rule and practice of the navy," made no signal of an enemy, to other British vessels- in sight ; and Lord Stowell said, admitting the other to the benefit of joint-cap- ' The Dordrecht, 2 Rob., 57. ^ The Stella del Norte, 5 Rob., 350 ; The British Ouiana^ 2 Dod., 151. JOINT-CAPTURE. 229 ture : " Tlieir discontinuance of the chase and alter- ation of the course, is not an act of their own, but an act wa'ongfully occasioned by the neglect or mis- take or wilful omission on the part of the Sirius ; and being so, would not have the effect which generally would follow upon the discontinuance of the chase and alteration of the course, before the act of capture took place ; for generally, a discontinu- ance and alteration would defeat the interest of a joint-Ciiptor, by destroying the presumption of as- sistance and intimidation."^ There are many other cases in which fraud on the part of the actual captor has been held to vest an interest as joint-captors in those who would have been co-operators or constructive captors, but for such fi'audulent act.'^ In cases where, at a period antecedent to the cap- ture, an engagement had taken place between the vessel claiming as joint-captor, on the basis of con- structive assistance, and the prize, the courts lean strongly in favor of upholding the claim. The British ship-of-war Sparrow^ had engaged L Etoile^ a French frigate, a joint-cruiser, the Hehrus then being in the distance. On the following day The Hehrus captured LEtoile^ The Sparrow still being in chase. The claim to share on the part of The Sparrow was admitted, by Lord Stowell say- ing : " I hold it to be a clear and indisputable rule of law, that if two vessels are associated for one ' The Waakmmheid, 3 Rob., Y. ^ The Galen, 1 Dod., 433 ; The Herman, 3 Rob., S\ The Robert, ib.,194 ; The Endraught, ib., Appendix, 35 ; The Miner mi, . 2 Acton, 112 ; La Virgine, 6 Rob., 124; L'Amitie, 6 Rob., 267 ; Th~' Sparkler, 1 Dod., 362. 230 .TOINT-CAPTUEE. common purpose, as these vessels were, tlie continu- ance of the cliase is sufficient to give the right of joint-capture. Sight, under such circumstances, is by no means necessary, because, exclusive of that, there exists that which is of the very essence of the claim, encoui'agement to the friend, and intimida- tion to the enemy. Both The Hebrus and the ene- my's frigate knew that The Sparrow was astern, and that she was using her best endeavors to come up. She was a consort of the actual captor, and pursued the prize in conjunction with her, and had not discontinued the pui'suit when the capture was consummated."^ Previous con- If two cruiscrs casually meet, and the captain of ent*basis fora the ouc is scuior iu scrvicc to the captain of the claim of joint- other, thousfh thcv are of equal rank, by the rules capture it not ' p '' ^ J- t J abandoned at of the scrvicc the shi23 uudcr the command of the the time of the .. ,^1 • t ,t -,- ,. ^.t ,i capture. juuior omccr IS under the direction ot the other. If, in pursuance of such direction, the junior cap- tain is ordered to pui'sue one of two hostile vessels in sight, while the senior pursues the other, both vessels being taken, the junior is entitled to share as joint-captor of both.^ " I consider it to be a clear rule of law," said Lord Stowell, in this case, "that ships engaged in a joint-enter j)rise of this kind, and acting under the orders of the same stipe- rior officer, are entitled to share in each other's prizes ; and it is certainly for the benefit of the public service that a rule of this sort should pre- vail, in order that the pul)lic force of the state may be distributed so as to produce the greatest pos- UEtoile, 2 Dod., 107. ' The Empress, 1 Dod., 368. I 7".' JOINT-CAPTUEE. 231 sible advantage to the country, and tlie greatest possible annoyance to the enemy." Where, however, there has been such a disper- sion of vessels, between whom there existed a pre- vious concert, that it had become manifestly impos- sible for either to receive support or assistance from the other, the mere fact of original concert will not support a claim of joint-captm^e. A French shi]3 was taken by one of three Eng- lish ships, which, having been apprised of the de- sign of the enemy's ship to attempt an escape from the harbor of Port au Prince, had stationed them- selves at the several outlets of that harbor. The enemy's ship having been taken by one of the British ships, the others not being present, claim to share as joint-captors was preferred by the ships not present, and rejected.^ The justice of this de- cision, or its correctness upon the established prin- ciples in the law of joint-capture, is not readily ap- preciated. It would certainly seem that the ships guarding the outlets of the harbor through either of w^hich the enemy's ship might have escaped, and probably would have escaped but for their being- stationed there, were quite as much co-operating in the captui'e, as ships continuing on the chase, at the time of the actual capture by one which happened to outsail her consorts. There is certainly no analogy between such a case and that of a claim to joint-capture by a cruiser who had reconnoitred the prize, but at the time of the captui'e by another, had stood off on another chase.^ ' The Mars, 2 Rob., 22. 2 The Lord Middleton, 4 Rob., 155 ; The Rattlesnake, 2 Dod., 32. 232 RECAPTURE AND RESCUE. Tlie Britisli ship Albion^ by signal, was detached from the squadron and ordered to give chase. She did so, and completed that duty ; and afterward, seeing another vessel of the enemy, she made a sec- ond chase, and captured the ship ; it was held that * the ships of the squadi'on were entitled to share as joint-captors in the second prize.^ There was, at one time, much discussion in the admiralty courts, both of England and France, whether, in a case where a ship of the enemy is taken, and subsequently lost to an enemy's cruiser, and afterward retaken by a ship other than the first captor, the first caj)tor had an interest in the prize, subject to the salvage claim of the recaptors, or wdiether the recapture was not in such case to be regarded as an original capture, vesting the in- terest in the second captors. And this last has be- come the established doctrine. It was so decided in the French court of prize, by a decree made in 1748,^ and by the Lords of the Admiralty in England, in two cases involving the question f although, in a previous case in 1778, it had been decided by the court of admiralty, that the first taker was to be considered the actual cap- tor, and the subsequent taker the recaptor, entitled to a high salvage.* A captor may be deprived of the benefit of his capture either by rescue or by a recapture. They ' Le Bon Aventure, 1 Acton, 211. * Valin, Traite des Prises, c. vi., § 1. * The Polly (Lords, Nov. 21, 1780) ; The MargueHte, (Lords, April 3, 1781). •* The Lucretia, 1778. EECAPTURE AND RESCUE. 233 are thus distinguislied : a rescue is where tlie cap- Recapture and T , . T T • Of , • rescue defined tured party rise and succeed m enectmg a recovery and distin- of tlie property captui*ed ; a recapture is wliere a s^^^^'^^^- prize, liaving been taken by an enemy, is recovered from Ms possession by the arrival of a friendly force. There is a kind of rescue which partakes of the character of the recapture ; and this occurs where the weaker party, before he is overpowered, obtains relief from the arrival of friendly succor, and is thus preserved ft-om the possession of the enemy. A recapture, in all cases where it can be effected, 'I'o recaptures is a duty incumbent upon friends or allies.^ A rescue is matter of merit rather than of duty. ^° rescue a '' meritorious Lord Stowell says : " Seamen are not bound by act. their general duty as mariners to attempt a rescue ; nor would they have been guilty of a desertion of duty in that capacity, had they declined it. It is a meritorious act to join in such attempts; and if there are persons who entertain any doubt whether it ought to be so regarded, I desire not to be con- sidered of that number. As to the situation and character of persons engaged in such attempts, it is certainly to be regarded an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship, or in dis- charge of any official duty, either ordinary or extra- ordinaiy,"^ The distinction between the obligation, to the performance of the rescue, which partakes of the nature of a recapture, and of the rescue proper, is . ' The Two Friends, 1 Rob., 271 ; The Helen, 3 Rob., 224. 2 The Two Friends, 1 Rob., 271. 234 ■ POSTLIMINIUM. obvious ; for iu tlie one case tlie captiu'e is still im perfect, and in tlie other it is complete. Tlie law of nations does not require that a vessel should bt commissioned in any manner, in order to entitle her, and, indeed, to impose upon her the obligation, to effect a recapture, if they are possessed of such superiority as to render it just that they should hazard a contest.^ Out of the questions of rescue and recapture, arise the important considerations of postliminium and salvage. The right of Postliminium is thus defined by Vattel : " The considered, right of postliminium is that, in virtue of which, persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged. When persons or things, caj^tured by the enemy, are retaken by our allies or auxiliaries, or in any other manner fall into their hands, this, so far as relates to the effect of the right, is precisely the same thing as if they were come again into our power, since, in the cause in which we are jointly embarked, our power and that of the allies is but one and the same."^ So that, when possessions, taken by the enemy, are recaptured or rescued from him by the fellow-subjects or allies of the original owner, they do not become the property of the re- captor or rescuer, as if they had been a new prize, but are restored to. the possession of the original owners, by what is called the right of postliminium OY jus postlirniriii^ upon certain condition presently • The Helen, 8 Rob., 224. "" Vattel, Lib. III., c. xiv., § 204; POSTLIMINIUM. 235 to be considered/ But tlie riglit of postliminium does not take effect iu neutral countries, for when a nation chooses to remain neutral in war, she is bound to consider it as equally just on both sides, as far as relates to its effects, and consequently to look upon every capture made by either party as a lawful acquisition. To allow one of the parties, in prejudice to the other, to enjoy in her dominions the right of claiming things taken by the latter, or the right of postliminium, would be declaring in favor of the former, and departing from the line of neutrality. The full benefit of postliminium is not attached to movable property, as are lauds, houses, and other fixed possessions. The reason of this is simply the impracticability of perfect identification as a gener- al thing, and the consequent presumption of aban- donment of the o"vvner. But if the recapture of movables follow hard upon the capture, the right of postliminium is per- fect. This is the general law of nations mth re- gard to the right of postliminium upon movables. But, " prisoners of war, who have given their parole, territories and towns which have submitted to the enemy, and have sworn or promised alle- giance to him, cannot of themselves retui*n to theu* former position, by the right of postliminium, for faith is to be kept, even with enemies. But if the sovereign retake those to^^nis, countries or prisoners, who had surrendered to the enemy, he recovers all his former rights over them, and is bound to re- establish them in their pristine condition. ?52 'VattLl,Lib.III.,c.xiv.,§208. *Vattel, Lib.IIL,c.xiv.,§§ 210,211. 236 POSTLEVIINIUM. Tlie riglits of postlimiuium upon property which has been alienated by the enemy is a subject of much importance. The distinction here exists be- tween movalde and immovable property. "Let it be remembered," says Vattel, " as to immovables, that the acquisition of a town taken in w^ar, is not fully consummated till confirmed by a treaty of peace or by the entire submission or destruction of the state to which it belonged. Till then, the sovereign of that town has hopes of retaking it, or of recovering it by a peace. And from the mo- ment it retui^ns to his power, he restores it to all its rights, and consequently it recovers all its posses- sions, as far as in their nature they are recoverable. It therefore resumes its immovable possessions from the hands of those persons who have been so pre- maturely forward as to purchase them. In buy in o- them of one who had not an absolute right to dis- pose of them, the purchasers made a hazardous bargain, and if they prove losers by the transaction, it is a consequence to w^hich they deliberately ex- posed themselves. But if that town had been ceded to the enemy by the treaty of peace, or was completely fallen into his power by the submission * of the whole state, she has no longer any claim to the right of postliminium, and the alienation of any of her possessions by the conqueror is valid and irreversible, nor can she lay claim to them, if in the sequel some fortunate revolution should liberate her fi'om the yoke of the conqueror."^ As to movables, we find the law to be otherwise, as Vattel states in the same section : ' Vattel, B. III., c. xiv. POSTLIMINIUM. 237 " When movable property lias passed into tlie liaiuls of tlie enemy, unless its recovery be imme- diate, and under tliose rare circumstances as repel the presumption of its abandonment and render it susceptible of a complete identification, the right of postliminium, as we have seen, does not attach to it; a fortiori^ does it cease to be affected by any such right, after having passed into the complete possession of the enemy, it has been by him in good faith transferred to a neutral."^ Although it is very clearly established by the law of nations, that the right of postliminium, as to movables, is so far extinguished when they have arrived to the complete possession of the enemy, as to enable him to confer, by alienation, an indefeasi- ble title upon a neutral, yet the question in this connection, of what constitutes such complete pos- session has been the subject of no little discussion. While some writers have stated it to be sufficient if the property have been twenty-four hours in the enemy's possession, others have declared it to be requisite that it should be carried infra prcesidia, that is, within the camps, towns, ports or fleets of the enemy; and still others have drawn various arbitrary lines. It has become in later days a well settled principle, that a possession of a more al:>so- lute and decided character is requisite to confer such a title as to extinguish the right of postli- minium. " I apprehend," says Lord Stowell, in a case in- volving the question, " that by the general practice of the law of nations, a sentence of condemnation is, ' 2 Wooddes, 441, § 34. 11 238 posTLmiNiuM. at present, deemed generally necessary — and that a neutral purcliaser in Euro23e, during war, does look to tlie legal sentence of condemnation, as one of the title-deeds of the ship, if he buys a prize A sentence of vesscl. I believe there is no instance, in which a condemnation , . -, , . i r» i it i necessary to man haviug purchascd a prize- vessel ot a belligerent, erty'&^vor^of ^1'*^^ tliought himsclf quitc secure in making that the vendee of purchase, merely because that ship had been in the recaptor. ^ . . r» i • i enemy s possession twenty-four hours, or carried wfra prwsidiaP'^ The rule which requires a sentence of condemna- tion is undoubtedly the established rule in England. It is there held, that until such condemnation, the property is not changed in favor of the vendee or recaptor, so as to bar the original owner.^ As long ago as in the reign of Charles II., a solemn judgment was rendered on this point, and restitution of a ship was decreed, after she had been fourteen weeks in the enemy's possession, because she had not been condemned. This early judgment of the Court of Admiralty is cited with approval by Lord Mansfield in a case before him in which the point arose.^ The English courts of common law have since enforced the rule,'* and even to the extent of hold- ing, that after four years' possession, and the per- formance of several voyages, the title to the prop- erty is not changed without a sentence of condem- nation. A sentence of condemnation has been universally ' The Flad Oyen, 1 Rob., 134. ^ 3 Rob., 236. ^ Goss vs. Withers, 2 Burr., 583. * Assievedo vs. Cambridge, 10 Mod., 79 ; vide The Constant Mary, 3 Rob., 97, 237. POSTLIMIKtUM. 239 held to intend : fii'st, a sentence by a court of competent jurisdiction, and second, a sentence of such court either in the country of the enemy or an ally, and not in a neutral country. The rio'ht of postliminium terminates by the '^*'™^*^°'^'i^ f ^ . right 01 post- declaration of peace, between the country of the limmium. enemy and that from which the prize wa» taken. Therefore, it has been held, that a ship which has been sold to a neutral, after an illeo-al condemnation by a prize court, and which would not have been considered as a valid transfer of a lesfal title in time * of war, — by the intervention of peace, was to be deemed a legitimate possession in the neutral's hands, and cured of all defects of title. " Other- wise," observed Lord Stowell, " it could not be said that the intervention of peace would have the effect of quieting the possessions of the enemy, because if the neutral possessor was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him ; and as to a renewal of war, though that may change the relations of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before."^ Where a transfer has been made in good faith by a hostile captor to a neutral, at the time of the assignment, the title of the assignee will not be affected by his subsequently becoming an enemy.^ The rules which have been stated are those which, by the general law of nations, govern the right of 77?e Sojyhie, 6 Rob., 142. Thj Purissima, Conception., 6 Rob., 45. -40 posTLnriNroM. postliminium, and are considered of binding force where the interests of neutrals are concerned. In cases, however, affecting only the citizens or sub- jects of the nation, some peculiar modifications of the genera] principle have been introduced hy sj)ecial statute provisions, both in England and in the United States. By Jets of Parliament^ it is provided that the right of postliminium, as between British subjects, shall continue even to the end of the war ; and, therefore, the ships or goods of the subjects of that- country, taken at sea by an enemy, and afterward re- taken at any indefinite period of time, and whether before or after a sentence of condemnation, are to be restored to the original proprietors. An exceiD- tion, however, is made as to ships which the enemy have set forth as vessels of war; these are not sub- ject to restoration to the original owners, but be- long wholly to the recaptors. But if the property recaj^tured was, at the time of the original capture, employed in an illegal trade, this works a divest- ing of the original right, and the former owner will not be admitted to restitution from the recaptors.*^ The right of The United States government, by act of Con- posthmmmm -• xi • ^t • - • ^•^ by the laws grcss, cxprcssly continucs the jiC'S post hmtmi, until of the United t ,• r* x i x*xi ± x i x i States. ^ divesting 01 the title to captured property by a sentence of condemnation. It also directs a resti- tution of recaptured 23roperty to the foreign and friendly owner on the payment of reasonable sal- vage. But the provisions of the law are declared ' 13 Geo. TL, c. iv. ; 17 Geo.TL, c. xxxiv. ; 19 Geo. II., c. xxxiv. ; 43 Geo. III., c. clx. ; 2 Burr., 1198 ; 1 Black. Rep., 27. 2 The Walmifjham Packet, 2 Rob., 77. ^ March 3d, 1800, U. S. Laws. MILITAEY SALVAGE. 241 not to apply wliere the property lias been con- demned as prize by a competent court, before re- capture, nor when tlie foreign government would not restore tlie goods or vessels of citizens of the United States, under tlie like circumstances. Tliis last provision of tlie statute law of the United States is understood to be tlie rule in Ens-land. In a case involving tlie right of postliminium between the subjects of Great Britain and her allies,^ Lord Stowell says : " The actual rule I understand to be this: that the maritime law of England having adopted a most liberal rule of restitution with re- spect to the recaptured property of its own sub- jects, gives the benefit of that rule to its allies, till it appears that they act toward British property on a less liberal principle. In such a case, it adopts their rule, and treats them according to their own measure of justice." The oblio-ation of recaptors to restore the property General right • . 1 • 1 1 X 1 °f salvage on to the original owner, is, as a general rule, connected restitution by with the right on theii" part to be paid a compensa- ^®°^'^p^*^'"^- tion or reward given for saving or recovering the property : and this is denominated salvage ; and to distinguish it from the ordinary salvage known to the commercial law, it is called military salvage. The extent of this compensation is usually fixed Rate of com- , , 'ii pensation. by legislative enactments, and the rates vary with varying circumstances, and in some cases the amount is within the uncontrolled discretion of the court.^ ' The Santa Cruz, 1 Rob., 49 ; vide also The San Francisco, 1 Edwards, 2Y9. , 2 The Dickenson, Hay and Mariott, 48 ; The Betsy, ib., 81 ; The Two Friends, I Rob., 279. * 16 242 SALVAGE. To sustain a claim for military salvage, tliere must be first, a lawful original capture ; and second, a meritorious service in effecting a recapture. Right of sal- The right of military salvage is not limited to as well to cases of rccapturc, it is extended equally to the cu?\s°ofTe- ^^^^ ^^ ^^^^ recovery of captured property by res- oapture. q^q • this, howevcr, is confined to the rescue, strict- ly so called — that is, to the rescue effected by the rising of the captured party and the recovery of the property after the capture has become complete, and the possession of the enemy virtually absolute. Salvage is never awarded in cases of rescue by the an'ival and assistance of a fresh succor, before the property has been subjected to the possession of the enemy. "No case has been cited," says Lord Stowell, " and I know of none in which military salvage has been given, where the property rescued was not in the possession of the enemy, or so nearly, as to be certainly and inevitably under his grasp. There has been no case of salvage, where the j^os- session, if not absolute, was not almost indefeasible, as where the ship had struck, and was so near as to be \T-rtually in the hands of the enemy.^ In principle, the actual performance of the ser- vice of recapture, is sufiacient to establish the claim for salvage, even though it were not the primai;y in- tention, or in the immediate contemplation of the recaptors to perform the service and effect the recov- ery.' ^ ^ ^ ■ ^ No commis- As uo commissiou or letter of marque is requi- sion requisite . , , , i /> /. , i • ^ for recapture, Site to the performance oi the service ot recapture, ' The Fninhlin, 4 Rob., 147. * The Proc/ress, Edwards, 21]. SALVAGE. 243 SO, of course, tlie recaptors are entitled to salvao-e ti'^rcfore not whetlier acting with or without a commission.^ tuie" to^ saf-°' vage. Salvage is not due to a national vessel for the Salvage not service performed by a recapture from the enemy, fionai ^ssqi*" of another vessel employed in the public service. °? j^^q^^^Jp'^J"^® This rests upon the obvious princij^le that the per- tionai vessel formance of such a service is not only the duty and obligation of the vessel-of war, Init is in the direct line of the business to which it is devoted on be- half of the nation, and does not differ in principle from the service rendered by one ship of war to an- other in battle.^ In order to entitle the recovering party to sal- ^o hazard vage, it is not essential that any risk should have countered to been encountered in the service. Therefore, a claim Ifl^^ *° ^^ to military salvage is due where a vessel taken by the enemy is purchased at sea, and brought into port for restoration to the owner.^ It has been held, that where a vessel of the enemy Every person is taken by the adverse belligerent, lost again by a rescue has a cruiser of the enemy, and subsequently recaptured, ^^l^^ ^°^ ^^' the recaptors are entitled to the entire property.* Every person aiding and abetting and assisting * has a Ue}i on the thinsr saved. He has his action in personam, also, to recover for his meiitorious ser- vice, but his first and proper remedy is in rem. In the case of a recapture, where the property is again taken by the enemy, and followed by con- ' The Helen, 3 Eob., 224; The Urania, 5 Rob., 148; The Progress, Edwards, 211 ; The H i i • r> •• age IS due irom neutrals ; and m cases ot restitution of the recaptured property of neutrals, the courts are at liberty to assess such rates of compensation as, in their judgment, are demanded by the nature of the service and the circumstances of the particu- lar case, and are not limited to the rates fixed by the statutes, which apply only to the restitution, upon recapture, of the property of the subjects of the nation of the recaptors.^ Where the property of a neutral is taken as a prize by the enemy, and recaptured by the adverse belligerent, the probability of its condemnation, had it reached the port and been subjected to the action of the courts of the country of the captors, is to be considered in determining the question of salvage. If there is no ground for supposing that a restitution would not have been ordered, then it is to be restored on the recapture, without the pay- ment of salvao-e. Salvage was usually allowed upon the recapture by British vessels of neutral property taken by French cruisers in the last war, because there was reason to apprehend that such property would, in almost all cases, be condemned by the French courts of admiralty ; and such assessments of salvage were regarded, under the circumstances, although ' The Ann Green and car//o, 1 GallisoTi, 203. « Marshall, i1\ ; The Two Friends, 1 Rob., 271. EANSOM. 24Y an exception to tlie general rule, as reasonable and just by tlie neutral mercliants.-^ When a lawful belligerent had become possessed, by lawful means, of the property of the enemy, it was an ancient custom, of almost every nation, to redeem it from his jDossession by the payment of a^^^^°?^ p^^ ransom. The contract of ransom has fallen greatly statute in into disuse ; and by statutes in Great Britain,^ ran- soms are expressly prohibited under severe penal- ties. They are spoken of by Lord Stowell, in the case of the ships taken at Genoa, as subject to great abuse, being, in the common acceptation, contracts entered into at sea by individual captors, and liable to be abused, to the great inconvenience of neutral J^^^^ th?iaw trade. But ransoms, under circumstances of ex- of nations treme necessity, are yet allowed ; and a ransom Mbited by bill, when not prohibited by express statute, is a ^^'^^^ ^^^ war contract, protected by good faith and the law of nations. Although the contract of ransom is considered in England as tending to relax the ener- gies of war, and to deprive cruisers of the opportu- nities of recapture, yet " it is, in many views," says Chancellor Kent, " highly reasonable and humane. Other maritime nations regard ransom as binding, and to be classed among the few commercia helUy^ Ransom has not been prohibited by any law of Not prohibited 1 The Eleanor Catherina, 4 Rob., 156 ; The Waronskan, 2 Rob., 299; The Carlotta, 5 Rob., 54; The Huntress, G Rob., 104; The Samson, 6 Rob., 410; The Barbara, 3 Rob., I7l ; Abbot on Shipping, Part TIL, c. xi., § 13. 2 43 Geo. III., c. c. ; 45 Geo. III., c. Ixxii. ; 22 Geo. III. c. xxv. ^ Kent's Com., 114 ; vide also Azuni's Maritime Law, c. iv., art. G; Emerigon,!., c. xii., § 21; Valin XL, art. 66; Lo Guidon, c. n., art. 2 ; Grotius, Lib. III., c. xix. 248 RAN'so:jr. states^ ^°'*^*^ *^® United States, and has been recognized as a valid contract by the courts of that country, as well Its effect. as of France and Holland. The effect of the ran- som is equivalent to that of a safe conduct granted by the authority of the state of the captor ; and it is binding upon the commanders of other cruisers of the belligerent nation, as well as upon those of an allied nation, by the implied obligation of the treaty of alliance. The protection of the ransomed vessel is, however, limited to the time, as well as to the course or localities prescribed by the contract, unless, by stress of weather or unavoidable neces- sity, the time has been exceeded, or the course de- parted from. The captor who releases his capture on ransom, does not become the insurer of the property, except against recapture by cruisers of his own nation or allies. Therefore, if the ransomed vessel be wi^ecked before she arrives in port, the ransom bill is never- theless due. If the captor, having the ransom bill on board his vessel, should himself be captured by the enemy, the ransom becomes part of the lawful conquest of the enemy, and is discharged. These princijDles are laid do^vn by the element- ary writers,^ and have been frequently recognized and applied by the courts of the United States.^ ' Pothier, Traite dn droit de propriete, Nos. 134, 135, 138, 139; Valiii, Ord. des Prises, art. 19. - Goodrich vs. Gordon, 15 Johns. R., 6; Miller vs. The Reso- lutiou, -2 iMllas, 15; The Lord Wellim/ton, 2 Gallison, 104; Mais.^onnaire et ah. vs. Keating, 2 Gall., 336 ; Gerard vs. Hare, Peters's C. C. R., 142 ; Moodie vs. Brig Harriet, Bees. R., 128. EECAPTUKE AND MILITARY SALVAGE. 249 EECAPTURE AND MILITARY SALVAGE. [Se\^ral cases of recapture hj public ships of the United States, of the merchant vessels of her citizens, which had been seized by rebel cruisers, have occurred durino; the existina: war. In every such case, the merchant owner, without objection, has paid the military salvage provided by statute, of one-eighth the value of the property recaptured, upon its restitution, and in like manner, as if the original capture had been lawful.^ It is obvious, that had objection been made to the validitv of such claim, it could not have been allowed in the courts of the United States, without involving a judicial concession of belligerent rights to the insurgents, of the same character, and to like extent, as that virtually accorded by the Executive department of the government, in the exchange of rebel captured privateers, as prisoners of war. By the terms of the Act of Congress of 1800 ^ the compensation awarded as salvage for the recapture from the enemy, of a public ship, or of a merchant vessel, whether of the country of the recaptors or a neutral, is allowed upon the express condition that the property recaptured, has not been condemned in the courts of the captors prior to the recapture ; thus, in effect, resting the claim to compensation upon the lawfulness of the original capture, and its successful defeat by recapture, before the inchoate right to the captured property had become absolute by a decree. 1 Vide The Mary Alice, The Henry C. Brooks, The Lizzie Wes- ton. MS. Decisions U. S. Dist. Court, N. Y. 2 Vol. 2, Statutes at Laige, p. 16. 250 RECAPTUEE AND MILITAllY SALVAGE. How far the courts of tlie United States would be justified in holding lawful the captures made by insurgent privateers, — by decreeing salvage upon the recapture, and restitution of the captured property, — by reason of the executive action of surrender as prisoners of war, under the law of nations, of cap- tured privateers, who are declared to be pirates by the municipal law, may admit of serious doubt. The right vested in a sovereign nati'on, engaged in the duty of suppressing an in-suTrection which has assumed the proportions of a civil war, of re- garding and treating the insurgents, either as rebels or as belligerents, is a right to be exercised by the executive branch of the government, and, from its very nature, by the Executive alone. It is a right, to be exercised j^recisely according to the dictates of a varying political policy. If, therefore, the Executive, at one time, sees fit to allow an exchange of captured rebel privateers, as prison- ers of war, it by no means follows that such execu- tive action should be taken as a precedent for a subsequent judicial decree, because, at an after pe- riod in the progress of the war, the current of events may have ]3roduced an entire change of political policy. Certain rebel privateersmen, assuming to act under commissions from Jefferson Davis, were / cap- tured while committing piratical raids upon the ocean, l)y a United States government cruiser, and carried into the port of Philadelphia. They were there tried in the Federal court, and convicted as pirates, under the municipal law. By Executive interposition, their status as convicted pirates, lialde to be hanged, was changed to that of prisoners of ■RECAPTUEE AKD MILITARY SALVAGE. 251 war. Tliis was in the summer of 1861. If, at any subse(|uent period, The Alabama^ or any other rebel cruiser, should be captured, and brought into a port of the United States, would this former Executive action, make it any less the duty of the Federal courts, to proceed against her crew as pirates, under the municipal law, and to visit upon them its severest penalties, unless that branch of the gov- ernment which controls its political policy, should again interpose ? Surely not. When the executive department of the govern- ment recognizes the l^elligerent status of the people of a foreign nation, it is the duty of the courts to follow such recognition, in their judicial action, be- cause it is the announcement of a permanent politi- cal policy, by that department whose province it is to determine such ]3olicy. But the surrender of traitors or pirates, as prison- ers of war, in the progress of a civil conflict, cannot be regarded in any such light. It is an act which is the result of a temporary policy merely, a policy that may not, and should not, control, the duty of judicial tribunals, to continue to regard the insur- gents as traitors, j^unishable by the municipal law. In the former edition of this woi;k, it was stated that salvage was not awarded to a public ship, for the recapture 'rom the enemy of another public ship or vessel, employed in the public service. Such is the law of England. By the 2d section of the act of Congress last cited, salvage by the law of the United States, is granted upon the recapture of a public vessel, which " shall appear to have be- fore belonged to the United States," in like manner 252 EECAPTUEE AND iULITAEY SALVAGE. as the same is allowed upon the recapture of pri- vate property. The reason for the distinction, as established by the authorities in the English law, is, that the re- capture of a vessel employed in the service of the government, is an obligation of a vessel of war, lying in the direct path of the duty in which it is engaged — a duty of the same character, and equally imperative as that of rendering aid to a ship of war in battle. The soundness of this reason for witholding com- pensation as salvage, for the reca23ture of a public vessel, is readily recognized; but as just ground for the distinction, between the recapture of public and private vessels, it is not so easily appreciated. Can it be said to be any less the duty of the na- val forces of the government to succor, and protect the ocean commerce of its citizens, than it is to pro- tect public property upon the seas ? Indeed, is not the duty, considered simply as an obligation, of pre- cisely the same character, differing only in degree ? The capture of a merchant vessel by a belligerent cruiser, is a blow struck at the wealth and conse- quent means of resistance of the adversary. By the recapture, this blow is averted. It is the paramount duty of a vessel of war to go to the aid of another, in battle with the enemy ; and in doing so, to leave a caj)tured merchant ves- sel in the possession of an enemy's cruiser. The im- portance of success in the naval conflict exceeds that of the recovery of the merchant vessel. But, sup- pose the merchant vessel to be not only laden Avitli a precious cai^go, but to be freighted with millions of treasure, it is easy to perceive that the import- JOINT-CAPTUEE. 258 ance of her recapture miglit, for the moment, out- weigli that of aid iu the pending battle. It is obvious, therefore, that the duty of -recap- tui-e by a public vessel, is apj^licable no less to pri- vate than to public property, and the policy which withholds salvage compensation for the performance of this duty m the one case, is precisely the same as it is in the other. An attempt "was made at the last session of the Congress of the United States, to obtain a repeal of the act providing for the payment of salvage in cases of recapture, except upon the recapture of neu- tral jDroperty. The wisdom and justice of such repeal would seem to be too apparent to justify opposition. JOINT-CAPTURE. [Since the publication of the former edition of this work, no other change has been effected in the laws of the United States, in relation to joint-capture, than by the statute provision, which substitutes the words " within signal distance '' for the words " in sight," in the designation of the vessels entitled to share as joint-captors of a prize. If it were the purpose of this change to render the designation more definite, it may be doubted if such purpose has been accomplished. What is to be regarded as " signal distance," is a question for judicial determination ; and it is appa- rent that this determination must vary with the varying circumstances of fog, and storm, and duvk- ness, and intervening obstructions, which may be the attending incidents of a capture. 254 RESCUE. The rigMs of joint-capture by tlie concert and mate- rial co-operation of vessels which are neither in sight, nor within signal distance, at the time of the capture, of course remain unaffected by the statute provision. In several im];)ortant cases of capture made in the Gulf of Mexico, by the United States vessel of war New London^ during the present* war in the Uni- ted States, the public ships, Masmchusetts and R. li. Cuylei\ were admitted, by judicial decree, to the rights of joint-captors, though not in sight or within signal distance when the captures were made, solely in recognition of their rights as co-oper- ators, by previous concert.^ RESCUE. [In the former edition of this work, it was stated, that if a neutral vessel of commerce should be cap- tui'ed by a belligerent cruiser, and a small force be placed on board, with a prize master, to carry her into port for adjudication, an attempt on the part of the master and crew of the captured vessel should be made to effect a rescue ; such attempt would, of itself, subject the vessel to condemnation, which might otherwise be entitled to restitution. Such is unquestionably the well-settled law of nations. It is thus distinctly declared, by that learned master of prize law, Mr. Justice Story, in his brief but valuable treatise on prize law, published in the American Encyclopedia.^ ' Vide M8. Decisions — the steamer Henry Lewis, the steamer Anna, and seven other vessels — U. S. Dist. Court, New York. * Am. Enc, Vol. 10, p. 355. THE EMILY ST. PLERKE. 256 " Tlie rio;lit of searcli draws after it the rio-lit to capture and send in tlie visited ship for adjudica- tion, whenever (though the ship and cargo are under neutral papers) there are circumstances of just suspicion, as to her real character. " The neutral, under such circumstances, is bound to submit, and wait the regular result of the adju- dication of the proper tribunals. If, after the cap- ture, the neutral crew rise, and regain the neutral ^ ship from the possession of the captors, that alone is a hostile act ; and however innocent in other re- spects the shijD and cargo may be, they are justly subjected thereby to confiscation." A lawful rescue can only be made by a captured belligerent. Such a rescue is deemed a meritorious act, be- cause purely voluntary on the part of those cap- tured, and not their duty, as is that of recapture, which is the recovery by a friendly force, of a prize taken by, and in the possession of, an enemy. Such beino; the established rule of international law, its repudiation was not to be expected on the part of a great nation whose authorities and prece- dents have, more largely than any other, contributed to the erection of that Ijeautiful fal:)ric, which up- holds the great commonwealth of civilized states. The British ship, Emily St. Pierre^ in attempting to violate the Ijlockade of the port of Charleston, South Carolina, was caj^tured by a lawful cruiser of the United States government. A prize master, with a small force, were placed on board, and proceeded to conduct the prize into a port of adjudication. Relying too much upon the good faith and sense 256 RESCUE. of obligation to the supreme law, of the captured master and his crew, the captors humanely forebore to render an unlawful rescue impossible, by a con- finement of their j)ersons. Had any well-grounded suspicions existed, of a want of that integrity, which the captors had a right to require, their rigid confinement would have been perfectly justifiable. Taking advantage of their superior numbers, and of the generous but misplaced forbearance of the captors, the captui-ed master and crew, forcibly and fraudulently, regained the j)Ossession and control of the shij), and with the prize master, and his small force on board, proceeded mth her to Liverpool, England. Arriving there, it might not unreasonably have been expected, that the public authorities, indignant at this flagrant outi-age by a neutral upon belliger- ent rights, would have needed no prompting to in- duce their immediate and efficient vindication of the violated law. But the ship was a British ship, and was laden with a cargo which served to feed British manufac- tories. And this infraction of public law, this act so criminal by the law of nations, as of itself to suT)ject the vessel and cargo to confiscation, was hailed, by common consent, as an act of commend- able bravery, not only lawful, but highly merito- rious and honorable. At public assemblages, receiving the sanction of pul)lic men, this British ship master and his crew, were laden with encomiums, and rich pecu- niary rewards, and the Avorld has yet to learn of the utterance of any word of disapprobation of this THE EMILY ST, PEEEEE. 257 hostile act, by tHe neutral nation of tlie guilty- subjects. The minister of the belligerent nation, resident at the Court of St. James, lost no time in calling the attention of Her Majesty's government to the sub- ject. The writer has not had an opportunity of consulting the correspondence which ensued be- tween Mr. Adams and Earl Eussell — but it is un- derstood that the expectations expressed by the for- mer, that the British government would direct the surrender of the captured property, and the argu- ments and authorities urged as the basis of his ex- pectations, were met by a peremptory denial of the obligation on the part of the latter. Upon the commencement of the civil war in the United States, Great Britain hastened to announce her position, as that of neutrality, between lawful belligerents. The proclamation of the Queen was forthwith issued, in which it was said : " We have declared our royal determination to maintain a strict and impar- tial neutrality in the contest between the said con- tending jiarties." And again, in this same procla- mation, the British queen says : " We do hereby warn all our loving subjects, and all persons whatso- ever, entitled to our protection, that if any of them shall presume, in contempt of this, our royal procla- mation, and of our high displeasure, to do any acts in derogation of their duty, as subjects of a neutral sovereign in the said contest, or in violation or in contravention of the law of nations, as for examj)le," " by breaking or attempting to break any blockade, lawfully and actually established by or on behalf of either of the said contending parties, all persons so 17 258 RESCUE. offendino-, will incur and be liable to the several penalties and penal consequences, by the law of na- tions in that bebalf imposed and decreed." And in the same proclamation the British queen adds : " And we do hereby declare that all our subjects, and persons entitled to our protection, who may misconduct themselves in the premises, will do so at their peril, and of their own wrong, and that they will in no wise obtain ant protection from us against any liabilities or penal conseciiences, but will, on the contrary, incur our high displeasiwe by such misconduct." If the law of nations, upon the subject of the res- cue of a captured neutral vessel, for the violation of a bellisferent blockade, has been here correctlv sta- ted, it would be a hopeless task to reconcile the course of the British government in the case of the Emily St. Pierre, with a sincere regard for the obli- gations of neutrality under the law of nations, or with the solemnly proclaimed determination of the British Queen, that her subjects offending against that law, ^^will in no wise oUain her pi'otectionr NEUTEALS. 259 CHAPTER V. Of the Effect of Wak upoisr the Commerce OF Neutrals — and herein of Blockade — of Contraband of War, and of the Right of Visitation and Search. Neutral nations are those wliich, in time of war, who are neu- take no part in the contest, hut, maintaining a strict impartiality between the belligerents, render assist- a,nce to neither. ■ The general commercial rights of neutrals have Their genera] been thus stated by Lord Erskine in his speech of righ^!^^^' March 8th, 1808, upon the orders in council : "The public law establishes, that countries not engaged in war, nor interposing in it, shall not be affected by the differences of contending nations; but, to use the very words of the eminent judge who now presides with so much learning in the Court of Admiralty (Sir Wm. Scott — Lord Stowell), 'upon the brealvin-o; out of war, it is the rig-ht of neutrals to carry on their accustomed trade, with an excep- tion of the particular cases of a trade to blockaded ports, or in contraband articles, and of their ships being liable to visitation and search.' " Under this succinct but comprehensive statement of the general commercial rights of neutrals, the subjects for consideration in this chapter are clearly indicated. It is the right of neutrals to carry on their accustomed trade, which suggests the first topic for review. It has ever been the policy of nations to preserve. Coasting and • ,^ ' ^ !• r»/ii i* i_ ^ ±i ' colonial trade. With jealous exclusiveness, tor the benent ot tJieir 260 NEUTRALS. owu citizens, tlie traffic carried on between ports of their own coast, and, as far as practicable, tliat with their colonial possessions. It has been the practice, in time of war, for the belligerent, to permit neutrals to enjoy this com- merce. The impossibility of determining whether such permission is granted in good faith and with honest designs, or whether it is, as it is well known to be, in the vast majority of cases, a permission allowed with the collusive and fraudulent design of protect- ing the enemy's property by a neutral shield, and the incessant liability to abuse, incident to such Neutrals ex- permission, has resulted in the establishment of the eluded there- t ..-, a , , ^ i« /» ±nj^ from. general principle oi total exclusion oi neutrals irom the enemy's coasting and colonial trade. Under this general rule of exclusion, it is con- sidered, that when a neutral presents himself in the capacity of a trader from 23ort to port, or with the colonies of the enemy, he presents himself as an ally, as a willing and active instrument of the enemy, rather than as a neutral. He is regarded as depar.ing fi'om the line of impartiality Avhich distinguishes a neutral, by engaging in the business of relieving one belligerent from the extremities to which he has been reduced by the lawful operations of the other — and being so regarded, is so acc^ord- ingly dealt with. Character and The character and the reasons for the rule of 7niTof exciu^ exclusiou of ucutrals from a commerce in war, which they have been unaccustomed to enjoy in time of peace, are clearly and ably set forth by Lord Stowell in an early case involving the ques- tion : Bion. NEUTRALS, 261 "Is there notMng," said lie, "like a departure 6"oin the strict duties imposed by a neutral char- acter and situation, in stepping in to the aid of the depressed party, and taking up a commerce which so peculiarly belonged to himself, and to extinguish which was one of the principal objects and j^roposed fruits of victory ? Is not this, by a new act and by an interposition, neither known nor permitted by that enemy, in the ordinary state of his affairs, to give a direct opposition to the eiforts of the con- queror, and to take off that pressure which it is the very purpose of war to inflict, in order to compel tlie conquered to a due sense and observance of justice ? " As to the coasting trade, supposing it to be a trade not usually open to foreign vessels, can there be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for him during his own disability? Is it nothino^ that the commodities of an extensive empire are conveyed from the parts where they grow and are manufactured, to other parts where they are wanted for use ? It is said, that this is not importing any thing new into the country, and it certainly is not : but has it not all the effects of such an importation? Suj^pose that the French navy had a decided ascendant, and had cut off all British communication between the northern and southern parts of this island, and that • neutrals interj^osed to bring the coals of the north, for the supply of the manufacturers and for the necessities of domestic life in this metropolis, is it possible to describe a more direct and more effectual opposition to the success of French hostility, short of an actual military assistance in the war ?" 262 NEUTRALS. The duties of neutrals are clearly expressed by Lord Herrick's letter to Mr. Hist in the following words : "Neutrality, properly considered, does not con- sist in taking advantage of every situation between belligerent states, by which emolument may accrue to the neutral, whatever may be the consequences to either belligerent party; but in observing a strict and honest impartiality, so as not to afford advantage in the war, to either ; and particularly, in so far restraining its trade to the accustomed course, which is held in time of peace, as not to render assistance to one belligerent in escaping the effect of the other's hostilities. The duty of a neu- tral is ' 71011 interponere se hello, non lioste immin- ente Jwstem eripere^ and yet, it is manifest, that lending a neutral navigation to carry on the coast- ing trade of the enemy, is in direct contradiction to this definition of neutral obligations, as it is, in effect, to rescue the commerce of the enemy from the distress to which it is reduced by the superior- ity of the British navy; to assist his resources, and to prevent Great Britain from bringing him to reasonable terms of peace."^ Consequence A violation of the rule of exclusion of neutrals Sonl^ancrmod- from the coastiug trade of the enemy, was formerly ern relaxation yigited with the penalty of confiscation of the neu- 01 the ancient ^ •' rule of coniis- tral property. ^ ^""' In modern times, and by special ordinances, the penalty for such violation has been limited to the forfeiture of the freight, which, we have seen (when ' The Emanuely 1 Rep., 296. NEUTRALS. 263 considering tlie general subject of captures), would be payable, under ordinary circumstances, by the captor to the neutral ship-owner. This relaxation of the former rule, is regarded as a great leniency to the neutral, detected in interfering with a trade not legally permitted to him, which formerly subjected his vessel to confiscation as well as his freight to forfeiture. The ancient law upon this subject, and its mod- ern modification, are admirably collated and digest- ed by the king's advocate, in an important case in the British admiralty, to which case as well as to another. Dr. Robinson, the reporter, has appended a valuable note.^ The relaxation, however, of the ancient penalty Ancient rule is not permitted to be applied, where there are cases of specT- circumstances of specific fraud on the part of the ^^ ^'"^"'^• neutral, in addition to the illicit character of the trade in which he is engaged — such as the carrying of false paj)ers. In such cases the ancient rule of confiscation is applied in all its rigor.^ Analogous in principle to the rule which ex- Rule of exciu- iT , -I n j1 j ' ji n 1 IT sion of neutrals eludes neutrals irom the coasting trade oi a belli- from the coio- gerentjis that which excludes them from the colonial H^^^^^^ l^^ trade. In a case already cited. Lord Stowell, with coasting trade his usual learning and clearness of statement, dis- cusses the policy and reasons of the rule of pro- ' The Johanna Tholen, 6 Rob., 72 ; The Edward, 4 Rob., 58 ; The Huffnuiui, 2 Rob., 68 ; vide also Dr. Robinson's note to that case, and also another note to case in 6 Rob., 250. ^ The Menezer, 6 Rob., 252 ; The Carolina, 3 Rob., 75 ; The Pha'uix, 3 Rob., 191. 264 XEUTEALS. hibition of neutrals from tlie colonial trade of bel- ligerents, as follows •} " Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with the exception of the particular cases of a trade to blockaded ports, or in contraband articles (in both which cases their propertj^ is liable to be condemned), and of their ships being liable to visi- tation and search, in which case, however, they are entitled to freight and expenses. " I do not mean to say, that in the accidents of war, the property of neutrals may not be entangled and endangered. In the nature of human connec- tions, it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjust!}' engaged in covering goods of the enemy, and others will be unjustly suspected of doing it. These inconveniences are m6re than fully balanced by the enlargement of their com- merce. " The trade of the belligerents is usually inter- rupted, in a great degree, and falls in the same de- gree, into the lap of neutrals. But, without refer- ence to accidents of the one kind or the other, the general rule is, that the neutral has a right to carr}- on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very diiferent is the case of a trade which the neutral has never possessed, which he holds by no title of use or habit, in times of peace, and which, in fact, can obtain in war by no other ' The Uni'inuel, 2 Rob., 197; vide also Lord Erskine's speech on the Orders in Council, March Sth, 1808. XEUTIIALS. 265 title than by tlie success of the one belligerent against the other, and at the expense of that very- belligerent under whose success he sets up his title. And such I take to be the colonial trade, general- ly speaking. " What is the colonial trade, generally speaking ? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs ; and this is a double use — that of supplying a mar- ket for the consumption of native commodities, and that of furnishing to the mother country the pecu- liar commodities of the colonial regions. Upon the interruption of a war, what are the rights of belligerents and neutrals, respectively, with regard to colonial territories ? It is an indubitable right of a belligerent to possess himself of such places, as of any other possession of the enemy. This is his common rig-ht ; but he has the certain means of carrying such right into effect, if he has a decided superiority at sea. Such colonies are dependent for their existence, as colonies, on foreign supplies. If they cannot be supplied and defended, they must fall to the belligerent, of course ; and if the bel- ligerent chooses to apply his means to such an ob- ject, what right has a third party, perfectly neutral, to step in and prevent the execution ? No existing interest of his is affected by it. He can have no right to apply to his own use the beneficial conse- quences of the mere act of the belligerent, and to say, true it is, you have, by force of arms, forced such places out of the exclusive possession of the enemy, but I will share the benefit of the conquest, and by sharing its benefits, prevent its progress ; you have, in effect, and by lawful means, turned the 266 ' JVTEUTEALS. enemy out of the possession wliicli lie had exclu- sively maintained against the whole world, and with whom we had never presumed to interfere, but we will interpose to prevent his absolute sur- render by tlie means of that very opening which the prevalence of your arms has effected. Supplies shall be sent, and their products be exported. You have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your blood and treasure — not for your own interest, but for the common benefit of others. Upon these grounds, it cannot be contended to be a right of neutrals to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies and to export their products, affects to open them to neutrals, it is not his will, but his necessity, that changes his system; that change is the direct and unavoidable consequence of the compulsion of war ; it is a measure, not of French counsels, but of British force." Upon these grounds, sentence of condemnation was ordered in the case under consideration. And in a subsequent case, the doctrines thus enunciated by Lord Stow- ell, were fully confirmed by the Com-t of Appeal, in which the Lord Chancellor pronounces the opin- ion thus decisively : " It has already been pronounced to be the opin- ion of this court, that by the general law of na- tions, it is not competent in neutrals to assiune in time of war, a trade with the colony of the enemy which was not permitted in time of peace ; and NEUTEALS. 267 ujyjLer tliis general position, tlie court is of opinion tb.'t tMs ship and cargo are liable to confiscation."* The rule which prohibits neutrals from engaging When the co- in the colonial trade of belligerents, rests upon the permitted to assumption that their permission to do so by the Se'oJ^eaee, ijarent of the colony, results from a relaxation on the rule of 7 T -, \ -, . , 1 1 • prohibition its part of the rule ot exclusion irom sucn trade m does not ope- "XTTi ii !> • ^ ' J. rate in time of time ot peace. W here, therefore, previously exist- ^^r. ing commercial relations, resulting from treaty or otherwise, permitted such commerce in time of peace, the doctrine of prohibition in time of war does not apply. So it was held, in the case of a neutral ship, sail- ing between France and Senegal, then a French colony — it having been ascertained, upon much in- vestigation, that France had been accustomed to leave open the trade of Senegal to foreign ships, as well before as after the war — that the vessel should be restored to the neutral claimants.^ The rule of The estabiish- . ment of the re- prohibition of trade by neutrals with the colonies public of the of the enemy, was first established in a case which the^ origin^ of arose in 1756, and is therefore called "the rule of '.fthefuif of 1756." The relaxations of the rule originated prohibition, chiefly in the great change which took place in the commerce of the world, by the permanent estab- lishment of the independent re23ublic of the United States on the continent of America. By reason of that event, the ships of the United States were admitted to trade in some articles, and on certain conditions with the colonies both of Eng. land and France. Such were the established com- ' The Wllhelmina, 4 Rob., Appendix 4. * The Juliana, 4 Rob., 321. 268 NEUTRALS. mercial relations between tlie countries in time cS peace. The application of the strict rule of prohib- ition would therefore have operated to abridge the acquired and customary commerce of Americans. By reason of representations made by the United States government, orders were issued in 1*794 by Great Britain during the then existing war with France, apparently designed to direct British cruis- ers to exempt American ships from capture, which were trading between their ovni country and the French colonies. In consequence of this relaxation in favor of the United States, it was in 1798 further extended by concessions in favor of the neutral states of Europe. By this relaxation of the rigid rule of prohibition, neutral vessels were allowed to carry on a direct commerce between the colony of the enemy and their own country. The appiica- Tliis is the extent of the relaxation, and upon the rule, and the rule and the exceptions much discussion has arisen exceptions in • • , . i particular '^^ many important cases.^ oases. i^ a (.g^QQ before cited, it was determined that trade was unlawful carried on directly between the colony and the parent state of the enemy.^ So, too, was held to be a trade between the coun- try of the enemy and the colony of his ally. And a trade between the settlement of one enemy to/ the colony of another, was decided to fall within the same principle.^ Under the judicial construction of the relaxation of the rule, it was held, that a neutral ship trading ' The Emanuel, 2 Rob., 186. ^ The Rose, 4 Rob., App. ^ The New Adventure, 4 Rob., App. ; The Wilhelmina, 4 Rob., App. 4. ]o:uTRALS. 269 between a hostile colony and European port, whicli was neither a port of the neutral nor of the nation of the captor, was not within the terms of the ex- ception, and a condemnation ensued. But in two other cases of United States ships, captured on voyages from a hostile colony in the West Indies to a neutral West India colony, the exception was applied and the ships were released.^ This was rather upon the letter of the instructions to cruisers, than from the true spirit of the excep- tion, which would seem to have justified their con- fiscation. But the instructions directed the captiu-e only of ships coming from the hostile colonies to Europe. In another case of a Swedish ship, captured on a voyage from a hostile colony to a neutral American port, the court refused to apply the exception, and the ship was condemned.^ The only apparent dif- ference between this and the two preceding cases is, that they were American, and the latter was a Swedish ship. Certainly the one was not more than the other out of the letter of instruction, and not within the spirit of the exception to the rule of prohibition. In another case, in which a ship was captured on a voyage being made in good faith be- tween a hostile colony and the port of the neutral, it was held to be the precisely excepted case, and the vessel was restored.^ In another case, a capture was made of a vessel trading ^vith a hostile colony, and it was urged against her restitution that the trade with that ' The Hector, 4 Rob., App. ; The Sally, ib. • ^ The Lucy, 4 Rob., App. ^ The Miiy;nr(''h.a Maydalcna, 2 Rob., 138. 270 KEUTEALS. colony was not generally oj)en in time of peace to neutral ships, but was only permitted hy special licenses. A more liberal interpretation of the in- structions incorporating the exception was adopted by the court, and the vessel was released.^ In another case, however, of very great importance, and which was very elaborately contested, the court refused to admit the application of the exception contained in the instruction, although the case was manifestly within the letter of the instructions. It was the case of a contract made between a neutral merchant of Denmark and the Dutch East India Company. The voyage was to Copenhagen, the port of the neutral merchant ; but the evidence in the case satisfied the court that the object of the contract was, to secure Dutch property from British hostility ; and farther, that a commerce conducted with such views, and facilitated by the enemy with extraordinary privileges, and carried on upon a scale so immense, could not be considered a neutral traf- fic.^ Rule prohibit- It is an established rule, and a very important trfde^'by neu^ *^^^i that the colouial trade which a neutral may jT'^^^T^^r® not carry on directly, he is prohibited from conduct- trade is un- ing circuitously. " An American," says Lord Stow- I f\ rrr fill ^-^^ ell, " has undoubtedly a right to import the prod- uce of the Spanish colonies for his own use ; afnd, after it is imported, hona jide^ into his own country, he would be at liberty to cirry it on to the general commerce of Europe."^ But the question, what lawful. ' The Providentia, 2 Rob., 248. ' The Rendsherg, 4 Rob., 121. ' The Polbu 2 Rob., 361 ; 1 Acton, l7l ; video^^o The Maria, 5 Rob., H65. TOJUTEALS. 271 shall be considered a fair importation for the use of the neutral, and what shall be regarded as a mere colorable importation to protect the enemy's property, is one of great nicety, and difficult of de- termination. In various cases, this question has .been very learnedly discussed ; but in none, per- haps, more so than upon an appeal to the lords commissioners, in which the master of the rolls gave an elaborate judgment, in which the whole doctrine is illustrated with great ability.^ In an official correspondence between Lord Hawksbury and Mr. King, on the part of the United States, in 1801,^ the proceedings of the British court of admiralty upon this question was made the subject of complaint, in consequence of which the advocate-general of England, on the 16th of March of that year, made an official report as to the law concerning the colonial trade. He says : " The general principle concerning the colonial trade has, in the course of the present war, been relaxed to a certp-in degree, in consequence of the present state of commerce. It is now distinctly understood, and has repeatedly been so decided by the high Coui*t of Appeal, that the produce of the colony of an enemy may be imported by a neutral into his own country, and may be re-exported thence, even to the mother country of such colony ; and, in like manner, the produce and manufacture of the mother country may, in this circuitous mode, legally find their way to the colony. s TheWillwm, 5 Rob., 387. Vide ako 1 Kent's Com., 90 ; Mr. Monroe's Letter to Lord 'Mulgrave ; and Mr. Madison's Letter to Messrs. Monroe and Pinck- noy. 272 NEUTRALS. " The direct trade, however, between the mother country and her colonies, has not, I apprehend, been recognized as legal, either by his majesty's govern- ment, or by his tribunals. "What amounts to a direct trade, and what amounts to an immediate im23ortation into a neutral, country, may sometimes be a question of some diffi- culty. A general definition of either, applicable to all cases, cannot well be laid down. The question must depend upon the particular circumstances of each case. Perhaps the mere touchiing in the neutral country, to take fresh clearances, may prop- erly be regarded as a fraudulent evasion ; and is, in effect, a direct trade ; but the high Court of Ad- miralty h.as expressly decided (and I see no reason to expect that the Court of Appeal will vary the rules) that landing the goods, and paying the duties in the neutral country, breaks the continuity of the voyage, and is such an importation as legal- izes tke trade ; although the goods be reshipped in the same vessel, and on account of the same neutral proprietors, and forwarded for sale to the mother country or the colony."^ Penalty for j^ cases of illegal colonial trade by neutrals, as niie. well as in other cases of illegal commerce conducted by them, the penalty, in case of capture, is confisca- tion. It was formerly the rule in such, cases, that the neutral ship should be restored, and the cargo only confiscated ; but the strict rule of confiscation of both ship and cargo is now well established.^ ' Vide Kent's Com., 92, note. ^ Jonge Thomas, in a note to the report of The Minerva, 2 Rob., 229 ; The Volant, note to the report of The Wilhehnina, 4 Rob. App. ; 1 Acton's R., iVl. NEUTRALS. 2 7 o ■J There are some otlier commercial transactions wMch are frequently entered into by neutrals, of a nature so subject to abuse, tliat belligerents liave . considered themselves justified in discountenancing them. Thus, where a neutral put in a claim upon a hos- tile ship which had been captured, averring that it had been purchased from him, and not paid for, and that he retained a lien on the property for the pay- ment of the purchase-money, the court rejected the claim, saying : " Such an interest cannot be deemed sufficient to support a claim of property in a court of prize. Captors are supposed to lay their hands on the gross tangible property, on which there may be many just outstanding claims between other parties, which can have no operation as to them."^ Silver was shipped by a hostile merchant, to his agent in Hamburg, as it was asserted, for the pay- ment of an American neutral. The claim of the neutral was disallowed against the captors.' " For," * said the court, " even if the asserted intention on the enemy's part were ever so sincere, it always re- mained revocable. The hostile merchant retained the power of converting it to any purpose of his own, and the neutral merchant had no document whatever, giving him any control over it. Under these circumstances, the hostile merchant must be taken to be the legal proprietor, and as his proper- ty, this silver must be condemned." The right to capture enemy's property on board JJ^^^^^^^^^^Jj^Jg a neutral ship, has been greatly contested by na- free ships. ' The Marianna, 6 Rob., 24. ' The Josephine, 4 Rob., 25. 18 274 NEUTRALS. tions whose interests were opposed to tlie afiii*m- ance of sucli a riglit. In 1780, the emperor of , Russia proclaimed the principles of what was called " the Baltic code of neutrality," to be maintained The ai-med by force of arms. One of the articles of this code ^' was, that all effects belonging to the subjects of belligerent powers should be considered free on board of neutral ships, except only such as were contraband. Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, Naples and the United States acceded to the Russian principle of neutrality ; but it was persistently and successfully opposed by Great Britain, and was abandoned in 1793. In 1801 another attempt was made by the Baltic powers to procure the adoption of the doc- trines of armed neutrality, as set forth in 1780 ; but again it was defeated by Great Britain, and in June, 1801, a treaty was concluded between Great Britain and Russia, in which it was agreed that enemy's property was not to be protected on board of neutral ships. The whole subject is discussed with much ability by Mr. Wheaton in his excellent elementary treatise.^ The conventional law upon the subject has under- gone continual fluctuation, according to the varying interests and policy of maritime nations. In mod- ern times, however, the preponderance of treaty stipulations is in favor of the maxim, free ships, free goods, sometimes, but not always, connected with the con Averse maxim, enemy ships, enemy goods. Doctrine of the During the war of 1812 between the United upon the sub- States and Great Britain, the prize courts of the ' Wheaton's Elements of International Law, 162, 183. BLOCKADE. 2*75 former nation witli great uniformity enforced tlie ject of free principle of international law, tliat enemy's goods goo^l ^^^ in neutral vessels are liable to capture and confisca- tion, except as to such, powers with whom and the United States government, treaty stipulations exist- ed agreeing to a different rule. While neutral powers, by the law of nations, are Blockade and allowed to trade with the belligerents, in innocent ^^^ ^ ^*^°^ merchandise, they are nevertheless prohibited from entering or attempting to enter for that purpose ports and places that are blockaded, and with which by vii'tue of the blockade, all commerce is interdict- ed. It is therefore of the highest importance to consider what is the character and true definition of blockade as established by the law of nations. Blockade has been defined to be, the caiTying into effect by an armed force, of that rule of war which renders commercial intercourse, vn.th the par- ticular port; or place subjected to such force, unlaw- ful on tbe part of neutrals. There is no belligerent right more conclusively The beiiiger- established in tbe law of nations, and certainly blockade. none more necessary or important in its applica- tion, than the right of blockade, as it has been de- fined, determined and practically executed in mod- ern times. The right derives its origin fi-om the highest and purest sources of maritime jui'ispru- dence, is sanctioned by the practice of the most en- lightened nations, and is justly regarded as one of the great bulwarks of a nation's security and inde- pendence. However clear and indisputable may be the right of blockade, and however just and necessary may ?7f1 BLOCK^VDE. be the exercise of the right, it must, nevertheless, be conceded to be one of the harshest measures in its operation of any known in the code of interna- Recpiisites to tioual law. It is for this reason, that, by the uni- the lawful va- ' •/ Hdity of block- form practice of the tribunals of all nations, upon **^®' whom the duty devolves of giving effect to its provisions, certain requisites have been required to be established, in order to impart to the exercise of the right, its full force and validity. These re- quisites are deemed so indispensable to the legal existence of blockade, that the failure of either one of them has been uniformly considered to operate as an entire defeat of the measure, notwithstanding it may have been ordered and proclaimed by the supreme power of a nation. These requisites are clearly stated by Lord Stow- ell to be — " First, the existence of an actual block- ade ; Second, the knowledge of the party against whom proceedings are taken for its violation ; and. Third, some act of violation, either by going in or coming out with a cargo laden after the commence- ment of the blockade."^ Actual block- It will be Convenient to consider the subject of e reqmsi e. j^JQ^^j^^^jg with reference to these three several pre- requisites to its legality. And first, the existence of an actual blockade.. The declaration of a blockade is an act of sove- reignty which can emanate only from the supreme authority of a nation. The commander of a national vessel or the com- modore of a squadron cannot order it, unless under such circumstances as to impel the presumption ' The Betsy, 1 Rob., 29, vide also The Nancy, 1 Acton, 59. BLOCKADE. 27 1 that he carries with him such a portion of the sovereign authority as may be essential to provide for such an exigency.^ But not only can no block- ade exist as a legal fact which has not been declared by competent authority, but it must also have an actual physical existence. " The veiy notion of a complete blockade," says Lord Stowell, " includes that the besieging force can apply its power to every point of the blockaded state. If it cannot, then there is no blockade of that part where its power cannot be brought to bear."^ By this, it is not intended that the blockading force must be at all times present, if the absence be temporary and accidental, and its cause known (as by being blown off the coast by tempestuous weather), but that the presence of the sufficient force, barring such accidents, must be continuous, and if not so, by reason of remissness on the part of the cruisers stationed to maintain it, it is con- sidered as having no legal existence.^ " It is in vain,'' says Lord Stowell, " for governments to im. pose blockades if those euij^loyed on that service mil not enforce them. The inconvenience is very great, and spreads far beyond the individual case. Reports are eagerly circulated that the blockade is raised, foreigners take advantage of the information, the property of innocent persons is ensnared, and the honor of our country is involved in the mistake."* ' TheHenrick and Maria, 1 Rob., 146 ; The Rolla, 5 Rob., 367. » The Mercurius, 1 Rob., 80 ; The Stert, 4 Rob., 66, 1 Acton, 64. » The Frederick Molke, 1 Rob., 86-93, 94, 147, 156, and 1 Acton, 59. ■• The Juffrow Maria Schroeder, 3 Rob., 156, and note. 2*78 BLOCKADE. There is no limit to tlie riglit of a belligerent to blockade tlie ports of tlie enemy, but that which results from the deficiency of naval force. If a nation possess the power and resources, and will incur the hazard and expense, it possesses the right to blockade the entire coast of the enemy, upon the same principle which confers the right to blockade a single port, and is entitled thereby to the same exemption from neutral interference.^ Such a blockade is undoubtedly rendered more practicable and efficacious in modern times by reason of the vast improvements in the construction, and naviga- tion by steam, of ships of war. Knowledge of ]^ot oulv must the blockade be ordered by the requisite. Sovereign power of the nation, and be physically actual and complete, but to be legally valid and effectual, so as to subject a neutral to the penalty consequent upon its violation, it is necessary that he should be sufficiently informed of its existence. There are two modes by which information may be communicated — either by formal notification by the blockading power, or by the notoriety of the fact itself. All that is requisite to the sufficiency of a notifi- cation, is that it be communicated in a credible manner. Any such communication, whether formal or not, being such as to leave no doubt of its au- thenticity, is obligatory upon the neutral ; but the practice of nations in modern times has been to disseminate such intelligence to the world by proc- lamation, so distinctly expressed, as to leave no room for the defence of want of information.^ The ' Marshall on Ins., B. I.; c. iii,, § 3 ; 1 Acton, 63. » The Rolla, 6 Rob., 367. ' BLOCKADE. 279 legal effect of a notice officially given to a foreign government is, tliat it becomes binding upon every individual of that nation. " It is tlie duty of gov- ernments," says Lord Stowell, " for the protection of their subjects, to communicate the information which they have received, and no individual is allowed to plead ignorance of it. J. shall hold, therefore, that a neutral master can never be heard to aver, against notification to his government, that he was ignorant of the fact."^ It has been even held, that a formal notification to one nation, after the lapse of a reasonable time, will be j)resumed to have been received by the subjects of a neighboring nation, operating however, upon them, not from the time when it was formally given to the one nation, but from such period when it may fairly be pre- sumed to have been received by the subjects of the other."^ It is well established that when notice of the blockade, either actual or constructive, is given, the neutral cannot lawfully go to the station of the blockading force, under the pretence of obtaining information of its continuance. "The merchant," says Lord Stowell, " is not to send his vessel to the mouth of the river, and say, 'If you don't meet a blockading force, enter ; if you do, ask a warning, and proceed elsewhere.' Who does not at once perceive the frauds to which such a rule would be introductory? The true rule is, that, after the knowledge of an existing blockade, you are not ' The Neptunus, 2 Rob., 110; vide also The Welvaart Van Pillaiv, 2 Rob., 128, and 1 Acton, 61. " The Adelaide, 2 Rob., 110, and note ; The Jonge Petronella, 2 Rob., 131 ; The Calypso, 2 Rob., 298. 280 BLOCKADE. to go to the very station of blockade upon pre- tence of inquiry."^ The rule, with regard to notification of a block- ade, is somewhat relaxed on behalf of nations at a great distance from the blockading power ; and this relaxation was made to operate favorably to adven- tures from America, during the war at the close of the last century, between France and Great Britain, by the tribunals of the latter nation. It is not to be presumed that such a relaxation of the rule would now be permitted, since maritime nations have been brought into such proximity by ocean steam navigation. A definite rule as to notification of a l)lockade, is established by the treaty of 1794, betw^een the United States and Great ^Britain, in the following terms : " Whereas, it frequently hapj^ens that ves- sels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested, it is agreed that every vessel so circumstanced may be turned away fi-om such port or place ; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." The receipt of notice of blockade will not oper- ate to prevent a neutral from retiring \^dthout mo- lestation fi'om the blockaded port where she was lying at the time of such notification. And she may retii'e with a cargo on board, provided the ' The Spes and Irene, 5 Rob., 76 ; The Betsy, 1 Rob. 332 ; The Neptvnus, 2 Rob., 114; vide also, 1 Acton, 141, IGl. BLOCKADE. 281 same were actually laden, and liad become neutral property at the time of tlie receipt of sucli notifica- tion. But where the notification of blockade gives to neutral vessels lying in the blockaded ports a certain number of days to retire, they are not at liberty to purchase cargo to be laden after such no- tification, even though they may retire before the expiration of the time limited in the notification. And a cai^go actually delivered on board a neutral vessel, under such circumstances, after the notifica- tion, is, in law, deemed a fresh purchase.^ An actual notice of a blockade must be regular and specific, in order to be legaL A blockade was ordered by Great Britain of the single port of Amsterdam, but a British commander notified a neutral about entering, that a blockade existed of all the Dutch ports. It was held to be an illegal and insufiacient notice, even as to Amster- dam. " Because," says Lord Stowell, " it took from the neutral all power of election as to what other port of Holland he would enter, when he found the port of his destination under blockade. A com- mander of a ship must not reduce a neutral master to this kind of distress, and I am of opinion that if the neutral had contravened the notice, he would not have been subject to condemnation."^ A neutral may be charged with sufficient knowl- edo-e of a blockade to be binding upon his conduct without any formal notification, by the mere noto- riety of the fact. Such formal notice is never requi- site to neutrals lying in the blockaded ports. " The • TheRolla, 6 Rob., 364 ; The Betsy, 1 Rob., 92, and 152. ' 2 The Benrick and Maria, 1 Rob., 146 ; The Rolla, 6 Rob., 364. 282 BLOCKADE. continued fact," says Lord Stowell, " is a sufficient notice. It is impossible for those within to be ig- norant of the forcible suspension of their commerce, the notoriety of the thing supersedes the necessity of particular notice to each ship."^ An important distinction has been recognized and acted upon in various cases, between a formal notifi- cation, through a notice to his government, or by notice to himself, and notification presumed from notoriety. In the former case, no plea of ignorance is ever permitted. In the latter, it is allowed to prevail, if actually established by the proof — and there is also this additional distinction that, in the case of formal notification, the mere act of sailing' to the blockade, with a contingent design to enter, if the blockade be raised, is, of itself, a consummation of the oftence of violation of the blockade, because, in the case of such a notification, the port is consid- ered closed, until a formal revocation of the notifi- cation ; but no such presumption arises where the notification is simply of the fact, by notoriety, and therefore, in such case, it is no offence for a neutral to pursue a voyage on a doubtful or provisional des- tination.^ But, in order to charge a neutral with liabilities incident to a blockade, there must be not only an actually existing legal and effectual blockade, nud formally or constructively known, but there must be a violation of the blockade so existing and ' The Vroiv Judith, 1 Rob., 152. • The Cohwibia, 1 Rob., 146, 156; The Mercurius, 1 Rob., 83: The Hurlije Hane, 3 Rob., ')1A ; The Neptunus, 2 Rob., 110. BLOCKADE. 283 known ; and this leads to a consideration of tlie what is a vio- tliird brancli of tlie subject, namely, what is a vio- blockade. lation of a blockade. The breach of a blockade may be either by going into or coming out of the blockaded place with a cargo laden after the commencement of the block- ade ; but, in order to constitute such a going into the blockaded port as will subject a neutral to the penalties of confiscation, it is not necessary that the entrance be completed. If the vessel is placed in the vicinity, in a situation so near that it may enter with impunity when it pleases ; and especially if the vessel be placed so as to be under the protection of shore batteries, it is Considered a breach of the blockade. In such cases, it is regarded as a pre- sumption de jure^ that the vessel is so placed with an intention to violate the blockade ; and notwith- standing that such a presumption may operate severely in individual instances of innocence, " yet," says Lord Stowell, '• it is a severity necessarily con- nected with the rules of evidence, and essential to the effectual exercise of this right of war."^ The blockade may be violated as well by the coming out of the blockaded place as by going in. The cases of innocent egress are, where vessels, lying in the blockaded port at the time of the commence- ment of the blockade, retire upon notification, with- out taking a cargo on board, unless such cargo were laden before the blockade was effective ; and so laden, upon purchase before made in good faith. If a cargo be subsequently laden, the act is consid- * ' The Neutralitet, 6 Rob., 30 ; The Charlotte Christine, 6 Rob., 101; The Gute Erwarimg, 6 Rob., 182. 284 BLOCKADE.. ered fraudulent, and tlie egress of tlie vessel a vio- lation of the blockade.^ A vessel coming out of a blockaded port, is, in all cases, liable to seizure, and tlie onus of proving innocent acts and intentions lies upon the claimant seeking restitution.^ A ship transferred from one neutral to another, in a blockaded port, and retu'ing in ballast, is not guilty of a breach of the blockade. And if a neu- tral have sent in goods, previous to the blockade, which have proved unsalable, he may withdraw them for the owner without violating the blockade.^ K a neutral purchase a ship of the enemy in a blockaded port, that alone is an illegal act ; and she may be caj^tured at any time on her voyage to the country of the purchaser, even though driven to an intermediate port by stress of weather, being considered in delicto to the termination of the voy- age."* What excuses There are cases in which a violation of a block- a violation of. iit,,iit d j_' • blockade. adc IS excusable ; but the burden oi exoneration is always upon the party claimant setting up the excuse ; and it is an invariable rule that, however innocent may have been the intentions of the party, his conduct must be explained, not only in such way as to manifest such innocence, but he must bring it within the principles which have been established for the protection of belligerent rights, ' The Vrow Judith, 1 Rob., 151; The Frederick Molke, 1 Rob., 87. ' The Welvaart Von Pillau, 2 Rob., 130. 3 The Potsdam, 4 Rob., 89 ; The Brie Vrienden, 1 Dod., 269. * The General ILnniUon, 6 Rob., 61. BLOCKADE. 285 and without which, no blockade can "be maintain- The invention of neutrals has been sufficiently fertile in providing excuses for a violation of block- ade ; such as want of provisions,^ stress of weather,^ to ascertain the land,"^ intoxication of the master,^ the misinforniation of foreign ministers f but such ex- cuses are rarely allowed, and are always scrutinized by courts of admiralty with the greatest suspicion. Positive information from a shif) belonging to the blockading nation, that a particular port is not blockaded, though the information were erroneous, has been received as a valid excuse, by a vessel act- ing upon such information,^ If a place be blockaded by sea, it is not consid- ered a violation of the rights of the belligerent, for a neutral to carry on commerce with it by in- land communications,^ though such trade is not per- mitted by the citizens of the blockading power.® The question of blockade in relation to rivers flowing through conterminous states, is very learn- edly and elaborately discussed by Lord Stowell in a case on the capture of vessels in the Groningen Watt, on a suggestion that they were bound from Hamburg to Amsterdam, then under blockade ; the claim being given under the authority of the Prus- sian minister, averring that the place in question was within the territories of the king of Prussia 10 > The Arthur, 1 Edwards, 203 ; The Byfield, ib., 188. « TheFortuna, 5 Rob., 27 ; ' The Hurtige Hane, 2 Rob., 124. * The Adonis, 5 Rob., 256. '' The Shepherdess, 5 Rob., 262. •« The Spesand Irene, 5 Rob., 79. ' The JVeptunus, 2 Rob., 110. » The Ocean, 3 Rob., 297. ' The Jonge Pieter, 4 Rob., 89. '" The Twee Gehroeders, 3 Rob., 336. 286 BLOCKADE. Inland countries are allowed to import and to export tbrougli the ports of the enemy, subject, however, to strict proof of property.^ Excuses for the violation of blockade, are listened to with a disposition to relax the severity of the law in favor of less civilized nations (like the king- dom of Morocco), whom it is considered should not be held bound by all the rules of the law of nations, as practised in more enlightened govern- ments,^ T^eutral merchants are not allowed to cover ene- my's property with other goods belonging to them in the same ship. " The regular penalty of such a proceeding," says Lord Stowell, " is confiscation ; for it is a rule of this court, which I shall ever hold till I am better instructed by the superior court, that if a neutral will w^eave a web of fi^aud of this sort, this court will not take the trouble of picking out the threads for him, in order to distin- guish the sound from the unsound. If he is detect- ed in fraud, he will be involved in toto. A neutral surely cannot be j^ermitted to say : ' I have endeav- ored to protect the whole, but this part is really my j^roperty ; take the rest, and let me go with my own.' If he will engage in fraudulent concerns with other persons, they must all stand or fall to- gether."^ It is no violation of a blockade, wliere a neutral owner, without knowledge of the fact, sends his vessel to the blockaded port, if the master, bona ' The. Magnus, 1 Rob., 31 ; The Active (Lords, Mar. 10, 1798), ' The Hurtige Hane, 3 Rob., 324, ** The Uenrom, 2 Rob., 9 ; vide also The Betsy and George, 2 Gallison, 377 ; The St. Nicholas, 1 Wheaton, 417; and The F. r- tuna, 3 Wheat., 236, BLOCKADE. 287 fide^ changes his course for another port, on infor- mation before capture.-^ A neutral violating a blockade, is considered in delicto until the voyage is terminated. Until that period, the vessel may be caj^tured and proceeded agaiiist in like manner as if taken while in the act of violation. This is a well-established principle laid down by the elementary writers, and has been fre- quently recognized and applied by admiralty tri- bunals ; but if it so hapjDen that the blockade be in fact raised after its violation, and before capture, the offence is held to be wiped away. To use the lan- guage of Lord Stowell : " When the blockade is rais- ed, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto? The violation of a blockade subjects the proper- Penalty for ty employed to confiscation. This is the well-estab- blockade. blished rule in the law of nations.^ A breach of the blockade by the master subjects the ship to confiscation, but not the cargo, unless the owner of the ship be also the owner of the cargo ; or, unless the owner of the cargo, from cognizance of the in- tended violation, be considered in pari delictu with the ship-owner, or master, or supercargo.^ The penalty of a violation of a blockade, may attach on the property of persons ignorant of the fact, by the conduct of the master, or of the con- signee, if intrusted with power over the vessel.^ ^ The Imena, 3 Rob., 169. * IVie Lisette, 6 Rob., 395 ; Bynkersboek, Qu. jur. pub., Lib., I., c. xi., p. 21-4; The Christiansberg, 6 Rob., 376. . * The Columbia, 1 Rob., 154. * The Mrrcur'ms, 1 Rob., 80 ; The Uenrom, 2 Rob., 8. ^ The Columbia, 1 Rob., 154. 188 BLOCKADE. £Tlie doctrine laid down in tlie case of The Chris- tian-sherg^ before cited, is not fully expressed in the preceding text. It might, perhaps, be inferred, from the proposi- tion — that a neutral, having violated a blockade, is considered in delicto until the voyage is terminated — that the vessel could not be captured and pro- ceeded against by reason of the offence, at any sub- sequent period. This, however, is not so, unless a veil is thrown over the past offence by the raising of the blockade, before the succeeding voyage of the vessel. The voyage next succeeding that upon which the offence has been committed, may be the first oppor- tunity afforded for the vindication of the law, and the case of The Ohristiansherg^ therefore, decides, that the liability to capture is not limited to tlie termination of the voyage of the offence, but con- tinues through that which next succeeds it. Two cases, confirmatory of this doctrine, are cited by the reporter in a note to the case of The Chris- tiansherg : the case of Parhnan vs. Allen, 1 Stairs' Decisions, 529 ; and the case of the Randers Bye, decided at the February term of the year of the report. In the latter case, the authority of the case of The Christian-sherg \N3i^ invoked, in favor of a decree of condemnation — condemnation was refused — but the doctrine here stated was affirmed, by the refusal being placed solely upon the ground that between the voyage upon which the offence had been com- mitted, and that upon which the vessel was captured, a short but distinct voyage had taken place. Upon principle, there would seem to be no just BLOCKADE. 289 reason for holding the delictum to he at an end, hy the mere arrival of the vessel at her destined port, upon the voyage of the offence. The true ground upon which the offending vessel is, a't any time during the existence of the hlockade, absolved from liabilitv, is, that the rio;hts of third parties may have intervened, who should not be exposed to loss for the commission of an offence in which they did not participate, and of which they had no knowledge. But when a vessel arrives at her destination, fresh from a blockaded port — having succesr-fnlly run the gauntlet of the naval force, stationed for the pro- tection of the belligerent right — the achievement is ordinarily so paraded as a triumphant and meri- torious evasion of an obnoxious, if hot tyrannous right, that the last employment of the vessel be- comes matter of notoriety. No parties, therefore, who may see fit, then and there, to entrust their capital in the succeeding enterprise of the vessel, can be regarded in the light of innocent parties in that sense in which innocence consists of igno- rance of the stain of guilt resting upon her, by reason of her recent and last employment. The reason for the rule of limitation, in this view, would rarely, if ever, exist, until after the vessel had made a distinct voyage, subsequent to that of her offence. There have been several occasions for the applica- tion of this doctrine, during the existinr^^ war in the ' United States, and it has been recognized and en- forced by the learned judge of the Ignited States Court, in the District of New York, although no case hn=5 occurred in which condemnation has been 19 290 BLOCKADE. decreed, solely upon the ground of violation of tlie 1 dockade upon the voyage preceding tLat of the cap- ture, because, in each case, other and distinct grounds of condemnation have also existed. The affirmation of the doctrine of the English cases, has, however, been so clear, as to leave no doubt that condemna- tion would have been decreed in a case where no other cause of capture was averred. In March, 1862, the schooner EUzahetli, then at the port of Charleston, South Carolina, and owned by a citizen of that place, took on board a cargo of cotton, and successfully running the blockade of the port, arrived at the convenient neutral British port of Nassau, New Providence. At this port, her name was changed to The Mersey^ and her nationality was ostensibly changed by a transfer to a British subject ; and she was laden with a cargo consisting of articles of great scarcity at Charleston, but as common, and of not more value, than coals at New- castle, in the port of Baltimore, to which port she was documented for a voyage. Upon this voyage she was captured, when two days sail from Nassau, by the United Stores cruiser Santiago de Cuha, and sent to New York for adjudication. It will be seen by this recital, that other grounds of capture ' were involved in the case ; but the court, in assign- ing the causes upon which condemnation was de- creed, indicates this as the second cause, in the words following:: " She cam.e^out of Charleston, by evading the blockade of that port, and was seized on her first ♦ voyage subsequent thereto." {The Christiansberg^ 6 Rob., 376, 382, and notes. The General Hainil- ton, 6 Bob., 62.) ~ BLOCKADE. 291 By tli^same learned judge, this was made a dis- tinct ground and cause of condemnation in tke case of the Major Barhoiu\ captured in February, 1862, by the United States cruiser De Soto^ on a voyage succeeding that upon which she successfully violated the blockade of the port of New Orleans. Also, in the case of the Joseph H. Toone^ captured October 1st., 18G1, by the Uni;ted States cruiser South Carolina^ while (l)eing document- ed for a voyage to Tampico), she was steering into Barataria Bay, a Ijayou connecting with the Mis- sissippi River below New Orleans; and, having on the preceding voyage, in August, successfully violated the blockade of the port of New Orleans, by taking a cargo out of that port, by w^ay of Berwick Bay, a place of which New Orleans is the port of entry and clearance, and connected with that port by a short railroad. The question whether a neutral, knowing of the establishment of a belligerent blockade, may law- fully sail to the mouth of the blockaded port, river, or estuary, with the bona fi^e intent to inquire there, as to the continued existence of the blockade, has been made the subject of frequent and earnest discussion in several cases of prize, recently adju- dicated, in the District of New York. ( Vide vol. of MS., Decisions. The Cheshire,— The Delta,— The Empress?) In the cases of The Cheshire and The Delta, the dishonesty of the approach to the blockaded port, was manifested, among other criminating cir- cumstances, by the false destination of the vessels, as set forth in their papers. 502 BLOCKADE. The CJie-s-hire was captured off tlie port*'of Savan- nali, Georgia. She was documented for a voyage from Liverpool to Halifax, or Nassau, not as ports of contingent destination, in the event of the block- ade being found, upon inquir}^, to be still in exist- ence, but as ports of absolute destination, the design to deliver her cargo at Savannah in any event, be- ing sedulously concealed. The Delta was captured oif the port of Galves- ton, Texas. She was documented for a voyage to the Mexican ports of Minatitlan, or Matamoras, as ports of absolute destination, not contingent upon finding Galveston still blockaded, no mention being made of Galveston, In these cases, therefore, the question was not so directly presented, as in that of Thr^ Em.pre-'^-9, which vessel sailed from Rio de pJaneiro, upon a voyage to New Orleans, by the very terms of her charter, and all her papers, with written instruc- tions, "if she found that port still imder blockade, to turn away and proceed "^o the port of New York." It will be seen tlmt here was no direction to in- quire, and not attempt an entry without inquiry, but to go to New Orleans, and there deliver her cargo, unless turned away by a blockading force. This furnished grounds of suspicion of dishonesty of design, in the approach. And there were, in the case, in the opinion of the court, other and more pregnant grounds of suspicion of criminal inteut. But the ground of simulation of papers, and false destination, regarded by Sir William Scott as so conclusive of dishonesty of purpose, in the case of Tlif Carolina^ 3 Rob., 75, was wanting here, and BLOCKADE. 29S therefore the question of the neutral right to approach the very port Mockaded, for the honest purpose of inquiry, was more nakedly presented, and was earnestly and elaborately argued. The doctrine laid down by Sir William Scott, in the case of The Betsy, 1 Eob., 322, and The Spe6' and Irene, 5 Rob., 76, was adhered to and affirmed by the learned judge in the following language : " The earlier decisions of the prize courts indi- cated, that the act of sailing for a blockaded port, with knowledge of the blockade, was itself evidence of an attempt to evade the blockade ; but the state of the law upon that point now is, that some overt act denoting the forbidden attempt, must be shown, in addition to an intention to commit such inft-ac- tion, however strongly the latter may have been indicated and persisted in. (Phillips, on Ins., 459, art. 832, and cases cited ; Graves vs. U. S. Ins. Co., 1 Caines' Ca., 1 ; Fitzsimmons vs. Newport Ins. Co., 4 Cranch, 410; 1 Kent, 148.) " The rule is also so far mitigated in its applica- tion, that going purposely to a blockaded port, with the intention properly notified on the ship's papers, or otherwise fairl)- disclosed, to enter the port, may be excused in a neutral ship, if the ob- ject is honestly to inquire elsewhere, whether the blockade is still in continuance, and if so, to avoid the blockaded port, and complete the voyage at a law^ful one. The hazard of allowing such privilege, and the necessity of observing the utmost ingenu- ousness in its indulgence, is emphatically noted in the authorities (Kent, 148, 149; 1 Duer, on Ins., 669, ^§§ 42, 43) ; and accordingly, the courts take heed, in administering it, that neutrals be not permitted, 294 BLOCKADE. under cover of that relaxation of prize law, to smother the principle, by placing themselves out of reach of its restraints. "An adherence to the old rule would therefore seem to be still exacted, in its full simplicity, in one of its cardinal featui'es, which is, that the neu- tral vessel shall make her inquiries so plainly clear of the blockaded port, that she shall not acquire the ability (as Chancellor Kent phrases the act) to ' slip herself into iV " Phillimore states the general result of the au- thorities to be, that ' it has never, under any circum- stances, been held legal that the inquiry shall be made at the very mouth of the river or estuary of the blockaded port' (3 Phillimore, 399, § 304). " Dr. Lushington says, in the case of The Union^ 1 Spinkes, P. C, 164, 'the claimants allege the vessel was chartered for Riga, and being uncertain whether the place was blockaded or not, they sent her to Riga to inquire of the blockading force whether Riga was blockaded. Is this justifiable ? Under particular circumstances, perhaps, it may be justifiable, where inforTnation cannot he otherwise procured^ to inquire of the blockading squadron ; but the excuse can never prevail, if a neutral port be accessible, though an inquiry there might be attended with great loss and expense to the neutral ship.' " Without further extending the examination into this branch of the defence, it is clear to my mind, that the claimants cannot lawfully, under claim of making inquiry if a port known to the vessel to have been under blockade when her voy- age was set on foot, and after she had been prose- BLOCKADE. 295 cuting it toward the port, go forward to the en- trance of the port, and within the actual line of the blockading force, to inquire as to the existence of the blockade, and that such act, by the law ox na- tions, subjects her to condemnation as prize of war." In deciding the question of the construction of the Executive proclamation, in the case of The Admiral^ o-n appeal to the Circuit Court of the United States for the Third Circuit, from the decree of condemnation of the District Court of the United States for the Eastern District of Pennsylvania, the learned Circuit Judge says : "The Admiral, with fall knowleds-e that her destined port is blockaded, takes a clearance for St. Johns, and is found a thousand miles from the proper course to such a port, and in the act of en- tering the blockaded port, and when tlius arrested for the first time, inquires if such Idockade is raised." " A vessel which has fall knowledge of the exist- ence of a ])lockade, before she enters on her voyage, has no right to claim a warning or indorsement when taken in the act of attemj)ting to enter." " It would be an absurd construction of the Pres- ident's proclamation, to require a notice to be given to those who already had knowledge. A notifica- tion is for those only who have sailed witliout a knowledge of the blockade, and get that first infor- mation from the blockading vessels." The purpose of a belligerent blockade being to interdict all commercial intercourse and trade with the enemy, such blockade is deemed violated by 296 BLOCKADE. auy act on the part of neutrals, tLe obvious effect of whicli is, to defeat that purpose. It has, therefore, been hekl in the cases before cited, and may be considered as established law, tliat a neutral vessel lying in a blockaded port, un- ♦ laden or laden, at the time of the institution of the blockade, may thus depart, without infraction of the belligerent right; but that the act of taking in a cargo, after the blockade is est:iblished and known, is of itself a violation of the blockade, subjecting the property to confiscation. This doctrine has been expressly recognized and applied in several cases adjudicated during the ex- isting war in the United States.^ In the leading case of The Tropic Wind, decided in the Federal court for the District of Columbia, upon this point the learned judge says : "All the testimony concurs in showing that the cargo was laden on board The Tropic Wind on the 1.3th and 14th days of May, 1861. No principle of prize law seems better settled than that such lading violates the blockade and forfeits both vessel and cargo. In ' Weldman, on Search, Capture, and Prize,' p. 42, the act of egress is declared to be ' as culpable as the act of ingress ; and a blockade is just as much violated by a ship passing outward as inward. A blockade is intended to suspend the entire com- merce of the place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is, that, having already taken in a cargo before the hlocJcade begins, slui may be at lib- ' Vide The Hiawathi, The Lijnchhnrg, The Cremhaw, MS. De- i sions IT. S. Dist. Ct,, New York. BLOCKADE. 297 erty to retire witli it. If she atterward takes on board a cargo, it is a fraudulent act, and a violation of the blockade. It is lawful for a skip to with- draw from a blockaded port in ballast, or with a cargo shipped bond fide before notice of the block- ade.' (See also Vrouiv Juditlt^ 1 Robinson, 150; The Jiino^ 2 Rolnnson, 119 ; Tlie Nostra Senliora^ 5 Robinson, 52.) In ' Weldman's International Law,' volume 2d, p. 205, we find this passage : ' Where the blockade is known at the port of ship- ment, the master becomes an ao-ent for the caro-o : in such case, the owners must, at all events, answer to the country imposing the blockade, for the acts of persons employed by them ; otherwise, by sacri- ficing the ship, there would be a ready escape for the cargo, for the benefit of which the fund was intended.' " (See also The James Coo\ Edwards, 261 ; The Arthur, ik, 202 ; The Exchange, ih., 40 ; 1st Kent., 2d edition, 144, 146; Olivera \^. Union Insurance Company^ 3d AVheat. Rep., 194. See also Wheaton's note to the same case.) The principle upon this point, to be extracted from the authorities, may be thus briefly stated : — A belligerent blockade is designed to interdict ex- portation from, as well as importation to, the block- aded port. The act of taking on board a cargo in a blockaded port — even though not followed by an overt attempt at egress, is of itself a violation of the belligerent right, subjecting the property to con- demn ation-»-because it is an act of direct assistance of the traffic of exportation — the presumption of in- tent to violate the blockade — in the absence of countervailing evidence, from the mere fact of taking in a caro;o. { OOg BLOCKADE OF THE SOUTHEKN POETS. Distinction be- The intelligent reader cannot fail to perceive bTSde'as a that the blockade ordered by the proclamations belligerent £ +|^ President of the United States, of the 19th nized by icrer- and 27th of Aj)ril, 1861 {vide appendix), of the Ltd^that pro- 2)01^:8 of that j^ortion of the territory of the United UnS slJtes States whose people are in a condition of insurrec- govcrnment of ^j^^^ affainst the 2;overnment, bears no resemblance, a portion of its => i , , j_i i i i i i own ports, and in purpose or character, to the blockacl e known to Sat ^Snc-° the law of nations, and recognized . as one of the *^°°- rights of war, which sovereign belligerent nations may exercise against each other. The established rules by which the questions are determined, of what constitutes a violation of a blockade, and what are the penalties for such violation, would no doubt be alike applicable — but here all analogy ceases. To the failure to perceive, or at least to acknowledge, this entire want of analogy, a failui'e which cannot but be regarded as singularly unac. countable in such distinguished publicists as the Earl of Ellenborough, the Earl of Derby, and Lord Brougham {vide Debates in the British House of Lords, of May 16, 1861), may be fairly attributed the unfortunate position assumed by the British gov- ernment toward the rebellion existing in the United States, The blockade known and recognized as such by the law of nations, is the exercise of the right pos- sessed by belligerent nations as a lawful righit of war, to close the ports of its adversary by an effic- ient force, thereby to inflict a blow upon its trade and commerce, and so to cripple its means and re- sources, as eventually to compel a pacification by a reparation of those injuries which constituted the causa helli. When a nation, for any cause, sees fit BLOCKADE OF THE SOUTHERN POETS. 299 to order tlie closing of any of its own ports, it is jjerfectly obvious that sucli an act cannot be in- duced by any sucli motive — tliat it is not, in any manner the exercise of a technical belligerent right, but is simply the exercise of that power, inherent in every nation, to regulate and control . its internal affairs in such manner as it may deem best calcu- lated to promote its interests, its safety, its exist- ence. The learned peers of England assume that the blockade ordered by the government of the United States, is the exercise of a strictly technical belliger- ent right, and therefore that that government ought not, and has no right to complain, if foreign nations extend towards the rebellious people whose ports are closed by the blockade, the rights of lawful bel- ligerents. These consist of the right of commission- ing private vessels of war, by letters of marque, to seize and condemn as la^vful prize of war, the ves- sels of the blockading power, without subjecting the captors to the penalties of piracy denounced by the proclamation of the United States government. And also the light of such letters of marque to seek and claim the shelter and asylum of the ports of Great Britain as a neutral nation, with such prizes as they may capture, there to be protected until a court of admiralty of their own jurisdiction may pronounce a lawful sentence of condemnation, for it is now a settled principle of international law, that where no special treaty provision inter- venes (and none such exists between the United States and Great Britain), a neutral nation has no power to interfere with the prizes brought into its ports by the vessels of either of the lawful belli- 300 BLOCKADE OF THE SOTJTHEEN PORTS. gerent parties — (vide Kobinson's Coll. Mar. p. 30, et seq, ; Loccenius cle Jur. Mar., Lib. II., c. iv., § 7 ; De Martens, Li v. VIII., e. vii., § 312 ; Manning's Law of Nations, p. 387, et seq.) In this assumption of the learned peers lies the great eiTor. The preamble to the proclamation of the Presi- dent of the United States, of April 19th, 1861 (to which that of the 27th of the same month is mere- ly supj^lementary), very briefly, but with perfect precision, recites the causes which are the occasion of the measure. They are two-fold. First, that an insurrection exists in that portion of the nation in which the ports are ordered to be closed, which operates to prevent the execution of the laws of the nation for the collection of the revenue, passed pursuant to a provision of the Constitution of the United States requiring a uniformity in the duties imposed upon importations ; and, second, that the persons engaged in the insurrection, by a most un- waiTantable assumption of the rights of lawful belligerents, threaten to issue letters of marque, authorizing those to whom they are granted to assault the persons, and seize and confiscate the vessels and property of citizens of the United States engaged in commerce upon the seas. It is therefore solely for the pui'pose of securing the uniform enforcement of its own revenue laws, enacted pursuant to the provisions of its own con- stitution, and to prevent, as far as possible, one portion of its people from committing piratical depredations upon the lives and property of the others, that this most salutary order is proclaimed, as a measui'e of domestic peace, and of national security. BLOCKADE OF THE SOUTHERIS^ PORTS. 301 No one, surely, whose intelligence is not clouded by prejudice, or obscured by selfisli considerations, can fail to perceive tlie broad distinction between that blockade which is proclaimed by a sovereign, nation, of a portion of its own ports, for the pur- pose of quelling a domestic insurrection, and com- pelling tlie misguided insurgents, to " unthread the rude eve of rebellion, and welcome home ag-ain dis- carded peace," and that which is ordered and enforced by a sovereign government of the ports of its for- eign enemy, for the purpose of paralyzing his pow- er, and compelling him to repair his wrongs, and submit to the terms of equitable pacification. The latter is the technical belligerent right, the right of war, the right of a sovereign government, recognized by the law of nations, to inflict a blow upon the com- merce of the adversary, although it be with the in- cidental abridgment of the accustomed commerce of neutral nations. The former, while it is also a belligerent right resulting from a state of war, is the right which every nation possesses by the law of nature, which is above and beyond all mere international prescrip- tions, the great law of self-preservation, to take all such measures, and adopt all such internal regula- tions as may be requisite to maintain its own unity, its own nationality, its own supremacy (upoD which alone rest the safety, prosperity and hai)piness of the citizen), against the unlawful combinations of its own subjects, leagued together in the traitorous design to overthrow and destroy it. The distinction is so broad, and so patent to the •common understanding, that any thing beyond its mere statement would seem hardly justifiable in an 302 BLOCKADE OF THE SOUTHEEN POKTS. elementary treatise, but for the extraordinary as- sumption of the noble lords in the British Parlia- ment, and the unfortunate position assumed by the British government toward the United States re- sulting from that assumption. It is greatly to be hoped that a more mature con- sideration, and, above all, the irresistible logic of events, may produce a conviction of the error into which the government of Great Britain has unhap- pily fallen, and effect a change in her avowed pol- icy, not so much for the influence of such a change upon the conflict to which it is directed, as for the reasonable apprehension that such a precedent in the law of nations, may, in after times, be a fi'uitful source of public calamity to the nation by which it was adopted/ ' Scarcely had the foregoing passed through the press, when in- formation was received indicating a decided change in the policy of Great Britain, by an alleged ministerial construction of the Queen's pi-oclamation of neutrality, which would seem to strip it of all significance. It is said that, notwithstanding the proclamation of neutrality, the ships of war and privateers commissioned by the several bel- ligerents will not be permitted to carry their prizes into British ports. Should this intelligence prove to be correct, although it be not possible to regaixl it as other than an acknowledgment that the proclamation of neutmlitf/ Avas premature, and should not have been made at all, yet such a salutary change of policy Avould be so gratifying in itself, as effectually to disarm criticism irpon the method adopted to effect it. The rights of lawful bellio-erents to claim the shelter and asylum of neutral ports with their prizes, there to await a sentence of condemnation by a competent tribunal of the country of the cap- tors, is an established right, " settled," as Lord Stowell says, " by the inveterate practice of Great Britain." This right was the only substantial effect of the proclamation of neutrality, which IS, beyond dispute, a virtual recognition of the confederate insur- BLOCKADE OF THE SOUTHEEIST POETS. 303 In connection witli tliis subject a question has arisen as to the power of the President of the United States, under the Constitution, to institute the blockade of the ports of the states which are ^ in rebellion against the national government. The power to declare war, to grant letters of marque and reprisal, and to make rules concerning captures on land and water, is vested solely in the Congress of the nation, by the pro\dsions of the 8th section of the 1st article of the Constitution. That power, therefore, cannot be exercised by the President. But the institution of a blockade is not of itself a declaration of war. It is the exercise of rectionists as lawful belligerents. Tlie exercise of such a right would undoubtedly enable the insurrectionists to inflict a blow of terrible severity upon the mercantile marine of the nation. Shorn of this right, the letters of marque issued by the rebels become dead-letters ; for, their own ports being effectually blockaded, and the treaty stipulations existing between the United States and the governments of France and Spain, of Mexico, Central America, and the South American republics, precluding the use of the ports of these nations as asylums for prizes, a death-blow is inflicted upon the piratical expeditions of the insurgents, denominated privateering. Such expeditions are inspired only by the hope of gain, and will not be undertaken, when, in addition to the ordinary hazard of the enterprise, no visible means exist of converting the cap- tured property as lawful prize, after captures shall have been made. In the rapidly shifting current of events, the test of the sincer- ity of Great Britain in this complete but satisfactory receding from her policy as first proclaimed, may be imposed upon her even before the publication of this work. It requires but little political foresight to enable one to predict with confidence that the existence of amicable relations between the great nations of the woild is suspended upon the manifesta- •tions of sincerity in this behalf, which shall be exhibited by that government. 304 BLOCKADE OF THE SOUTHERN POETS. one of tlie riglits incident to a condition of war, clearly defined and establislied in the law of nations. The institution of a blockade of the ports of a foreign nation, by the direction of the President, prior to any legislative declaration of war, or to the actual existence of hostilities, might properly be reo^arded as tantamount to a declaration of war, and therefore an unlawful assumption of the func- tions of the legislature. But war may exist without any congressional declaration. Such indeed was the case with the war between the United States and Mexico. There was no legislative declaration of that war, but by an act of Congress, the actual existence of the war by virtue of Mexican hostilities against the United States, was set forth and pro- mulgated. It was therefore decided by the Supreme Court of the United States, in questions growing out of the acts of the President durins; that war, that the actual existence of the war authorized the executive, by virtue of his position as commander- in-chief of the army and the navy, and without any legislative enactment or declaration whatever, to exercise all the belligerent rights recognized by the law of nations : — " to direct the movements of the naval and military forces," and " to employ them in such manner as he may deem most eflfect- ual, to harass and conquer and subdue the enemy. "^ The institution of a blockade is a right much more exactly defined and recognized in the law of nations than those exercised by the President, ' Fleming et al. vs. Page^ 9 How., 615 ; Cross et al. vs. Har- rison, 16 How., 189. BLOCKADE OF THE SOUTHERN PORTS. 305 and wliicli were in question in the cases referred to. It would seem therefore that the constitutional power of the President to institute the blockade of the southern ports (as by hi^ proclamations of the 19th and 27th of April, 1861) is not only clear as resultinof from his office of commander-in-chief of the naval forces, but it is established and has be- come res adjudicata by the decision of that tribunal whose province it is to interpret the constitution, provided it be conceded that war actually existed at the time of the institution of the blockade. Of course it is matter of notoriety that hostilities of the most determined and most aggravated char- acter were then actually being carried on by the insurrectionists as^ainst the United States. These acts of hostility and rebellion are recited in the proclamation of the President, and no one can doubt that they had reached that point which fully justified the declaration that civil war then existed. The proclamation of blockade, in its re- cital of the acts of hostility committed and threat- ened, must be considered as equivalent to a decla- ration of the existence of civil war. The question then returns; — the institution of blockade, being the exercise of a right resulting from a condition of war which the President of the United States may constitutionally direct as com- mander-in-chief of the naval forces, without any legislative act — when war actually exists — is it competent for the President to determine that war does exist, and act accordingly ? • This question also seems to have been definitively settled by the Supreme Court of the United States, 20 n06 BLOCKADE OF THE SOUTHEEN" POETS. ostablisliiug the power of the President to declare the actual existence of a civil war, as well between a foreio-n nation and its revolting citizens or sub- jects, as with reference to a domestic insurrection. In the cases already referred to,^ it was decided that it was the province of the executive to deter- mine as a political question, whetlier civil war actu- ally existed between Spain and lier colonies, and the executive having tlius declared, it was the duty of the judiciary to extend to both parties all the rights of lawful belligerents. By the Stli section (15tli clause) of the 1st arti- cle of the Constitution, the Congress of the United States is clothed with the power " to provide for calling forth, tlie militia to execute the laws of the Union, suppress insurrections and repel invasions." Pursuant to this power the Congress has provided for calling fortb the militia, by a special act, whicli vests in the President of the United States an abso- lute discretion over the subject matter.^ The Supreme Court hias decided that this legisla- tive enactment, cloth.es the executive w^ith the ex- clusive authority of deciding whether the emer- gency has arisen contemplated by the constutional provision, in other words to determine whether there is an invasion by a foreign power, which is a public war, or a domestic insurrection, which may be a civil war, to requii'e or justify the calling forth the militia in defence of the national in- tegrity.^ * The Santissima Trinidad, 7 Wheaton, 805. ' Act of 1795 ; ch. xxxvi., §§ 1, 2. ' Martin vs. Mott, 12 Wheat., 29 ; vide also, Story's Com. on the Const., §§ 1209, 1211. BLOCKADE OF THE SOUTHERN PORTS. 307 This would seem to cover the entire ground. The facts recited in the executive proclamation, by which the blockade is ordered, and 75,000 mi- litia are called into service, are equivalent to a declaration of the existence of a civil war, wao-ed for the avowed purpose of effecting the destruction of the government — not a mere insurrection incited to resist the execution of an obnoxious law. This is a political question which it is the prov- ince of the executive to determine. Having thus deteiTnined that a civil war exists, as commander-in-chief of the army and the navy, the President becomes forthwith vested with the power of exercising all the rights resulting from a condition of war, known to the law of nations, prominent among which is that of blockading the ports of the enemy. The difficulty which at first seems to embarrass the solution of this question arises out of the ap- parent inconsistency between the position which the parent government necessarily assumes in the institution of a blockade of the ports of its rebel- lious subjects, which is the position of a belligerent power exercising a right incident only to a condi- tion of war, whether it be a public or a civil war ; and its position, by which it denies to the people in rebellion one of the principal belligerent rights, namely, that of annoying the enemy's commerce without being subjected to the penalties of the municipal law of piracy. But in truth there is no such inconsistency. A sovereign nation, engaged in the duty of suppress- ing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sover- 308 BLOCKADE OF THE SOUTHERN POETS. eign and belligerent, according to the Fevcril meas- ures resorted to for the accomplishment of its pur- pose. By inflicting, through its agent the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, upon those who shall be found guilty of levying war against the nation, or of committing depredations upon its commerce, it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By in- stituting a blockade of the ports of its rebellious subjects, and thereby interdicting their commercial intercourse with the world, and enforcing this meas- ui'e by capturing its vessels and cargoes whereso- ever found, and by capturing the vessels of all na- tions that shall violate or attempt to ^dolate the blockade imj)Osed, or shall supply or attempt to supply them mth any means whatever to enable them to continue their rebellion, the nation is ex- ercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as courts of prize, governed by and administering the law of nations. This position is very clearly stated by Chief Justice Marshall. He says: ^'A sover- eign who is endeavoring to reduce his revolted sub- jects to obedience, possesses both sovereign and belligerent rights, and is capable of acting in either character. If, as a legislator, he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and the proceedings under it will decide whether it is an exercise of belligerent rights, or exclusive- ly of his sovereign power ; and whether the court, in applying the law to particular cases, acts as a BLOCKADE OF THE SOUTHERN POETS. 309 prize court or as a court enforcing municipal regu- lations." ^ JUDICIAL CONSTRUCTION OF THE EX- ECUTIVE PEOCLAMATION. Under the early adjudications made in the Fed- eral courts of New York and Massachusetts, during the existing war in the United States, upon cap- tures made for violation of the blockade of the southern ports, an interesting and important ques- tion arose, as to the construction of the Executive proclamation, by virtue of which the blockade in question was set on foot. It was contended, with great earnestness and ability, by many distinguished counsel, represent- ing the interests of claimants of captured property, that, by the terms of the proclamation of the IQtli of April, 1861, a neutral vessel, having knowledge of the blockade, was not liable to capture for an attempted violation, unless that attempt were made after the vessel had been once warned of the ex- istence of the blockade l^y one of the blockading vessels stationed off the port, and such warning had been indorsed upon her register. The language of the proclamation, relied upon to sustain this position, is as follows : " If, therefore, with a view to violate such block- ade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by one of the blockading vessels, who will indorse on her register the fact and date of such warning ; ' Rose vs. Himeleif, 4 Cranch, 272. 310 BLOCKADE OF THE SOUTHEEI^ POETS. and if the same vessel sLall again attempt to enter or leave the blockaded port, she will be captured. and sent to the nearest convenient port, for such proceedings against her and her cargo, as prize, as may be deemed advisable." It is obvious, that upon the peculiar phraseology here adopted, an argument of much plausibility and force may be presented, in support of the posi- tion taken. In the determination of the question whether such construction can be maintained, it is proper, first of all, to consider its effect, as accomplishing or defeating the purpose of interdicting commerce with the ports of the insurgent states, for which the blockade was established. And here, it is quite apparent, that if neutral vessels, with full knowledge of the blockade, may, without incurring the hazard of capture, enter and depart from any of the blockaded ports, as often as they can succeed in ev^ading a warning by the com- mander of a blockading vessel, and an indorsement of the warning upon her register, such immunity would operate an utter defeat of the purpose of the interdict. It would be, in effect, a universal license to all neutral traders, whatever their knowledge of the inhibition, so long as they could succeed in avoid- ing the fatal warning and its indorsement, to do precisely that which it is the expressed purpose of the proclamation to prohil^it, namely, to enter and depart from the interdicted ports, accomplishing the purposes v)f commerce, and supplying the ene- my with the means of continuing and prolonging his revolt, without being subjected to any penalty tlifTofor. BLOCKADE OF THE SOUTHERlsr PORTS. 311 It would be as if tlie Executive liad tlius pro- claimed : " I intend to set on foot a blockade of the south- ern ports, which blockade shall interdict all ap- proach of neutral vessels, after its establishment, and they have knowledge of it, because, if allowed to approach, under any pretence, they will be sure to avail of that pretence to secure an entrance, with immunity from capture if unsuccessful. Nevertlie- less, each neutral vessel of the world may once ap- proach each one of these twenty or thirty blockaded ports, with full knowledge of the blockade — nay, with a view to violate it — and she shall be perfect- ly free from liability to capture, until after she shall have received a warning from the commander of one of the blockading vessels of the particular port she is attempting to enter, and such warning and its date, is indorsed on her register, and each ves- sel of every neutral nation is hereby expressly in- vited to violate the blockade of each one of these ports, and deliver a cargo tto he insurgent popula- tion, and purchase and carry away the produce of their country ; and this she may do with entii'e impunity, as often as she can succeed in avoiding n warning from a naval commander off the port, and an indorsement on her register. If the vessel suc- ceed in getting in without such warning, no offence shall be held to have been committed subjecting her to capture ; and if the same vessel in coming out^ laden with cotton or tobacco, should be so un- fortunate as to receive such warning, she will Ix^ liable to capture onl}^ in the event that she shall again attempt to leave or enter the same port." That such would be the character of the block- .'^12 BLOCKADE OF THE SOUTHER]^ POETS. ade, under' the construction claimed, no one will deny. Nor will any one deny that such could never have been the Executive intention. But, ar^^ued the advocates of a literal construction of the language of the proclamation, the well-settled rules of law do not permit a court, in the interpretation of a statute or public instrument, to look beyond the words and language actually employed — to in- terpolate or import into the statute or instrument words which are not to be found there — or to seek for the intention elsewhere than in the very words which have been employed to convey it. It was urged that this rule, as established by the authori- ties, was thus faithfully expressed by Lord Den- man (in the case of Green vs. Wood, 7 Q. B., 178) : " We are bound to 2;ive to the words of the Icots- lature all possible meaning which is consistent with the clear lang-uao-e used ; but if we find lansruao-e used which is incapable of a meaning, we cannot supply one. It is extremely probable that the alteration suggested would express what the legis- lature meant, but we, looking at the word as judges, are no more justified to introduce that meaning, than we should be if we added any other provision." This Avas appropriate to the case before the court ; but here there is no language used AA'hich is in- capable of a meaning, nor any occasion, in order to avoid the construction contended for, of supply- ing a meaning, not fairly deducible from all the lan- guage employed. The rule is tersely and better expressed by Vattel, thus : " It is not allowable to interpret what has no need of interpretation." (Lil). 2, ch. 17, § 262.) But better still by the Court of Appeals of New BLOCKADE OF THE SOUTHERN POETS. 313 York, in the case of Newell vs. Tlie People^ 3 Sel- den, 97 : " AVliether we are considering an ao-ree. ment between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought ■which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed^ in the order and OTammatical arrano-ement in which the framers of the instrument have placed them. If thus regarded, the words embody a defi- nite meaning, which involves no ahsurdlty and no contradiction hetiveen different parts of the same ■ writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to he conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument; and neither courts nor legisla- tures have the right to add to or talce away from that meaning." And again, in the case of McClushy vs. Crom- well, 1 Kern., 601 : " It is beyond question the duty of courts in constiniing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But, in the construction both of statutes and contracts, the intent of the framers and parties is to be sought, first of all, in the words and language employed ; and, IF THE WORDS ARTE FREE FROM AMBIGUITY AND DOUBT, and express plainly, clearly, and dis- tinctly the sense of the framers of the instrument, there is no occasion to resort to other tneans of in- terpretation. It is not allowable to interpret wliat has no need of interpretatio7i, and when the words 314 BLOCKADE OF THE SOUTHEKIS^ POETS. have a definite and precise meaning, to go elsewhere in search of conjecture, in order to restrict or extend tlie meaning." Thus it is perceived, where the words are not free from ambiguity and doubt, and do not express plainly, clearly, and distinctly, that which is known to be the sense of the framers of the instrument, there is occasion, and it is proper, to resort to other means of interpretation. A proclamation which announces a belligerent blockade " pursuant to the law of nations," and then proceeds to exempt from capture vessels which shall attempt to. violate it — having full knowledge of its existence — can hardly be said to be free from ambi- guity. Indeed, it is not easy to perceive how an instrument could, in its terms, be more ambiguous, or more obviously re(|uire judicial interpretation, to give it any force or effect whatever. The language required to be introduced into the proclamation, in order to free it from ambiguity and give it any salutary force, is this, "and without knowledge thereof," so that it shall read, " if, there- fore, with a view to violate such blockade, and without knowledge thereof;" and this is not an in- terpolation of words expressing an idea not found in the instrument — because the proclamation ex- pressly declares that the blockade is to be " pursu- ant to the law of nations," and without these words, the blockade would be repugnant to the law of na- tions, while with them it would be entirely conso- nant ^vith that law, so that the words are reallv no interpolation whatever. They but express the mani- fest idea and intent of the proclamation when announcinoj a belli2;erent blockade. 'o o BLOCKADE OF THE SOUTHEEN POETS. 315 But, it was further argued by tlie advocates of the claimant's construction of the proclamation, that the addition of the words " and without knowledge thereof," would annul the force of the immediately previous words, "if with a view to violate such blockade," upon the idea that a vessel could not have a view to violate a blockade without knowledge of it. And why not ? If a vessel approach a block- aded port with the view to enter, she approaches with a view to violate the blockade, whether she knows of the blockade or not. It is the entry which is the violation, and the approach with a view to enter is an approach with a view to violation, A criminal violation, which is a violation with knowl- edo:e»is one thino-. An innocent violation, which is a violation mthout knowledge, is another and very different thing. The treaty of 1794, between the United States and Great Britain, contains the following stipula- tion: " Whereas it frequently l.appens that vessels sail for a port or place belonging to an enemy, with- out hnowing that the same is UocJcaded, it is agreed that every such vessel may be turned away from such port, but shall not be detained nor confiscated, unless after notice she shall again attempt to enter." The neutral commerce of Great Britain, more than that of all other nations, was to be affected by the belliirerent blockade about to be established ; and it would almost seem as if the framer of the proclamation had this treaty before him, and inad- vertently omitted the insertion of the italicized ' words. The fla^-officer of the Atlantic naval squadron of 316 BLOCKADE OF THE SOUTHERN PORTS. the United States, in announcing, eleven days after the proclamation was issued, that the blockade ordered was effectively established, supplied the omitted words by declaring that " All vessels, pass- ing the capes of Virginia, coming from a distance^ and ignorant of the proclamation^ will be warned off," &c. Although immunity from capture was urged by claimants upon the literal construction of the Exe- cutive proclamation as here stated, in many adjudi- cated cases ^ the question seems to have been judi- cially determined, upon more full discussion, in the case of The Empress^ decided in the Federal court of New York, and The Revere^ decided by the Fed- eral court of Massachusetts, and in the case of The Admiral^ decided in the Federal court of Pennsyl- vania, and afterward on appeal by the Circuit Court of the United States for the Third Circuit. The learned judge of the District Court of New York, in deciding the former of these cases, says: "But it is contended by the claimants, that there can be no actual or intended violation of the blockade by a neutral vessel, subjecting her to capture, whatever may be her knowledge of its existence, and whatever the moral turpitude of her acts, until after she has had official notice of the fact that the port visited is under 1 )lockade indorsed on -her register; that the offence to which the penalty attaches can' only be committed by an effort of the vessel to ent(T the port after such formal warning has been received by her. ' Vide the cases of The Hiawatha^ The Halite Jackson, The Lynchbunj, The Crenshaw, The Hannah M. Johnson, The General Oreen. MS. Decisions U. S. Dist. Ct., N. Y. BLOCKADE OF THE SOUTHERN PORTS. 317 " This argument is raised upon tlie terms used by the President, in his procln.mation of April 19th, 1861, which are : " If, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by the commander of one of the blockad- ing vessels, who will indorse on her register the fact and date of such warning, and if the same ves- sel shall again attempt to enter or leave the block- aded port, she will be captured, tfec' " The official announcement by the proclamation, is, that the President has deemed it advisable to set on foot a blockade of the ports of the states enumerated, "m imTsuance- of tlie laws of the United States, and of the law of nations^'' and Commodore Pendergrast on the 30th of the same month, gave public warning to all persons inter- ested, that he had sufficient naval force to carry out the blockade, and that " vessels passing the capes of Virginia, coming from a distance, and ignorant of tlie blockade^,'' will be warned, ratejd French writer upon the rightf^. of neutral nations, Hautefeuille, in combating the extreme doctrine upon this subject of "the official organ of the English admiralty." " The advocate of Her Britannic Majesty, in the office of admiralty," Mr. Phillimore says, " with re- spect to such a case as might exempt the carrier of dispatches from tlie usual penalty, it is to be ob- served, that, where the commencement of a voyage is in a neutral country^ and is to terminate in a neutral port^ or at a port to which, though not neu- tral, an open trade is allowed, in such a case there is less to excitfi the \agilance of the master, and therefore it may be proper to make some allowance for any imposition tlmt may he practised upon And Hautefeuille says : • "A packet-boat, charged with a postal service, receives all the letters, all the dispatches which are committed to it hy the post-office^ without exception — it is not thus acting for a special case — is not in the service of the belligerent state, and simply dis- • charges the mission intrusted to it in peace as well as in war. If, among the letters with which it is thns freighted, there be found dispatches of war, whatever may be their importance, the vessel has failed in none of the duties of neutrality, has com- mitted no act of war, has not become denational- ized, since she has simply performed the commis- sion intrusted to her by her own government, a neutral government, and a commission compatible ' 3 Phill., 371. THE CASE OF THE TEENT. 35^ with tlie duties of neutrality. Moreover, it can be affirmed that slie lias committed no act of contraband of war." ^ And again, lie says : " The opinion of Sir Wil- liam Scott can have no weight in my eyes. As the official organ of the English admiralty, he was bound to sustain the doctrines of his country. He has clothed them with all the prestige of his leain- ing and his talent. But if we adopt his system, all correspondence would become impossible in time of war, between neutrals and belligerents, and -even very difficult between nations remain- ing loyal spectators of the struggle, except through the intervention of the belligerent that is most powerful on the sea." "No neutral ship would consent to take charge of the postal service, in the fear that a suspected letter should be found among the dispatches, and thus compromise her safety. Consequently, the belligerent that was the most powerful, would alone become charged with the maritime correspondence of the world, and it is easy to comprehend the advantage it might draw from the monopoly." ^ Regarding the employment in which the Trent was engaged, solely in the light of British author- ity, to be characterized in conformity with British precedent, maintained by that government in the plenitude of her belligerent power, against the pro- tests of all neutral nations, one may not readily reconcile the assertion, that the obnoxious individ- uals were "taken from on board a British vessel, ' Droit des Nations Neutres^ 465. ' Hautefeuille, Droit des Nations Neutres, 466, 468. 358 THE CASE OF THE TEENT. the ship of a neutral power, while such vessel WAS PUESUIXG A LAWFUL AND INNOCENT VOYAGE," with that high-toned integrity which should ever pervade the public declarations of those who are intrusted with a nation's destiny, and which has been not unfrequently paraded as the peculiar attribute of the British statesman. For what particular cause, or on what sj^ecific ground, the removal of the emissaries of the insur- rectionists from on board the Trent^ by the com- mander of the San Jacinto^ was regarded as a viola- tion of international law, Earl Russell does not ven- ture to state in his note to Lord Lyons. But the world is not left in ignorance of the real and sole cause of complaint, and that cause suffi- ciently accounts for this singular reticence of the British minister. Publicity has been given to the professional opinion of the law officers of the British Crown, and the action of the government is known to have been based upon that opinion. Had Earl E-ussell expressed the precise ground of complaint of the removal of the rebels from the British vessel, as an infraction of international law, as the same is embraced in the opinion of the law officers, the world would have read in amazement, substantially as follows : " We do not complain that a public armed ves- sel of the United States subjected a British mail steamer to visitation and search upon the high seas; "We do not contend that the British mail steamer was not lawfully subject to capture and confiscation, for resisting the exercise of this belligerent right ; THE CASE OF THE TEENT. 359 "We do not contend that tlie Britisli mail steamci-, although upon a voyage between neutral ports, was not lawfully subject to capture and confiscation by a cruiser of the United States, for being employed in carrying the ambassadors of the adverse belliger- ent of that nation, with their hostile dispatches, with fall knowledge of their character and mission, and that they must have been the bearers of such dispatches : "But we do complain that the commander of the ship of war of the United States did not make capture of the British mail steamer, place a prize crew on board, and carry her, with her cargo, into a port of the United States, for adjudication in her courts as lawful prize of war, leaving her numerous passengers to find their way to their homes as best ■ they might, and to find their damages for detention and delay, against the owners of the British mail steamer, as best they could; "And we do complain that, instead of the exer- cise of this generous and merciful forbearance, by the commander of the San Jacinto^ he contented himself with the simple removal of the hostile am- bassadoi's, with theii' hostile dispatches, from the offending vessel (they not being apparently ofiacers in the naval or military service of the enemy), thus usurping the authorit)^ vested in the prize courts of the United States, and substituting the adjudication of a naval ofiicer for that of a judge of his country, vested with the power of administering international law." In such terms must have been conveyed the ex- pression of what is perfectly known to have been the true ground upon which the British cabinet 360 1"HE CASE OF THE TEENT. saw fit to regard the act in question as an infraction of international law. It will be conceded that it was wise to be silent. But how stands British authority and British precedent upon this question of the right of removal of hostile ambassadors and dispatches from a neu- tral vessel, by a j)ublic belligerent cruiser, the sole ground of British comj^laint of the act of the com- mander of the San Jacinto^ as a violation of inter- national law ? Durino; the war between Great Britain and her colonies, afterward the United States, the colonial government dispatched as ambassadors to Holland, then a neutral power, Henry Laurens, a former President in the Congress of the country, vested with power to secure from that power a recognition of the united colonies as an independent nation — to conclude a treaty, and to negotiate a loan. In 1780 he left Charleston, on board the brigantine Adriana, bound to Martinique. From thence he took passage in a Dutch packet, the Mercury^ for Holland, and thus, was on board a neutral vessel, sailing between neutral ports. When three days out from Martinique, the Mer- Guoy was overhauled by the British frigate Vestal. Mr. Laurens, with his secretary, were forcibly -re- moved from on board the Mercury^' his papers were seized ; they were taken in the Vestal to St. Johns, Newfoundland, and thence, by an order of the British admiralty, he, with his secretary, were taken to England, and he was committed, as a pris- oner, to the Tower of London, on a charge of high treason. The British reverse at Yorktown soon changed the character of his confinement to that of THE CASE OF THE TEENT. 361 a prisoner of war, and lie was, not long thereafter, released, in exchange for Lieutenant-general Lord Coruwallis.^ Where is the failure of analogy, in any single point, between this remarkable British precedent and the case under consideration ? During the period which succeeded the recogni- tion by Great Britain of the independence of the United States, and the declaration of war of 1812, between those nations, the diplomatic correspond- ence between the two governments is mainly de- voted to the persistent assertion and maintenance of this alleged belligerent right of the cruisers of Great Britain, of arresting neutral vessels upon the high seas, and upon the mere -nc volo, sic juheo of the naval commander, removing therefrom any per- son therein claimed to be a British subject, and the constant denial of, and protest against, such assert- ed right, on the part of the government of the United States. Numberless were the victims of this asserted belligerent right. Two nephews of Washington,' as stated by Mr. Jefferson, on their return from Europe, were forcibly removed from the protection of the flag of the United States, and compelled to the service of seamen, under the discipline of a British man-of war. During the discussion of the subject on the floor of- the British House of Com- mons, Lord Castlereagh conceded that a govern- ment investigation had disclosed the fact that in the British fleet there were three thousand five ' Vide Sparks' Diplomatic Corrrespondence of the Revolution, vol. 2, p. 461. 362 THE CASE OF THE TEENT. hundred men claiming to be impressed Americ^np. And, it is said, tliat six thousand of such cases were recorded in the state department of the United States. Six thousand times, as it has been truly said, " American citizens, without any form of law, at the mere mandate of a navy officer, who, for the moment, acted as a judicial tribunal, were dragged away from the protection of the American flag, and the deck which should have been to them a sacred altar." For the avowed purpose of asserting a municipal claim to personal service, the belligerent right of search was invoked, and six thousand times the quarter-deck of British cruisers became " a floating judgment-seat," upon which were sacrificed the dear- est rights of American citizens. And how shall be compared the municipal claim of Great Britain to the personal service of her subjects as seamen in her navy, upon which alone the exercise of this right was sought to be vindicated, to the municipal claim of the United States to the persons of these her rebel citizens and traitors, that they might be visited with the just punishment of treason, and thereby be made to serve as an example and a warn- ing to coming generations ! Although the war of 1812, between Great Britain and the United States, was mainly incited by the pei'sistent exercise of this asserted right by the British government, it was not renounced by that power, at the treaty of peace concluded at Ghent, and the negotiations which from time to time have been set on foot by the United States government, during the administration of each succeeding Presi- dent, with the express purpose of procuring from THE CASE or THE TKENT. 363 Great Britain a renunciation of this asserted claim of right, have all been unavailing. No recorded act of Great Britain, since her exist- ence as a belligerent power, until the 30th of No- vember, 1861, the date of the demand upon the United States government, contained in the note of the British Premier to Lord Lyons, can be con- strued into a renunciation of what the Prince Re- gent (afterward George IV.) proclaimed at the palace of Westminster, in 1813, as the " undoubted, and HITHERTO UNDISPUTED right of -searcJiing mer- chant vessels in time of war, and the im'pressment of British searrien when found therein^ Having" thus considered the character of the de- mand made by Great Britain upon the United States, for the surrender to the former power, of the traitorous citizens of the latter, taken by an Ameri- can cruiser from on board a British merchant ves- sel, employed to carry them upon their traitorous mission, and having seen how utterly unwarranted was that demand, by reason, of any violation of in- ternational law, in their capture and removal, as that law has been established and administered by British authority and British precedent, it may be safely left to the judgment of impartial history to determine, whether, under all the circumstances, such a demand was altogether fit to be made ; and whether, that nice sense of national honor, which is the 1)asis of public security, and which compre- hends as well the integrity that will not offer, as the spirit that will not submit to an injury, did not imperatively forbid it. That such a demand made upon Great Britain while a belligerent, by a neutral nation, would have 334 THE CASE OF THE TEENT. been met by instant rejection, and its enforcement by armed resistance to the end, no one can doubt who is at all familiar with the claims hitherto asserted and maintained by that power. It was probably the conviction that such, under the like circumstances, would have been her own action, which led to the conclusion that it would be the course pursued by the United States, for the de- mand was immediately followed by gigantic war- like preparations and expenditures on the part of Great Britain, in the avowed anticipation of hostili- ties between that country and the United States. But, for such cause, this was not to be. Far otherwise, and in manner more noble than by an appeal to arms, was the honor of the latter nation triumphantly vindicated. On the 27th of December, shortly after the British demand was communicated by Lord Lyons to the American government, her secretary of state ad- ^ dressed his reply to the British minister. In that paper, Mr. Seward, at great length, and with the dignified and masterly manner which characterizes all the productions of that distinguished statesman, analyzes the principles of international law which are involved in the case, and shows that an adher- ence to those principles for which the governjment of the United States, as a neutral power, has con- tended against Great Britain, as a belligerent, since her independent existence, imperatively requires a compliance with the demand which Great Britain saw fit to make. And in view of the opportunity which the case afl:brded, for the assertion of those principles in such manner as could not fail to estab- lish a precedent, of a character so memorable and THE CASE OF THE TEENT. 365 decisive as to be binding, in tbe eyes of the world, iipon the future action of Great Britain, the distin- guished secretary might well say, in closing his response, "The four persons in question will be cheerfully liberated." It did not, of course, comport with the character of a public document of the nature of a diplomatic note, to enter upon a detailed exposition of the his- tory of the prolonged contest by the United States, for the supremacy of those principles of public law which this demand by Great Britain at length pre- sented the happy opportunity to consummate. That task remained to be performed. On the 6th of January, 1862, the President of the United States transmitted to the Senate a message, relative to the recent removal of certain citizens of the United States from the British mail steamer Trent, by order of Captain Wilkes, in command of the United States war steamer San Jacinto. On a motion to refer that message to the committee on foreign affairs, Mr. Sumner, the chairman of that committee, addressed the Senate upon the subject, in a speech which will be preserved with the juridical learning of the age, as one of its noblest monuments. In that speech, the distinguished senator from Massachusetts (of whom it may be as truly said as of him to whom the praise was first accorded, " mul- turn quod tetigit non ornavif) fairly and nobly completes and rounds off the labor, which had been left, " in outline rough and bold," by the secretary of state. , The senator premises, that, "If this transaction be regarded exclusively in the light of British precedents — if we follow the seeming authority of 366 THE CASE OF THE TREISTT. the British admiralty, speaking "by its greatest voice; and especially if we accept the oft-repeated example of British cruisers, upheld by the British government, against the oft-repeated protests of the United States, we shall not find it difficult to vin- dicate it. The act becomes questionable, only when brought to the touchstone of those liberal principles, which, from the earliest time, the American sfovern- ment has openly, avowed and sought to advance, and which other European nations have accepted, with regard to the sea. Indeed, Great Britain can- not complain, except by now adopting those identi- cal principles, and should we undertake to vindicate the act, it can only be done by their repudiation." And again: " A question of international law should not be presented on any mere argitmentnm ad Tiominem. It would be of little value to show that Captain Wilkes was sustained by British authority, if he were condemned by international law, as interpret- ed by his own country. It belongs to us, now — nay, let it be our pride, at any cost of individual prepossessions or transitory prejudices, to uphold that law in all its force, as it was often declared by the best men in our history, and illustrated by na- tional acts ; and let us seize the pi'esent occasion to consecrate its positive and unequivocal recognition. " In exchange for the prisoners set free, we receive from Great Britain a practical assent, too long de- ferred, to a principle early propounded by our coun- tr}^, and standing forth on every page of her history. "The same voice which asks for their liberation, re- nounces, in the same breath, an odious pretension, for whole generations the scourge of peaceful coramei'ce." THE CASE OF THE TRENT. 367 The Senator tlien proceeds to consider tlie several grounds upon wlaicli the lawfulness of the removal of the rebel emissaries, on the capture of the vessel which was carrying them, might be predicated, and shows that — 1. By the public law, as uniformly asserted and maintained by the United States, the seizure and removal of the persons of the rebels, without taking the ship into port, was unlawiui— inasmuch as a naval officer is not entitled to substitute liimself for a judicial tribunal. 2. By the puljlic law, as asserted and maintained by the United States, the neutral vessel was not liable to capture, and could not have been lawfully condemned, if taken into port, for the offence of carrying the rebel emissaries, inasmuch as neutral ships are free to eatery all persons^ not apparently in the military or namal service of the enemy. 3. By the public law, as asserted and maintained by the United States, the neutral vessel was not liable to seizure for carrying hostile dispatches, in- asmuch as such dispatches are not contraband of war. And, 4. By the j)ublic law as asserted and maintained by the United States, the Trent was not liable to arrest, as the carrier of hostile dispatches, inasmucli as she was a neutral vessel, sailing, at the time, be- tween neutral ports. And, first, as to the unlawfulness of the seizure and removal of the rebel emissaries, without taking the ship into port — after reviewing the early and persistent pretension and practice of Great Britain in opposition to the principle asserted and urged by the United States, the senator says: 353 THE CASE or THE TRENT. " Pi'otest, argument, negotiation, correspondence, and war itself— unhappily tlie last resort of repub- lics as of kings — were all employed in vain by tlie United States to procure a renunciation of this in- tolerable pretension." " But," lie proceeds, " I do not content myself witli asserting the persistent opposition of the American government. It be- longs to the argument, that I should exhibit this opposition and the precise ground on which it was placed — being identical with that now adopted by Great Britain — and here the testimony is complete." He then cites the authentic records of his govern- ment : During the administration of Washington, from the letters of Mr. Jefferson, his secretary of state, to Mr. Pinckney, the American Minister at London, of the 11th of June and the 12th of October, 1792. During the administration of John Adams, from the letter of Mr. Pinckney, his secretary of state, to Eufus Kino^, the American Minister at London, of the 8th of June, 1796 ; and during the same admin- istration, from the letter of John Marshal, tl^n secretary of state, afterward the venerated Chief- Justice, to Kufus King, of the 20th of September, 1800. During the administration of Jefferson, froni the productions of Mr. Madison, his secretary of state, for the eight years of his Presidency, who, in his instructions to Mr. Monroe, then the American Min- ister at London, on the 5th of January, 1804, ex- posed the tyranny of the British pi'etension, in these emphatic and memorable terms : " Taking reason and justice for the tests of this practice, it is pecidiarly indefensible^ because it THE CASE OF THE TREI^^T, 359 deprives the dearest rights of j^ersons of a regular trial, to which the most inconsiderable article of property captured on the high seas is entitled, and leaves the destiny to the will of an officer, some- times cruel, often ignorant, and generally interested, by want of mariners, in his own decisions. " Whenever property found in a neutral vessel is supposed to be lial;)le, on any ground, to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a les-al tribunal, wh'ere a reo-ular trial may be had, and where the captor himself is liable to damages for an al)use of his power. Can it be reasonable then, or just, that a belligerent com- mander, who is thus restricted, and thus responsi- ble, in a case of mere property of a trivial amount, should be permitted, without recnirring to any tri- bunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respec- tive 'allegiances, and to carry that decision into execution by forcing every individual he may choose, into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating disci- pline, and his life itself to the greatest danger? Reason, justice, and humanity unite in protesting against so extravagant a proceeding." From year to year, from 1804 to 181 '2, negotia- tions were carried on between the representatives of the United States government and British com- " missioners, for the purpose of procuring, a renun- ciation by Great Britain of this intolerable preten- sion, by which, in the language of John Adams, in a pamphlet issued l)y him upon the absorbing 24 370 THE CASE OF THE TRENT. theme, in January, 1809, "naval lieutenants te- came judges, midsliipmen, became clerks, and boat- swains, sheriffs or marshals." "At last," resumes the senator, "all redress through negotiation was found to be impossible ; and this pretension, aggravated into multitudinous tyranny, was openly announced to be one of the principal j reasons for the declaration of war against Great Britain in 1812." The language of President Madison, in his mes- sage to Congress of June 1st, in that year, in wdiich he designates the offensive character of the British pretension, is especially noteworthy, because singu- larly coincident with that used by the professional advisers of the British crown, in their exposition of the unlawfulness of the act of the commander of the San Jacinto. President Madison says : " Could the seizure of British subjects, in such cases, be regarded as within the exercise of a belligerent right, the acknowledged laws of war, which forbid an article of captui*ed property to be adjudged, without a regular investi- gation before a competent tribunal, wovld imperi- ously demmid the fairest trial, when the sacred rights of persons were at issue. In place of such a trial these rights are subjected to the will of every petty commcmdeTr The British writers say : " It is not to the right of searc'h that we object, htt to the following seizure without process of law. What we deny is, the right of a naval officer to stand in place of a prize court, and juljudicate, sword in hand, with a sic volo sic jubeo, on the very deck which is a part of our ter- ritoiy." THE CASE OF THE TRENT. 371 Witli what heartfelt satisfaction would such lan- guage, proceeding from the law officers of the Brit- ish crown, have been hailed by the American statesmen, and how it would have cheered the hearts of the American people, of 1812. The conclusion of the war, by the treaty of Ghent, brought with it neither renunciation nor modification of the British claim. To effect this, other negotiations were set on foot, during the administration of President Monroe, in 1818 and in 1823, and in 1827, during the adminis- tration of John Quincy Adams. They were alike futile as those undertaken before the war. And at length, in 1842, in the negotiation of the treaty of Washington, Mr. Webster, then the American Sec- retary of state, announced his abandonment of all idea of further negotiation, having in view the re- linquishment by Great Britain of her asserted right, and contented himself with a deliberate declaration of the principle irrevocably adopted by the govern- ment of the United States. " Such," continues the senator, " is an authentic history of the British pretension, and of the man- ner in which it has been met by our government. And now, the special argument, formerly directed by us against this pretension, is directed by Great Bi'itain against the pretension of Captain Wilkes, to take two rebel emissaries from a British packet ship. " If Captain Wilkes is right in this pretension, then, throughout all these international debates, ex- tending over at least two generations, we have been wrong." Passing to the second position, of the unlawful- 372 • THE CASE OF THE TRENT. ness of a capture of the neutral vessel, because em- ployed in carrying the rebel emissaries, inasmuch as these emissaries were not apparently in the mili- tary gv naval service oftlieenetny^ the senator shows that, upon British authority, such a doctrine could not be maintamed. " But," he adds, " the original American policy is unchangeable, and the American precedents which illustrate it, are solemn treaties. "The words of Vattel, and the judgments of Sir "William Scott, were well known to the statesmen of the United States, and yet, in the face of these authorities, the American government, at an early day, deliberately adopted a contrary policy, to which, for half a century, it has steadily adhered. It was plainly declared, that only soldiei's or officers could be stopped, thus positively excluding the idea of stopping ambassadors, or emissaries of any kind, not in the military or naval service." To this effect is cited the language of Mr. Madi- son, in his dispatch to Mr. Monroe, at London, on the 5th of January, 1 804. " The article renounces the claim to take from the vessel of the neutral party, on the high seas, any person whatevei, not in the military service of an enemy ' an exception which we admit to come within the law of nations, on the subject of contraband of war. With this ex- ception^ we consider a neutral flag on the high seas, as a safeguard to those sailing under it." To this effect was the language of the stipulation, the adoption of which Mr. Monroe was instructed to propose, as portion of the convention between the United States and Great Britain. " No person whatever shall, upon the high seas, and without the jurisdiction of either party, be de- THE CASE OF THE TRENT. 373 mauded or taken out of any ship or vessel belong- ing to citizens or subjects of one of the parties, by the public or private armed ships belonging to or in the service of the other, unless such person he, at the time, in the military service of an enemy of such other party P This proposed stipulation was vainly urged by the united earnestness of Mr. Monroe and Mr. Pinckney, who were joined in the mission to London. On the 9th of April, 1805, Mr. Madison, in a communication to Mr. Merry, the then British Min- ister at Washington, declares that — " The United States cannot accede to the claim of any nation, to take from their vessels on the high seas, any description of persons, except soldiers in the actual service of the enemy." And on the 12th of the same month, the auta2:onism of Great Britain to the United States upon this principle was un- equivocally asserted, in the reply of the British Minister, in which, on behalf of his government, he positively repudiated the doctrine. Further, to show the uniform adherence of the United States to this liberal principle, and her ear- nest advocacy of its adoption by other nations, the learned senator invokes the treaty history of his country, and points out its harmonious accordance. The treaty between the United States and France, negotiated by Benjamin Franklin, contains the fol- lowing stipulation : "And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing , shall be deemed to be free and exempt, which shall be found on board the ships belonging to the sub- jects of either of the confederates, although the 374 THE CASE OF THE TEENT. whole lading, or any part thereof, sliould appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect — that al- ihougli they he enemies to hoth or either party ^ tliey are not to he taken out of that free sliip, unless they are soldiers, in the actual service of the enemy P Substantially the same provision was embraced in each succeeding treaty entered into between the United States and the other maritime nations of either hemisphere, with the single exception of Great Britain, whose assent to the principle was always and pertinaciously refused. It will be found in the treaty concluded by the United States with the Netherlands, in 1782 — with Sweden, in the same year — with Prussia, in 1785 — with Spain, in 1795 — with France, in 1800 — -with Columl^a, in 1824 — with Central America, in 1825 —with Brazil, in 1828— with Mexico, in 1831- with Chili, in 1832 — with Venezuela, in 1836— with Peru and Bolivia, in the same year — with Ecuador, in 1839— with New Grenada, in 1846— with Guate- mala, in 1849 — with San Salvador, in 1850 — and with Peru, in 1851.^ By this unbroken chain of evidence, in the solemn form of treaty stipulation, the princi2:)le is asserted as the fixed and irrevocaT)le policy of the ^^nited States government, by Avhich neutral vessels are ex- empt from capture by a belligerent cruiser, for car- rying any other persons than such as are actually ^Vidc 8th, 9th, and 10th volumes of the United States Statutes at Large. THE CASE OF THE TRENT. 375 in tlie military or naval service of tlie enemy, and tliat no other than such persons can lawfully be removed from on board such neutral vessel. That such, too, is the principle adopted by the French government, is declared by her minister for foreign affairs, in a diplomatic note, addressed to the American Secretary of state, upon the subject of this arrest, in which he " earnestly insists that the rebel emissaries, not being military persons actu- ally in the service of the enemy, were not subject to seizure on board a neutral ship." It thus apjDcars, that Great Britain stands among the nations of the earth, in jealous conservation of her assumed rights as dictator of the sea, the sole repudiator of this princij)le, upon wliicli alone her demand could be sustained for the r(:storation to her custody of the rebel emissaries, because removed from her merchant ship, in " violation of interna- tional law ! " The senator then proceeds to the consideration of the third position, that — By the public law, as asserted and maintained by the United States, the neutral vessel was not liable to seizure for carrying hostile dispatches, inasmuch as such dispatches are not contraband of war. That the Trent was the carrier of such dispatches, no one could doubt. This necessarily resulted from the character of the service the rebel emissaries were on their way to perform; and, indeed, the chief among the rebels, who assumcl to appoint them to this service, has since declared that they were furnished with his appointment and commis- sion. 376 THE CASE OF THE TRENT. That the vessel was subject to capture for this cause, by the well-settled law of Great Britain, as laid down in numerous cases in her courts of Admi- ralty, and in the decisions of the Lords, in which hostile dispatches are declared to be included in the list of contraband articles, we have already seen.^ " But," says the senator, " however binding and peremptory these authorities may be in Great Brit- ain, they cannot be accepted to reverse the standing policy of the United States, which here, again, leaves no room for doubt." In the treaty concluded by the United States with France, in 1778, there is an enumeration of the articles to be considered as contraband, and the article "dispatches" does not appear in this enu- meration ; . and the subsequent i)ro vision of limita- tion, operates as an exclusion of dispatches, by declaring that "Free goods, are all other mer- chandise and things which are not comprehended and particularly mentioned in the foregoing enu- meration of contraband goods." The subsequent treaties concluded by the United States with other nations, containing the same enu- meration and the like exclusion, long after the. Brit- ish decisions had become well known, by which hostile dispatches were not only included in the list of contraband articles, but were declared to be of a character so noxious, as to subject both ship and cargo to confiscation, may properly be regarded as a practical repudiation of the British doctrine. If, then, the capture of the neutral steamer 1 Vide ante, p. — THE CASE OF THE TRENT. 377 Trent because she was tlie carrier of hostile dis- patches, would have been in " violation of interna- tional law," as it is conceded it would have l^een, as that law is established by the policy of the na- tion of the captor, Great Britain, the complaining power, is the only nation on earth which is pre- cluded fi'om making such complaint, Ijecause the only nation by whose tri1)unals the validity of a capture for such cause is asserted and maintained. Passing to the fourth and last position, that, by the public law, as asserted and maintained by the_ United States, the Trent was not liable to aiTest, as the carrier of hostile dispatches, even upon the assumption that they were contraband, because she was a neutral vessel, sailing between neutral ports, the senator clearly shows, that the principle in the law of contraband, adopted and adhered to by the United States, as set forth in her treaties with other nations than Great Britain, includes a rigid limita- tion of its application to trading with the enemy. It is uniformly declared that the articles enumer- ated as contraband, are only su>)ject to capture and confiscation, " when they are carried^ or attempt- ed to he carried^ to an enemy ^ Of course not, when carried between neutral ports, and not destined for the enemy. But although, by the law of nations, as fixed in the policy adopted by the United States govern- ment, the neutral termini of the voyage of the Trent freed her from liability to capture as the carrier of contraband articles of any description, it clothed . her with no such immunity under the well-settled law of Great Britain. The great oracle of British prize law. Sir Wil- 378 THE CASE OF THE TEEIS^T. liani Scott, in a "well-considered judgment," de- clares, tliat dispatches taken on Ijoard a neutral sliip, sailing from a neutral country, and bound for another neutral country, are contraband ; but that, where there was reason to believe the master is-no- rant of their character, " it is not a case in Avhich the property is to be confiscated, although in tliis, as in every other instance in ivldch the enemy'^s dis- patches are found on hoard a vessel, he has justly subjected himself to all the inconveniences of seizure ^nd detention, and to all the expenses of those judi- cial inquiries which they have occasioned." And thus the senator concludes his demonstra- tion, that upon every ground of comjilaint, either of the capture of the Trent, or the removal of the rebel emissaries, upon which a violation of interna- tional law could be predicated, such capture or re- moval, was unjustifiable by American authorit}- or American precedent, but upon each point was in entire accordance with the authority, the prece- dents, and the persistent practice of Great Britain, for o;enerations. Having to deal with a British ship, the Ameri- can commander, no doubt, thought he could not err in consulting and following British authority. "But," says the senator, "he was mistaken. ^ There was a better example. It was the constant, uni- form, unhesitating practice of his own country on the ocean, conceding always the greatest immunity to neutral ships, unless sailing to blockaded ports — refusing to consider disj^atches as contraband of war — I'efusing to consider persons, other than sol- diers or officers, as contraband of war — and protest- ing always against an adjudication of personal THE CASE OF THE TEENT. 379 riglits by the summary judgment of a quarter-deck. Had these well-attested precedents been in his mind, the gallant captain would not, for a moment^ have been seduced from his allegiance to those principles which constitute a part of our country's glory." This review of one of the most interesting and memorable cases in the history of international law, cannot be more fitly closed than by quoting the language of the distinguished Senator from Massachusetts (whose learning and research has been so largely availed of in this recital), in the eloquent sentences with which he closes his mas- terly oration. " Let the rebels go. Two wicked men, ungrate- ful to their country, are let loose, with the brand of Cain upon their foreheads. Prison doors are open, but principles are estaljlished which will help to free other men, and to open the gates of . the sea. Never before, in her active history, has Great Britain ranged herself on this side. "Such an event is an epoch. Novus soeculoriim nas- citur ordo. To the liberties of the sea this power is now committed. To a certain extent, this cause is now under her tutelary care. If the immunities of passengers, not in the military or naval service as well as sailors, are not directly recognized, they are at least implied. If neutral rights are not ostentatiously proclaimed, the}' are at least in- voked ; while the whole pretension of impressment, so long the pest of neutral commerce, and opera- ting only through the lawless adjudication of a quarter-deck, is made absolutely impossible. Thus is the freedom of the sea enlarged, in the name of 380 THE CASE OF THE TRENT. peaceful neutral riglits ; not only by limiting the number of persons who are exposed to the penal- ties of war, but by driving from it the most offen- sive pretension that ever stalked upon its waves. To such conclusions Great Britain is irrevocably pledged. Nor treaty nor bond was needed. It is sufficient that her late appeal can be vindicated only by a renunciation of early, long-continued tyranny. Let her bear the rebels back. The con- sideration is ample ; for the sea became free as this altered power went forth upon it, steering west- ward with the sun, on an errand of liberation. " In this surrender, if such it may be called, our government does not even ' stoop to conquer.' It simply lifts itself to the height of its own original principles. The early efforts of the best negotia- tors — the patriot trials of its soldiers in an unequal war, have at length prevailed, and Great Britain, . usually so haughty, invites us to practise upon those principles which she has so strenuously op- posed. "There are victories of force. Here is a victory of truth. If Great Britain has gained the custody of two rebels, the United States have secured the triumph of their principles. " Henceforth, the statutes of the sea, refined and elevated, will be the agents of peace, instead of the agents of war. Ships and cargoes will pass un- challenged from shore to shore ; and those terrible belligerent rights, under which the commerce of the world has so long suffered, will cease from troubling. In this work our country began early. It had hardh- proclaimed its own independence, be- fore it sought to secure a similar independence of THE CASE OF THE TRENT. 381 tlie sea. It had hardly made a constitution for its own government, before it sought to establish a constitution similar in spirit, for the government of the sea. If it did not prevail at once, it was because it could not overcome the unyielding opposition of Great Britain. And now the time is come when the champion of belligerent rights has changed his hand and checked his pride. Welcome to this new-found alliance. Welcome to this peaceful trans- figuration. Meanwhile, throughout all present ex- citement, amidst all present trials, beneath all threatening clouds, it only remains for us to uphold the perpetual policy of the republic, and to stand fast on the ancient ways." When we consider the past policy and present condition of the nation by whom the extraordinary demand in this case of TJie Trent was made — in con- nection with the past policy and present condition of the nation to whom it was made — it cannot but be the conviction of every honest mind, that it was a demand — not fit to be made. But what patriot of America, what philanthropist anywhere, will re- gret, or with bitterness remember, the temporary mortification of the concession to such a demand, if that concession shall carry with it, for the blessing of future ages, the happy result thus eloquently foreshadwed by the distinguished Senator, who spoke so nobly in its defence ; if the liberal and en- lightened sentiments and principles, springing from the very nature of the government, and the spirit of the institutions of the United States — and which have distinguished her policy from the beginning — shall hereafter become vital among nations ; if henceforth, Christianity and civilization live and la- 382 THE CARE OF THE TEENT., bor togetlier, in tlie construction of tlie great fabric of puljlic law, by whicli alone can 1 )e secured the peace and happiness of nations ; if it shall hasten the dawning of that auspicious day, when shall arise the glorious spectacle of the triumph of reason and princij)le, over power and interest — " When Sovereign law, the world's collected will, O'er thrones and globes elate, Sits empress — crowning good, repressing ill : Smit by her sacred frown. The fiend discretion, like a vapor, sinks, And e'en the all-dazzling crown Hides his faint rays, and at her bidding, shrinks." PEIZE JUEISDICTION OF COURTS OF ADMIEALTY. 383 CHAPTER VI. Of the Peize JuEiSDiCTioisr of Couets of Ad- miralty, AND OF THE PeACTICE AND PeOCEED- INGS OF Peize Couets. Judicial tribunals, constituted for tlie purpose P"ze jurisdic- . . . „ • , • 7 t'O"^ exclusive- 01 passing upon questions oi maritime capture, ly vested in tliougli different in different countries, are in all mSty° nations distinct from tlie ordinary municipal tri- bunals. They are commissioned to decide in accordance witli tlie law of nations and tlie conventional oblig-a- tions of treaties ; and therefore in the proceedings adopted for their administration of the law, and in the rules of evidence by which they are guided, they bear no analogy to the ordinary municipal or common law tribunals. In the United States and Great Britain, the in United -, • ••Tj,* J? '±' 1 • I States and exclusive jurisdiction or maritime captures is vest- Great Britain. ed in courts of admiralty, which in the exer- cise of this power are usually denominated prize courts. Courts of admiralty were originally established in England, in the reign of Edward III., and their powers were limited and defined by Kichard II., who first conferred the title of admiral of England on a subject, by patent granted to the Earl of Arun- del and Surrey. In Grreat Britain, this court is held by the lord high admiral, or by his deputy, who is called judge of the court of admiralty. In the United States, this court is held by the several judges of the district court of the United 384 PEIZE JURISDICTION OF COUETS OF ADMIRALTY. States in tlieir respective districts, pursaant to tlie powers vested in tliem by tlie constitution and laws of Congress. In prize cases, an appeal lies in England from tlie courts of admiralty to commissioners of appeal, who are composed j)riucipally of the privy council, com- missioned under the great seal for that purpose — and in the United States, an aj)peal lies from the district court to the circuit court in which the dis- trict is included, and thence to the Supreme Court of the United States. Jurisdiction By the law of nations, the jurisdiction of mari- the coum'of time captures is vested in the courts of the captor, the captor. ^^^ ^^j^g excrcisc of sucli jurisdiction has been often made the subject of treaty stij^ulation. In 1794, in contravention to the established law of nations, the French government decreed that French consuls and vice-consuls in neutral territory should have jurisdiction in cases of prize brought into ports where they were stationed. This jurisdiction was not allowed by the court of admiralty in England; and in the case of a British prize taken into Bergen, and sold under a decree of condemnation by the French consul there, Lord Stowell said : " It is, for the first time in the world, that in the year 1799 an attempt is made to impose upon the coui't a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral territory. It has Ijeen the constant usage that the tribunals of the law of nations in these matters shall exercise their functions within the belligerent country, and before the present war no sentence of this kind has ever been produced, m PRIZE JURISDICTIOlSr OF COURTS OF ADMIRALTY. 385 tlie aunals of mankind, and it is produced by one nation only in this war."^ Altliough by tlie law of nations, decisions in cases But jurisdic- n • ,' j_ -I ' , -I , • tion may be 01 maritime capture made m neutral countries are exercised wholly without validity, yet it is well settled b}- jfjil'^f^^';';^' the inveterate practice of all nations (against what po't- Lord Stowell deemed the coiTect principle), that adjudications may be made in the court, of the bel- ligerent captor, while the prize is not in the port of his own country, but in the port of some neutral state.^ A decree or sentence of condemnation by a prize Decree of con- ,/. j_ j_ • ' T i' • ' n demnation court 01 competent jurisdiction, is now universally re(iuisite to held to be requisite to effect a complete transfer of ^°"^sj-g^^ of maritime prizes from the original owner to the ca])- property. tor, "it not being thought fit," to use the words of Lord Stowell, " that property jof this natui'e should be converted without the sentence of a competent court.^ This doctrine has been recognized and acted upon by the Supreme Court of the United States.^ But although a condemnation by a lawful prize Decree final I • n -\ ± J.1 J. jy 1} ±^ ± J between the court IS final, as to the transfer ot the property, yet, parties, but as .between the respective governments, it may be ^^l ^if^^^^ reoj^ened, and reparation demanded where injustice ments. has been done. This was done by the mixed com- mission appointed pursuant to the provisions of the treaty of 1795 between the United States and Great Britain ; and although at first the British commis- ' The Flad Oym, 1 Rob., 1 et seq., 141, 142, and notes ; KJuber, Droit des Gens, Part II., Tit. ii., §§ 295, 296. ^ The Benrick and Maria, 4 Rob., 43, 63. " 4 Rob., 55. * Wheat. Elements, I., 91. 25 386 PKIZE COURTS JURISDICTION. sioners objected to reconsider cases that had been decided by the English court of admiralty, theii- objection was overruled, and indemnity was granted in cases in which there had been a final condemna- tion. The same rule was adopted between Denmark and the United States, and also between France and the United States ; in each instance indemnity having" been awarded to United States claimants for unjust condemnations of American property. B}" this salutary doctrine thus fully established, an additional o-uarantee is furnished to neutral com- merce, that while conducted in innocence and good faith, it shall not suffer from the proceedings of belligerents.^ Letter of Lord Li 1^94, Sir William Scott and Sir John Mcholl, Si>^ohir° at: the solicitation of^Mr. Jay, then the American John°j ^^ minister at the court of St. James, prepared a statement of the general princi]3les of proceeding in prize causes in the British courts of admiralty, and of the measures proper to be taken when a shi]3 and cargo are brought in as prize within their jurisdiction. The paper is a valuable one, and, • though general in its character, " as far as it goes," says Judge Story, " affords a satisfactory and lumi- nous view of the subject." It will be found entire in the appendix. Judge Story's A much more elaborate and detailed statement notes mWhea- n .^ -, . , t t • , ton's Reports. 01 tile suDJect Subsequently appeared m two notes, originally published as appendices to the first and second volumes of Wheaton's Admiralty Reports. ' Manning's Law of Nations, 384. PRIZE COURTS JURISDICTION. 387 These valuable notes were jjiepared by Judge Story, and present a prominent instance among the many whicli distinguished his professional life, of the unparalleled devotion of that eminent judge to the cause of enlightened jurisprudence, as well as the lavish prodigality mth which he placed at the disposal of others the inexhaustible stores of his own learning. It was his design that these notes, as w^ell as others in the same reports, should be regarded as the work of the learned reporter ; for (as he modestly wiites, in a private memorandum book found among his papers after his decease) " I know full well there is nothing in any of them which he could not have prepared, with a very little exertion of his own diligence and learning." And the fact of his authorship of certain specified notes is only preserved in this private memorandum, " lest," as he wi^ites, " the fact should transj^ire, and it should be supposed that he (Mr. Wheaton) is under obligation to me for notes which are his own." Whoever now undertakes to prepare a summary of the practice and proceedings in admiralty, in the exercise of prize jurisdiction, must be largely indebt- ed to these notes of Judge Story. Indeed, it would be almost presumptuous to expect to add any thing to the information contained in them ; and the hum- ble purpose of this chapter ^vill be, so to methodize and arrange that information, as may, perhaps, pre- sent it in a form by which it may be more readily appreciated, and at the same time be of easier ref- erence to the student and practitioner. As preliminary to a review of the practice and ^J^® j"ris; Smart x?,. Wolf, 3 T. R., 223; The Copenha-iev, 1 Rob., 289 ; The St. Juan Baptista, 5 Rob., 33 ; Thr Die Fric Darner, '6 Rob., 357 ; The Betsy, 1 Rob., 93 ; Jennings vs. Carson, 4 Cranch, 2; Bingham vs. Cnbot, 3 Dall., 19 ; The United States vs. Peters, 3 Dall, 121 ; Talhot V8. Johnson, 3 Dall., 133; ? Brown Civ. and Adm. Law, 209. 39 "2 PRIZE COUR'l'S JURISDICTION. rale of respondeat superior ; and a liberal indemnity will he awarded in cases where it is sliown that tlie captured crew have been subjected to gross ill- treaiment.^ The jurisdiction of prize courts is unquestionable to decree confiscation as a penalty for falsity, fraud or misconduct, as well of citizens as of neutrals. And it is a part of the ancient law of the admiral- ty, independent of any statute, that captors may forfeit their rights of prize by their own miscon- duct ; and therefore such decree of forfeiture may be declared against them (in which case the prop- erty goes to the government), where they have been giiilty of gross irregularity, or criminal neg- lect, or wanton impropriety and fraud. So too, where they have, without necessity, disposed of the prize property, before condemnation ; where they have rescued the property from the custody of the marshall, commissioner of prize, or other custodian of the court ; and also where they have violated the instructions of the government relative to bring- ing in the prize crew, and generally in all cases of deviation by the captors from the established and regular course of proceedings, the prize court re- quires satisfactory explanation of such deviation, before it will exercise its jurisdiction beneficially to the captors.^ The foregoing general outline of the prize juris- ' Del Col. vs. Arnold, 3 Dall., 330 ; The Anna Maria, 2 Wheat., 327 ; Bynkerslioek, Qu. Jur. Pub. Lib., I., ch, xix ; Du Ponceau's Trans., 147 ; The St. Juan Baptista, 5 Rob., 33 ; The Die Frie Darner, 5 Rob., 357; The Lively, 1 Gall., 315. ' 8 Cranch, 421 ; The Gcorqe, 2 Wheat, 278; La Rcine des Anges, Stewart, 9 ; Tlte Cossack, Stewart, 513. DUTY OF CAPTOES. :'.9S diction of admiralty will serve to elucidate tlie rules of practice and proceedings adopted by ]>rize courts in its due administration. And first in order for Consideration, are tliose ^^^'^^^"*,-*f '^". first duty of rules wliicli relate to tlie duties of captors, aiter captors upon they have secured possession of their prize. The pession"of rules applicable to the evidence upon the question P'"'^^- whether the prize is or not a lawful prize, will be more appropriately considered hereafter, on a re- view of the proceedings in court. After a maritime capture is complete, the posses- Duty of oap- sion 01 the captors is, m law, regarcled as a oo?ia Jiae dse proper possession, and they are not responsible for any loss gafeci^to^dyof or injuries resulting from mere accident or casualty, the prize. but are only bound for fair and safe custody, and are liable for any loss occasioned by their neglect or want of proper care. This responsibility attaches to loss resulting from misconduct of any of the agents employed by the captors, as the prize-mas- ter or prize crew — neglect in not employing a pilot.^ In cases of gross misconduct on the part of private captors, the court will decree a revocation of their commission.^ But it is a rule of prize courts, that application Liable for . , • T negligence or tor remedial process against captors lor misconduct misconduct. or negligence must be made without any unreason- able delay. K the injured parties lie by for such ' The Betsij, 1 Rob., 93 ; The Catherine and Anne, 4 Rob., 39 ; The Caroline, 4 Rob. 256 ; Del Col. vs. Arnold, 3 Dall., 333 ; The Uehr Mohr, 3 Rob., 229 ; The Speculation, 2 Rob., 293; The William, 6 Rob., 316; Wilcocks vs. Union Ins. Co., 2 Binney, 574. ^ The Marianne, 5 Rob., 9. 394 DUTY 01" CAPTORS. lengtli of time that the captors may be fairly pre- sumed to have lost or been deprived of such evi- dence as they might have adduced in exculpation, :i monition will not issue against them.^ To send the When a maritime capture is complete, it is the ?eSnt po?r' duty of the captors to send the vessel into some convenient port for adjudication. What is in- tended by convenient port has been heretofore considered.^ With prize- To this end it is their duty to put on board the priz^cre^^ captured ship a proper prize-master, and a sufficient unless captur- ■yy/y^^^ cTew to navi2:ate the vessel into port, unless, ed crew con- I o pi sent to navi- iudccd, the capturcd crew consent to perform the ^^^' service, which, however, they are not in general bound to do. If they do consent, they thereby exonerate the captors from all liability for loss or damage result- ing from improper or unskilful navigation."' If any cruelty or unnecessary force, such as putting in irons or handcuffs, is used towards the crew ^f a neutral ship captured, a prize court will decree damages to the injured parties.^ Captors pro- Under peculiar circumstances, and in cases of hibited from ■ -,< • i , • 1 1 x i converting overrulmg necessity, captors may, without being SSkingbuik, thereby deprived of the effects of a lawful posses- ' The Purissima Conception, 6 Rob., 45. ' The Huldah, 3 Rob., 235 ; The Madonna del Bursa, 4 Rob., 169; The St. Juan BajJtiata, 5 Rob., 33; The Wilhelmherg, 5 Rob., 143; The EUehe, 5 Rob., 173; The Lively, 1 Gall., :ur,; The Washington, 6 Rob., 275; The Principe, Edwards, 70. ' Wilcox vs. Union Ins. Co., 2 Binney, 574 ; The Resolution, 6 Rob., 13; The Pennsylvania, 1 Acton, 33; The Alexander. 1 (;all., 532, and 6\ C, 8 Cranch, 169. •* The St. Juan Baptista, 5 Rob., 33 , The Die Frie Darmr, 6 Rob., 357. DUTY OF CAPTOKS. 395 sion, land or even sell tlie prize goods. But in all ceptfromoTer- such cases, tlie biu'den is upon them, to satisfy tlie sity.^ ^ court of their perfect good faith, and the circum- stances giving rise to the necessity, otherwise any and every spoliation or damage to the captured ship, any breaking bulk, or conversion of the prop- erty, Av^ill deprive them of all benefit of capture, and subject them to a decree for damages, costs, and expenses.^ The master, and principal officers, and some of the ^^^ ^^ °fP- ' -■■ -•■ , . , . tors to send in crew of the captured vessel, should, m all instances, master and of- be sent with the vessel into the port of adjudicti- some' of the tion. This is a settled rule of j^rize courts, and the cIpTured*^ves- importance of its invariable observance cannot be sei. overestimated. Durino^ the war of 1812, between the United Great import- SiIlCG of tliis States and Great Britain, this rule was enforced b}' rule, and ef- ,1 ' 1 ' _L ±' jy J.^ T> ' T J. 1j.i"^ fects of its vio- the sj)ecial instructions oi the rresicient, and theiation. violation of these instructions involved a loss of all benefit of capture. Captors should understand that by the established rules of prize courts, the examin- ation of the master and officers, and if possible some of the crew, of the captured vessel, is the initiatory step in proceedings for condemnation, and without such examination (except by special permission in rare cases, shomiig physical impossibility), no pro- ceedinofs can be taken.^ o ' The Concordia, 2 Rob., 102; L'lJole, 6 Rob., 220; The Washiw/ton, 6 Rob., 276; Clerk's Praxis, 163; Bel Col. vs. Ar- nold, 3 DalL, 333; The Maria, 4 Rob., 348.; The Rendsberg, 6 Rob., 142. * The Eliza and Katy, 6 Rob., 185; The Henrick and Maria, 4 Rob., 43, 57. 396 CO.AIMISSIONERS OF PRIZE. On arrival at As soon as tliG vessel 01" property captured ar- Sion!^ filsf'' rives at the port of adjudication, it is the duty of the"ac£iira/f^ ^^^ captors (therein represented by the prize-maste^ if the prize is thus sent and not carried into port b} the captors themselves), forthwith to give notice of the fact of arrival to the admiralty judge, or to the prize commissioners of the port or district, and at To deliver up t]ie samc time to deliver into the hands of the judge documents or his commissiouers, all the papers and documents board. °" fouud ou board the caj)tured vessel, accompanied With affidavit by au affidavit that the papers and documents thus that they are it t 'xI t l' i n in the precise delivered up are m the same condition as when they fouS^^whe^n "^vere taken, without fraud, addition, subduction, or taken. embezzlement. The prize property is thereafter in the custody of the court, and the duty of the cap- tors is ended until action on their part becomes ne- cessary to procure an adjudication.^ The next step in the proceeding is taken by the commissioners of prize, which leads to a consider- ation of the powers and duties of the prize commis- sioners. Prize Commis- Prize commissioncrs are officers of the court of Bioners. ^ . . . . Their appoint- adm-iTalty. They are appointed and commissioned Sduti^I^'^^' ^J the court, and hold their office during the pleas- ure of the cornet, or until the termination of the w^ar which occasioned their appointment ; and the court may appoint as many in number as the exigencies require. The purpose of their :;ppointment is to relieve the court from the performance of many of the onerous duties to which the exercise of prize ' Ordonnance de la Marine, 1681, Til. 9, Art. 21 ; Cull. Shiv., 168. COMMISSIONERS OF PEIZE. 897 jurisdiction of necessity gives rise. In tlie name of the court tliey receive possession of the prize prop- erty when brought within its jurisdiction, as well as the papers and documents found and taken with it ; and it is their duty to enclose the papers and documents in a secure enclosure, and the same to seal with their proper seal, and then to lodge them in the registry of the coui't. So, too, ^vith regard to the prize property, it is their duty to place their seal upon the hatches of the vessel, and upon what- ever doors, coverings or enclosures of any kind are used to shelter and j^rotect the cargo, so that the same cannot be tampered with without violation of their seal. It is their duty to appoint pro]3er cus- todians to be left in the charge and safe-keeping of the prize property, so long as the same shall remain in court, or until the possession of the commis- sioners shall be superseded by that of the ordinary officer of the court, the marshal. The papers, and documents, and prize property, to take rhe I ' ,-1 1 ' J^ j_i^j_i i_ testimony of being thus secured, m the custody oi the court as tiie master, of- the guardian of the public interests, it is next the p^Je^rew^ duty of the commissioners to proceed without any de- lay whatever, that is to say, as soon as possible after the arrival of the vessel, to take the examination of witnesses, who are to be none others than the mas- ter, officers and crew of the captured vessel, or per- sons actually on board at the time of the capture. The examination is always confined to such persons in the first instance, and is never extended save by special permission or upon an order for further proof. Inasmuch as the hearing before the court is R"ies as to 7> , . ., . ,, ,-, -, examination to be primarily, m all cases, upon the papers and of witnesses. documents, and the examination of the persons on 398 COMMISSIOISrEES OF PRIZE. board brought in witli the prize, and upon no other evidence whatever, the rules of the court require a strict adherence to all the prescribed formalities in the taking of this testimony. These rules are as follows : First. The witnesses must be produced before the commissioners in succession, so that all may be examined, before the examination of any one is transmitted to and filed with the court. After such transmission no other witness can be exam- ined without a special order of the court. Second. The witnesses mast be examined sepa- rately and apart from each other, and without the instruction or presence of counsel, or of any other person than the commissioners, their clerk, secre- tary or actuary, and agents of the parties, other than professional ; and during the examination the witnesses are not allowed to communicate with or l)e instructed by counsel. If professional counsel were allowed to be present at the ex- amination, and especially if they were allowed to take notes of the testimony, the purpose of the rule, which rigidly requires the witnesses to be examined apart from each other, might be entirely defeated. Third. The examination of the witnesses -is, in all cases, to be on the standing interrogatories in preparatorio^ as they are denominated. The stand- ing interrogatories used in the English courts of admiralty, have been drawn with great care .und precision, and contain sifting inquiries upon every point which may possibly affect the question of prize. These interrogatories, which may be found in 1 Kobinson's Eeports, 381, have served as a COMMISSIONEKS OF PlilZE. 399 model for otlier courts. Witli some additions, but with little variation, they have been adopted by the several district judges in the courts of the United States, and with some modifications prepared by the learned judge for the southern district of New York, will be found in the appendix, together with the prize rules adopted by that court. Fourth. In the taking of the examination of witnesses, it is the duty of the commissioners to re- quire each question to be answered, and to write down the answers, or cause them to be written down, fully and perfectly, so as to meet the point of every inquiry, and not allow the witness to evade a searching question by vague or ambiguous state- ments. In the event of a refusal of a witness either to answer at all, or to answer fully, it is the duty of the commissioners to certify the fact to the court, in which case, not only is the witness subjected to the ]3enalty of imprisonment for contempt, but the own- ers of the ship and cargo may be subjected to the consequences of a Avilful suppression of evidence. Fifth. After the examination is complete, it is the duty of the commissioners to read or cause to be read to the witness, each sheet of the same, and require him to sign each sheet separately, and also to affix thereto their own signatures, or the signa- ture of one of them, if only one be present, or the commissioners jointly or separately, as they please, and as emergencies may require. Sixth. When the examination of all the wit- nesses is concluded, it is the duty of the commis- sioners securely to enclose the same, and cause it to be sealed with their seals, and, together with any papers and documents found on board the vessel, 400 THE PMZE-LIBEL. aud not l-efore lodged in the registry of the court, to be fortliwitli trausmitted to tlie court ; and no papers or documents found on board, and not de- livered to the judge or the commissioners before, or at the time of, the examination, will be admitted in evidence. . These several rules of practice will be found to be recognized and established in many decided cases.^ As soon as the papers, and documents, and pre- j^aratory examinations are transmitted to the regis- try of the court, it is the duty of the captors, with- out delay, to apply to the court for adjudication; and in case of neglect or refusal on their part, the ' , ,., , . claimants may do so. This is done by libel. The The lioel m , ^ -^ ... prize and its prize libcl should be general in its allegation, con- proper form. , • • • 1 J /» i 1 • ; taming no special averments oi the circumstances on wliich the captoi's base their claim to condemna- tion ; but simply setting forth the bringing the ves- sel in, and the proceedings against her, and alleging generally that she is a subject of prize rights. They are not required to state their grounds. They are en- titled to institute the inquiry, and take the chances of the benefit of any fact that the in<,|uiry may elicit.''^ This is considered an advantage in favor of the captors, but controlled by their liability for costs and damages, if the inquiry should prove fu- tile ; and over-balanced by the advantage in favor of the claimant, that all the evidence upon which the ' The Eliza and Katy, 6 Rob., 185; The Henrich and Maria, 4 Rob., 4.3 ; The Speculation, 2 Rob., 243 ; T/ie Wtlliam and Mary, 4 Rob., 381; The Apollo, 5 Rob., 286; The Viyiluntia, 1 Rob., 1 ; Jennings vs. Carson, 4 Cranch, 2. ' The Adeline, 9 Cranch, 244 ; The Fortuna, 1 Dod., 81. THE MONITION AND WAREANT. 401 libel must 1>e heard, in tlie first instance, proceeds from himself, his. own documents, his own witnesses, — the captors not being permitted, except in cases marked by peculiar cii'cumstances, to furnish any evidence whatever. The prize libel is filed by a proctor for the cap- By whom mei tors. In England, in cases of capture by govern- ment shij^s, the libel is filed and the proceedings conducted by the ofiicers of the government exclu- sively; for it is there held, that the croAvn pos- sesses the power to release the prize, against the will and in defeat of the rights of the captors, at any time before adjudication.^ In the United States, although the courts have never been required to pass upon the question, it is not probable that the same exclusive authority would be recognized ; for there, after the libel is filed, the power is vested in the court alone, and no release or restitution of the property can be made but by a decree of the court.^ It was suggested by Judge Story, that in such a case, and where the libel was filed by the district attorney, the court would, in the absence of the cap- tors, appoint a proctor to represent their interests. Upon the filing of the libel, a monition forth- Monition and '1.1 ' •!.' n ' ± j.ii warrant. With issues. Citing all persons interested, to appear at a day named therein (which, in England, is twen- ty days, but in the United States is fixed at the discretion of the district judge), and show cause why the property should not be condemned as ' The Elsehe, 5 Rob., 155, 173. - Vide Appendix of Supplementary Rules and General Principles announced by the United States Judge of tbe District of New York. 26 402 DECREE, IF NO CLAIM prize; and iu England, as well as in tlie United States, tlie monition usually includes a waiTant to take possession of the property. The necessity of such a warrant is apparent, where the property, as • in England, is in the custody of the captors, until the filing of the libel ; but not so apparent, where, as in the United States, it is already in the custody of the court ; for it would be a mere transfer from the custody of the commissioners who are officers of the court, to that of the marshal, who is also an officer of the court. But this change of custody, under a warrant issued with the monition, has been the usual practice in the United States ; and when the marshal thus takes possession, he is bound to keep the property in salva et arcta custodia y and if, by his negligence, any loss happens, he is respon- sible to the court ; for he, like the commissioners, is the mere agent of the court, engaged to make effitictive its guardianship. Service of mo- The monitioii is served in England by posting a copy at the Royal Exchange, in London; in the United States, by posting a copy on the mast of the prize vessel, and wheresoever the judge may direct, and also by publication in the newspapers of the place or vicinity. Proceedings If upou the rctum dav of the process, no claim on return day - -, -, . -. -\ t* ■> » if no claim IS or has been interj)osed, a default is entered of record, and the court thereupon proceeds to exam- ine the evidence ; and if the proof of enemy's prop- erty — or of lawful prize for any sufficient cause, if it be not enemy's property be clearly established — will immediately decree condemnation. If, upon the evidence, the case appear at all doubtful, a decision will be postponed. THE CLAI!.: AND ITS II^CIDENTS. 403 It has been customary, by the modern practice, not to condemn merchandise in default of claim, till a year and a day have elapsed after the service of process, except where the presumption is strong of enemy's property, upon reasonable evidence.^ If, however, a claim be interposed, the cause is to The claim, be heard in its 23roper order, upon the ship's papers and the preparatory examinations. This brings us to a consideration of the claim made, in opposition to the alleged rights of the captors, and the rules by which it is governed. The claim must be made by the parties interested. By whom if present, and if not, by the master of the vessel, or ™^ ^' by some agent of the owners of the property. It must be made by the general owner of the prop- erty ; one who has a lien upon it for the payment of a debt, liquidated or not, is not entitled to claim, nor is a mortgagee where the morgagor remains in posses- ■ sion. A mere stranger is not permitted to interpose a claim, to speculate on the chances of restitution.^ It is a general principle, well established, that no one can be allowed to claim in a prize court, where the transaction in which he is eno-ao-ed is in viola- tion of the municipal laws of his own country.^ ' The Harrison, 1 Wheat., 298 ; The Staadt Embden, 1 Rob., 26 ; The Avery, 2 Gall., 308. - The Betsy, 1 Rob., 98 ; The Mentor, 1 Rob., 181 ; The Hul- dah, 3 Rob., 239 ; The George, 3 Rob., 129 ; The William, 4 Rob., 215; The Susanna, 6 Rob., 48; The Tobago, 5 Rob., 218; The Frances, 8 Cranch, 235, 413 ; The Marianna, 6 Rob., 24 ; Bolch vs. Barrel, Bee., 74. * The Walsingham Packet, 2 Rob., 11 ; The Elrusco, 4 Rob., 262 ; The Cornelius and Maria, 5 Rob., 23 ; The Abbey, ib., 251 ; The Recovery, 6 Rob., 341. 40 J THE CLAIM AXD IT- TNCIDEl^TS. Nor can one be allowed to interpose a claim who is en Of aired in a trade forbidden by tlie laws of nature, of his own country, and of the forum.^ Unless under a flag of truce, a pass, license, treaty, or some public act of suspension of hostile charac- ter, the rule is inflexible that an enemy cannot interpose a claim.^ And even where a capture has been made in violation of the territorial jurisdiction of a neutral country, the claim for restitution cannot be made by the enemy in person, but must be by the neutral government. The form of the claim consists of a simple statement of ownerehip and denial of lawful prize. It is not amendable, as a ihatter of course, nor will an amendment be allowed to correct the generality of a claim, unless sufficient excuse is shown for the omission on filing.^ An appearance by a proctor for the claimants duly entered, cures all defects of process, such as the want of monition or of due notice ; and a general appearance for one partner is binding upon all, even though the one had no special authority to appoint a proctor.* The claim must, in all cases, be accompanied by an Affidavit of affidavit of the claimant or his la^vful representa- tive (where the owner is absent at a great distance), specifying the facts on which the claim is based^ and their verity ; and before a claim is filed, accom- panied' by a special affidavit of the facts relied on to sustain it, it is a settled rule that no party is permitted to examine the papers filed or the pre- ' The Amedie, Edinburgh Review, Vol. XVI., No. 21, p. 426. * The Hoop, 1 Rob., 196; The Vrow Catkerina, 5 Rob., 15, and note to 3 Rob., 1 62. ' The Graaf Bernstoff, 3 Rob., 109; The Sally, 3 Rob., 179 * Ponhallow vs. Jones, 3 Dallas, 87. claimant. THE CLAEM AND ITS INCIDENTS. 405 paratory examination wliicli lias been transmitted to the court. Sucli examinations, as enablinsf par- Papers in reg- . . ' ^ ^ istry not ex- ties to shape theu* claims to suit the case as estab- aminabie until lished, might lead to very great abuses. Where, affida^t^^. however, a reference to the ship's papers may be essential, to enable a party to state in his affidavit the particulars of his claim, in such case, and upon a specirJ- application, setting forth the particular pa- })er or fact sought to be ascertained, the court will allow an examination of the paper specially relating to that j)articular named in the apj)lication.^ As a general rule, it is settled, that no claim which is di- i-ectly antagonistic to the ship's papers and the pre- paratory examination can be admitted. This, how- everj applies to cases arising during, and not prior to, the war. x\nd when a necessity of a simulation of papers, can be shown by a citizen, as in the case of trade with the enemy licensed by the state, the rule is not so unbendins" as to exclude his interest.^ It is a mistaken idea that has been entertained, ciaim for de- 1 n, • , f , 1 1 1 • livery on bail.] that after an appraisement ot property brought in as prize, the claimant , is entitled to its delivery to him as of course, upon the execution of sufficient bail therefor. This is not so, for it is an established rule of prize courts, never to allow property to be delivered on bail, except by the consent of all the parties, prior to a hearing, in the first instance, upon the ship's papers and the examinations in prepara- torio. If any of the prize property be perishable, an interlocutory decree of sale may be had, so that no inconvenience can result from an adherence to HI '- The Fort Mary, 3 Rob., 233. • La Flora, G Rob., 1 ; The Anna Catherina, 5 Rob., 15. 406 THE HEAKING LEGAL PEESUMPTIONS. ^ the rule, wliereas its violation would inevitably lead to fraudulent practices.^ Even after a hearing, if tlie claim should be rejected, or be affected by an imputation of fraudulent or unlawful conduct, al- though an a23peal be interposed, the application for a delivery of the property on bail will not be granted. But if the claimant should obtain a decree in his favor, interposition of an aj)peal by the captors, will not prevent a favorable consider- ation, by the court, of an application for delivery of the property on bail. And such an application is always listened to, if, after the hearing, the case be so doubtful that an order for further proof is directed by the court. In all cases, the hearing in the first instance, is upon the libel and claim, the ship's papers and documents found on board, and the examination of the master and officers and crew of the captured vessel. " This is not," as Judge Story says, " a mere matter of practice and form; it is the very essence of the administration of prize law, and it is a great mistake' to admit the common law notions in re- spect to evidence to prevail in proceedings which have no analogy to tho^e at common law."^ Effect of de- If, upou the hearing, a decree of condemnation be demnation'o'n rendered, and the claimants appeal therefrom, the captors are, in general, entitled to a delivery of the prize property u2:)on bail ; but if there be no appeal, then the decree of condemnation is forthwith exe- cuted by a sale and distribution of the proceeds. ' The CopenhaJ^n, 3 Rob., 1*78. » \Yheaton, 494, note; The Francis, 1 Gall, 614, and 8 Cr., 348; The Diana, 2 Gall., 164 ; Piatt's Story, 69. hearinj?. THE HEAKING LEGAL PEESUMPTIOKS. 407 In prize courts, as in all other judicial tribunuls, Presumptions tliere are certain legal presumptions wMcli affect courts. tlie parties, and are regarded as of general applica- tion. Thus, possession is considered as prima evi- dence of property f and thus, the title to property captured, is presumed to be in the enemy, in the absence of all evidence to establish any proprietary interest.^ And so, too, goods found in an enemy's ^^^ the bur- - . ' ' ° / den of proof ship, are j)resumed to be enemy s property, unless resulting accomj)anyiug them there be documentary proof of * ^^*^ ^^"^ a distinct neutral character.^ Where proj^erty falls within the character of contraband, it is presumed not to be the product of the claimant's own coun- try, which exempts it from seizure, unless that fact be proved by the claimant.* A merchant transacting business as such, is pre- sumed to be doing so on his own account ; but if the person acting be not a merchant, that may give a qualified character to his acts.^ Where a ship has been captured and carried into the port of an enemy, and is subsequently found in the possession of a neutral, the presumption is, that there has been a regular condemnation and sale, and it is incumbent on the party claiming the property- from the neutral possession, to prove the contrary." Where, by the provisions of a treaty, persons hap- pening to be settled in a ceded port, are to remove ' Miller vs. The Resolution, 2 Dall., 19. ' The Maf/nus, 1 Rob., 31. ' ^ Locceniiis, Lib. II., c. ii., n. 4 ; Gros de Jur. Bel, et Pac, Lib. III., c. vi., § 6. * The Twee Jafroiven, 4 Rob., 242. ' The Jonge Pieter, 4 Rob., 242. * The Couniess of Lauderdale, 4 Rob., 283. 408 THE HEARESTG. > therefrom, the presumption is in their favor, and must be rebutted by proof that they did not intend to remove.' The testimony of the master of the captured ves- sel as to her destination, and also as to the alleged treatment of the crew, is held conclusive upon these points, if it be not contradicted or faiiiy discred- ited.^ The national The national character of the captured property cli The Alligator, 1 Gall., 145. "^ The Betsy, 5 Hob., 295; and note (a), 296. * The last case cited, and The Rendsherg, 6 Rob., 142. JUDICIAL OEDEES PENDENTE LITE. 433 are viewed in the common law courts. They are considered securities given to the court itself — pledges or substitutes for tlie thing, in all points fairly in adjudication before the court. They are not discharged by lapse of time, but may be en- forced by the court at any time, and although the stipulation be given to the captors, the bail may be answerable in the admiralty to the government, if it should so result, fi'om any circumstances, that the property is condemned to the government. But if, at the time of the capture and delivery on bail, the property was neutral, and by reason of the subse- quent intervention of hostilities with the neutral power condemnation is made to the government, the stipulation would not in such case be enforced, because such an event was not in the contemj^lation of the parties when they entered into it. This is the English doctrine, but, although not j)assed upon by the courts of the United States, Judge Stoiy seems to doubt its correctness : " For," says he, " the bail bond being a substitute for the proj)erty itself, there does not seem any very conclusive rea- son why it should not be subject to all the events which would have aifected the pi'operty, if still in the custody of the coui't." On an appeal, the property follows the appeal Appeal from into the appellate court. In the United States, when an appeal is made to its effect on the Circuit from the District Court, the property or^contrd Jf'^ goes into the Cu'cuit Court, and is no longer subject tt^e prize prop- to the interlocutory orders of the District Court. It is not so, however, on an appeal from the Circuit Court to the Supreme Court of the United States, 28 4:34 JUDICIAL OEDEES PENDENTE LITE. for the decrees of tlie latter are always sent to tte Circuit Court for execution, and therefore the prop- ' erty always remains in the latter court, notwith- standing the appeal. PRACTICE AND PEOCEEDINGS OF PEIZE-COUETS. 435. FURTHEE CONSIDERATION OF THE PRAC- TICE AND PROCEEDINGS OF PRIZE- COURTS, SUGGESTED BY THE ADJU- DICATIONS UPON CAPTURES MADE DURING THE EXISTING WAR IN THE UNITED STATES. [The beUigerent riglit of the United States to in- terdict all commerce with the insurgents, by a blockade of the ports in their occupation, has been maintained by its naval forces, in superaddition to its other duties, with a noiseless but incessant and efficient activity, and the large number of naval captures that have been made, of property employed in the violation, or attempted violation of this bel- ligerent rio;ht, have called into active exercise, for the past eighteen months, the prize jurisdiction of the federal courts of the country. In the adjudications upon these captures, apart from the great questions of high political import which were considered and determined, many im- portant subjects, connected with the practice and proceedings, in the administration of the law of maritime captui^e, have been authoritatively ad- judged. A brief review of these discussions will make a proper and desirable supplement to the foregoing chapter. 436 THE DUTY OF CAPTORS. THE DUTY OF CAPTOES. The duty of captors. As to the prop- erty captured. Exceptions to the rule re- quiring it to be sent in for adjudication. Physical im- possibility. Exception arising from moral re- straint. Tlie rule wliicli declares it to be tlie duty of captors, as soon as possible after the completion of tlie capture, to send the captured property into some convenient port, for adjudication, like all general rules, admits of exceptions, in extreme cases, either of physical necessity, or of overruling moral influ- ences. The exception arising out of physical necessity, is illustrated by the cases where the property cap- tured is a long distance from any port of the cap- tor's country, is in a perishing condition, and either the captors have no means of sending it in, or if they have, it is obvious that it would be of no value on its arrival. In such case, it may undoubt- edly be sold, and the proceeds of the sale repre- senting the property, will become thereafter the res on which the prize-court acts, in its adjudication. So too, an overruling moral restraint, may pre- sent a sufficient ground of relaxation of the rule which requii-es adjudication upon the property itself This occurred in the case of The British Empire^ captured on the coast of Florida, near St. Augustine, which was in possession of the naval forces of the Government of the United States. The cargo of the vessel consisted mainly of articles of household consumption, and the public authori- ties of the town, presented a petition to the com mander of the capturing vessel, representing m strong terms the famishing condition of the inhabi- tants of the town, for the want of many of the THE DUTY OF CAPTOES. 437 articles contained in the cargo, that they possessed the means of paying for the same, and beseeching the commander, as an act of humanity, that he would order such ]3ortion of the cargo to be sold at auction, in the public mart of the place. This petition was complied with by the commander, the remainder of the cargo was sent to the port of New York for adjudication, and the proceedings in the court of that district were against the cargo sent in, and the proceeds of the cargo sold. The learned judge, in his decree, while sustaining the action of the captors, under the peculiar circum- stances of this case, nevertheless declares the neces- sity of a strict adherence to the rule, as founded in a positive neutral right, and therefore of a most careful scrutiny into such cases as are claimed to present justifiable cause for its infi'action. The necessity of the captors for the use of the Excuse ansmg captured property, in whole or in part, constitutes ce*sSty Inhe another exception to the rule, which requires the ^'^P'^ors. property itself to be sent in for adjudication. This necessity may be either that of the indi- vidual captors themselves, as where the captured proj)erty consists of provisions or supplies, actually required for the immediate use of the capturing vessel, or others with her in the service, oi- it may be more directly the necessity of the captors' govern- ment, as where the captured property consists of arms, ammunition, or of vessels, of the character required, for the use of the government, in the prosecution of the war. ' In all such cases, the commander of the capturing captured vessel, or the Admiral of the fleet, must, of course, FoTKS m^"" be the indole of the existence of the necessity : and, ^^^ capturing '' '=> u ' / vessel or the 488 THE DUTY OF CAPTORS. government. {^ everv sucli case, it is the imperative duty of tlie must be ap- "^ . . , • x • - xi praised before captoTS, prior to such appropriation, to cause tne appropriation, pj-^pg^^y whicli is to be taken, to be appraised by a competent naval board of survey and appraise- ment, ajDpointed for that purpose. This rule of appraisement not only rests upon the right of neutral claimants, but without such ap- praisement the individual captors themselves lose all benefit resulting from the capture by judicial decree. The amount An appraisement of captured property, appro- deemecrtS'be pi'latcd to the usc of the government, in the prose- uvy^^ ^^^^^' cution of the war, whether before or after it has been sent in for adjudication, is considered by the courts as standing in the place of the property or its pro- ceeds ; and the amount of such appraisement is deemed to be in the treasury of the government, subject to a final decree of distribution or restitu- tion, in like manner as if the property had been sold on interlocutory order, and the proceeds depos- ited in the treasury. Without such appraisement, the court is in possession of nothing upon which to base its proceedings for adjudication. In some instances of the appropriation of cap- tured property, consisting of arms, ammunition, &c. and of steamers suitable to be converted into ves- sels of war, the government of the United States has paid the amount of the appraisal to the order of the court, before adjudication, and upon the delivery of the property to the proper oflicer of the government. There is no reason for such a practice, nor is there any rule requiring it. The amount fixed by the appraisal, is deemed to be in the treas- ury, subject to the orders and decrees of the No rule re- quiring: its payment by the govern- ment, before final decree. THE DUTY OF CAPTOES. 439 court, from the date of the appropriation of the property. The rules and practice, as above recited, are laid down in numerous cases of recent adjudication, in the United States District Court for the District of New York.^ The general rule in relation to the duty of cap- P^tJ of cap- O Till ^^ * ® tors toward the persons captured on board the persons taken vessels taken, is to send them in wdth the prize, as JJ^red prop^^" witnesses in the proceedings in adjudication. ®'''^^- Except where they are very numerous, it is the safer rule to send all the captured persons into the port of adjudication ; but in no case should the captors fail to send in the master and principal General rule J, AT ^ 1 Ar»M iT,!' to send them omcers of the captured vessel. A tailure to do this, in with the can only be excused in a case of physical impossi- neSs^^ ^^" bility, not occasioned by any agency of the captors, and on the part of a private armed vessel would involve a forfeiture of the rights of prize. In the case of The Julia, in the United States Overpowering -i-\- • /~\ r»-n/r 1 11 I'l necessity the District Court lor Massachusetts, the learned judge only excuse took occasion to comment upon a failure, without (;°^iQpiy'^[ty° adequate excuse, to comply with this established ^^^^ ^'^®- rule of prize-courts, as follows : " The prize law requires the captors to send in the master .st — That where they find the property perish- ing, they must make a motion for its sale, and noti- fy the district attorney, and the proctor for the claimants, of the motion to be made. Second — That their power is joint, and that the concurrence of both is necessary to the validity of their acts. Third — ^That the power to report to the court as to the condition of the property as they examined the same, from time to time during the litigation, makes them the representatives of all parties in in- terest ; and therefore, although the act requires the sale of the property to be made by the marshal, it must be made under the direction and suj)erintend- ence of the prize commissioners. Fourth — That they must attend the sale of cap- tured property, as the representatives of all parties in interest, and see that the property is not sacri- ficed thereat. Fifth — That where a cargo is to be discharged and appraised before sale, this is to be done under the superintendence of the prize commissioners. That they must take an accurate list of each ifem of the cargo, when it is discharged, Avith a view to appraisal. That they must separately appraise, nnd cause to be separately sold, the separa.te parcels of each bill of lading. It may be, and on many accounts it undoubtedly is, very desirable, that the prize conimissioners should be clothed with this power, and be charged with these duties ; but if it were the intention of THE PEIZE LIBEL AND CLAIM. 455 Congress that such duties should be devolved upon these officers, it is to be regretted that other lan- guage was not employed to express that intention. By the terms of the act of Congress in question, J^^^!^^^^^*^^ it is the duty of the prize commissioners to examine without the the several mtnesses upon the standing interroga- H^^^ei ° tories, not only apart fi'om each other, but " unat- tended by counsel." This is believed to have always been the rule of the English prize-courts ; but in consequence of some looseness of practice in this respect, arising out of a question made as to the true construction of the rule, it was probably thought advisable that a pro- vision so salutary, should receive the sanction of le- gislation. cisions. THE PRIZE LIBEL AND CLAIM. The doctrine that the lil^el in prize should con- The rule as lo tain no special averments of the grounds on which chaSerof condemnation is claimed, but be altogether general „f*5ifJJj™i!JJJ^ in its allegations, and that the claim interposed, the claim sus- must consist exclusively of a simple statement of recent d^ ownership, and a general denial of the validity of the capture — was briefly stated in the previous edi- tion of this work. In the case of The Revere^ decided in the Massa- chusetts District Court, and in the case of Empress^ as well as in a large number of other cases decided ' in the District Court of New York, in which the claimants were British subjects — the libels filed pur- suant to this rule, were objected to by claimants' 456 THE PEIZE LIBEL AND CLAIM. counsel as insufficient, in not setting fortli special cause for capture or condemnation — and the claim- ants insisted upon their right to tile elaborate an- *■ swers, as in instance causes, in addition to the claim of ownership. The doctrine, however, as laid down, was, upon elaborate argument, affirmed in every case. In the case of The lievere, the learned judge says : " The libel need not set forth sj^ecifically the grounds on which condemnation is sought. General allegations are sufficient. The vessel is to be con- demned if at all, on any grounds that the examin- ation may disclose. Prize proceedings are not sub- ject to the same rules of pleading as suits on the instance side of the court. This hearing is upon the preparatory evidence, as it is called, that is, upon the papers found on board the vessel, and the answers of her officers and crew upon the standing interrogatories. The claimants are not entitled to further proof, nor are the captors, unless in special and peculiar cases, upon motion and cause shown. The answer, in the nature of pleading, is therefore irregular ; and so much of the document called a test affidavit as goes beyond the facts of the claim, I shall not regard as evidence." DELIVEET TO CLAEVIAKTS ON BAIL. 457 DELIVERY TO CLAIMANTS ON BAIL. The delivery of captured property to claimants Delivery of •^ ■•■ 11 • £ captured prop- on bail, before a hearing, is so utterly subversive ot erty to ciaim- tlie policy of tlie law of maritime capture, that the J^f^; °^ j^^^;. designation of the practice by Mr. Justice Story ii« 'J?f; '„f J^^ a " o;ross irreo-ularity," is one of mild rei)roof. policy and - . .1 Burpose of The naval power of the nation is employed m the maritime cap- capture of the property of its enemy, or that which *"'^®- is being used in aid of its enemy, upon the high seas. The purpose of such capture is the sole basis of the belligerent right, namely, to compel the ene- my to peaceful submission by destroying his means of aggression or resistance. Oftentimes at great hazard, always at no inconsiderable expense, the captured property is sent into a port of the captor's country for adjudication. That it should be then, by judicial fiat, forthwith surrendered to the claim- ant on credit, is a defeat of the manifest design of the law, so entirely obvious, that it seems hardly credible that such a practice should prevail, or be adopted by any court, which does not at the same time ignore the existence of the belligerent right. But that a court of appellate jurisdiction in prize, should entertain a motion for the delivery of cap- tured property to a claimant, after a decree of con- demnation of the pro2:)erty, on the first hearing, would seem still more extraordinary. One reason among many, given by the courts for Reasons for the inflexible rule of the non-delivery of captured nondelivery property to claimants on bail, before a hearing, is, fJJJj^f^Jfj. ^°' ' that it cannot then be judicially known that the hearing and •, . , • . . , • "■ r» • condemnation. claimants are not enemies or acting tor enemies. It would, indeed, be strange if the nile should be 458 DELIVERY TO CLAEVIAlsrTS 01^ BAIL. permitted to bend, wlieu it lias become known, by the violent presumption resulting from a solemn decree, after a hearing, that the property is either that of an enemy or of one acting for an enemy. The inveterate practice of fifty years of peace in the Coui'ts of Admiralty of the United States, of the delivery to claimants, on bail, of property seized for the violation of a municipal regulation, may ac- count for the difficulty, both on the part of courts and practitioners, to realize at once the necessity of a total departure from this practice. Indeed, it appeared to be regarded so pertinacious ly as a matter of course, that claimants of property captured as prize, were as much entitled to have it delivered to them on bail, after appraisement, as claimants of proj^erty seized for the violation of a revenue law, or the laws for the suppression of the slave trade, that the Congress of the United States, in " an act for the better administration of the law of prize," passed on the 25th of March, 1862, pro- vided for the* sale of captured j^roperty, and the de- posit of the proceeds in the registry of the prize- court, when it was perishable or in a perishing con- dition, in terms adapted to preclude any other dispo- sition of such property before a final condemnation. To secure this beyond a doubt, and to place the policy of maritime capture beyond the possibility of defeat, in this respect, l)y judicial construction, it would be wise in future legislation, to provide in express tenns, that the disposition of perishing cap- tured ])roperty, by sale, was designed to interfere with and to exclude its delivery on bail, and and other mode of disposition of the subject-matter of litigation pending the suit. DELIVEllY TO CLAIMANTS OK BAIL. 459 In the former edition of tliis work the established Ti'e doctrine of non-deliv- rule of non-delivery of captured j^roperty to claim- ery fuiiy sus- ants, on bail, was briefly stated, and the authorities cis^n ortbe ' cited by which the rule was established. DSict^'court In the case of The Amy Warwick 07i the claim of Massachu- . setts of Phipps^ after the court had allowed the claimants to introduce further proof of property, a motion was made for the delivery to them of the property which they claimed, on appraisement and bail. The mo- tion was opposed by the captors, who, on their part, moved for a sale of the property. In denying the motion for the delivery of the property on bail, and ordering instead, its sale, the learned judge thus ag- gregates the objections to the former practice, which he said had " always weighed with prize-courts :" " Be- fore the hearino; in weiparatorio, it cannot well be Reasons for . the sale stated judicially known that the claimants are not enemies, in the case of or acting for enemies ; or that if not so, that they '^^^wicl have such absolute title in the property as to be the persons to whom it should be restored, in case it should be decided to be no prize, and the captured property may itself be evidence. If, on the hear- ing, their claim remain in doubt on any of these points, why should they take the property rather than the captors ? The court must be carefal to de- liver the property to none but actual owners, and persons who would not pass it to an enemy for whom they might act. There are other difficulties attending this course in the general. It throws on the captors the risk of the sufficiency of the bonds- men at the time, and their continued solvency until a final decision in the appellate court. It gives the claimants the choice of abiding or not abiding by the appraisement. If it is low, they ^vill adopt it, and 460 THE CAPTOliS ENTITLED AS DISTEIBUTEES. Reasons for the rule of non-delivery on bail appli- cable to non- delivery on payment of appraised value. give bonds, and so make a profit at the expense of the captors. If the appraisement is to the full value, they may decline to give the bonds. And there is always danger of under valuation, not only by fraud, and by the pressure of interests in the trade, but fi'om erroneous principles of estimation. A public sale is the best and fairest j)roof of value, and the funds in the registry, to be delivered to the parties finally decided to be entitled to it, is the most sat- isfactoi^j)' course, where there are no special circum- stances." It will be seen that all of these objections to the delivery of captured pro23erty to claimants, on bail, with the single exception of that which refers to the sufficiency and continued solvency of the stipulators, are alike applicable* to the delivery of such property to claimants, upon payment into court of its ap- praised value — a practice no less calculated to de- feat the great end of maritime capture. of ConOTebs. THE CAPTORS ENTITLED AS DISTRIBU- TEES. HOW DETERMINED. New rules of By the third section of the Act of Congress of by recent°act J^^^J l^^^ij 1^62, material alterations are effected in the mode of distribution of the moiety of the "pro- ceeds of maritime captures, accruing to naval captors. By the provisions of this section, after deducting one-twentieth part of the prize money awarded to the capturing vessel, for the commander of the fleet or squadron, to which she is attached, if thus attached, and two-twentieths for the commander of the captui'ing vessel, if attached to ?, squadron, and HOW DETERMINED. 461 tliree-twentietlis if tlie sliip was acting independ- ently of any superior officer, tlie residue of the prize money awarded to tlie capturing vessel is to be " distributed and apportioned among all otters doing duty on board, and borne upon tbe books, according to tbeir respective rates of pay in the service." By the fourth subdivision of the same section. Vessels within 1 n ,1 // 'iT ' • -I T I rtsici'nnl distance vessels ot the navy " witiiin signal distance oi entitled to another making a prize," are entitled to share in ^'^^'■'^• the prize ; and it w^ould seem, by the provisions of this subdivision, that in the event of two or more vessels in the navy being entitled, as joint-captors, after deductino; the flasr-officer's one-twentieth, the entire residue of the captors' moiety is to be dis- tributed among all the officers and men of the ships entitled, including the commanders, according to the rates of pay of all on board, who are borne upon the books. By the fifth section of this act, forfeiture of the Forfeiture of share of prize money to w^hich a commander mischt commander's -"• -^ . o share of prize be entitled as the result of a capture, is declared to money, for eer- be the consequence of a neglect to perform the ^^"^ °^^ ^° " duties therein prescribed, as follows : "That the commanding officer of every vessel, or the senior officer of all vessels of the navj^, wdiich shall capture or seize upon any vessel or vessels, as prize, shall carefully preserve all papers and wi'itiugs found on board, and transmit the whole of the originals, unmutilated, to the judge of the district to which such prize is ordered to proceed, with the necessary witnesses, and a report of the circumstances attending the capture, stating the names of vessels claiming; a share thereof; and the 462 THE CAPTOES ENTITLED AS DISTRIBUTEES. commanding officer of every vessel in the navy entitled to or claiming an award of prize money, shall, as early as practicable, after the capture, transmit to the navy department a complete list of the officers and men of his vessel, entitled to share, inserting thereon the quality of every person rating." By the seventh section of the same act, forfeiture of prize money is declared to be also a portion of the penalty upon any person in the navy who shall " take out of any prize, or vessel seized as prize, any money, plate, goods, or any part of her equip- ment, before the same shall be adjudged lawful prize by a competent court, unless it l^e for the better preservation thereof, or absolutely necessary for the use of any of the vessels or armed forces of the United States." Armed ves- By the sixth sectiou of the act, " armed vessels in menrsfrdcrtlie service of the United States, which shall make entitled as if ^ capture," or be within sis^nal distance of a vessel m the navy. J^ ' . -^ of the navy, when making a capture, are declared to be " entitled to an award of prize money, in the same manner as if such vessels belonged to the navy." Merchant ves- Merchant vessels makmo^ a capture are not en- sels making • i n i .7 captures not titled, by stvict law, to any share whatever of the st°riet'^ia\s"— pi'ocecds of the captured property ; but it has" not a'share^i'r^'''^^*^'^^^ the practice to exact in such cases the legal awarded liiem right of the government to the entire proceeds, but, commensurate , . ^ ' ■ ' with the mcri- ou the Contrary, to award the merchant captors a actcr of u'lc"^ portion of the proceeds, and sometimes even the service. Avliolc, accordino^ to the circumstances of the case, * — ■ 7 and the meritorious character of the service per- formed. HOW DETEElVniSrED. 463 By this practice it is understood tliat the conces- sion of tlie strict legal rights of the government is optional with the navy department, and the courts in such cases, act upon such concession, in their de- crees of distribution. Such was the recent case of 'The Agnes H. Ward, captured by the merchant California steamer, North- ern Lights and adjudicated in the District Court of the United States for the District of New York. A lieutenant in the navy of the United States happened to be on board the merchant steamer as passenger, and took part in the capture. Upon the concessions of the secretary of the navy, the court decreed three twentieths of the captor's moiet}^ to the lieutenant on board, as if in command of a single ship, acting independently, and the residue of the captor's moiety to the merchant vessel, to be distributed in designated proj)ortions among owners, officers, and men. Who are the lawfid distributees of prize money as captors or joint captors, is settled by the final decree of distribution of the prize-coui't. This decree of distribution is not, as it was prior Decree of dia- to the Act of Congress of March 25th, 18G2, a de- Sow j-equired cree of detailed distribution settina: forth not only to '^e rendered by tliG succession, and cannot, after the commissioners have transmitted the examination of a part of the crew to the judge, be allowed to have others examined without the special order of the court ; and the exam- ination of every witness shall be begun, continued, and finished in- the same day, and not at dilVerent times. Copies of the standing interrogatories .shall not be returned bj' the commis- sioner with the examinations, but it shall be sufficient for the answer of the witnesses to re- fer to the standing interrogatories by corresponding numbers. Rule 17. — Before any witness shall be examined on the standing interrogatories, the com- missioner shall administer to him an oath in the following form : " You shall true answer make to all such questions as shall be asked of you on these interrogatories, and therein you shall speak.the whole truth, and nothing but the truth, so help you God." If the witness is conscientiously averse to swearing,- an affirmation to the same effect shall be administered to him. Rule 18. — Whenever the ship's company, or any part thereof, of a captured vessel, are foreigners, or speak only a foreign language, the commissioner taking the examination may summon before him competent interpreters, and put to them an oath, well and truly to in- terpret to the witness the oath administered to him, and the interrogations propounded, and well and trulj' to interpret to the commissioners the answers given by.the witness to the re- spective interrogatories. Rule 19. — Tlie examination of each witness on the standing interrogatories shall be re- turned according to the following form : "Deposition of A B, a witness produced, sworn and examined in preparatorio, on the day of in the year at the of on the standing interrogatories established by the district court of the United States for the south- ern district of Xew-York; the said witness having been produced for the purpose of such examination by C D, in behalf of the captors of a certain ship or vessel called the (or of certain goods, wares, and merchandise, as the case may be.) "Ist. To the first interrogatory the deponent answers, that he was born at &c. "2d. To the second interrogatory the deponent answers, that he was present at thertime of the taking, &c." Rule 20. — "When the interrogatories have all been answered by a witness, he shall sign his deposition, and the commissioner shall put a certificate thereto in the usual form, and subscribe his name to the same. Rule 21. — Xo person having or claiming any interest in the captured property, or having any interest in any ship having letters of marque or commissions of war, shall act as a com- missioner. Nor shall a commissioner act either as proctor, advocate, or counsel, either for captors or claimants, in any prize cause whatever. Rule 22. — If the cajitain or prize-master neglect or refuse to give up and deliver to the commissioners the documents, papers, and writings relating to the captured property, ac- cording to tliese rules, or refuse or neglect to produce, or cause to be produced, witnesses to be examined i'l /irt/iaralorio, witliin three days after the arrival of the captured property within the jurisdiction of this court, or shall otherwise unnecessarily delay the production of APPENDIX. 47*7 the said documents, papers, or writings, the coniTnispioners, or one of them nearest to the place where the captured property may be, or before whom the examination in preparatorio may have been already begun, shaU give notice in writing to the delinquent, to forthwith produce the said documents, papers, and writings, and to bring forward his witnesses ; and if he shaU neglect or delay so to do for the period of twenty-four hours thereafter, such com- missioner shall certify the same to this court, that such proceedings may thereupon be had as justice may require. Rule 23. — If within twenty-four liours after the arrival within this district of any cap- tured vessel, or of any property taken as prize, the captors, or their agents, shall not give notice to the judge or a commissioner, pursuant to the provisions herein made, or shall not, two days after such notice given, produce witnesses to be examined in preparatorio, then any person claiming the captured property and restoration thereof, may give notice to the judge or the commissioners as aforesaid, of the arrival of the said captured property ; and thereupon such proceedings may be had by the commissioners in respect to the said proper- ty, and relative to the documents, papers, and writings connected with the said capture, which the claimant may have in his possession, custody, or power, and relative to the ex- amination of witnesses in j^rtparatorio, as near as may be, as is before provided for in cases where the captors shall give notice and examine in preparatorio. And the said claimant may in such cases file his libel for restitution, and proceed thereon according to the rules and practice of this court. Rule 24. — As soon as may be convenient, after the captured property shall have been brought within the jurisdiction of this court, a libel maybe filed, and a monition shall there- upon be issued, and such proceedings shall be had as are usual in conformity to the practice of this court, in cases of vessels, goods, wares, and merchandise seized as forfeited, in virtue of any revenue law of the United States. Rule 25. — In all cases, by consent of captor and claimant, or upon attestation exhibited upon the part of the claimant only, without consent of the captor, that the cargo or part thereof is perishing or perishable, the claimant specifying the quantity and quality of the cargo, may have the same delivered to him, on giving bail to answer the value thereof if condemned, and further to abide the event of the suit ; such bail to be approved of by the captor, or otherwise the persans who give security swearing themselves to be severally and truly worth the sum for which they give security. If the parties cannot agree upon the value of the cargo, a decree or commission of appraisement may issue from the court to as- certain the value. Rule 26. — In cases where there is no claim, an affidavit being exhibited on the part of the captor of such perishing or perishable cargo, specifying the quantity and quality thereof, the captor may have a decree or commission of appraisement and sale of sucli cargo, the proceeds thereof to be brought into court, to abide the further orders of the court. Rule 27. — The name of each cause shall be entered by tlie clerk upon the docket for hearing in their order, according to the dates of the returns of the monitions, and lists of the causes ready for hearing are to be constantly hung up in the clerk's ofiBce, for public inspec- tion. Rule 28. — In all cases where a decree or commission of appraisement and sale of any ship and cargo, or either of them, shall have issued, no question respecting the adjudication of such ship and goods, or either of them, as to freight or expenses, shall be heard till the said decree or commission shaU be returned, with the account of sales, and the proceeds accord- ing to such account of sales, be paid into court, to abide the order of the court in respect thereto. Rule .29. — After the examination, taken in preparatorio on the standing interrogatories, is brought into the clerk's office, and the monition has issued, no further or other examin- ations upon the said interrogatories shall be taken, or affidavits received, without the special directions of the judge, upon due notice given. Rule 30. — None but the captors can, in the first instance, invoke papers from one cap- tured vessel to another, nor can it be done without the special mandate of the judge; and, in case of its allowance, only extracts from the papers are to be used. ' Rule 31. — The invocation shall only be allowed on affidavit on the part of the captors, satisfying the court that such papers are material and necessary. HuLE 32. — Application for permission to invoke must be on service, at least two days previously, of notice thereof) and copy -'' the affidavit on the claimants, or their agent (if 478 Arp:.xx)rx. known to be in this port) ; and after invocation allowed to the captors, the claimants, by permission of the judge, for sufficient cause shown, may use other extracts of the same pa- pers in explanation of the parts invoked. RutE 33. — But when the same claimants intervene for different vessels, or for goods, wares, or merchandise captured on board different vessels, and proofs are taken in the re- spective causes, and the causes are on the dockets for trial at the same time, the captors may, on the hearing in court, invoke, of course, in either of such causes, the proofs taken in any other of thorn ; the claimants, after such invocation, having liberty to avail themselves also of the proofs in the cause invoked. RCLE 34. — !u ail motions for commissions, and decrees of appraisement and sale, the time shall be specified within which it is prayed that the commissions or decrees shall be made returnable. RfLE 35. — The commissioners shall make regular returns on the days in which their commis.sion or decrees are returnable, stating the progress that has been made in the exe- cution of the commission or decrees, and, if necessary, praying an enlargement of the time for tlie completion of the business. Rule 36. — The commissions shall bring in the proceeds which have been collected at the time of their returns ; and they may be required from time to time to make partial returns of such sums only as are necessary to cover expenses. Rule 37. — On the returns of commissions or decrees, the commissioners or the marshal must bring in all the vouchers within their control. Rule 38. — .\.ll moneys brought into court in prize causes shall be forthwith paid into such Ijank, in the city of New York, as shall be appointed for keeping the moneys of the court, and shall only be drawn out on the specific orders of the court, in favor of the per- sons respectively having right thereto, or then- agents or representatives, duly authorized to receive the same. Rule 39. — .\t cverj' stated term of the court, the clerk shall exhibit to the court a state- ment of all mfine\'S paid into court in prize cases, designating the amount paid in each par- ticular case, and at what time. Rule 40. — Tlie statement, when approved by the court, shall be filed of record in the clerk's office, and be open to the inspection of all parties interested, and certified copies thereof shall be furnished by the clerk, on request, to any party in interest, his proctor or advocate. Rule 41. — When property seized as prize of war is delivered upon bail, a stipulation, ac- cording to the course of the admiralty, is to be taken for double its value. Rule 42. — Every claim interposed must be by the parties in interest, if within convenient distance — or in their absence, by their agent or the principal officer of the captured ship — and must bo accompanied by a test aflidavit, stating briefly the facts respecting the claim, and its verity, and how the deponent stands connected with or acquired knowledge of it. The same party who may intervene is also competent to attest to the affidavit. Rule 43. — The captors of property brought in or held as prize, or which may have been carried into a foreign port, and there delivered upon bail by the captors, sliall forthwith libel the same in fact, and sue out the proper process. Tiie first process may, at the election of the party, be a warrant for the arrest of the property or person, to. compel a stipulation to abide the decree of the court, or a monition. - Rule 44. — The monitions shall be made returnable in ten days, and if the property seized as prize is in port, shall be served in the same way as in the case of monitions issued on the instance side of the court of admiralty on. seizure for forfeiture under the revenue laws. In case the property daimod as prize is not in port, then the monition is to be served on the parties in interest, their agent or proctor, if known to reside in the district, otherwise by publication daily in one of the newspapers of this city, for ten successive days preceding the return thereof. Rule 4."). — Whenever the jurisdiction of the court is invoked upon matters Bs incident to prize, except as to the distribution of prize moncj'', there must be distinct articles or allega- tions in that behalf in tJic original lil)el or claim on the part of the party seeking relief I5ut in case the matter' have arisen or ttoeome known to the party subsequent to presenting his libel or claim, the court will allow him to file the necessary amendments. Rule 46. — No permission will be granted to either party to introduce further proofs untU iftor the hearing of the cause upon the proofs originally taken. APPEISTDIX. 479 Rule 4*7. — ^Tn case of captures by the public armed vessels of tbe United States, and a proceeding for condemnation against the property seized as prize jure belli, or in the nature of prize of war, under any act of Congress, the name of the officer under whose authority the capture was made must be inserted in the libel. Rule 43. — A decree of contumacy may be had against any party not obeying the orders or process of the court, duly served upon him ; and thereupon an attachment may be sued out against him. But no constructive service of a decree or process viis et modis, or publica citatio, will be sufBcient, unless there has been a publication thereof in a daily paper in this city, at least ten days immediately preceding the motion for an attachment. Rule 49. — When damages are"awarded by the court, the party entitled thereto may move for the appointment of three commissioners to assess the same ; two persons approved by the court will thereupon be associated with a standing commissioner of the circuit court, the clerk or deputy clerk of this court, if not interested in the matter, whose duty it shall be to estimate and compute the damages, in conformity to the principles of the decree, and return a specific report to the court of the amount of damages, and the particular items of which they are composed. Rule 50. — -Any party aggrieved may have such assessment of damages reviewed in a sum- mary miinner by the court, before final decree rendered thereon, on giving two days' previ- ous notice to the proctor of the party in whose favor the assessment is made, of the excep- tions he intends taking, and causing to be brought before the court the evidence given the commis-sioners in relation to the particular excepted to. Rule 51. — Every appeal from the decrees of this court must be made within ten days from the time the decree appealed from is entered, otherwise the party entitled to the decree may proceed to have it executed. Xo appeal shall stay the execution of a decree, unless the par- ty, at the time of entering the appeal, gives a stipulation, with two sureties, to be approved by the clerk, in the sum of two hundred and fifty dollars, to pay all costs and damages that may be awarded against him, and to prosecute the appeal to effect. Rule 52. — If the party appealing is afterwards guilty of unreasonable delay in having the necessary transcripts and proceedings prepared for removing the cause, it will be competent to tlie other party to move the court for leave to execute the decree, notwithstanding the appeal. Rule 53. — In all cases of process in rem, the property after arrest is deemed in the cus- tody of the court, and the marshal cannot surrender it on bail, or otherwise, without the special order of the court. No. III. STANDING INTERROGATORIES TO WITNESSES EXAMINED IN PREPARATIO. Let each witness he interrogated to every of the following questions, aud their answers to each interrogatory be written doiun under fiis direction and supervision : 1. Where were you born, and where do you now live, and how long have you lived there. Of what prince or state are you a subject or citizen, and to which do you owe allegiance. Are you a citizen of the United States of America. Are you a married man, and, if mar- ried, where do your family and wife reside ? 2. Were you present at the capture or taking of the vessel, or her lading, or any of the goods or merchandises concerning which you are now examined? 3. When and where was such seizure and capture made, and into what place or port were the same carried. Had the vessel so captured any commission, or letters, authorizing her to make prizes. What and from whom. For what reasons or on what pretence was the seizure made? 4. Under what colors did the captured vessel sail. What other colors had she on board, and for what reason had she such other colors? 5. Was any resistance made at the time of the capture, and by whom. Were any guns fired, how many, and by whom. By what sliip or ships was the cajiture made. Were any other and what sliips in sight at the time of the capture. Was the vessel captured a mar- 480 APPENDIX. chantman, a ship of war. or actino; under any commission as a privateer or letter of marque and reprisal, and to whom did such vessel belong. Was the capturing vessel a ship of war, a letter of marque end reprisal, or privateer, and of what force ? 6. Had the capturing vessel or vessels any commission to act in the seizure or capture of the vessel inquired about, and from whom, and by what particular vessel was the capture made. Was the vessel seized condemned, and if so, when and where, and for what reason, and upon what account, and by whom, and by what authority or tribunal was she con- demned ? 7. What was the name of the vessel taken, and of her master or commander. Who ap- pointed him to the command of the said vessel, and where. How long have you known the vessel and him, and when and where did he take possession of her, and who by name de- livered the same to him. Where is the fixed place of abode of the master, with his wife and fcimily, and how long has he lived there. If he has no fixed place of abode, where was his last piuce of residence, and how long did he Uve there. Where was he born. Of wha* countrv or state is he a subject or citizen? 8. Of what tonnage or burden is the vessel which has been taken, and about which you are examined. What number of the vessel's company belonged to her at the time she was seized and taken, and how many were then actually on board her. What countrymen are they. Did they all come on board at the same port and time, or at different ports and times, and when and where. Who shipped or hired them, and when or where ? 9. Did you belong to the company of the vessel so captured at the time of her seizure, and in what capacity. Had you, or any of the ofificers, or mariners, or company, belonging to the said vessel at the time of her capture, any part, share, or interest in the same, or in the goods or merchandise laden on board her, and in what particular, and what was the value thereof at the time the said vessel was captured, and the said goods seized ? 10. How long have you known the said vessel. When and where did you first see her. How many guns did she carry. How many men were on board of her at the beginning of the engagement, before she was captured. Of what country build was she. What was her name, and how long was she so called. Whether do you know of any other name she was called by, and what were such names, as you know or have heard ? 11. To what ports and places was the vessel concerning which you are now examined bound, on the voyage wherein she was taken and seized. Where did the voyage begin, and where was the voyage to have ended. "What sort of lading did she carry at the time of her first setting out on the voyage, and what particular sort of lading and goods had she on board at the time she was taken and seized. In what year and in what month was the same put on board. Do you or not know she had on board during her last voyage, and when, goods contraband of war, or otherwise prohibited by law, and what goods? 12. Had the vessel of which you are examined any passport or sea-brief on board, and from whom. To what ports or places did she sail during her last voyage, before she was taken. Where did her last voyage begin, and where was it to have ended. Set forth the kind of cargoes the vessel has carried to the time of her capture, and at what ports such cargoes have been delivered. From what ports, and at what time, particularly from the last clearing port, did the said vessel saU, previously to the capture? K!. What lading did the vessel carry at the time of hCr first setting sail in her last voyage, and what particular sort of lading and goods had she on board at the time she was taken. In what year and in what month was the same put on board ? Set forth the dLfierent~species of the lading and the quantities of each sort. 14. Who were the owners of the vessel and goods concerning which you are now exam- ined, at the time of their capture and seizure. How do you know they were owners thereof at that time. Of what nation or country are they by birth, and where do they live with their wives and families. How long have they resided there. Where did they reside pre- viously, to the best of your knowledge. Of what country or state are they subjects or citizens ? 15. Was any bill of sale given, and by whom, to the owners of the said vessel, and in what month and year. Where, and in presence of what witnesses was it made. Was any, and what engagement entered into concerning the purchase, further than what appears upon the bill of sale. Whore did you last see it, and what has become of it? 16. In what port or place, and in what month or year, was the lading found on board the Teasel, at the time of her capture or seizure, first put on board her. What were the names APPENDIX. 481 of the respective laders or owners, or consignees thereof. What countrymen are they. Where did tliey reside before, to the best of your knowledge, and where were the said goods to be delivered, and for wh>)se real account, risk or benefit. Have any of the said laders or consignees any and what interest in the said goods. What were the several quaUties, quan- tities, and particulars of the said goods, and have you any and what reason to know or fully believe that if the said goods shall be restored and unladen at the destined ports, they did, do, and will belong to the same persons, and to none others ? 17. How m.uiy bills of lading were signed for the goods seized on board the said vessel. Were any of those bills of lading false or colorable, or were any bills of lading signed which were difl'erent in any respect from those which were on board the vessel at the time she was taken. What were the contents of such other bills of ladmg, and what became of them ? 18. Have you in your pos.session. or were there on board of the said vessel, at the time of her capture, any bills of lading, invoices, letters, or other writings, to prove or show your own interest, or the interest of any other person, and of whom, in the vessel or in the goods concerning which you are now examined ? If in your power produce the same, and set fortli the particular times when, where, and in what manner, and upon wliat consideration, you became possessed thereof. If you cannot produce such paper evidences, then state in whose possession you last saw them, or where you know or believe they are kept, and when, and by whom they were brought or sent within tliis district, and also set forth the contents or purport of such papei's. 19. State the degrees of latitude and longitude in which the said vessel and her cargo were captured, as also the year, month, and day, and time thereof in which such seizure was made, and in or near what port or place, and whether it was a port of any state or ter- ritory of the United States of America, and what one. Was any charter party for the voyage upon wMch the said vessel was captured, signed, and executed, and by whom and when ? If in your possession, produce the same. If not, set forth its contents and state what has become of it. 20. What papers, bills of lading, letters, or other writings relating to the vessel or cargo, were on board the vessel at the time she took her departure from her last clearing port, before she was taken as prize. Were any of them burnt, torn, thrown overboard, destroyed, or cancelled, or attempted to be concealed, and when, and by whom, and who was then present ? 21. Did you or the owner, master, or person having command of the said vessel or her navigation, at the time and place of her capture, know or have notice that such place or port was in a state of war with the United States, and that the naval forces of the United States held such a port in a state of blockake. How, when, or where had j^ou such knowledge or notice, and when and where did the master or commandant of said vessel obtain it ? 22. Was such port under an order of blockade by the government of the United States. at the time the said vessel entered or made an attempt to enter the same. Had warning or notice of such blockade been given to, or received by the owner, master, or commandant of said vessel, before or at the time she entered, or attempted to enter said port, and wlien, and in what manner. Had notice in writing been endorsed on the register or other ship'.« paijors of the said vessel, and when, where,*and by whom, of an existing blockade of such i)ort. before she entered, or attempted to enter the same, or before the time of her sailing, or at- tempting to sail therefrom? 23. A7as the register of the vessel, about which you are examined, shown to, or exam- ined by any officer of the United States navy, or by any revenue officer of the United States, before she was captured and taken, and before she entered the port at. or near which. she was taken and seized, and was the register, or other ship's papers, endorsed by said United States officer ? ' Declare fully all you know, or have reason to believe, respecting this interrogatory, stating the persons, times, and places connected therewith. 24:. Do you know, or do you believe from information, an'd if the latter, from what infor- mation, and when and how was it obtained, that the vessel inquired about, at any time or times, after the Ijlockade of the said port, and with notice thereof, and when, attempted povertly and secretly to enter the said blockaded port, or to sail tlierefrom, without success ? Disclose full}- all your knowledge, information, and beUef thereon, with the particulars upon whicli the same is founded. 25. Has the vessel, concerning which you are now examined, been at any time, and when, 31 4S2 APPE]S^DIX. seized as prize mrl condemned as such? If yea, set forth into wliat port she was carried, and b}- whom, and by what authority, or on what account she was condemned. 2G. Have TO- 1 sustained any loss by the seizing and taking the A^essel concerning which , you are now'examined. If yea, in what manner do you compute such your loss. Have you already received any indemnity, satisfaction, or promise of satisfaction, for any part of the damage wliich you have sustained, or may sustain, by this capture and detention, and when and from whom ? 27. Is the said vessel or goods, or any, and what parts, insured. If yea, for what voyage is such insurance made, and at what premium, and when and by what persons, and in what country was such insurance made ? 2S. In case you had arrived at your destined port, would your cargo, or any part thereof, on being unladen, have immediately become the property of the consignees, or any person, and whom. Or was the lader to take the chance of the market for the sale of his goods ? 29. Lcc each witness be interrogated of the growth, produce, and manufacture, on board tho vessel ; of wliat country and place was the lading concerning which they are now inter- rogated, or any part thereof 30. Whether all the said cargo, or any and what part thereof, was taken from the shore, or quay, or removed, or transshipped from one vessel to another, from what and to what shore, quaj^, and vessel, and when and where was the same so done. 31. Are there in any country besides the United States, and where, or on board any and what vessel, or vessels, other than the vessel concerning which you are now examined, any bills of lading, invoices, letters, instruments, papers, or documents, relative to the said ves- sel or cargo, and of what nature are they, and what are their contents ? 32. Were any papers delivered out of the said vessel, and carried away in any manner whatsoever, and wlien. and by whom, and to whom, and in whose custody, possession, or power, do you lielieve the same now are ? 33. "Was bulk broken during the voyage on which you were taken, or since the capture of the said ves-el. and when, and where, by whom, and by whose orders, and for what pur- pose, and in what manner? 34. "Were any passengers on board the aforesaid vessel ; were any of them secreted at the time of the capture. Who were the passengers by name. Of what nation, rank, pro- fession, or occupation. Had they any commission — for what purpose, and from wliom. From what place were they taken on board, and when. To what place were they finally destined, and upon what business. Had any, and which of the passengers, any and what property, or concern, or authority, directly or indirectly, regarding tho vessel and cargo. Were there any officers, soldiers, or mariners secreted on board, and for what reason were they secreted. Were any citizens of the United States on board, or secreted, or confined, at the time of the capture. How long, and why. Whether any persons on board the said vessel, at the time of her capture, were citizens or residents of any state or territory of the United States, then in a stati- of war or rebellion against the United States, its government and laws. If so, who by name, and of what state or territory. What vras their employ- ment on board the vessel, and what their destination ? 35. Were and are all the passports, sea-briefs, charter parties, bills of sale, invoices, and papers, which were found on board, entirely true and fair, or are any of them false or color- able. Do you know of any matter or circumstance to affect their credit. By whom were the passports or sea-briefs obtained, and from whom. Were they obtained for t^is vessel only, and upon the oath or affirmation of the persons therein described, or were they de- Uvered to or on behalf of the person or persons who appear to have been sworn or to have affirmed thereto, witho\it their having ever, in fact, made any such oath or affirmation. How long a time were they to last. Was any duty or fee payable and paid for the same, and is there any duty or fee to be, paid on the i-enewal thereof Have such passport-s been renewed, and liow often, and has the duty or fee been paid for such renewal. Was the ves- sel in a port in the country where the passports and sea-briefs were granted, and if not, where was the vos.^el at the time. Had any person on board anj- passport, license, or let- ters of safe conduct. If yea, from whom, and for what business. If it should appear that there are in the United States, or in any other place or country besides the United Stales any bills of lading, invoices, instruments, or papers, relative to the vessel and goods con- cerning which vdu are now examined, state how tliey were brouglit into such place or country. In whoso possession are they, and do they differ from any of the papers on board APPENDIX. 483 or in the United States, or elsewhere, and in what particular do lliey differ. Ilave you written or signed any letters or papers concerning the vessel and her cargo. What wa3 t.MV purport. To whom were they written and sent, and what has become of them? 36. Toward what port or place was the vessel steering her course, at tlie time of her being first pursued and taken. Was her course altered upon the appearance of the vessel by which she was taken. Was her course at all times, when the weather would permit, directed to tlie place or port for which she appears to have been destined by the ship papers. Was the vessel, before or at the time of her capture, sailing beyond or wide of the said place or port to which she was so destined by the said ship papers. At what distance was she therefrom. Was her course altered at any, and what time, and to what other port or place, and for what reason ? 37. By whom and to whom hath the said vessel been sold or transferred, and how often. At what time and at what place, and for what sum or consideration, has the same been paid or satisfied. Was the sum paid, or to be paid, a fair and true equivalent, or what security or securities have been given for the payment of the same ; and by wliom, and where do they now live. Do you know, or believe in your conscience, such sale or transfer has been truly made, and not for the purpose of covering or concealing the real property. Do you verily believe that if the vessel should be restored, she will belong to the persons now as- serted to be tlie owners, and to none others ? 38. Wlrat guns were mounted on board the vessel, and what arms and ammunition were belonging to her. Why was she so armed. Were there on board any other guns, weapons, warlike arms, or armament of any name or description, and if any, what. Were there any parts of warlike arms, not put together or finished, or any ammunition, fixed or unfixed, or any balls, shells, rockets, hand grenades, flints, percussion caps, or any other thing known to be intended for military equipment. Were there any belts, ball moulds, saltpetre, nitre, camp equipage, military tools, uniforms, soldiers' clothing, or accoutreuients, or any parts of them, or any sort of warlike or naval stores. Were any of such warlike or naval stores, or things, thrown overboard to prevent suspicion at the time of the capture ; and were any such warlike stores, before described, concealed on board under the name of mei'chandise, or any other colorable appellation, in the ship papers. If so, what are the marks on the casks, bales, and packages in which they were concealed. Are any of the before-named articles, and which, for tlie sole use of any fortress or garrison in tlie port or place to which such vessel was destined. Do you know, or have you heard of any ordinance, placard, or law, existing in such country or state, forbidding the exportation of the same by private persons, without license. Were such warlike or naval stores put on board by any iniblic authority. When and where were they put on board? 39. What is the wliole which you know or believe, according to the best of your knowl- edge and belief, regarding the real and true property and destination of the vessel and cargo concerning which you are now examined, at the time of the capture ? 40. Did the said vessel, on the voyage in which she was captured (or on), or during any or what former voyage or voyages, sail under the convoy of any slap or ships of war, or other armed vessel or vessels. For what reason or purpose did she sail under such convoy. Of what force was or were. such convoying ship or ships, and to what state or country did the same belong. What instructions or directions had you or did you receive on each and every of such voyages, when under convoy, respecting your sailing or keeping in com- pany with such armed or convoying ship or ships; and from whom did you receive such in- structions or directions. Had you any, and what directions or instruction.s, and from whom, for resisting, or endeavoring to avoid or escape from capture, or for destroying, concealing, or refusing to deliver up your vessel's documents and papers; or any, and what other papers, that miglit be or were put on board your said ship. If so, state the tenor of such instruc- tions and all particulars relating tliereto. Are you in possession of such instructions, or copies tliereof ? If so, leave tlicm with the commissioner, to be annexed to j^our deposition. 41. Did tlie said vessel, during the voyage in which she was captured, or on making any and what former voyage or voyages, sail to, or attempt to enter any port under blockade by the arms or forces of any, and what belligerent power. If so, when did you first learn or hear of such port being so blockaded, and were you at any, and what time, and by whom warned not to proceed to, or attempt to enter into, or to escape from, such blockaded port. What con- versation or other communication passed thereon. And what course did you pursue upon and after being so warned off? 484 APPENDIX. 42. "WTaethor or no the vessel, concerning which you are examined, did sail on lier last voyage, prior to her seizure, carrying a commission or license as a privateer, or letter of marque and reprissal, or other authority from any person or persons, to cruise against the persons or property of the citizens of the United States, and to make prizes thereof By whom was such authority, license, or direction given, and when. Was it in writing. If so, did it remain with the vessel up to the time of her capture, or was it destroyed or concealed previous thereto. When, aud by whom. What are the contents or purport thereof? State all the facts in your knowledge within this inquiry, and the sources of such knowledge. Also state fully all the acts known to you to have been done by the vessel, her master or crew, under such commis.sion or license, up to the period of he- capture. 43. Whether or no the said vessel inquired about, at any time, and when and where, sailed or acted in company or concert with any other armed vessel or vessels, and what, in cruising against, pursuing, or seizing as prize, any persons, ves.?els, or property of citizens of the United States ? Declare fully and particularly your knowledge, information, and be- lief therein. « No. IV. PROYISIONS OF THE ACT OF CONGRESS OF 1800, Chap. 33, §§ 5 and 6, PROVIDIXa FOR THE DISTRIBUTION OF PROCEEDS OF PRIZES MADE BY PUBLIC ARMED SHIPS. Sec. 5. And be il further enacted, That the proceeds of all ships and vessels, and the goods taken on board of them, which shall be adjudged good prize, shall, when of equal or supe- rior force to the vessel or vessels making the capture, be the sole property of the captors ; and when of inferior force, shall be divided equally between the United States air' 'ho offi- cers and men making the capture. Sec. 6. And he it further enacted, That the prize money, belonging to the offieo; '^n, shall be distributed in the following manner : 1. To the commanding ofiScers of fleets, squadrons, or single ships, three-twentietliLA, of which the commanding ofQcer of the fleet or squadron shall have one-twentieth, if the prize be taken by a ship or vessel acting under his command, and the commander of single ships two-twentieths ; but where the prize is taken by a ship acting independently of such supe- rior officer, the three-twentieths shall belong to her commander. 2. To sea lieutenants, captains of marines, and sailing masters, two-twentieths ; but where there is a captain, without a lieutenant of marines, these officers shall be entitled to two- twentieths and one-tiiird of a twentieth, which third, in such case, shall be deducted from the share of the officers mentioned in article No. 3, of this section. 3. To chaplains, lieutenants of marines, surgeons, pursers, boatswains, gunners, carpen- ters, and master's mates, two-twentieths. 4. To midshipmen, surgeon's mates, captain's clerks, school-masters, boatswain's mates, gimner's mates, carpenter's mates, ship's stewards, sailmakers, masters-at-arms, armorers, cockswains, and coopers, three-twentieths and a half 5. To gunner's yeomen, boatswain's yeomen, quartermasters, quarter gunners, sailmaker's mates, sergeants and corporals of marines, drummers, fifers, and extra petty officers, two- twentieths and a half 6. To seamen, ordinary seamen, marines, and all other persons doing duty on board, seven-twentieths. 7. Whenever one or more public ships or vessels are in sight at the time any one or more ships are taking a prize or prizes, they shall all share equally in the prize or prizes, accord- ing to the number of men and guns on board each ship in sight. No commander of a fleet or squadron shall be entitled to receive any share of prizes taken by vessels not under his immediate command ; nor of such prizes as may have been taken by ships or vessel.'* intended to be placed under his command, before they have acted under his immediate orders ; nor shall a commander of a fleet or squadron, leaving the station where he had the eoMunand, have any share in the pnzes taken by sliips left on such .sta- tion, after he has gone out of the limits of his said command. APPENDIX. 485 No. V. ACT OF CONGRESS OF JUNE 26th, 1812, Chap. 107, § 4. PROVIDING FOB THE DISTRIBUTION OF PROCEEDS OP PRIZES TAKEN BY PRIVATEERS. And be it farther enacted, That all captures and prizes of vessels, and property, shall be forfeited and shall accrue to the owners, officers and crews of the vessels by whom such captures and prizes sliall be made, and on due condemnation had, shall be distributed ac- cording to any written agreement which shall be made between them — and if there be no such agreement, then, one moiety to the owners, and the other moiety to the officers and crew, to Ido distributed between the officers and crew, as nearly as may Ije according to the rules prescribed for the distribution of prize money by the act, entitled "An act for the better government of the navy of the United States," passed the 23d day of April, one thousand eight hundred. No. VI. THE PROCLAMATIONS. A PROCLAMATION, BY THE PRESIDENT OF THE UNITED STATES. Whereas, The laws of the United States have been for some time past and now are op- posed, and the execution thereof oljstructed, in the states of South Carolina, (jteorgia, Ala- bama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be sup- pressed by the ordinary course of judicial proceedings, or by the powers vested in the mar- shals by law : Now, therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the constitution and the laws, have thought lit to call forth, and hereby do call forth, the militia of the several states of the Union, to the aggregate number of 75,000, in order to suppress said combinations, and to cause the laws to be duly executed. The details for this object will be immediately communicated to the state authorities through the War Department. I appeal to all loyal citizens to favor, facilitate, and aid this efibrt to maintain the honor, the integrity, and the existence of our National Union and the perpetuity of popular govern- ment, and to redress wrongs already long enough endured. I deem it proper to say that the hrst service assigned to the force hereby called forth, will probably be to repossess the forts, places and property which have been seized from the Union, and in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with property, or any disturbance of peaceful citizens in any part of the country; and I hereby command the per- sons composing the combinations aforesaid, to disperse and retire peaceably to tlieir respec- tive abodes within twenty days from this date. Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the constitution, convene both houses of Congress. The senators and representatives are therefore summoned to asseml)le at their respective chambers at twelve o'clock, noon, on Thursday, the fourth day of July next, then and there to consider and determine such measures as, in their wisdom, the public safety and interest may seem to demand. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the city of Washington, this fifteenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and of the independence of the United States the eighty-fifth. By the President: ABRAHAM LINCOLN. William H. Seward, Secretary of State. 480 . appejs^dix. PBOCLAMATION BY JEFFERSON DAVIS. "Whereas, Abraham Lincoln, President of the United States, has by proclamation an- ' nounced the intention of invading the confederacy with an armed force for the purpose of capturing its fortresses, and thereby subverting its independence and subjecting the free people thereof to the dominion of a foreign power; and whereas it has thus become the duty of this government to repel the threatened invasion and defend the rights and liberties of the people by all the meaus which the laws of nations and usages of civihzed warfare place at its disposal : Now, therefore, ], Jefferson Davis, President of the Confederate States of America, do issue this my proclamation, inviting all those who may desire by service in private armed vessels on the high seas to aid this government in resisting so wanton and wcked an ag- gression, to make application for commissions or letters of marque and reprisal, to be issued under the seal of these Confederate States ; and I do further notify all persons applying for letters of marque, to make a statement in writing, giving the name^aud suitable description of the character, tonnage, and force of the vessel, name of the place of residence of each owner concerned therein, and the intended number of crew, and to sign such statement, and deliver the same to the secretary of state or collector of the port of entry of these Confede- rate States, to be by him transmitted to the secretary of state ; and I do further notify all applicants aforesaid, before any commission or letter of marque is issued to any vessel or the owner or the owners thereof and the commander for the time being, they will be required to give bond to the Confederate States, with at least two responsible sureties not interested in such vessel, in the penal sum of five thousand dollars, or if such vessel be provided with more than one hundred and fifty men, then in the penal sum of ten thousand dollars, with the condition that the owners, officers, and crew who shall be employed on board such com- missioned vessel, shall observe the laws of these Confederate States and the instructions given them for the regulation of their conduct, that shall satisfy all damages done contrary to the tenor thereof by such vessel during her commission, and deliver up the same when revoked by the president of the Confederate States; and I do further specially enjoin on all persons holding office, civil and military, under tJie authority of the Confederate States, that they be vigilant and zealous in the discharge of the duties incident thereto ; and I do, more- over, exhort the good people of these Confederate States, as they love their country, as they prize the blessings of free government, as they feel the wrongs of the past and those now threatened in an aggravated form by those whose enmity is more implacable because un- provoked, they exert themselves in preserving order, in promoting concord, in maintaining the authority and efficacy of the laws, and in supporting and invigorating aU the measures which may be adopted for a common defence, and by which, under the blessing of Divine Providence, we may hope for a speedy, just, and honorable peace. In witness whereof, I have set my hand and have caused the seal of the Confederate States of America to be attached this seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one. JEFFEESON DAVIS. Robert Toombs, Secretary of State. A PROCLAMATION, BY TUB PRESIDENT OF THE UNITED STATES OF AMERICA. Whereas, an insurrection against the government of the United States has broken out in the states of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and the laws of the United States for the collection of the revenue cannot be efficiently ex- ecuted therein conformably to that provision of the constitution which requires duties to be uniform throughout the United States : And whereas, a combination of persons, engaged in such insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to commit assaults on the lives, vessels, aiiil property of good citizens of the country lawfully engaged in commerce on the high seas, and in waters of the United States: And whereas, an executive proclamation has been already issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, caUiug out a mihtia force for the purpose of repressing the same, and convening Congress in extraordinary session to delibe- rate and determine thereon : APPENDIX. 487 Now, therefore, I, Abraham Lincoln, President of the United States, with a view to the same purposes before mentioned, and to the protection of the public peace, and the Uves and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliljerated on the said unlawful proceedings, or until the same shall have ceased, have further deemed it advisable to set on foot a blockade of the ports within the states aforesaid, in pursuance of the laws of the United States and of the laws of nations in such cases provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approacli, or shall attempt to leave any of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning, and if the same vessel shall again attempt to -enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo, as prize, as may be deemed advisable. .And I hereby proclaim and declare that if any person, under the pretended authority of said states, or under aay other pretence, shall molest a vessel of the United States, or the persons or cargo on board of her, such person will be held amenable to the laws of the Unit- ed States for the prevention and punishment of piracy. By the President: ABRAHAM LUSTCOLN. "William H. Sewabd, Secretary of State. ■Washington, Apinl 19, 1S61. A PROCLAMATION, BY THE PRESIDENT OF THE UNITED STATES OF AMERICA. Whereas, for the reasons assigned in my proclamation of the 19th instant, a blockade of the ports of the states of South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi and Texas was ordered to be established : And whereas, since that date, public property of the L^nited States has been seized, the collection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody as prisoners, or have been impeded in the discharge of their official duties without due legal process, by persons claiming to act under authorities of the states of Virginia and North Carolina, an efBcient blockade of the ports of those states will also l)e established. By the President : ABRAHAM LINCOLN. William H. Seward, Secretary of State. WASnuvGTON, April 27, 1861. THE BLOCKADE. — TO ALL WHOM IT MAY CONCERN. United States Flag-Ship C'imiiei-.land, Off Fortress Monroe, Va., April 30, 1861. I hereby call attention to the proclamation of his Excellency, Abraham Lincoln, President of the United States, under date of April 27, 1861, for an efficient blockade of the ports of Virginia and North Carohna, and warn all persons interested that I have a sufficient naval force here for the purpose of carrying out that proclamation. All vessels passing the capes of Virginia coming from a distance and ignorant of the pro- clamation, will be warned off, and those passing Fortress Monroe will be required to anchor under the guns of that fort and subject themselves to an examination. Gr. J. Pendergrast, Flag Officer, commaading Home Squadron. A PROCLAMATION, BY THE PRESIDENT OF THE UNITED STATES. Washington, Friday, May 3, 1861. Whereas, existing exigencies demand immediate and adequate measures for the protec- tion of the National Constitution and the preservation of the National Union, by the suppres- sion of the insurrectionary combinations now existing in several states foropjjosing the laws of the L^nion and obstructing the execution thereof, to whicli end a military force in addition to that called forth by my proclamation of the tifteenth day of April, in the present year, •appears to be indispensably necessary, now, therefure, I, Abraham LiX'ni.N, President of the United States, and commander-in-chief of the army and navy thereof, and of the mill- 4S8 APPENDIX. tia of the several states, wlien called into actual service, do hereby call into the service of the United States forty-two thousand and thirty-four volunteers, to serve for a period of three years, unless sooner discharged, and to be mustered into service as infantry and cav- alry. "The proportions of each arm and the details of enrolment and organization will be made known through the Department of War; and I also direct that the regular army of tiio United States bo increased by the addition of eight regiments of infantry, one regiment of cavalry, and one regiment of artillery, making altogether a maximum aggregate increase of 22.714 officers and enlisted men, the details of which increase will also be made known throuu-li the Department of War; and I further direct the enlistment, for not less than one nor iiiore than three years, of 18,000 seamen, in addition to the present force, for the naval service of the United States. The details of the eidistment and organization wiU be made known through the Department of the Navy. The call for volunteers hereby made, and the direction for the increase of the regular army, and for the enlistment of seamen hereby given, together with the plan of organization adopted for the volunteers and for the regular forces lieroby authorized, wiU be submitted to Congress as soon as assembled. In the mean time I earnestly invoke the co-operation of all good citizens in the measures herebv adopted for the etl'ectual suppression of unlawful violence, for the impartial enforce- ment "of constitutional laws, and for the speediest possible restoration of peace and order, and with those of happiness and prosperity throughout our country. By the President: ABRAHAM LINCOLN. WiLLi.v>[ H. Sewaed, Secretary of State. PROCLAMATION BY QUEEN VICTORIA. Victoria R. — Whereas we are happily at peace with all sovereigns, powers and states, and whereas hostilities have unhappily commenced between the government of the United States of America and certain states styling themselves the Confederate States of America, and whereas, ive being at peace' with the government of the United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties : We, therefore, have thought lit, by and with tho advice of our privy council, to issue this our ro}'al proclamation. [The provisions of the Foreign Enlistment Act are here cited.] And we do hereby warn all our loving subjects, and all persons whatsoever entitled to our protection, that if any of them shall presume, in contempt of this our royal proclamation and of our high disijleasure, to do any acts in derogation of their duty as sub- jects of a neutral sovereign in the said contest, or in violation or in contravention of the law of nations: as, for example, more especiaUy, by entering into the military service of either of the said contending parties as commissioned or non-commissioned officers or soldiers ; or by serving as otficers, sailors or marines on board any ship, or vessel of war, or transport of or in the service of either of the said contending parties ; or by serving as ofBcers, sailors, or marines on board any privateer bearing letters of marque of or from either of the said contending parties ; or by engaging to go, or going to any place beyond the seas with an in- tent to enlist nr engage in any such service; or by procuring or attempting to procure with- in her majesty's dominions at home or abroad others to do so ; or by fitting out, arming, or equipping any ship or vessel to be employed as a ship of war, or privateer, or transport by either of the said contending parties; or by breaking or' endeavoring to break any blockade lawfully and a'tually established by or on behalf of either of the said contending parties ;, or by carrying officers, soldiers, dispatches, arms, military stores or materials, or any article or ar- ticles considered and deemed to be contraband of war, according to the law or modern usage of nations, for the use or service of either of the said contending parties. All persons so of- fending mil incur and be liable to the several penalties and penal consequences by the said stat- ute, or by the law of nations in that behalf imposed and decreed. And we do hereby declare that all our subjects and persons entitled to our protection, who may misconduct themselves in the premises, wall do so at their peril and of their own wrong, and that they will in nowise obtain any protection from us against any liabilities or penal coneequences, but will, on the contrary, incur our high displeasure by such misconduct. APPENDIX 489 No. VII. DISTRIBUTIOX OF PRIZE MONEY. ACT OF CONGRESS, JULY ITtH, 1862. Sec. 2. And he it further enacted, TJiat the proceeds of all ships and vessels, and the goods taken on board of them, which sliall be adjudged good prize, shall, when of equal or superior force to the vessel or vessels, making the capture, be the sole property of the captors ; and wjien of inferior force, shall be divided ecpially between the United States and the officers and men making the capture. Sec. 3. A7id be it further enacted, That the prize money belonging- to the ofQcers and men shall be di.stributed in the following manner : First. To the commanding officer of a fleet or squadron, one-twentieih part of all prize maney awarded to a vessel or vessels under his immediate command. Second. To the commander of a single ship, one-tenth part of all prize money awarded to the ship under his command, if such ship, at the time of making the capture, was under the immediate command of the commanding officer of a fleet or squadron, and three-twen- tieths if his ship was acting independently of such superior officer. Third. The share of the commanding officer of the fleet or squadron, if any, and the share of the commander of the ship being deducted, the residue shall be distributed and apportioned among all others doing duty on board, and borne upon the books, according to their respective rates of pay in the service. Fourth. AVhen one or more vessels of the navy shall be within signal distance of another making a prize, all sliall share in the prize, and the money awarded shall be apportioned among the officcr.s and men of the several vessels according to the rates of pay of all on board who are borne upon the books, after deducting one-twentieth to the flag-officer, if there be any such entitled to share. Fifth. No commander of a fleet or squadron shall be entitled to receive any share of prizes taken by vessels not under his immediate command ; nor of such prizes as may have been taken by ships or vessels intended to be placed under his command Ijefore they have acted under his immediate orders; nor shall a commander of a fleet or squadron, leaving the station where he had the command, have any share in the prizes taken Ijy ships left on such station after he has gone out of the limits of his said command, nor nf'ter he has trans- ferred his command to a successor. Si:rt]i. No officer or other person who shall have been temporarilv abs:'nt on duty from the vessel, on the books of which he continued to be borne whUe so absent, shall be deprived, in consequence of such absence, of any prize money to which he would otherwise be entitled. Sec. 4. And he it fiirther enacted, That a bounty shall be paid by the United States for each person on board any ship or vessel-of-war belonging to an enemy at the commence- ment of an engagement, which shall be sunk or otherwise destroyed- in such engagement, by an\' ship or vessel belonging to the United States, or which it may be necessary to de- s^roy in consequence of injuries sustained in action, of one hundred dollars, if the enemy's \-essel was of inferior force ; and of two hundred dollars, if of equal or superior force ; to be divided among the officers and crew in the same manner as prize money; and when the actual number of men on board any such vessel cannot be satisfactorily ascertained, it shall be estimated according to the complement allowed to vessels of their class in the navy of the United States; and there shall l)e paid as bounty to the captors of any vessel-of-war captured from an enemy, which they may. be instructed to destroy, or which shall be immediately destroyed for the public interest, but not inconsequence of injuries received in action, fifty dollars for every person who shall be on board at the time of such capture. Sec. 5. And he it further enacted, That the commanding officer of every vessel, or the senior officers of all vessels of the navy, which shall capture or seize upon any vessel or vessels as a prize, shall carefully preserve all the papers and writings found on board, and transmit the whole of the originals, unmutilated. to the judge of the district to which such prize is ordered to proceed, with the necessary witnesses, and a report of the circumstances att€ndin the capture, stating the names of vessels claiming a share thereof; and the com- 490 APPENDIX. manding officer of every vessel in the navy entitled to, or claiming an award of prize money, shall, as early as practicable after the capture, transmit to the navy department a complete list of tlio otficjrs ;uid men of his vessal, entitled to share, inserting- thereon tlie quality of every person rating, on pain of forfeiting his whole share of the prize money resulting from such capture, andsuffcriug such farther punishment as a court-martial shall adjudge. Sec. G. And h" U f't,rtker enacted, That any armed vessel in the service of the United, States which shall make a capture, or assist in a capture, under circumstances which would entitle a vessel of the navy to prize money, shall be entitled to an award of pri/.e monciv iu the same manner as if such vessel belonged to the navy, and such prize money shall be distributed and apportioned in the same manner and under tlie same rules and regulations as provided for jjcrsons in the naval service, and paid luider the direction of the secretary of ilie navy. Sec. 7. And he it fwther enacted, That no person in the navy shall take out of a^ prize, or vessel seized ;^ INDEX. 49T PAGE Captors — Duty of, to send prize into convenient port _. 393 Duty of, to put prize master and crew on board of prize vessel 394 Prohibited from converting cargo, or brealiing bulk. Exceptions to rule as to. 395 Duty of, to send master, principal officers, and some of the crew of the cap- tured vessel into the port of adjudication as witnesses 395 And great importance of strict observance of this duty 395 Duty of, on arrival with prize at port of adjudication 396 Duty of, further considered, under orders and adjudications growing out of the war in the United States : 436 Duty of, as to sending in captured property. Exceptions in case of physical impossibility or moral restraint — Case of The British Empire. . . 436 The necessities of, either as personal supplies, or for use in the prosecution of the war — excuse for not sending in captured property 431 Duty of, to have property appraised which is not sent in, but appropriated to government use 438 Duty of, as to persons captured on board vessels 439 Consequence of neglect of duty by, in not sending in captured master, officers, and crew, as witnesses — considered in the case of The Julia 439 Duty of, to treat captured persons as detained witnesses, not prisoners of war. 441 Duty of, not to separate captured persons from the prize, except in cases of ne- cessity 441 Duty of, as to treatment of captured persons, considered in the case of The Louisa Agnes 442 Duty of as to vessel's papers 442 Duty of, as to other papers found on board the prize 449 Duty of, as declared in circular of the Navy Department of the United States. 450 Capture — Definition of 175 By public and private armed vessels 176 By privateers 176 Authority and power of 176 To be lawful, must be commissioned 177 How regardec" by the United States 178 Considered in conflict with the spirit of the age 178 Efforts made in the United States to abolish 179 Revocation of commission for 185 And letters of marque — distinction between 186 Not invalid, though the master is an alien enemy 186 Legality of, may depend on government order 189 Intention to seize, requisite to tlie validity of 189 Invalid as to neutral power, if made in neutral waters — may be valid as be- tween the belligerents 190 Question as to time of. 190 Whether actual possession requisite to its validity 190 To be lawful, must be made by public or private armed ships, commissioned. . . 194 By boats from man-of-war 195 Restitution, no bar to second 196 May be made by convoying ship 197 Liability of wrong-doer for injury resulting from 198 Vindictive damages for injury resulting from, only given in extreme cases. . . . 200 Property subject of, Hable only to visible liens or encumbrances 201 Property subject of, must be sent in to convenient port of en poor's country for adjudication 201 Duty of captors, on making 202 Duty of prize master and crew, on taking in property, the subject of 203 Capture, Joint — Definition of 203 Doctrine of constructive assistance in 204 As to vessels in sight, to constitute 205 32 498 INDEX. Pi.aB Capture, Joint— Rn\e and reasons of, in relation to vessels in sight, to constitute 211 Rule of joint enterprise to constitute 213 Rule in. as to revenue cutter • 213 Cases illustrating the doctrine of constructive assistance, to constitute. ....... 214 Not as between vessels in sight only from mast-head 219 Proof of vessel in sight requisite to constitute ._ 220 Mere intimidation without co-operation insufficient t6 constitute 221 Mere association insufficient to constitute 221 "Whether it can be made by co-operation of army with naval forces 225 Rights of joint-captors in, not affected by the frand of the actual captor 228 Previous concert, sufficient basis for, if not abandoned at the time of capture. . 231 Claim to prize property — its proper form, what it should, and what it may not contain 403 By whom it may be made *03 When it must be made 403 Who are not allowed to make *04 Affidavit in support of 4:04 Until filed, testimony and papers in prize cause, not examinable by claunant. . 405 For delivery of captured property to claimants, on bail, before a hearing, or af- ter condemnation aud appeal, never allowed 406, 431 Dehvery of captured property to, on bail, the doctrine in relation to, further con- sidered, in connection with the decision in the recent case of The Amy Warwick, &c i 457 Requisites of, considered with the recent decisions in the cases of The Empress and The Amy Warwick 456 Contraband of War — Definition of. 32T Commerce in, prohibited to neutrals 327 What is considered 328 Whether and under what circumstances provisions are 328 Penalty for violation of rule prohibiting commerce in 328 Rule of right of pre-emption of, instead of confiscation, when and how appUed 330 Innocent goods mixed with, are aUke confiscated 332 Hostile dispatches considered 332 Carried iu neutral vessel, by the old rule, subjected vessel, as well as cargo, to confiscation, relaxed in modern times 333 Treaty provisions as to • 334 Costs and Disbursements — Nature of in prize proceedings, and how hquidated 464 Embarrassments in relation to, for want of requisite legislation 465 Attempted remedy of embarrassments in i-elation to, by statute of United States 465 Construction of statute in relation to, by the Circuit Court of the United States in the Second Circuit, in the cases of The Sarah Starr and The Aiglurth. 467 Contradictory legislation in relation to, at the last session of the Congress of the United States — necessity of immediate and careful revision of thB law 469 D. Distribution — Decree of, to follow condemnation and sale of captured property 413 Who are entitled as distributees in decree of 413, 462 When claim for must be made 462 Proportionate interests of distributees in decree of 414 Decree of, and proportionate interests, as provided by recent acts of Congress {vi(k Appendix) Decree of, settling proportionate interests where capture is made by private armed vessels 415 Decree of upon what evidence based, and how taken 415 Decree of necessary before distribution can be made 416 Decree of how executed under recent act of the Congress of the United States. i6d INDEX. 499 E. PAGE Embargo — Defined 164 "Warlike and civil 165 Modem practice as to 165 Operation and effect of 166 Civil 168 Civil, ordered bj United States government in 1807 169 R Further Proof — Order for, in a prize cause, when allowed by the court 426 When not allowed 427 Evidence on order for 428 How taken, when ordered 428 H. Hearing, The — In prize-courts 407 Presumptions of law on 407 Efiiect of legal presumptions as burden of proof on 407 Question of nationality of property on 408 Question of national character of vessel on 409 Question of national character, as affected by domicile on 409 Question of national character, as affected by trade on 409 Question of national character on, as affected by the flag or pass of the ship. . 410 Question of the transfer during war of enemy's ships on 411 Question on, as to transfers in transitu 411 Question on, as to illegality of trade 411 Questions on, as to violation of blockade, of contraband trade, of prohibited commerce, of resistance to search 412 Eostile Character — Impressed upon persons and property, subjecting to the liabilities of aUen enemies .' 109 By ownership of soil 110 By hostile residence 110 Uniformity of rule as to 110 Illustrations of rule as to, in courts of admiralty Ill Rule as to, applied in courts of common law 113 Rule as to, as applied in the United States 113 What residence is requisite to impress with 115 Cases illustrating impression of, by residence IIG Importance of the animus manendi as to, by residence 117, 126 Personal residence not requisite to impress with 124 Impressed by residence of agent 124 Impressed by the nature of the trade 124 Doctrine in the United States as to impression of, by the nature of the traffic. 125, 127 Impressed by official, without actual residence 126 Of ship, determined by the residence of the owner 1.^0 Of ship, by her flag or pass 130, 135 Of ship, by the nature of her employment 131 Impressed by employment in the commerce ordinarily confined to tlie adverse belligerent 133 Impressed by engagement in traffic under authority of the adverse belligerent. 134 Transfers in transitu, to avoid the rule of impression with 138 Reservations of risk, to avoid the rule of impressment with 141 Unsuccessful attempts to evade the rule of impression with, made by neutrals, during the war in the United States 14g In the case of The Josejih H. Toone 148 The General Parkhill. X49 500 INDEX. PAGE Hostile Character — In the caee of The Amy Warwick 161 Not terminated bv transfers from enemies to neutrals, the same being void as in fraud of belligerent rights 152 Secret liens on property impressed with, not regarded in prize-courts 153 This doctrine discussed in the case of The Hiawatha 153 The Crenshaw 153 The Delta 154 The Areola 155 The Amy Warwick 156 N. Neutrals — Who are considered 259 The general commercial rights of •. 259 Rights of, as to pursuit of accustomed trade 259 Exclusion of, from trado with colonial possessions of the enetny 260 Reasons for the rule of exclusion of from the enemy's colonial trade 261 Consequences of violation by, of the rule of exclusion from the enemy's colo- nial trade 262 Confiscation of property of, for employment in enemy's colonial trade, by for- mer rule, penalty not now exacted, except iu cases of specific fraud 263 Excluded as well from the coasting as the colonial trade of belligerents 263 Admitted to colonial trade in time of peace, not excluded in time of war 267 Rule of admission of, to colouial trade in war which had been allowed in time of peace, whence it originated 267 Cases illustrating the application of the rule of admission of, to colonial trade in war, which had been permitted in time of peace, and exceptions thereto. . 268 Circuitous trade by, unlawful, where direct trade prohibited 270 Penalty for violation of this rule by 272 Rights of iu connection with the question of "free ships, free goods," the armed neutrality, and position of the United States government on this subject 274 Jurisdiction of, inviolable by belligerents 346 Captures made in waters of, unlawful 347 No power to release captures made beyond the jurisdiction of, when taken into the ports of 348 Treaty stipulations modifying the rule of non-interference by, iu cases of capture 348 P. Postliminium — Defined ^ 234 The general right of 235 Termination of the right of 239 The right of by the laws of the United States 241 Privateers — Character of 176 Their authority and power 176 Must be commissioned 176 Their tolerance, in conflict with the spirit of the age 178 Efforts in United States to abohsh 179 Revocation of commission of 184 Validity of caj)ture by, though master an alien enemy 186 Distinction between, and letters of marque 186 Liability of registered owner of 186 Rule of liability of registered owner of, not applicable to foreigner.^ 186 Limitation of liability of owners of 187 Owners of, liable jointly and severally 188 Not considered property, on capitulation 188 Prize — Jurisdiction, practice, and proceedings of courts of 383 rta)EX 501 PAGB Prize — Jurisdictiou vested in courts of admiralty. 383 Jurisdiction exclusively in courts of the captor's country 384 Property captured as, need not be in- a port of the captor's country, to give the court jurisdiction to adjudicate 385 Decree of condemnation of property captured as, requisite to complete transfer of title 385 Decree upon property captured as, final between the parties — open to review between governments 385 fVize Cargo — Unlivery of, pendente lite 429 "When unlivery ordered, and how effected 429 Expense of unlivery of, by whom paid 430 Order of appraisement and sale of, when made 431 At whose expense, sale of, made, pendente life 431 Delivery of, on bail 432 Liability of bail on delivery of 433 Prize Commissioners — Thoir appointment, power, and duties 396 Duty of, to receive possession of prize property 397 Duty of, to seal it with their seals, and safely keep the same until process be issued 397 Duty of, to receive papers found on board from the prize master, to take his affidavit of identification, to seal up and file the same 397 Duty of, to take the testimony of the witnesses, and rules as to the examina- tion of {vide interrogatories in the Appendix) 398 Duties of, prior to recent legislation by United States Congress 452 Duties of, considered with reference to the act of Congress of March 25th, 1 862, and judicial construction of the same 452 Prize Courts — Letter from Sir William Scott and Sir John Nicholl to Mr. Justice Story, in relation to jurisdiction of, and practice and proceedings in (vide Appendix) 386 Notes of Mr. Justice Story, in Wheaton's Reports, in relation to jurisdiction of, and practice and proceedings in 386 Extent, character, and peculiarities of jurisdiction of 388 Prize, Decree — If no claim be filed on the return of the monition 402 Of condemnation on hearing, and effect of 406 Of condemnation and proceedings thereon 413 Appeals from 433 Prize Libel — Its proper form 400 By whom filed 401 Monition and warrant issued with , 401 How and by whom served 402 Requisites of, considered and determined in the cases of The Revere and The Empress 455 R. Random — Definition of 24T Prohibited b}'' act of Parliament of Great Britain 247 Valid by the law of nations 247 Not prohibited by statute of United States 248 Recapture — Defined 233 Distinguished from rescue 233 A duty of public ship 233 No commission requisite for 242 Reprisals — Generally 171 To redress individual wrongs. 171 Right of, acknowledged by all nations 175 Acted upon in the United States * 175 502 INDEX. k PAG)' iZe5CW«— Defined 233 A meritorious service .• • •^*^' Unlawful, by captured crew of neutral merchant vessel— the doctrine consid- ered with reference to the case of the Emily St. Pierre 256 EesUMion^-Decree of, effect, as to the question of costs and damages 42 ! When costs and damages are allowed to claimants on decree of 4'2-i "When costs' and damages are allowed to captors on decree of 42.". How damages ascertained on decree of 4'-M Decree of, how executed 42 i Decree of. on recapture ^^ When decreed, and on what terms as to payment of salvage on recapture .... 41 .• As fixed by statute of the United States 42'^^ The doctrine of payment of salvage on, considered upou principle 251 Bight of Search — A belligerent right, estabhshed by the law of nations 33."- Penalty for resistance to ^^^ Applied to merchant vessels only 33b How exercised < - ^p" Treaty provisions as to » ^^ ' What to be examined in exercising the 337 What ships' papers to be examined 338 Whether merchant vessels saihng under convoy are subjected to the 339 Discussions and collisions on this subject 340 Exercise of, as claimed by Great Britain for discovery in neutral ships and removal therefrom of alleged British subjects 343 As involved in the causes of the war of 1812 between the United States and Great Britain 344 For the suppression of the slave trade 345 Salvage, Military — Definition of 241 Due to recaptors, on restitution of recaptured property 241 Rate of compensation as 241 Due in cases of rescue as in recapture 242 Due to uncommissioned recaptors 243 Not due to a public vessel for recapture of another public vessel, by the English law 243 No hazard need be encounti Ted to entitle to 243 Every person aiding in a rescue has a lien for 243 Joint recaptors entitled to 244 Privateers in sight not entitled to, when recapture made by a pubhc ship 24-1 Revenue cutters entitled to, for recapture ^45 Freight earned, contributes to pay 24.') Due from neutrals on recapture 24!! The doctrine of payment of miUtary salvage on recapture, considered on prin- ciple 251 T. Trent — The case otThe, reviewed 349 W. War — Defined 1 The power to declare, where vested 1 The power to declare, where vested under the Constitution of the United States T 2 nn)EX 505 PAGB War — Formal declaration of, considered requisite in early ages 4 Formal declaration of, not required by the existing law of nations 5 Proclamation of, for guidance of citizens and neutrals 5 Act of Congress of the United States, declaring the existence of, considered equivalent to a formal declaration 6 Its legal commencement — when by statute, the date of the act -'J Effect of, on persons and property 36 General right of reprisals and captures resulting from 37 Right of capture and reprisal resulting from, in the middle ages 38 Right of capture and reprisal resulting from, as modified by treaty 38 Rule as to right of capture and reprisal resulting from, in absence of treaty stipulations 39 "What property exempt from the rule of reprisal during 40 Public debts, exempt from confiscation during 40 Private debts suspended during, not confiscated 41 Treaties as to conflscability of public funds during 41 War Civil in the United States 44 Belligerent blockade established in the conduct of the 45 "Wisdom of the policy of the belligerent blockade in prosecution of the, rather than municipal interdict 45 Objections raised to the belligerent blockade in the prosecution of the 46 Judicial discussions and decisions of questions in connection with the 47 The Tropic Wind, opinion of Mr. Justice Dunlop 48 The General Parkhill, opinion of Mr. Justice Cadwallader 55 The Hiawatha and nine other cases, opinion of Mr. Justice Betts 67 The F. W. Johnson, opinion of Mr. Justice Giles 76 The Amy Warwick, opinion of Mr. Justice Sprague 82 The Amy Warivick, on the claim of Dunlop, Moncure & Co., opinion of Mr. Justice Spraguo 98 '^ i UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. V t r, f JX5211. U71L IP.bi UC SOUTHERN REGIONAL LIBRARY FACILITY o ; 1 '^ p. EA-^ DO NOT REMOVE THIS BOOK CARD- ^ •K, Rpsearch Library University Heseu. 4 ! m -■,'''