AT LOS ANGELES
 
 PRACTICAL TREATISE 
 
 ON THE 
 
 LAW OF NATIONS, 
 
 RELATIVE TO THE LEGAL EFFECT OF WAR ON THE COMMERCE OF 
 
 Beutrafe ; 
 
 AND 
 
 ON ORDERS IN COUNCIL AND LICENSES. 
 
 BY JOSEPH CHITTY, ESQUIRE, 
 
 Of the Middle Temple. 
 
 TO WHICH ARE ADDED, 
 
 EXTRACTS FROM GROTIUS, BYNKERSHOEK, AND VATTEL: ALSO, 
 
 THE LETTER OF SIR WILLIAM SCOTT, AND OF THE DUKE 
 
 OF NEWCASTLE, &C. CONTAINING MATTERS 
 
 APPLICABLE TO 
 
 THE LAW OF PRIZE. 
 
 BOSTON : 
 
 PUBLISHED BY BRADFORD ASfD READ. 
 
 T. B. Wait 6- Co. Pi-inters, 
 
 1812.
 
 \ 
 
 DISTRICT CLERK'S OFFICE. 
 
 DISTRICT OF MASSACHUSETTS, TO WIT : 
 
 BE it remembered, That on the twenty-eighth day qf October, A. D. 1812, and in the 
 thirty-seventh year of the Independence of the United States of America, Bradford rind Read 
 of the said district, have deposited in this office the title of a book, the right whereof they 
 claim as proprietors, in the words following, to wit: 
 
 " A Practical Treatise on the Law of Nations, relative to tbe legal effect of War on the Com- 
 merce of Belligerents and Neutrals ; and on Orders in Council and Licenses. By Jose ph Cliitty, 
 Esq. Of the Middle Temple. To which are added, Extracts from Grotius, Rynkershoek, and 
 Vattel : also, the letter of Sir William Scott, and of the Duke of Newcastle, sire, containing mat- 
 ters applicable to the Law of Prize. 
 
 In conformity to the Act of the Congress of the United State*, intitled, " An Act for the en- 
 couragement of learning, by securing the copies of Maps, Charti, and Books, to the Authors and 
 Proprietors of such copies, during the times therein mentioned;" and also, to an act, intitled 
 " An act supplementary to an act, intitled, an act for the encouragement of learning, by se- 
 curing the copies of Maps, Charts, and Books, to the author* and proprietors of such copies 
 during the times therein mentioned ; and extending the benefits thereof to the Arts of De- 
 signing, Engraving, and Etching Historical, and other Prints." 
 
 WILLIAM S. SHAW, 
 rierkrfthe District of Masac]msctt.
 
 ADVERTISEMENT TO THE AMERICAN EDITION. 
 
 IN giving an American edition of the following work, 
 the publishers were persuaded the public would take 
 a deep interest in the decisions reported and doctrines 
 advanced in this volume. 
 
 We have indeed, many theoretic works on the law 
 of nations, on neutral and belligerent rights, Sec. But 
 this volume is more of a practical nature ; and has the 
 peculiar merit of exhibiting a collection of judicial 
 decisions methodically arranged, on the several topics 
 
 which are therein discussed. 
 
 To the Merchant and the Lawyer, the work, we 
 think, cannot fail to be interesting. And it is believed 
 the Politician will be furnished with useful information 
 from ascertaining the legal decisions of a nation, with 
 which we have been long connected, and in a commer- 
 cial intercourse with which our interests are deeply 
 involved. The volume also affords much incidental 
 matter, which must be valuable to those who are to 
 legislate on either our maritime or national rights. 
 
 The character of CHIT TV, the author of this work, 
 is already well known to gentlemen of the profession. 
 1 His treatise on Bills of Exchange, and another, on 
 Pleading, furnish ample proofs of his talents, and have 
 established his reputation as an accurate and judicious 
 compiler.
 
 ADVERTISEMENT. 
 
 It is not intended to assert, that every position of 
 the writer of this volume is tenable, or that every prin- 
 ciple advanced is correct. 
 
 Some of the limitations of neutral commerce, ex- 
 pressed in the fourth and fifth chapters, have been con- 
 sidered in this country, and by men of distinguished 
 names in Great Britain, as an undue extension of bel- 
 ligerent rights. Several of the positions, which the 
 author considers as legitimate doctrines of the Law of 
 Nations, have been strenuously disputed, and the con- 
 troversy has, at length, issued in a contest of melan- 
 choly aspect to both nations. 
 
 The doctrine of retaliation in reference to neutrals 
 which the author considers as admitted, has been de- 
 nied by the most eminent jurists,* and it is believed, 
 that the case of the Nayade, quoted from the decisions 
 of Sir William Scott, will be found not to have been 
 grounded on the principle which the author has stated. 
 
 Some quotations from other writers, merely referred 
 to by the author, will be found in an appendix ; which 
 also furnishes a letter from the DUKE OF NEWCAS- 
 TLE, and a letter and instructions from SIR WILLIAM 
 SCOTT and SIR JOHN NICHOLL, prepared at the in- 
 stance of HON. JOHN JAY, Esq^ The decisions of 
 American cases could not be furnished, as promised 
 in the proposals, without delaying the publication for 
 several weeks. 
 
 * Vid. Bynkershoek, Quaeest : Jus. Pub. ch. 4. 
 BOSTON, November, 1812.
 
 DEDICATION. 
 
 TO THE RIGHT HONOURABLE 
 
 MY LORD, 
 
 PERMIT me to dedicate to you the following 
 pages, as a small testimony of my respect and 
 regard ; and at the same time to acknowledge, 
 how much I am indebted to your Lordship 
 for many of the principles to be found in this 
 work, collected from your Lordship's most com- 
 prehensive Speech upon the Law as well as 
 Policy of the recent ORDERS IN COUNCIL, which
 
 DEDICATION. 
 
 m 
 
 form a part of the inquiry in this volume. I 
 have the honour to subscribe myself, 
 
 MY DEAR LORD, 
 
 with the greatest respect and gratitude, 
 Your Lordship's 
 much obliged and 
 faithful servant, 
 
 JOSEPH CHITTY. 
 
 Temple, Jan. 23, 1812,
 
 PREFACE. 
 
 THOUGH the great national question between 
 this country and America, as to the legality and 
 policy of our extensive blockades, and of the 
 Orders in Council, occasioned by the Berlin and 
 Milan Decrees, has been the subject of much 
 able discussion, as well in Parliament as in va- 
 rious political publications ; yet it appears to me, 
 that many of the principles and rules of the Law 
 of Nations, upon which measures of this nature 
 may be founded, have either not been noticed, 
 or have not been so minutely considered as their 
 importance deserves. I have therefore endea- 
 voured, in the following pages, to collect and ar- 
 range all the rules and decisions connected with 
 this subject ; and as the whole law relative to 
 the foreign commerce of belligerents and neu- 
 trals, in time of war, is peculiarly interesting, 
 as well to the statesman and the lawyer as to 
 the merchant, 1 have extended my inquiry into 
 the Law of Nations generally, and of Great 
 Britain in particular, as to the effect of war 
 upon the commerce of belligerents and neutrals.
 
 viii PREFACE, 
 
 In the first chapter, I have considered the 
 principle of the rule which prohibits commer- 
 cial intercourse between the subjects of belligerent 
 states, or their allies, without the permission of 
 the Sovereign, and the consequences of its vio- 
 lation (a), together with the futility of the vari- 
 ous attempts to evade this law (b). 
 
 In the second chapter, the legal definition of 
 war, and of the term alien enemy^ is consider- 
 ed (f), and what constitutes an hostile character 
 as to commercial purposes, so as to subject the 
 property of the party to seizure, though he may 
 not in other respects be an alien enemy (?); as, 
 by having possessions in the territory of the 
 enemy (e\ by residence there personally, or by 
 agent (/*), by particular modes of traffic, by sail- 
 ing under the enemy's flag (g) ; and the rule 
 which precludes the transfer of property from 
 an enemy to a neutral whilst in transitu (//). 
 
 The third chapter relates to the rights of bel- 
 ligerents to capture each other's property, and 
 how far the property of neutrals may, in certain 
 cases, be affected by this right (i) ; and here are 
 particularly considered, the principles and rules 
 
 (a) 1 to 13. (O 34. 
 
 (6) 13 to 27. () 58. 
 
 (r) 28 to 31. (/) 60 to 64. 
 
 (d) 31 to 57. CO 65 to 108 - 
 
 (e) 32 and 33.
 
 PREFACE. ix 
 
 on which the right of capturing property en- 
 gaged in commerce is founded (k] ; the legality 
 of embargoes on the breaking out of hostilities (/); 
 the right of granting letters of marque and repri- 
 sals ; by whom they are to be granted ; and how 
 they may be vacated, either by express revoca- 
 tion, cessation of hostilities, or by the miscon- 
 duct of the grantees, are next examined (m}. 
 It is then shown, that, according to the modern 
 exercise of the King's prerogative, choses in ac- 
 tion, or contracts entered into before the break- 
 ing out of hostilities, are not forfeited to the 
 King, but that the right of action is only sus- 
 pended (;z). Next are considered, the right of 
 capture out of the territory of the belligerent (o), 
 and the Law of Nations relative to capture and 
 re-capture (p\ postliminium (q) and salvage (r). 
 The fourth and ffth chapters relate to the 
 effect of war upon the commerce of NEUTRALS, 
 their right to carry on their accustomed commerce, 
 and the principle upon which that right is found- 
 ed (s] ; the immunity of the property of neutrals 
 in an enemy's ship (t) ; the protection afforded 
 to enemy's property by a neutral territory or 
 port, and the consequent illegality of a capture 
 
 (A) 65 to 67. (/<) 91 to 93. 
 
 (/) 68 to 82. ( V ) 93 to 10-1. 
 
 (w) 73 to 80. ( r ) 104 to 107. 
 
 () 82 to 86. (i) 10S. 
 
 (o) 86 to 108-. ft} 111.
 
 x PREFACE. 
 
 within cannon shot of her shores (u). In the 
 next place is considered the rule, that a neutral 
 ship affords no protection to enemy's goods (x), 
 and the consequences of neutrals being engaged 
 in illegal commerce, as contraband of war (y), vi- 
 olations of blockade (2), assistance to the enemy 
 by conveying despatches or troops (a), and of 
 the forfeiture of the immunities of the neutral 
 character, by her unresisting submission to the 
 outrages of one of the belligerents (#). 
 
 In the fifth chapter are considered the conse- 
 quences of a neutral being engaged in commerce 
 usually interdicted by the enemy in time of peace, 
 but permitted by her in time of war, viz. her 
 coasting (c} and colonial trade (d) ; of the rule of 
 the war A. D. 1756 (?); the prohibitions that 
 prevent the colonial trade being carried on by neu- 
 trals c ircuitously with the mother country (/% and 
 the penalty for the infraction of these rules (g) ; 
 and the rule as to what interest of the enemy in 
 property, renders it liable to confiscation (h). 
 The remaining subjects of inquiry in this chap- 
 ter, relate to the right of a belligerent forcibly to 
 detain and employ neutral ships for her own 
 
 (;/) 113 to 118. (c) 153 to 159. 
 
 (r) 118. (</) 159 to 166. 
 
 (if) 119 to 128. (e) 166 to 176. 
 
 (i) l'2Sto 147. (/)176 to 182. 
 
 () 147 to 150. GO 182. 
 
 '//) 150 to 152. (h} 183.
 
 PREFACE. xi 
 
 . 
 
 emergent occasions (i) ; the right of visitation 
 and search, and consequences of resistance (h] ; 
 and the papers and documents usually required 
 to entitle a neutral ship to the immunities of that 
 character (/). 
 
 In the sixth chapter are considered the Na- 
 vigation Laws of Great Britain, and the origin, 
 progress, and completion of that justly celebrat- 
 ed code of law which has rendered our country 
 so paramount in her naval power (m). 
 
 The seventh chapter comprises the law rela- 
 tive to the prerogative of the King in peace and 
 war, as it affects foreign commerce; and here 
 are considered the authority of the King as to 
 proclamations and embargoes, blockades and other 
 acts, and Licenses and Orders in Council, whe- 
 ther issued in virtue of the general prerogative 
 of the King, or in pursuance of particular Acts 
 of Parliament, extending the power of the King 
 for temporary purposes. 
 
 Though the great importance of the existing 
 contest between this country and America, upon 
 the subject of blockades, and our Orders in 
 Council, has more immediately drawn my at- 
 tention to this branch of the law, yet it is far 
 from my intention to publish "an Essay merely 
 with a view to any temporary political question, 
 
 (O 18S. (J)l9Gtol99. 
 
 (/c) 190 to 196. ( OT ) 200 to 256.
 
 xii PREFACE. 
 
 I have therefore, in the following pages, en- 
 deavoured so to arrange the principles and rules 
 of the Law of Nations generally, as it affects 
 commerce during war, as to render the work of 
 substantial and permanent utility to the states- 
 man, the lawyer, and the merchant. 
 
 J. CHITTY. 
 
 Temple, 23d Jan. 1812. 
 

 
 LEGAL EFFECT 
 
 
 WAR ON THE COMMERCE 
 
 BELLIGERENTS AND NEUTRALS, 
 
 &c. 
 
 CHAPTER I. 
 
 OF THE ILLEGALITY OF COMMERCE BETWEEN BELLIGERENTS 
 AND THEIR ALLIES, AND OF THE FUTILITY OF THE AT- 
 TEMPTS TO ETADE THIS LAW. 
 
 No principle is more clearly established than 
 that when war takes place between two nations, 
 all commercial intercourse between them must 
 immediately cease. Hostilities once commenced, 
 any attempt at trading on the part of the sub- 
 jects of either state, unless by the permission 
 of the sovereign, is interdicted and becomes ipso 
 facto a breach of the allegiance due to their 
 respective sovereigns, and as such is interdict- 
 ed by the general maritime law of Europe (a) ; 
 by that law which does not spring from thft 
 
 () TV Hoop, 1 Rob. Rep. 1 98.
 
 ILLEGALITY OF COMMERC^ BETWEEN 
 
 institutions of this or that particular state, but 
 which having its source in natural reason and 
 natural justice is alike binding on the whole com- 
 munity of the civilized world. So indisputable 
 is this proposition, so necessarily, as it were, does 
 it grow out of the very nature of war itself, that 
 all the great writers who have treated on the law 
 and practice of nations, assume it as a point which 
 is incontrovertible (&). This rule is founded 
 upon the principle that war puts every individual 
 of the respective belligerent governments into a 
 state of mutual hostility, and there is no such 
 thing as a war for arms and a peace for commerce. 
 In that state all treaties, civil contracts, and rights 
 of property, are put an end to, and the law im- 
 poses a duty on every subject to attack the ene- 
 my and seize his property, though by custom 
 this is restrained to those individuals only, who 
 have commissions from their government for that 
 purpose. Trading, which supposes the existence 
 of civil contracts and relations, and a reference to 
 courts of justice, and the rights of property, is 
 necessarily contradictory to a state of war ; be- 
 sides it is criminal in a subject to aid and assist 
 the enemy, and trading affords that aid in the 
 most effectual manner by enabling the merchants 
 
 (/!) See Grotius, lib. 3. c. cited by Dr. Phillimore in 
 4. s. 8. Bynkershock, lib. his work on Licenses, 5. 
 1 . c. 3. Vattel. lib. 3. c. 4. [See Appendix.]
 
 BELLIGERENTS AND THEIR ALLIES, &c. 
 
 of the enemy's country to support their govern- 
 rnent. Export duties are to be paid, when goods 
 are brought from an enemy's country, which is 
 furnishing the very sinews of war to the hostile 
 government; and such trading would facilitate 
 the means of conveying intelligence and carrying 
 on a traitorous correspondence with the enemy, 
 which would more than counterbalance any ad- 
 vantage likely to accrue to individuals from such 
 trading. These considerations apply with pe- 
 culiar force to maritime states, where the prin- 
 cipal object is to destroy the marine and com- 
 merce of the enemy, in order to force them to 
 peace (c). 
 
 It was observed by Sir Wm. Scott, in the 
 cause of the Hoop (d), " that by the law and con- 
 stitution of this country, the sovereign alone has 
 the power of declaring war and peace. He alone, 
 therefore, who has the power of entirely removing 
 the state of war, has the power of removing it in 
 part, by permitting, where he sees proper, that 
 commercial intercourse, which is a partial sus- 
 pension of the war. There may be occasions, 
 where such an intercourse may be highly expe- 
 dient. But it is not for individuals to determine 
 on the expediency of such occasions on their own 
 notions of commerce, and of commerce merely 
 
 (c) Potts v. Boll, 8 Term (//) 1 Rob. Rep. 190. 
 flop. 518. 

 
 
 ILLEGALITY OF COMMERCE 'BETWEEN 
 
 and possibly on grounds of private advantage, 
 not very reconcileable with the general interests 
 of the state. It is for the state alone on more en- 
 larged views of policy, and on consideration of 
 all circumstances that may be connected 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 sa- 
 cred, than that this intercourse cannot subsist on 
 any other footing, than that of the direct permis- 
 sion of the state. Who can be insensible to the 
 consequences that might follow, if every person 
 in a time of war had a right to carry on a com- 
 mercial intercourse with the enemy, and under 
 colour of that, had the means of carrying on any 
 other species of intercourse he might think fit ? 
 The inconvenience to the public might be ex- 
 treme : and where is the inconvenience on the 
 other side, that the merchant should be com- 
 pelled, in such a situation of the two countries, 
 to carry on his trade between them, if necessary, 
 under the eye and control of the government 
 charged with the care of the public safety (? ) ?" 
 And after enumerating all the cases which tend- 
 ed to establish this rule, Sir Wm. Scott observ- 
 ed, " The cases which I have produced prove, 
 that the rule has been rigidly enforced, where 
 
 (<0 Per Sir Wm. Scott, in the Hoop, 1 Rob. Hep. 199. 

 
 BELLIGERENTS AND THEIR ALLIES, &c. 
 
 acts of parliament have, on different occasions, 
 been made to relax the navigation law, and other 
 revenue acts ; where the government has autho- 
 rised, under the sanction of an act of parliament, 
 a homeward trade from the enemy's possessions, 
 but has not specifically protected an outward 
 trade to the same, though intimately connected 
 with that homeward trade, and almost necessary 
 to its existence ; that it has been enforced, where 
 strong claim, not merely of convenience, but al- 
 most of necessity, excused it on behalf of the 
 individuals ; that it has been enforced, where car- 
 goes have been laden before the war, but where 
 the parties have not used all possible diligence to 
 countermand the voyage after the first notice of 
 hostilities ; that it has been enforced, not only 
 against the subjects of the crown, but likewise 
 against those of its allies in the war, upon the 
 supposition that the ryle was founded on a strong 
 and universal principle, which allied states in war 
 had a right to notice, and apply mutually to the 
 subjects of each other." 
 
 The principal cases, which establish the illega- 
 lity of commerce between belligerents, are the 
 Hoop (/), and Potts v. Bell and others (g). In 
 the first case, Mr. Malcolm, of Glasgow, and 
 other Scotch merchants, had traded to Holland, 
 
 (/) 1 Rob. Rep. 196. ( ? ) 8 Term Rop, 516.
 
 ILLEGALITY OF COMMERCE BETWEEN 
 
 for articles necessary for the agriculture and ma- 
 nufactures of that part of the country, for which 
 they had several times before applied for and ob- 
 tained the King's license ; but after the passing 
 of certain acts of parliament, having, upon appli- 
 cation to the commissioners of the customs at 
 Glasgow, been informed (erroneously as it after- 
 wards appeared) that such licenses were no longer 
 necessary, they had omitted to obtain one on that 
 occasion, in consequence of which, the cargo 
 being taken was condemned as prize, on the 
 general ground, that all trading with an enemy, 
 without the King's license, was illegal and a cause 
 of confiscation. And in the case of Potts v. Bell, 
 a British subject shipped from the enemy's coun- 
 try, on board a neutral ship, goods which he had 
 purchased of the enemy during hostilities, and it 
 was decided, that an insurance upon such cargo 
 was illegal and void. These cases shew, that 
 there is no distinction between trading with an 
 enemy and with an enemy's country, and that 
 aid is considered as being equally given to the 
 enemy, whether goods be furnished immediately 
 by the enemy, or through the medium of a neu- 
 tral merchant, and that die danger of a traitorous 
 correspondence is the same. 
 
 This strict exclusion of trade between belli- 
 gerents has been carried so far as to prohibit a re- 
 mittance of supplies even to a British colony, 

 
 BELLIGERENTS AND THEIR ALLIES, &c. 
 
 during its temporary subjection to an enemy. 
 This extreme point is established by the case of 
 the Bella Guidita (h}. In that case, Grenada, a 
 British possession, had been seized by the French, 
 but by the public acts, both of France and of this 
 country, it appeared, that the island was not con- 
 sidered to have entirely changed its national cha- 
 racter ; the French having made ordinances with 
 respect to it, which they would not have made in 
 the case of an island strictly French, and the Bri- 
 tish legislature having even enacted, in the 20th 
 year of his present Majesty, that it being just 
 and expedient to give every relief to the propri- 
 etors of estates there, no goods of the produce of 
 Grenada, on board neutral vessels going to neu- 
 tral ports, should be liable to condemnation as 
 prize. Notwithstanding all these evidences, that 
 the character of Grenada was not to be considered 
 strictly hostile, notwithstanding even the express 
 permission to export the produce of that island, 
 a neutral vessel sent from England with goods to 
 be imported into Grenada was seized, as employ- 
 ing itself in an illicit intercourse with the enemy, 
 and condemned in the vice-admiralty court of 
 Barbadoes ; upon appeal to the privy council by 
 the proprietors of the cargo, the sentence was 
 
 (/) 1 Rob. Rep. 207. 
 
 '
 
 ILLEGALITY OF COMMERCE Ji 
 
 affirmed. The hardship of the rule, as applied to 
 this individual case, was strongly represented in 
 the printed papers of appeal, as will be seen by 
 the following extract (z) : 
 
 " In the late unfortunate war, say the appel- 
 lants, Great Britain saw many of its valuable 
 West India possessions fall into the hands of the 
 enemy, from the absolute inability to protect 
 them ; the proprietors being still British in prin- 
 ciple and affection, and many of them by actual 
 residence, and the hope being constantly enter- 
 tained, as well by the public as by individuals, 
 that those islands would soon revert to the domi- 
 nion of their natural sovereign, the parliament, in 
 the several cases of Nevis, Montserrat, St. Chris- 
 topher's, Grenada, and the Grenadines, expressly 
 permitted the produce of those plantations to be 
 conveyed to Europe free from British capture, 
 under limitations intended merely to prevent the 
 abuse of this permission, by the clandestine ex- 
 tension of it to the produce of foreign colonies. 
 In this provision, the principle appears to be clearly 
 recognised and established, that these islands, 
 though captured, were not to be considered as 
 French, for upon what other principle could Bri- 
 tish protection have been imparted to them ? and 
 if the British legislature did thus solemnly de- 
 clare its intention to protect and encourage the 
 
 (/) 1 Rob. Rep. 219, in notes.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 
 
 produce of those plantations during the remain- 
 der of the war, upon what grounds of legal or 
 political analogy, can it be contended, that it 
 was criminal to transmit those supplies, with- 
 out which those plantations could not possibly 
 be continued in a state of culture ? Does not 
 the expressed permission of exportation involve 
 a permission of all that species of necessary im- 
 portation without which the pretended permis- 
 sion of the other is merely nugatory and insult- 
 ing ? It remains for your Lordships to decide, 
 whether those could possibly be the intentions 
 of the British government, viz. That those isl- 
 ands should be condemned to absolute sterility 
 by a refusal of such necessary supplies, as the 
 French, from a partiality for their own islands, 
 found it convenient to withhold from them, that 
 the only practicable mode for the immediate 
 collection of British debts, secured upon those 
 plantations to an enormous amount, should be 
 prohibited and punished, and that Great Britain, 
 instead of receiving many important articles of 
 consumption and commerce from its ancient 
 markets, which it still continued to consider as 
 its own, should lie at the mercy of the ancient 
 markets of the enemy upon such terms, as a suc- 
 cessful monopoly would prescribe." 
 
 One of the most reasonable instances in which cartel 
 this rule has been enforced, appears to be in the * hlps< 
 o
 
 30 ILLEGALITY OF COMMERCE BETWEEN 
 
 cartel case of ships of truce, or cartel ships. As ob- 
 served by Sir William Scott, in the case of the 
 Venus (), " The conduct of ships of this de- 
 scription cannot be too narrowly watched. The 
 service on which they are sent is so highly im- 
 portant to the interests of humanity, that it is 
 peculiarly incumbent on all parties to take care 
 that it should be conducted in such a manner as 
 not to become a subject of jealousy and distrust 
 between the two nations." The Venus was a 
 British vessel, which had gone to Marseilles, un- 
 der cartel, for the exchange of prisoners. She 
 had there taken a cargo on board, and was 
 stranded and captured on a voyage to Port Ma- 
 hon. Sir William Scott condemned her, on a full 
 view of the circumstances of the case, adding 
 these further remarks, which are applicable to all 
 other cases of cartel ships trading with the ene- 
 my : " It is not a question of gain, but one on 
 which depends the recovery of the liberty of in- 
 dividuals, who may happen to have become pri- 
 soners of war ; it is therefore a species of navi- 
 gation which, on every consideration of huma- 
 nity 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 can- 
 not but be followed by consequences extremely 
 
 (/:) 4 Rob. Rep. 357.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 11 
 
 calamitous to individuals of both countries. Car- Cartel 
 tel ships are subject to a double obligation to both s 
 countries not to trade. To engage in trade may 
 be disadvantageous to the enemy, or to their own 
 country ; both are mutually engaged to permit 
 no trade to be carried 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 governments, that vessels engaged 
 in that service can be permitted to take in any 
 goods whatever." 
 
 This rule, which renders it illegal for a British illegal for 
 
 an ally to 
 
 subject to carry on commerce with an enemy, carry on 
 
 , , , j, f *!< commerce 
 
 also precludes an ally from a similar intercourse. w ; t h e ne- 
 In the case of the Nayade (/), Sir William Scott my ' 
 said, " that the case of the Enigheid was decided 
 on the ground that, during a conjoint war, no sub- 
 ject of one belligerent can trade with the enemy 
 without being liable to a forfeiture of his property 
 engaged in such trade, in the courts of the ally." 
 The principle of this rule is stated by Sir William 
 Scott, in the case of the Neptunus (m), who said, 
 " It is well known that a declaration of hostility 
 naturally carries with it an interdiction of all 
 commercial intercourse ; it leaves the belligerent 
 
 o 
 
 countries in a state that is inconsistent with the 
 relations of commerce. This is the natural result 
 of a state of war, and it is by no means necessary 
 
 (0 4 Rob. Rep. 51. O) 6 Rob. Rep. 405.
 
 12 ILLEGALITY OF COMMERCE BETWEEN 
 
 illegal for that there should be a special interdiction of com- 
 
 an ally to . . n , 
 
 merce to produce this efiect. At the same time 
 
 it has happened, since the world has grown more 
 commercial, that a practice has crept in, of ad- 
 mitting 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 na- 
 tions how much a single belligerent chooses to 
 weaken and dilute his own rights ; but it is other- 
 wise 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 uninterrupted trade with 
 the enemy, the consequence may be, that it will 
 supply that aid and comfort to the enemy, espe- 
 cially if it is an enemy depending very materially 
 on the resources of foreign commerce, which may 
 be very injurious to the prosecution of the com- 
 mon cause, and the interests of its ally. It should 
 seem, that it is not enough therefore to say, that 
 the one state has allowed this practice to its own 
 subjects, it should appear to be at least desirable 
 that it could be shewn, that either the practice is 
 of such a nature as can in no manner interfere 
 with the common operations, or that it has the 
 allowance of the confederate state."
 
 I 
 BELLIGERENTS AND THEIR ALLIES, &c. 13 
 
 The advantages which particular individuals Attempts 
 
 to elude 
 
 miarht derive from the violation of this rule, have the rule un- 
 available. 
 caused a number of attempts to elude it, but no 
 
 artifice has yet succeeded in discovering any 
 legal mode of trade between belligerents, with- 
 out the express permission of their governments. 
 In the case of the Jonge Pieter (), an attempt 
 was made to protect a cargo shipped in England, 
 and ultimately destined for an enemy's market, 
 by dividing the voyage, and directing the cargo 
 to be taken, in the first instance, to a neutral port, 
 from whence it might or might not be afterwards 
 carried forward to the place of its real destina- 
 tion, the enemy's market. But Sir William Scott 
 condemned it to the captors, making use of the 
 following expressions (0} : " Without the license 
 of government, no communication, direct or indi- 
 rect, can be carried on with the enemy. On the 
 policy of that law, this is not the place to observe ; 
 it is the law of England ; and if any consideration 
 of mercantile policy interfere with it, the duty of 
 the subject is to submit his case to that authority 
 of the country which can legalize such a trade look- 
 ing to all the considerations of political as well as 
 commercial expediency that are connected with 
 it. But an individual cannot do this ; he is not 
 to say, such a trade is convenient, and therefore 
 
 O) 4 Rob. Rep. 79. 
 
 (o) 4 Rob. S3, 84. See to the same effect, 3 Rob. 21.
 
 14 ILLEGALITY OF COMMERCE BETWEEN 
 
 Attempts legal ; neither can the court exercise such a dis- 
 therulewn. tinction. Where no rule of law exists, a sense or 
 available. ee jj n g o f general expediency, which is, in other 
 words, common sense, may fairly be applied ; but 
 where a rule of law interferes, these are conside- 
 rations to which the court is not at liberty to 
 advert. In all the cases that have occurred on this 
 question, and they are many, it has been held in- 
 dubitably clear, that a subject cannot trade with 
 the enemy without the special license of govern- 
 ment. The interposition 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 trade 
 is still liable to the same abuse, and to the same 
 political danger, whatever that may be." 
 
 Nor have the endeavours which have been 
 made to protect the cargo, by the intervention 
 of third persons, been more successful than the 
 interposition of a fictitious destination. Thus, 
 in the case of the Samuel (/>), it was decided, 
 that if an English subject employs a neutral to 
 purchase for him in the country of the enemy, 
 the neutral is in such case but the mere agent, 
 the goods must then be considered to pass im- 
 mediately from the enemy to the British subject, 
 and such a transaction would be illegal. But if a 
 
 O) 4 Rob. Rep. 284 Vid et Potts v. Bell, 8 Term 
 Hep. 548.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 15 
 
 neutral merchant has, bona fide, goods or vessels Attempts 
 
 . f-^ to elude 
 
 of his own, lying m an enemy's port, the Court the rule un- 
 
 . , ,. P , available. 
 
 admitted that he might dispose of them, even to a 
 British subject, as freely as if they were on the 
 seas, and the locality of the ship will not affect the 
 legality of the sale. However, we shall hereafter 
 see, that merchants, taking up their residence in 
 an enemy's country, are not to be considered neu- 
 trals at all, so that there is little possibility of col- 
 lusion by this resource. 
 
 A partnership has also been tried as a cloak for 
 this illegal intercourse, but with the same unvary- 
 ing ill success which has attended all other strata- 
 gems. For, in the case of the Franklin (q\ which 
 was a case of trade carried on with the enemy by 
 a firm, consisting partly of neutrals and partly of 
 British subjects, Sir William Scott said, " It has 
 been decided, that even an inactive, or sleeping 
 partner, as it is termed, cannot receive restitution 
 in a transaction in which he could not lawfully be 
 engaged as a sole trader." 
 
 There was formerly some doubt, whether the Decisions 
 
 1-1 i 1t 11 &t Law cm 
 
 rule, which we have seen to be thus rigidly en- this rule. 
 forced in the Admiralty Courts, was to prevail 
 to the same extent in the Courts of Common 
 Law. The cases of Gist and Mason (r), and 
 Bell and Gilson (s), had left the question in 
 
 (?) 6 Rob. Rep. 131. ( l Bos. & Pul. 245. 
 
 (r) 1 Term Rep. 84.
 
 16 ILLEGALITY OF COMMERCE BETWEEN 
 
 Decisions much perplexity, but the uniformity of decision 
 tins rule, between both tribunals was definitively establish- 
 ed by Lord Kenyon, in the case of Potts against 
 Bell, in error (/). His Lordship said, " That the 
 reasons urged, and the authorities cited, were so 
 many, so uniform, and so conclusive, to shew that 
 a British subject trading with an enemy was ille- 
 gal, that the question might be considered finally 
 at rest, and that it was needless to delay giving 
 judgment for the sake of pronouncing the opinion 
 of the Court in more formal terms; more espe- 
 cially, as they could do but little more than reca- 
 pitulate the judgment, with the long train of 
 authorities, already to be found in the clearest 
 terms in the printed report of the case of the Hoop, 
 published by Dr. Robinson." 
 
 Nor does it make any difference in the ille- 
 gality of the trade, that it be carried on by land 
 rather than by water. There is an authority in 
 Rolle's Abridgment, 173, shewing, that it was 
 anciently deemed illegal to trade with Scotland, 
 then in a general state of enmity with this king- 
 dom ; and in the case of the Hoop, Sir William 
 Scott, referring to this note in Rolle, declares, 
 " That the rule in no degree arises from the 
 transaction being upon the water, but from 
 principles of public policy, and of public law, 
 which are just as weighty on the one element as 
 
 (/) 8 Term Rep. 548.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 17 
 
 on the other, and of which the cases have hap- Decisions 
 
 . , . at la\v on 
 
 pened more frequently upon the water, merely in th -, s ru i e . 
 consequence of the insular situation of this coun- 
 try ; but when an enemy existed in the other 
 part of the island, the only instance in which it 
 could occur upon the land, it appears to have 
 been deemed equally criminal in the jurispru- 
 dence of this country." In the case of Gist v. 
 Mason. (w), Lord Mansfield, mentioned an in- 
 stance, where trading with an enemy was deem- 
 ed unlawful, from a note given him by Lord 
 Hardwicke, on a reference to all the Judges, in 
 the time of King William the Third, whether it 
 were a crime at Common Law to carry corn to 
 an enemy, who were of opinion that it was a mis- 
 demeanour." 
 
 But though the rule is thus general and impar- Exce t;ong 
 tial, it is not extended beyond its just and strict tothe rule - 
 construction. The case of the packet De Bil- 
 boa (x), was a claim made by an English house 
 for goods shipped on board a Spanish vessel, by 
 order of Spanish merchants, before hostilities 
 with Spain. Hostilities had been declared sub- 
 sequently to the shipment, and the vessel, on its 
 voyage from London to Corunna, had been seiz- 
 ed by a British captor. Sir William Scott ob- 
 served, " That the English merchant, who ship- 
 ped the goods in London, was not called upon to 
 
 00 1 Term Rep. 84.; see (x) 2 Rob. Rep. 133. 
 also Skinner, 638. 
 3
 
 J8 ILLEGALITY OF COMMERCE BETWEEN 
 
 Exceptions know that the injustice of the other party would 
 produce a war before the delivery of his goods ; 
 that the goods were to have been at the risk of 
 the shippers till delivery : and that the contract 
 was perfectly fair. He therefore decreed restitu- 
 tion to the shipper." 
 
 The case of the Abby [y] also shews, that the 
 Court of Admiralty has not been disposed to 
 force the rule beyond its true spirit. A ship sail- 
 ed on the llth September, 1795, for the island of 
 Demarara, then a Dutch colony. War being de- 
 clared, on the 16th of the same month, against 
 Holland, Demarara became of course a hostile 
 possession. The ship was captured off its coast, 
 in May, 1796, but the island having in the mean 
 time surrendered to the British forces, had be- 
 come a British colony. Sir William Scott held, 
 that as the port to which the ship was destined 
 did, at the time of her carrying the design into 
 effect, belong, not to an enemy, but to his Britan- 
 nic Majesty, the ship was not to be deemed in 
 fact an illegal trader. " I conceive," said he, 
 " that there must be an act of trading to the ene- 
 my's country, as well as the intention ; there must 
 be, if I may so speak, 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 mur- 
 der, and by accident does not kill an Englishman, 
 but an enemy, the moral guilt is the same, but 
 
 (y) 5 Rob. Rep. 251.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 1* 
 
 the legal effect is different ; the accident has turn- Exceptions 
 
 to the rule, 
 
 ed up m his favour, 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 an enemy, (which I have already observed 
 cannot be ascribed to the party at the commence- 
 ment of the voyage, when hostilities were not yet 
 declared), but at the time of carrying the design 
 into effect, the person is become not an enemy ; 
 the intention here wants the corpus delicti. No 
 case has been produced in which a mere intention 
 to trade with the enemy's country, contradicted 
 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 towards that country may be a sufficient 
 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." 
 
 From the same case, and from the case of the 
 Hoop (z), it is further to be collected, that where 
 cargoes have been laden before the war, they will 
 be restored to the claimants, if it be shewn that 
 on the first notice of hostilities all possible dili- 
 gence was employed to countermand the voyage, 
 or alter its destination, so as to avoid the culpa- 
 bility of an illegal trading with the enemy. But 
 
 O) 1 Rob. Hep.* 198.
 
 
 20 ILLEGALITY OF COMMERCE BETWEEN 
 
 Exceptions if proper exertions have not been made, and the 
 cargo has been suffered, whether wilfully or neg- 
 ligently, to sail from the enemy's country, no ex- 
 cuse deduced from individual convenience, or 
 from the alleged necessity of withdrawing British 
 property out of a territory which has become hos- 
 tile can, of strict right, secure the cargo without 
 a protection from government (a). It is true that 
 in the case of Bell and Gilson (6), it was held, that 
 if an Englishman, at the commencement of hos- 
 tilities, had goods in an enemy's country, he might 
 bring them away. But it seems, that the case of 
 Potts and Bell (c) has reversed that, as well as 
 most of the other doctrines laid down in Bell and 
 Gilson. This doctrine is established by a de- 
 cision quoted in the case of Potts and Bell by the 
 king's advocate. That authority he cited from 
 a MS. note of Sir Edward Simpson, of the case 
 of St. Philip, at the Cock Pit, wherein it was 
 established, that trading with an enemy is a sub- 
 ject of confiscation, and excludes any exception, 
 even on the ground that the goods had been pur- 
 chased before the war. This authority, with all 
 the others cited by the king's advocate in the 
 case of Potts and Bell, received the general sanc- 
 tion of Lord Kenyon in delivering the judgment 
 of the court. 
 
 (a) See cases cited in 8 (b) 1 Bos. and Pul. 345. 
 Term Rep. 548. (c) 8 Term Rep. 548.
 
 ! BELLIGERENTS AND THEIR ALLIES, &c. 21 
 
 At the same time, in cases of hardship, the Exceptions 
 
 to the rule. 
 
 courts have not shewn themselves unwilling to 
 make some relaxations. In the case of Dree Ge- 
 broeders (r/), Sir W. Scott observes, "That 
 pretences of withdrawing funds, are at all times 
 to be watched with considerable jealousy ; but, 
 when the transaction appears to have been con^ 
 ducted bona fide with that view, and to be direct- 
 ed only to the removal of property, which the 
 accidents of war may have lodged in the bellige- 
 rent country, cases of this description are entitled 
 to be treated with some indulgence." But in the 
 case of the Juffrow Catharina (<?), a case where 
 an indulgence was allowed by the court' for the 
 withdrawing of British property, Sir W. Scott 
 intimated, that his decree in that instance, was 
 not to be understood as in any degree relaxing the 
 general necessity of obtaining a license, wherever 
 property is to be withdrawn from the country of 
 the enemy. Dr. Robinson (/*) has subjoined to 
 the report of the case of the Ocean the following 
 useful note : " The situation of British subjects 
 wishing to remove from the country of the ene- 
 my on the event of a war, but prevented by the 
 sudden irruption of hostilities from taking mea- 
 sures for removing sufficiently early to enable 
 them to obtain restitution, forms not unfrequently 
 a case of considerable hardship in the Prize Court. 
 
 (d) 4 Rob. Rep. 234. (/) 5 Rob. Rep. 91. 
 
 (0 5 Rob. Rep. 141.
 
 22 ILLEGALITY OF COMMERCE BETWEEN 
 
 Exceptions In such cases, it would be adviseable for persons 
 
 to the rule. . . , . 
 
 so situated, on their actual removal, to make ap- 
 plication to government for a special pass, rather 
 than to hazard valuable property to the effect of 
 a mere previous intention to remove, dubious as 
 that intention may frequently appear under the 
 circumstances that prevent it from being carried 
 into execution. In the case of the Juffrovv Ca- 
 tharina (g), a license had been granted to im- 
 port certain raw materials from France, and under 
 this license an attempt was made to protect a 
 quantity of lace. According to the general prin- 
 ciple laid down in the numerous cases that have 
 been considered, there seemed reason to regard 
 this lace as subject to condemnation. But Sir 
 William Scott, in consideration of particular cir- 
 cumstances, was of opinion that it should be re- 
 stored to the claimant. This decision forms a 
 remarkable exception to the ordinary rules by 
 which licenses are construed, and constitutes also 
 an exception to the spirit of that leading prin- 
 ciple, by which all commerce with the enemy on 
 private account is so rigidly forbidden, without 
 respect to the hardship of particular cases. " This 
 lace," said Sir William Scott, " was shipped 
 under an order given before hostilities, and it is 
 argued on the part of the captors, that lace is an 
 article which cannot be included under the terms, 
 
 () 5 Rob. Rep. 141.
 
 BELLIGERENTS AND THEIR ALLIES, &c. 
 
 raw materials, that no protection can be derived Exceptions 
 
 . . to the rule. 
 
 from the license, and that the original order 
 ought to have been countermanded at the break- 
 ing out of the war. Certainly, if a license is to 
 be deemed necessary, it will be difficult to say, 
 that the particular license alluded to in the pre- 
 sent case can avail to the protection of this ship- 
 ment. But there are some considerations, ap- 
 plying to the manner in which this shipment had 
 originated, which may entitle it to more indul- 
 gence. It appears, that goods were sent out from 
 this country to Flanders, and that an order was 
 given at the same time for a return of certain 
 other foreign articles, and, among the rest, for 
 this lace. It seems, that when an order is given 
 for lace, it is put into a state of preparation, and 
 that more time is required to countermand an 
 order for this article, than for others on which 
 less labour and preparation is required. It is a 
 work of long and slow process, in which advan- 
 ces must be made to the manufacturers ; and 
 although the demand on that account against the 
 merchant would be suspended during hostilities, 
 it might be difficult to relieve the British mer- 
 chant from the demand, when the foreign cor- 
 respondent was rehabilitated and restored to his 
 right of action by the return of peace. It is to 
 be remembered also, that during the present hos- 
 tilities, there has been a more than ordinary diffi- 
 culty in carrying on any correspondence with the
 
 24 ILLEGALITY OF COMMERCE BETWEEN 
 
 Exceptions enemy's countries : a circumstance for which the 
 
 to the rule. , . , , 
 
 court has, in other cases, thought it not unreason- 
 able to make some allowance. It does noi appear 
 that the party had an opportunity of counter- 
 manding ; and although it would have been a 
 more satisfactory and a more guarded proceeding 
 on the part of the British merchant, to have ap- 
 plied for a license for the special importation of 
 this article under the circumstances of his case, 
 there are sufficient considerations to induce the 
 court to think favourably of this claim. There 
 seems to have been no intention to dissemble ; it 
 was owing to the erroneous conception of the 
 enemy's shipper that this article was put on board 
 to take the benefit of a license that had been pro- 
 cured for other articles in this vessel. It is, there- 
 fore, in this point of view, distinguishable from 
 Mr. Hankey's case, in which the shipment was 
 made here, where the party had still the domi- 
 nion over the goods, and the power to stop them 
 from proceeding. Here, the dominion was in 
 the enemy's shipper, under a discretion reposed 
 in him by orders before the war, and which the 
 importer is not shewn to have had any opportu- 
 nity of countermanding. I wish it to be under- 
 stood, that by this decree, the necessity of obtain- 
 ing a license is not in any degree relaxed. On 
 the contrary, this court cannot sufficiently incul- 
 cate the duty of applying, in all cases, for the
 
 BELLIGERENTS AND THEIR ALLIES, &c. 25 
 
 protection of a license, where property is to be Exceptions 
 
 , i f. _./ /./ -. to the rule. 
 
 withdrawn from the country oj the enemy ; it is, 
 indeed, the only safe way in which parties can 
 proceed. Without meaning in the least to weaken 
 the force of the obligation, I think the claim, 
 under the particular circumstances of this case, is 
 justly entitled to the favourable considerations 
 which I have thrown out, and I shall direct the 
 property to be restored." An attempt was made 
 by the counsel in the case of De Tastet v. Bar- 
 ing (A), to establish, that no bill drawn from an 
 hostile country upon this, could legally be passed 
 here ; but, upon this point, the court do not ap- 
 pear to have given any opinion. In several re- 
 cent instances of bills drawn by British prisoners 
 in France upon this country, holders, with full no- 
 tice of the circumstances, have been permitted at 
 Nisi Prius to recover, on the ground that other- 
 wise prisoners at war might be deprived of the 
 the means of comfortable subsistence. 
 
 In the case of the Madonna Delle Gracie (z)i 
 some degree of relaxation was undoubtedly ad- 
 mitted, but it was admitted under very peculiar 
 circumstances, which, though certainly infrac- 
 tious of the letter, yet by no means contravened 
 the spirit of the rule. The goods in question, 
 which were wines purchased solely for the supply 
 
 (/O H East. 268, 2 (0 4 Rob. 195. 
 
 Campb. 86. 
 
 4
 
 26 ILLEGALITY OF COMMERCE BETWEEN 
 
 Exceptions of the British fleet before hostilities with Spain, 
 e ' were secret!} 7 deposited in that country after the 
 breaking out of the war, and then removed to 
 Leghorn, with an addition of some other newly 
 purchased wines mixed in order to colour the 
 previous stock, which had become too pale to be 
 saleable by itself. The mixture of the new wine, 
 which had been purchased subsequently to hosti- 
 lities, was considered by Sir William Scott so in- 
 dispensably necessary to the disposal of the old 
 cargo, as not to affect the legality of the transac- 
 tion. His judgment then proceeds in the follow- 
 ing, words : " It is said that Mr. Gregory, the 
 claimant in this case, might have obtained a 
 license ; I certainly do not mean to weaken the 
 obligation to obtain licenses for every sort of 
 communication with the enemy's country, in all 
 cases where the measure is practicable ; but, I 
 think, I see great difficulties that might have oc- 
 curred in applying for a license, or in using it in 
 the present case. How could Mr. Gregory de- 
 scribe his wines, as to the place from whence they 
 would be exported ? They were deposited secret- 
 ly, and could only be exported by particular op- 
 portunities. On the other hand, can I entertain a 
 doubt that government would have been very de- 
 sirous to protect him in the recovery of this pro- 
 perty, purchased under a contract with them ? 
 Or, on the ground of public utility, is it too much
 
 BELLIGERENTS AND THEIR ALLIES, &c. 27 
 
 to hold out this encouragement to persons engag- Exceptions 
 ed in contracts of this sort, that they shall obtain tolherule - 
 every facility in disposing of such stores? It 
 would be a considerable discouragement to per- 
 sons in such situations, at a distance from home, 
 and employed in the public service, if they were 
 to know, that 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 virtually amounting to a license, inas- 
 much as if a license had been applied for, it must 
 have been granted."
 
 CHAPTER II. 
 
 OF THE RIGHT OF A BELLIGERENT TO INTERFERE WITH THE 
 COMMERCE OF ANOTHER BELLIGERENT AMONG HER OWN 
 PEOPLE OR THE REST OF THE WORLD, AND WHAT CON- 
 STITUTES AN HOSTILE CHARACTER AS TO COMMERCIAL 
 PURPOSES. 
 
 IN the preceding chapter we considered the law, 
 which prohibits commercial intercourse of bel- 
 ligerent nations with each other ; we will now ex- 
 amine the right of either belligerent to interfere in 
 the commercial intercourse which the enemy may 
 carry on, either among her own people or with the 
 rest of the world. It is here then necessary to as- 
 certain what is the strict definition of war, and who 
 are to be deemed the alien enemies of a belliger- 
 ent nation. 
 
 Warde- War is that conflict between nations, which 
 cannot be- undertaken, or carried on, except by 
 the authority of the sovereign. But the universal 
 law of nations does not acknowledge any general 
 obligation of making a declaration of war to the
 
 WHO IS AN ALIEN ENEMY, &c. 29 
 
 1 1 
 enemy, previous to the commencement of hosti- war de. 
 
 lities. Formerly, such a declaration was consi- 
 dered essential ; but since the beginning of the 
 17th century, it has been the practice for nations 
 to content themselves with publishing a declara- 
 tion of war, through their own dominions, ex- 
 plaining their motives to other powers in writing. 
 In the case of the Nayade (a), Sir Wm. Scott, 
 with reference to the situation in which Portugal 
 stood as to France, during the year 1301, said, 
 " The relation which Portugal has borne towards 
 France at different periods has been extremely 
 ambiguous ; at first, there was a wish on the 
 part of Portugal not to consider herself as being 
 at war with France, and, if a submissive conduct, 
 and a disposition not to resent injuries, could 
 have afforded protection against the violence of 
 France, she might have escaped. But it is equal- 
 ly notorious, that all these concessions were made 
 without success, and proved utterly inefficacious 
 to prevent Portugal from being implicated in a 
 war with France. In cases of this kind, it is bv 
 no means necessary, that both countries should 
 declare war. Whatever might be the prostration 
 and submissive demeanour on one side, if France 
 were unwilling to accept that submission, and 
 persisted in attacking Portugal, it was sufficient, 
 
 () Rob. Rep. 252,
 
 30 WHO IS AN ALIEN ENEMY, AND WHAT 
 
 War de- and it cannot be doubted by any body, who has 
 attended to the common state of public affairs, 
 that Portugal was considered as engaged in war 
 with France." 
 
 In order, however, to legalize a war, it must 
 not only be commenced or declared by one of 
 the contesting states, but such commencement 
 or declaration must be made by that particular 
 branch of the state which is invested by the con- 
 stitution with this important prerogative. " If," 
 says Brooke in his Abridgement (6), " all the 
 people of England would make war with the King 
 of Denmark, and the King, (that is, our own 
 King,) will not consent to it, this is not war, but 
 when the peace is broken by ambassadors the 
 league is broken." 
 
 An alien enemy is a person under the allegi- 
 
 Anen ene- 
 
 my defin- ance Q f t jj e state at war w i t h US (c). A distillC- 
 
 ed. 
 
 tion has been taken between a permanent and a 
 temporary alien enemy. A man is said to be per- 
 manently an alien enemy, when he owes a perma- 
 nent allegiance to the state at war with us, his hos- 
 tility being as permanent as his allegiance, begin- 
 ning at the commencement of his country's quar- 
 rel, and concluding only with the termination of 
 the dispute ; but he, who does not owe a perma- 
 
 0)Tit. Denizen, pi. 20. Sparenburgh v. Bannatyne, I 
 (.).Per Eyre, Ch. J. in Bos. and Pul. 163.
 
 CONSTITUTES AN HOSTILE CHARACTER. 
 
 nent allegiance to the state at war with us, though Alien ene- 
 he be himself engaged in actual combat against our e d. 
 forces, is not to be deemed a permanent enemy, 
 for his hostility endures no longer than his own in- 
 dividual interest or convenience may continue it. 
 This distinction between permanent and tempora- 
 ry enemies, as applied to the case of a neutral, was 
 taken by Eyre, Ch. J. in the case of Sparenburgh 
 and Bannatyne (d). In that case his Lordship said, 
 " A neutral can be an alien enemy only with re- 
 spect to what he is doing under a local or tempo- 
 rary allegiance to a power at war with us ; when 
 the allegiance determines the character determines. 
 He can have no fixed character of alien enemy who 
 owes no fixed allegiance to our enemy, and has 
 ceased to be in hostility against us, it being only 
 in respect of his being in a state of actual hostili- 
 ty, that he was even for a time an enemy at all. 
 
 But besides those persons who are alien ene- O f an hos 
 mies stricUy so called, as actually bearing arms J 
 against one of the belligerent nations, or beine as to c 
 
 . o mercial 
 
 liable to be called upon to bear arms against herP ur P ses 
 by the obligation of their allegiance, we have to 
 consider a hostile relation of a much more com- 
 plicated nature, the relation that exists between a 
 belligerent nation, and that class of persons, who, 
 though they be not, during a whole war, nor even 
 
 (d) 1 Bos. and Pul. 163.
 
 32 WHAT CONSTITUTES AN HOSTILE 
 
 of an iios- at a particular period of it, enemies in the strict 
 ter merely sense of the word, absolutely and in all respects, 
 merciai m vet must be deemed alien enemies to certain in- 
 urposes. tents an( j purposes of a commercial nature, so that 
 their property may, for the most part, be taken as 
 prize, according to the laws of war between ad- 
 verse belligerents. Therefore, when we speak of 
 an hostile character, it is to be understood to 
 imply, not hostility to all intents and purposes, but 
 only that degree of hostility which attaches to par- 
 ticular property, and which has been held to au- 
 thorize the seizure of it. 
 
 Hostile The hostile character, thus understood, may be 
 b^havi" ac qui re d in several ways. It cannot be doubted, 
 possessions ^d j r \y m> Scott in his judgment on the Vrow 
 
 OP residing- 
 
 in the ter- Anna Catharina (e], that there are transactions so 
 
 ritory of 
 
 the enemy, radically and fundamentally national, as to impress 
 the national character independent of peace or war. 
 The produce of a person's own plantation in the 
 colony of the enemy, though shipped in time of 
 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 is to be taken 
 as part of that country in that particular transac- 
 tion, independent of his own personal residence 
 
 (<-) 5 Rob. Rep. 161.
 
 CHARACTER TO COMMERCIAL PURPOSES. 33 
 
 and occupation." So too in the case of the Phoe- Hostile 
 nix (y), Sir Win. Scott delivered the following by having 
 
 principle: " Certainly nothing can be more de- 
 cided and fixed, as the principle of this court, and Jj 
 of the supreme court, upon every solemn argu- 
 ment there, that the possession of the soil, does 
 impress upon the owner the character of the coun- 
 try, as far as the produce of that plantation is con- 
 cerned in its transportation to any other country t 
 whatever the local residence of the owner may be. 
 This has been so repeatedly decided both in this, 
 and in the superior court, 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 cer- 
 tainly, 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 tracts 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 vengence upon 
 enemies, is a matter which it is natural to regret, 
 but impossible to avoid. The administration of 
 
 (/) 5 Rob. Rep. 21.
 
 
 34 WHAT CONSTITUTES AN HOSTILE 
 
 Hostile public rules admits of no private exceptions, and 
 by having he \vho clings to the profits of a hostile connec- 
 
 - ilon must be content to bear its losses also. 
 
 - Secondly, it will be found, that a settlement in a 
 ryofthe hostile jurisdiction, whether it be by residence, 
 
 enemy. J * 
 
 or merely by the maintenance of a commercial 
 establishment, impresses on the person, so settling, 
 the character of the enemies among whom he set- 
 tles, in regard to such of his commercial transac- 
 tions as are connected with that settlement." The 
 ship President (g) was taken on a voyage from 
 the Cape of Good Hope, then in possession of the 
 Dutch, at war with us, to Europe, and claimed 
 for Mr. J. Elmslie, as a subject of America. It 
 appeared, that he had been a British-born subject, 
 who had gone to the Cape of Good Hope during 
 the last war, and had been employed as American 
 Consul at that place. Sir Wm. Scott said, " The 
 court must, I think, surrender every principle oil 
 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 established 
 house of trade, and as a merchant of that place, 
 and must be taken as a subject of the enemy's 
 country. 
 
 In the case too of the Indian Chief (h), Sir 
 
 (g) 5 Rob. Rep. 277. (h) 3 Rob. Rep. 12.
 
 CHARACTER TO COMMERCIAL PURPOSES. 35 
 
 Wm. Scott said, " No position is more esta- Hostile 
 blished than this, that if a person goes into 
 
 another country, and ensues in trade and resides posses- 
 sions or re- 
 there, he is bv the law of nations to be considered sidinp in 
 
 the tcrri- 
 
 as a merchant of that country." In the case of toryof the 
 
 G11CTTIV 
 
 M'Connel and Hector (i), Lord Alvanley said, 
 11 That while an Englishman resides in a hostile 
 country, he is a subject of that country." And 
 upon the same principle in the case of De Lune- 
 ville v. Phillips (A 1 ), the court, upon discovering 
 that the plaintiff was resident in an enemy's 
 country, refused to afford her relief. 
 
 In the earlier part of the last war, a very gene- 
 ral misapprehension prevailed among the Ameri- 
 can merchants, who conceived themselves enti- 
 tled to retain the entire privilege of the American 
 character, notwithstanding a residence and occu- 
 pation in any other country. This misapprehen- 
 sion was, however, corrected by a great number 
 of decisions of our courts. In the case of the 
 Anna Catharina (/), a gentleman had been at first 
 described as an American merchant; but upon 
 further proof being required by the court, he was 
 described as a person having a house of trade 
 and actually living at Curacoa, then a Dutch 
 possession. Under this description, Sir Wm. 
 
 (i) 3 Bos. and Pul. 113. (/) 4 Rob. Rep. 107. 
 (t) 2 New Rep. 97.
 
 36 WHAT CONSTITUTES AN HOSTILE 
 
 Hostile Scott said, " He is undoubtedly to be considered 
 
 character 
 
 by having as an enemy at the commencement of this trans- 
 
 - action, Holland being at that period of time the 
 th d e i "fr!- l i. enemy of this country." 
 
 Upon the same principle, a foreigner lawfully 
 residing within the British dominions has been 
 held to be for various commercial purposes a 
 British subject. In the case of the Indian 
 Chief (;w), a cargo, which belonged to Mr. Mil- 
 lar, an American Consul, resident at Calcutta, 
 and which had been taken in trade with the ene- 
 my, was condemned as the property of a British 
 merchant engaged in illegal commerce. "It is 
 said to be hard," observed Sir Wm. Scott, " that 
 Mr. Millar should incur the disabilities of a 
 British subject, at the same time that he receives 
 no advantage from that character ; but I cannot 
 accede to that representation, because he is in the 
 actual receipt of the benefit of protection for his 
 person and commerce from British arms and 
 British laws ; under an existing British adminis- 
 tration in the country, he may be subject to some 
 limitations of commerce incident to such esta- 
 blishments, which would not occur in Europe, 
 but he must take his situation with all its duties, 
 and amongst those duties, the duty of not trading 
 with the enemies of this country." 
 
 (w) 3 Rob. Rep. 22.
 
 CHARACTER TO COMMERCIAL PURPOSES: 3? 
 
 This general rule, that a person's settlement Hostile 
 will impress him with the national character of the by having 
 place where he is settled, is not confined to the ^801 
 instance of persons settling among enemies ; it is 
 
 801- re- 
 
 admitted with sreat impartiality in all cases, and r y flhe 
 
 ' enemy. 
 
 therefore, Lord Alvanley, in his judgment in the 
 case of M'Connel and Hector (w), gave it as his 
 own determination, and quoted as a further au- 
 thority, the case of Marryatt v. Wilson (o), that 
 an Englishman is entitled to all the privileges of 
 a neutral country, while resident in a neutral coun- 
 try. So also, Sir Wm. Scott, in the case of the 
 Emanuel (/>), stated it as a general rule, that a 
 person living bona fide 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. And the same doctrine 
 seems to have been decided, even beyond the re- 
 servation of native allegiance in the case of Dan- 
 vers (q\ which was determined before the Lords. 
 In this case a British-born subject, resident at the 
 English factory at Lisbon, was allowed the bene- 
 fit of a Portuguese character, so far as to render 
 his trade with Holland, then at war with England 
 but not with Portugal, not impeachable as an 
 
 () 3 Bos. and Pul. 114. (p~) 1 Rob. Rep. 296. 
 
 (o) 1 Bos. and Pul. 43 (ry) 4 Rob, Rep. 255. 
 8 Term Rep. 31.
 
 WHAT CONSTITUTES AN HOSTILE 
 Hostile illegal trade. It is true, that in the case of De 
 Metton v - De Mello (r), Lord Ellenborough does 
 . not notice these decisions; but the observations 
 . f his Lordshi P in that casc > particularly when 
 r> of the coupled with the concluding part of his j udgment, 
 which advised that the plaintiff should go back to 
 the Court of Admiralty, and have the matter set 
 right there, appear to amount to nothing like a 
 denial of the above doctrine, 
 what con- We come now to the question what consti- 
 
 stitutes a -, 
 
 residence. tutes residence ; a question which at first sight 
 almost seems to answer itself, but upon which 
 the subtleties of foreign merchants have given 
 birth to various disputes, and to several direct de- 
 cisions. And yet there has been no disposition 
 in the Courts of Admiralty to press the rule with 
 any thing like rigour of construction. Sir Wm. 
 Scott declared, in the case of the Bernon (*), 
 " that he did not mean to lay down so harsh a 
 rule, as that two voyages from France should 
 make a man a Frenchman ; but the claimant ap- 
 pearing to have had a continued residence there, 
 during the interval of his voyages, and to have 
 had that residence also with an intention of re- 
 maining, the property was condemned." For, 
 ' from the whole of that case, it appears that the 
 intention of remaining the animus manendi, is 
 the chief point to be considered by the court, in 
 
 (r) 2 East. 234. 2 Camp. 420. 0) 1 Rob. Rep. 102.
 
 CHARACTER TO COMMERCIAL PURPOSES. 39 
 
 determining what shall be deemed a residence, what con- 
 
 s^itutcs ti 
 
 " Whenever it appears," said Sir William Scott, residence. 
 " that the purchaser was in France, he must ex- 
 plain the circumstances of his residence there : 
 the presumption arising from his residence is, 
 that he is there animo manendi, it lies on him to 
 explain it." The case of the Diana (t) affords 
 us a further elucidation. There Sir William 
 Scott decided, that " mere recency of establish- 
 ment would not avail, if the intention of making 
 a permanent residence there was fully fixed upon 
 the party." He cited the case of Mr. Whitehill, 
 as fully establishing this point : " Mr. Whitehill 
 had arrived at St. Eustatius, then a hostile pos- 
 session, only a day or two before Admiral Rod- 
 ney and the British forces made their appearance, 
 but it was proved that he had gone with an in- 
 tention of establishing himself there, and his pro- 
 perty was condemned ; mere recency, therefore, 
 would not be sufficient." 
 
 But when there is not really an animus ma- 
 nendi, an intention to continue the abode, then 
 the abode is not considered as a residence to 
 any hostile purpose ; the case of the Ocean (u} 
 was the case of a claim given on behalf of 
 
 Mr. F , a British-born subject, who had been 
 
 settled as a merchant in Flushing, but who, on 
 the appearance of approaching hostilities, had 
 
 (t) 5 Rob. Rep. 60. (u) 5 Rob. Rep. 90.
 
 
 40 WHAT CONSTITUTES AN HOSTILE 
 
 what con- taken means to move himself, and return to Ene- 
 
 stitutes a 
 
 residence, land. The affidavit of the claimant stated, that, 
 in July 1803, he actually effected his escape, and 
 returned to this country ; that he had actually 
 dissolved his partnership ; and that he had con- 
 tinued to reside in Holland after the war, only 
 under the detention so unwarrantably applied to 
 all Englishmen resident in the country of the 
 enemy at the breaking out of hostilities. " Un- 
 der these circumstances," said Sir William Scott, 
 " it would, I think, be going farther than the 
 principle of law requires, to conclude this person, 
 by his former occupation, and by his constrained 
 residence in France, so as not to admit him to 
 have taken himself out of the effect of superve- 
 ning hostilities, by the means which he had used 
 for his removal." The same point is inciden- 
 tally but decisively laid down by Lord Ellenbo- 
 rough, in the cases of Bromley v. Heseltine (x), 
 and O 'Mealy v. Wilson (y}. 
 
 On the other hand, it must be observed, as 
 Sir William Scott expressed it in the case of La 
 Virginie (z), that the native character easily re- 
 verts, and that it requires fewer circumstances to 
 constitute domicile in the case of a native sub- 
 ject, than to impress the national character on 
 one who is originally of another country. The 
 circumstances which drew this remark from the 
 
 (r) 1 Campb. 76. (z) 5 Rob. Rep. 98. 
 
 (y) 1 Campb. 482.
 
 CHARACTER TO COMMERCIAL PURPOSES. 41 
 
 court, are simply these, that Mr. Lapiarre, by what con- 
 
 ... , . T, stitutes a 
 
 birth a r renchman, was present in a r rencn co- residence. 
 lony, where he shipped goods for France. The 
 goods were captured, and he put in his claim as 
 a merchant of America, where he had resided be- 
 fore his coming to the French colony. The 
 court allowed, that if he had made the shipment for 
 America, his asserted place of abode, it might 
 have been a circumstance to be set in opposition 
 to his actual presence in the French colony, and 
 might afford a presumption that he was in St. 
 Domingo only for temporary purposes ; but the 
 shipment being made to France from a French 
 colony, and by a Frenchman, the presumption 
 was, that he had returned to his native character 
 of a French merchant. 
 
 The voluntary intention of remaining, there- 
 fore, being the material question in determining 
 what is to be deemed a commercial residence, we 
 shall find, that when the intention exists volunta- 
 rily and without force or restraint, the commer- 
 cial residence is usually held to be complete, 
 whether it be a literal and actual, or only an impli- 
 ed residence. In the case of the Indian Chief (a), 
 it was objected against the claim of the captors, 
 that the residence of an American in Calcutta was 
 not a residence among British belligerents ; that 
 the Mogul having the imperial rights of Bengal, 
 
 () 3 Rob. Rep. 22.
 
 42 WHAT CONSTITUTES AN HOSTILE 
 
 what coir, tlie King of Great Britain does not hold the Bri- 
 
 stitutcs a . . . v T-' T i 
 
 residence, tish possessions in the JLast Indies in the right oi 
 the sovereignty ; and that, therefore, the character 
 of British merchants does not necessarily attach on 
 foreigners locally resident there. This objection 
 was thus overruled by Sir William Scott : " Tak- 
 ing it, that such a paramount sovereignty on the 
 part of the Mogul princes really and solidly ex- 
 ists, and that Great Britain cannot be deemed 
 to possess a sovereign right there, still it is to be 
 remembered, that wherever even a mere factory 
 is founded in the eastern parts of the world, 
 European persons, trading under the shelter 
 and protection of those establishments, are con- 
 ceived 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 na- 
 tions, applying peculiarly to those countries, and 
 is different from what prevails ordinarily in Eu- 
 rope and the western parts of the world, in which 
 men take their present national character from the 
 general character of the country in which they 
 are resident ; and this distinction arises from the 
 nature and habit of the countries. In the western 
 parts of the world, alien merchants mix in the 
 society of the natives, access and intermixture 
 are permitted, and they become incorporated to 
 almost the full extent. But in the east t from the 
 oldest times, an immiscible character has been 
 kept up, foreigners are not admitted into the
 
 CHARACTER TO COMMERCIAL PURPOSES. 43 
 
 general body and mass of the society of the na- what con- 
 
 i stitutes a 
 
 tion. They continue strangers and sojourners, residence, 
 as all their fathers were ; not acquiring any na- 
 tional character under the general sovereignty of 
 the country, and not trading under any recog- 
 nised authority of their own original country, they 
 have been held to derive their present character 
 from that of the association or factory under 
 whose protection they live and carry on their 
 trade. With respect to establishments in Tur- 
 key, it was declared, in the case of Mr. Free- 
 meaux, 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. Freemeaux being taken 
 after the order of reprisals against Holland, were 
 condemned as Dutch property. So in China, and 
 I may say generally throughout the East, persons 
 admitted into a factory, are not known in their 
 own peculiar national character, and not being 
 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 fortunately quitted before
 
 44 WHAT CONSTITUTES AN HOSTILE 
 
 What con- the time of capture, he would have been liable 
 residence* to be considered as a Frenchman. I am, how- 
 ever, inclined to think, that these considerations 
 are unnecessary, because, though the sovereignty 
 of the Mogul is occasionally brought forward for 
 purposes of policy, k hardly exists otherwise 
 than as phantom. It is not applied in any way 
 for the actual regulation of our establishments. 
 This country exercises the power of declaring 
 war and peace, which is among the strongest 
 jnarks of actual sovereignty, and if the high, or 
 as I may almost say, this empyrean sovereignty 
 of the Mogul is sometimes brought down from 
 the clouds as it were, for purposes of policy, it 
 by no means interferes with that actual autho- 
 rity which this country and the East India com- 
 pany, a creature of this country, exercises there 
 with full effect. The law of treason, I appre- 
 hend, would apply to Europeans, living there, in 
 full force ; it is nothing to say, that some parti- 
 cular 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 regula- 
 tions, there is amongst ourselves, in this country, a 
 particular sect, the Jews, that, in matters of legi- 
 timacy, and on other important subjects, are govern- 
 ed by their own particular regulations, and not by
 
 CHARACTER TO COMMERCIAL PURPOSES. 45 
 
 all the municipal laws of this country, some of what con- 
 
 " . ., stitutes a 
 
 M'hich are totally inapplicable to them. It is besides residence. 
 observable, that our own acts of parliament, and 
 o\ir public treaties, have been by no means scru- 
 pulous, in later times, in describing the country 
 in question, as the territory of Great Britain. In 
 the American treaty, the particular expression 
 occurs, that the citizens of America shall be ad- 
 mitted, and hospitably received in all the sea-ports 
 and harbours of the British territories in India. 
 The late case in the Court of King's Bench, Wil- 
 son v. Marayat (), arising upon the interpreta- 
 tion of that treaty, and in which it appears to have 
 been the inclination of that court to hold our pos- 
 sessions in India to come within the operation of 
 the Navigation Acts, gave occasion to an act of 
 parliament, in which the terni British territory is 
 borrowed from the treaty. There is likewise a 
 general act, of 37 Geo. 3, ch. 117, for the allow- 
 ance of neutral traders in India, which expressly 
 uses the same term, reciting that, whereas it is 
 expedient, that the ships and vessels of countries 
 and states, in amity with his Majesty, should be 
 allowed to import goods and commodities into, 
 and export the same from, the British territories 
 in India. It is, besides, an obvious question, To 
 whom are the credentials of this gentleman, as 
 consul, addressed ? certainly to the British go- 
 (6) 8 Term Rep. 31, and 1 Bos. and Pul. 430.
 
 46 WHAT CONSTITUTES AN HOSTILE 
 
 What con- vcnimcnt, to the East India company, and not to 
 residence, the Mogul. What is the condition of a foreign 
 merchant residing there ? From attention to the 
 argument of a gentleman, whose researches have 
 been particularly turned to subjects connected 
 with the East, I have made inquiry of a person 
 of the greatest authority on such a subject, who 
 is just returned from the highest judicial situa- 
 tion in that country, and the result is, as on gene, 
 ral principles I should certainly have expected, 
 that a foreign merchant, resident there, is just in 
 the same situation with a British merchant, sub- 
 ject to the same obligations, bound by the same 
 duties, and amenable to the same common autho- 
 rity of British tribunals. It being insinuated in 
 the same case, as a further objection, that Mr. 
 Miller was not a general merchant of Calcutta, 
 Sir Wm. Scott shortly observed upon it in these 
 words (c) : " Whether he was a general mer- 
 chant or not is totally immaterial, for if this was 
 even his first adventure, still, in this transaction, 
 he must be taken as a merchant, and can be con- 
 sidered in no other character. 
 
 The case of the Junge Ruiter (d) establishes, 
 that when a person has fixed his residence, with 
 a voluntary intention of remaining, his national 
 character, communicated by that residence, will 
 not be divested by his periodical absence on ac- 
 count of professional avocations. 
 
 (c) 3 Rob. Rep. 27, 8- (d) 1 Acton, 1 16.
 
 CHARACTER TO COMMERCIAL PURPOSES. 47 
 
 Nor does it appear to be invariably necessary, Residence 
 
 . . . . of an agent 
 
 that in order to impress a man with a national 
 character, his residence must be personal. In the 
 case of the Anna Catharina (<?)> a contract had 
 been made with a hostile government ; a contract 
 which, from the peculiar privileges annexed to 
 it, not only placed the contractors, being neutrals, 
 upon the footing of Spanish subjects, but per- 
 haps might be considered as going further still 
 and giving them privileges to which a Spanish 
 merchant, merely as a native subject of Spain, 
 would probably not have been admitted. For the 
 purpose of executing this contract, the merchants 
 engaged in it thought fit not indeed to reside 
 themselves in the hostile territory, but to com- 
 mission an agent, who did reside there. On this 
 residence by agent Sir William Scott thus ani- 
 madverted in his judgment : " It is not indeed 
 held in general cases, that a neutral merchant, 
 trading in an ordinary manner (f] to the country 
 of a belligerent, does contract the character of a 
 person domiciled there by the mere residence of 
 a stationed agent ; because in general cases the 
 effect of such a residence is counteracted by the 
 nature of the trade, and the neutral character 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, but as a 
 
 (e) 4 Rob. Rep. 107, (/) 4 Rob. Rep. 119
 
 48 WHAT CONSTITUTES AN HOSTILE 
 
 Residence privileged trader of the enemy. There the nature 
 of his trade does not protect him ; on the con- 
 trary, the trade itself is the privileged trade of the 
 enemy, putting him on the same footing as their 
 own subjects, and even above it." But though 
 this judgment shews that a merchant, trading to 
 a foreign nation, does not in general contract the 
 character of that nation bv the residence of a sta- 
 
 d 
 
 tioned agent, yet when the agent so residing per- 
 forms duties for his employer, which imply that 
 this employer considers himself as being virtually 
 a resident of the country, where in fact his agent 
 resides, that is, in short, where the agent, instead 
 of being the mere factor becomes the deputy of 
 his employer, it should appear that then the em- 
 ployer will be considered as sufficiently invested 
 with the national character by the residence of 
 his agent. Thus a person holding the office of a 
 consul in a foreign state, though he do not reside 
 there himself, but commit his whole duty to vice- 
 consuls, must be deemed to be virtually a resi- 
 dent of that state where the commission of his of- 
 fice implies him to reside : and the appointment of 
 deputies is a proof that he still considers himself as 
 retaining the office to which this implied residence 
 attaches, though he may have found it convenient 
 to avoid the personal burden o'f its functions. 
 This distinction between those agents who are 
 mere factors, and those who may be considered
 
 CHARACTER TO COMMERCIAL PURPOSES. 49 
 
 as deputies, may be inferred from the comparison Residence 
 of the decision last cited with a decision of the 
 same judge, in the case of the Dree Gebroeders 
 (g) : the claimant, who represented himself as an 
 American, stated in his affidavit, that the govern- 
 ment of the United States had appointed him 
 consul-general for Scotland, but that he had not 
 yet acted further in that capacity than to appoint 
 deputies. Sir William Scott said, "It will be 
 a strong circumstance to affect him with a Bri- 
 tish residence as lotig as there are persons acting 
 in an official situation here, and deriving their 
 authority from him." 
 
 But whether the residence of the party be per- Mode of 
 sonal or by agent, the external circumstances need residence - 
 not be notorious nor numerous, in order to esta- 
 blish the fact that the party is so resident; the 
 intention of permanent abode will still be the de- 
 cisive proof. In the case of the Jonge Klassina 
 (7z), the claimant, wishing to persuade the Court 
 that he was not to be deemed a resident in the 
 hostile country, pleaded, that he had no fixed 
 compting-house there ; upon which plea Sir Wil- 
 liam Scott gave the following determination: 
 " That he has no fixed compting-house in the 
 enemy's country will not be decisive. How 
 much of the great mercantile concerns of this 
 kingdom is carried on in coffee-houses ? A very 
 considerable portion of the great insurance bu- 
 
 ! 4 Rob. Rep. 232. (A) 5 Rob. Rep. 297. 
 
 7
 
 50 WHAT CONSTITUTES AN HOSTILE 
 
 Mode of siness is so conducted. It is indeed a vain idea, 
 that a compting- house or fixed establishment is 
 necessary to make a man a merchant of any place, 
 if he is there himself, and acts as a merchant of 
 that place, it is sufficient : and the mere want of 
 a fixed conipting-house there will make no breach 
 in the mercantile character, which may well exist 
 without it." As by the commencement of a 
 residence in a hostile state, a hostile character is 
 acquired, so it is terminated by the cessation of 
 that residence. This is decided in the case of 
 the Indian Chief (i). 
 
 character Having said thus much respecting national 
 traffic! 3y character, as impressed by the actual residence of 
 the party himself, or of his agent, we will now 
 examine a doctrine nearly connected with the 
 question of residence, and laid down by Sir Wil- 
 liam Scott, in the case of the Vigilantia (&). " It 
 is," says that learned Judge, " a doctrine support- 
 ed by strong principles of equity and propriety, 
 that there is a traffic which stamps a national cha- 
 racter in the individual, independent of that cha- 
 racter which mere personal residence may give. 
 And it was expressly 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 
 
 () 3 Rob. Rep. 12. see also the case of the Port. 
 
 (&) 1 Rob. Rep, 13. ; and land, 3. Rob. Rep. 41.
 
 CHARACTER TO COMMERCIAL PURPOSES. 51 
 
 enemy's country, in time of war, or continued character 
 that connection during the war, he should not b y traffic. 
 protect himself by mere residence in a neutral 
 country." This position, that he who maintain- 
 ed an establishment, or house of commerce, in a 
 hostile country, is to be considered as impressed 
 with a hostile character, with reference to so much 
 of his commerce, as may be connected with that 
 establishment, is confirmed by a great variety of 
 other cases ; which prove too that the rule is the 
 same, whether he maintain that establishment as a 
 partner, or as a sole trader (/). 
 
 Upon the whole, it may be received as a gene- General 
 ral rule, that the maintenance of a commercial 
 house in a hostile country, or such a sojourning 
 as the Courts construe to be a residence, either 
 personally or by agent, will impart a national cha- 
 racter ; that the subject of a belligerent, residing 
 or maintaining a commercial house amongst the 
 subjects of the adverse belligerent, who are the 
 enemies of his country, must be deemed an ene- 
 my, with reference to the seizure of so much of 
 his property concerned in commerce, as is con- 
 nected with his residence or establishment there ; 
 that a neutral, residing or maintaining a commer- 
 cial establishment among the subjects of one bel- 
 ligerent state, is to be deemed an enemy by the 
 
 (/) 3 Rob. Rep. 41.
 
 52 WHAT CONSTITUTES AN HOSTILE 
 
 General other, with reference to the seizure of so much of 
 his property concerned in commerce as is con- 
 nected with his residence or establishment ; that 
 the subject of a belligerent state, residing or main- 
 taining a commercial establishment among neu- 
 trals, is to be deemed a neutral, both by his native 
 government, and by the adverse belligerent, with 
 reference as well to the trade which he may carry 
 on with the adverse belligerent, as to his trade 
 with all the rest of the world. 
 
 The resi- But though a belligerent nation has a right to 
 afFectsthe consider as enemies all who reside or maintain 
 tradlT ^ commercial establishments in a hostile country, 
 whether they be by birth neutrals, or whether they 
 be by birth her own subjects or allies, yet it is 
 with this qualification, that they are to be deemed 
 enemies only with reference to the seizure of so 
 much of their commerce as is connected with that 
 residence or establishment. Sir Wm. Scott lays 
 it down, in the case of the Jonge Klassina (z), 
 " That a man having mercantile concerns in two 
 countries, and acting as a merchant of both, must 
 be liable to be considered as a subject of both, 
 with regard to the transactions originating respec- 
 tively in those countries." In the case too of the 
 Herman (n], we find the same distinguished au- 
 thority thus remarking upon the facts before the 
 Court : " The personal domicile of the claimant 
 
 (r) 5 Rob. Rep. 297. (n) 4 Rob. Rep. 228.
 
 CHARACTER TO COMMERCIAL PURPOSES. 53 
 
 is at Embden, where he resides, and has a house of The resi- 
 
 dence only 
 
 trade ; he is only connected with this country by affects th 
 his partnership in a house here, which is to be 
 taken in a manner as collateral, and secondary to 
 his house at Embden : that he may carry on trade 
 with the enemy at his house in Embden cannot 
 
 m 
 
 be denied, provided it does not originate from 
 his house at London, nor vest an interest in that 
 house." 
 
 The case of the Portland, and nine other 
 ships (0), still more precisely establishes the dis- 
 tinction, in respect of liability to capture, between 
 the trade which a merchant may be carrying on 
 to his hostile, and that which he may be carrying- 
 on to his neutral establishment. The claimant 
 resided in a neutral territory, but he had two set* 
 tlements, or places of resort for his business ; one 
 in a neutral territory, and the other in a hostile 
 country, at Ostend. Sir William Scott said, " As 
 to the circumstance of his being engaged in trad- 
 ing with Ostend, I think it will be difficult to ex. 
 tend the consequences of that act, whatever they 
 may be, to the trade which he was carrying on at 
 Hamburgh, and having no connection with Os- 
 tend ; because, call it what you please, a coloura- 
 ble character, as to the trade carried on at Ostend, 
 I cannot think that it will give such a colour to his 
 other commerce as to make that liable for the frauds 
 
 (o) 3 Rob. Rop. 41.
 
 54 WHAT CONSTITUTES AN HOSTILE 
 
 The resi- of his Ostend trade ; as far as the person is con- 
 affect's the cerncd, there is a neutral residence ; as far as the 
 ta3e. ulap commerce is concerned, the nature of the transac- 
 tion and the destination are perfecdy neutral, un- 
 less it can be said that trading in an enemy's com- 
 merce makes the 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 princi- 
 ple that would support such a position as this, 
 that a man having a house of trade in the 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 
 his belligerent domicile (/>)." 
 
 The rights of capture in respect of residence, 
 or commercial establishment, are not inforced 
 with any inequitable severity. In the case of the 
 Yigilantia (^), Sir William Scott cites a judg- 
 ment pronounced by the Lords Commissioners 
 of Appeal, wherein they said, that " a person car- 
 rying on trade habitually in the country of the 
 enemy, though not resident there, should have 
 time to withdraw himself from that commerce ; 
 
 (p) See 1 Camp. 76. (7) 1 Rob. Rep. 1.
 
 CHARACTER TO COMMERCIAL PURPOSES. 55 
 
 and that it would press too heavily on neutrals, to The resi- 
 
 r dence only 
 
 say, that immediately on the first breaking out of affects the 
 a war, their goods should become subject to con- E^e? 1 a 
 fiscation." 
 
 The next mode in which a hostile character Hostile 
 
 cl^nructct* 
 
 may be impressed, is by dealing in those branches by particu- 
 of commerce which are usually confined to the 
 subjects of the adverse belligerents themselves. 
 The rule on this point may be collected from the 
 case of the Princessa.(r) ; . . ,. 
 
 " This," said Sir William Scott, " is a Spa- 
 nish frigate, employed as a packet of the king of 
 Spain, to bring bullion and specie from South v 
 America to Old Spain ; and I think the presump- 
 tion is most strong, that none but Spanish sub- 
 jects are entitled to the privilege of having mo- 
 ney brought from that colony to Spain. I have 
 looked carefully through the manifest, and I per- 
 ceive 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 pro- 
 perty which must have been considered as Spa- 
 nish, and which could not have been -exported in 
 any other character. It has been decided by the 
 Lords, in several cases, that the property of Bri- 
 tish merchants, even shipped before the war, yet 
 if in a Spanish character, and in a trade so ex- 
 clusively peculiar to Spanish subjects, as that no 
 foreign name could appear in it, must take the 
 
 (r) 2 Rob. Rep. 49,
 
 56 WHAT CONSTITUTES AN HOSTILE 
 
 Hostile consequences of that character, and be considered 
 
 character o v ,, 
 
 by particu- as Spanish property." 
 
 lar trading. That ^ w ^ Q . g perm J Ued bv the enem y to deal, 
 
 and does deal accordingly, in branches of com- 
 merce, usually confined to the subjects of the ene- 
 my, must be deemed an enemy himself, is further 
 established by the case of the Anna Catharina (s), 
 in which there was a contract between the Spanish 
 Government, then at war with this country, and 
 certain persons claiming to be considered as neu- 
 trals. But the Court held, that as the contract 
 \tfas of so privileged a nature, that none but Spa- 
 nish merchants would have been admitted to it ; 
 and not even Spanish merchants merely as such, 
 it did in fact carry with it, in the hands of the 
 contractors, a character decidedly Spanish, and 
 that character was held to adhere to the con- 
 tract, not only in the hands of the party with 
 whom it was originally made, but when in the 
 hands of those whom he had subsequently ad- 
 mitted to share it. " It is by nothing peculiar 
 in his own character," said Sir William Scott, 
 " that the original contractor would be liable 
 to 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 legal effects. They accepted 
 
 (*) 4 Rob. Rep. 107.
 
 CHARACTER TO COMMERCIAL PURPOSES. 47 
 
 his privileges ; they adopted his resident agent. Hostile 
 It would be monstrous to say that the effect of \ )y part ;. 
 the original contract is to give the Spanish cha- & r 
 racter to the contracting person, but that he may 
 dole it out to an hundred other persons, who in 
 their respective portions are to have the entire 
 benefit, but are not to be liable to the effect 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 dis- 
 tributed ; and if every subordinate person is pro- 
 tected, their here is a contract which concludes 
 the original undertaker of the whole, but in no 
 degree affects one of those persons who carry that 
 whole into execution. On these grounds, I am 
 of opinion that these goods are liable to be con- 
 sidered as the property of the Spanish Govern- 
 ment ; and further, that these parties are liable to 
 be considered as persons clothed in this transac- 
 tion with the character of Spanish merchants." 
 
 Within the rule which thus annexes a hostile carrying 
 character to the property of the neutral engaged trade. ' 
 in a trade peculiar to the enemy, falls of course 
 the instance of a strict exclusive colonial trade, 
 from the colony of the mother country, where the 
 trade is limited to native subjects by the funda- 
 mental regulations of the state, and the national 
 character is required to be established by oath, 
 8
 
 58 AVIIAT CONSTITUTES AN HOSTILE 
 
 as in the case of the Spanish register ships. It 
 
 trade. was in the case of the Vrovv Anna Catharina (f), 
 
 that Sir Wm. Scott particularized this instance of 
 
 the Spanish Register ships : and he added, that 
 
 whosoever asserts himself to be the proprietor by 
 
 the solemn averments of an oath, takes the for- 
 
 tunes of the community as to that property. 
 
 Sailing un- There are yet other modes in which a hostile 
 
 n-.y's flag-, character may be affixed to property, such is the 
 
 &c 
 
 sailing of the vessel under the flag and pass of an 
 enemy : the case which most distinctly decides 
 this point, is that of the Elizabeth (M), " By the 
 established rules of law, said the court", it has been 
 decided, that a vessel sailing under the colours 
 and pass of a nation, is to be considered as cloath- 
 ed with the national character of that country. 
 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 recognised in 
 the case of a ship taken on a voyage from Suri- 
 nam to Amsterdam, and documented as a Dutch 
 
 (0 5 Rob. Rep. 161. (H) 5 Rob. Rep. 2.
 
 CHARACTER TO COMMERCIAL PURPOSES. 59 
 
 ship. Claims were given for specific shares, on sailing un- 
 behalf of persons residing in Switzerland ; and m e y' s H^ 
 one claim was on behalf of a lady to whom a share 
 had devolved by inheritance, whether during hos- 
 tilities or no, I do not accurately remember ; but 
 if it was so, she had done no act whatever with 
 regard to that property, and it might be said to 
 have dropped 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 deci- 
 sive against the admission of any claim ; and it 
 was observed, that as the vessel had been enjoy- 
 ing the privileges of a Dutch character, the par- 
 ties could not expect to reap the advantages of 
 such an employment without being subject, at the 
 same time, to the inconveniencies attaching on it." 
 To this case of the Elizabeth (x), Dr. Robinson, 
 has subjoined a note, containing a report of the 
 case of the Vreede Schottys, in which the Court 
 laid down the distinction as to hostility of charac- 
 ter between the ships and the cargo, in the follow- 
 ing terms : " A great distinction has been always 
 made by the nations of Europe, between ships 
 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 principle to that extent. It holds the ship 
 
 ft) 5 Rob. Rep. 2.
 
 60 WHAT CONSTITUTES AN HOSTILE 
 
 Sailing- un- bound by the character imposed upon it by the 
 my's^ag, authority of the government, from which all the 
 documents issue. But goods which have no such 
 dependence upon the authority of the state, may" 
 be differently considered." The immunity of 
 neutral cargoes on board an enemy's ship is also 
 asserted by Vattel (y). 
 
 Transfers These are the principal circumstances which 
 in Ssitih have been held by the courts of international law, 
 to impress an hostile character upon commerce. 
 When property has borne such character at the 
 commencement of the voyage, the general rule 
 seems to be, that it cannot change that character 
 on its passage, or, as it is generally expressed, in 
 transitu. It was even decided in the case of the 
 Danekebaar Affricaan (z), that property sent from 
 a hostile colony and captured in the voyage, did 
 not change its character in transitu, although, be- 
 fore the capture, the owners had became British 
 subjects by the colony's capitulation. The prin- 
 ciple had been originally stated in the case of the 
 Neegotie en Zeevart, which is cited by Sir Win. 
 Scott in his judgment in the Danekebaar Affri- 
 caan. 
 
 Attempts We will now consider the attempts which have 
 theTeruies. been made to protect this hostile commerce by 
 
 (#) Lib. 3. c. 7. s. 107. [See Appendix.] 
 
 f?) 1 Rob. Rep. 107. ; see also 3 Rob. Rep. 197.
 
 CHARACTER TO COMMERCIAL PURPOSES. 61 
 
 fraudulent contrivances of various descriptions : a Attempts 
 
 , to evade 
 
 belligerent not unfrequently attempts to save the these rules. 
 property which he has already shipped, from the 
 capture of his adversaries, by assigning it, while 
 on the voyage, to neutrals. This practice has 
 been held by the courts to be unavailing, for its 
 protection. *' During peace," says Sir William 
 Scott, in giving judgment upon the case of the 
 Vrou Margarittha (a), "a transfer in transitu may 
 certainly be made ; but in a state of war existing 
 or imminent, (that is, whether the war have actu- 
 ally broken out, or whether it be in the expectation 
 of the parties,) it is held, that the property shall 
 be deemed to continue as it was at the 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 an ene- 
 my's country, would be protected by transfers, 
 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 recognise it as the rule of this 
 court (). 
 
 The illegality of transfer in transitu during, 
 or in contemplation of war, is shewn at great 
 length by Sir Wm. Scott, in the case of the Jan 
 
 (fl) I Rob. Rep. 338. (6) 1 Burr. 147.
 
 62 WHAT CONSTITUTES AN HOSTILE 
 
 Attempts Frederick (?), but where the contract was made, 
 
 to evade . . . 
 
 these rules, in contemplation ot peace after the signature of 
 preliminaries, as in the case of the Vrow Catha- 
 rina (d), the court held that the transfer was legal, 
 as not tending to defeat a belligerent's right of 
 capture. All these are cases of bona fide trans- 
 fers, but in many instances a belligerent finding 
 it impossible to protect his own trade under his 
 own flag, transfers it to a neutral fraudulently ; 
 that is, either nominally or without a reservation 
 of its solid advantages to himself, or actually for a 
 time, with a condition that the neutral shall re- 
 store it on the conclusion of peace. All these 
 colourable transfers are held to be illegal, and the 
 circumstances of them are as various as may be 
 expected from the ingenuity of men, who have 
 great interests at stake. The cases arising upon 
 these and other frauds are almost all mere ques- 
 tions of evidence, turning solely on the construc- 
 tion which the transaction can be made to bear, 
 by the acuteness of the captors on the one hand 
 in tracking the deceit, and by the dexterity of 
 the claimants on the other, in eluding the investi- 
 gation (e], 
 
 Reservations of risk to the neutral consignors, 
 in order to protect belligerent consignees, are uni- 
 
 (c) 5 Rob. Rep. 128. Rep. 1. 101. 122. 1 Acton. 
 
 ((/) 5 Rob. Rep. 161. 43. 2 Rob. 137. 1 Rob. 
 
 (e) See the several in. 16. note. 4 Rob. 32. 
 stances and decisions, 1 Rob.
 
 CHARACTER TO COMMERCIAL PURPOSES. 63 
 
 forrnly treated by the Admiralty Court as fraudu- Attempts 
 lent and invalid. The principle case on this point, 
 is that of the Sally (f}. The cargo, which occa- 
 sioned the question in the ca'se of the Sally, had 
 been shipped during the last war, ostensibly on 
 the account of American merchants : the master 
 deposed as to his belief, that it would have become 
 the property of the French government upon being 
 unladen. The sale, therefore, had obviously been 
 completed, and the pretext of an American risk 
 and account, was merely to evade that capture, to 
 which the cargo would have been subject, if it 
 had sailed avowedly as French property : the 
 Court said, " It had always been the rule of the 
 prize court, that property going to be delivered in 
 the enemy's country, and under a contract to be- 
 come the property of the enemy immediately on 
 arrival, if taken in transitu is to be considered as 
 enemy's property. When the contract is made in 
 time of peace, or without any contemplation of a 
 war, no such rule exists. But in a case like the 
 present, where the form of the contract was fram- 
 ed directly for the purpose of obviating the danger 
 apprehended from approaching hostilities, it is a 
 rule which unavoidably must take place. The 
 bill of lading expresses account and risk of the 
 American merchants ; but papers alone make no 
 
 (/) 5 Rob. Rep. 300.
 
 64 WHAT CONSTITUTES AN HOSTILE CHARACTER, 
 
 Attempts proof; unless supported by the depositions of 
 . tne master : instead of supporting the contents 
 of his papers, the master deposes, that on arrival 
 the goods would become the property of the 
 French government ; and all the concealed papers 
 strongly support him in this testimony. The evi- 
 dentia rei is too strong to admit further proof ; 
 supposing it was to become the property of the 
 enemy on delivery, capture is considered as delive- 
 ry. The captors by the rights of war, stand in 
 the place of the enemy, and are either entitled to 
 a condemnation of goods passing under such a 
 contract, as of enemy's property on every princi- 
 ple on which prize courts can proceed, this cargo 
 must be considered as enemy's property." 
 
 The principles on which this judgment was 
 given are stated more at large in the case of the 
 Packet de Bilboa (g), and of the Anna Catha- 
 rina (h). 
 
 (g) 2 Rob. Rep. 133. (A) 4 Rob. Rep. 107.
 
 CHAPTER III. 
 
 OF THE RIGHT OF THE BELLIGERENTS TO CAPTURE EACH 
 OTHER'S PROPERTY. 
 
 JJ"AVING, in the preceding chapters, considered 
 the illegality of commerce between belligerents, 
 and who is to be considered as an alien enemy, or 
 adhering to one of the belligerent powers, as far 
 as respects commercial purposes, we will now con- 
 sider the right of capture or seizure by the re- 
 spective belligerents of each other's property. It 
 was justly observed by the King's Advocate, in 
 the case of Potts v. Bell (a), that there is no such 
 thing as a war for arms, and a peace for com- 
 merce. The commerce of the enemy has in all 
 ages been considered as the legitimate prize of 
 war. We will, in this chapter, consider the na- 
 ture and effects of what are termed the rights of 
 war, as far as relates to hostile commerce. 
 
 The rights of war, as they may be lawfully ex- 
 ercised against hostile commerce, are discussed 
 at large in the 3rd book of Grotius, ch. 6. an d in 
 the 3rd book of Vattel, chapters 8 and 9.[*] The 
 
 (a) S Term Rep. 548. [* See Appendix.] 
 9
 
 66 RIGHT OF THE BELLIGERENTS TO 
 
 doctrines laid down in these, and in other treatises 
 on international law, are condensed in the follow- 
 ing passage, which is an extract from a summary 
 of the laws of nations, compiled by Professor 
 Martens, of Gottingen (b) : " The conqueror has 
 a right to seize on the property of the enemy, 
 whether moveable or immoveable. These sei- 
 zures may be made, 1st, in order to obtain what 
 he demands as his due, or an equivalent ; 2dly, 
 to defray the expenses of the war ; 3dly, to force 
 the enemy to an equitable peace ; 4thly, to deter 
 him, or, by reducing his strength, 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 destroy the 
 property and possessions of the enemy, for the ex- 
 press purpose of doing him mischief. However, 
 the modern laws of war do not permit the de- 
 struction 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; 2dly, 
 such things as, after being taken, cannot be kept, 
 and which might, if not destroyed, strengthen 
 the enemy ; 3dly, such things as cannot be pre- 
 served without injury to the military operations. 
 To all these we may add, 4thly, whatever is de- 
 stroyed by way of retaliation." This is the ge- 
 
 A Lib. 8. o. 3. s. 9.
 
 CAPTURE EACH OTHER'S PROPERTY. 
 
 neral rule as to the right of seizure. But, in strict 
 justice, that right can take effect only on those 
 possessions of a belligerent, which have come to 
 the hands of his adversary after the declaration of 
 hostilities. " The sovereign," says Vattel (c), 
 " can neither detain the persons, nor the property 
 of those subjects of the enemy, who are within 
 his dominions at the time of the declaration. 
 They came into his country under the public 
 faith. By permitting them to enter and reside 
 in his territories, he tacitly promised them full 
 liberty and security for their return. He is, there- 
 fore, 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 how- 
 ever. But if they are detained by an insurmount- 
 able impediment, as by sickness, he must neces- 
 sarily, and, for the same reason, grant them a suf- 
 ficient ex tendon of the term. At present, so far 
 from being wanting in this duty, sovereigns carry 
 their attention to humanity still farther, so that 
 foreigners, who are subjects of the state against 
 which war is declared, are very frequently allow- 
 ed full time for the settlement of their affairs. 
 This is observed in a particular manner with re- 
 gard to merchants ; and the case is moreover care- 
 fully provided for in commercial treaties. 
 
 (c) Vatt. b. 3. c. 4. sect. 63.
 
 68 RIGHT OF THE BELLIGERENTS TO 
 
 Of embar- At first sight it would appear, that this rule of 
 faith and justice is totally violated by the prac- 
 tice, so common in modem Europe, of imposing 
 embargoes at the breaking out of hostility. But, 
 upon examining a little more carefully the nature 
 of the transaction, we shall find, that there is not 
 this violent infraction of honesty or honour. Em- 
 bargoes, the effect of which is to detain vessels in 
 the ports where they may be lying, are imposed 
 on various occasions and for various purposes. 
 They are of two descriptions, warlike, or civil. 
 The only species of embargo, which it is neces- 
 sary for us to consider in this place, is that which, 
 in its nature, partakes of hostility. It is imposed 
 by a nation upon such foreign vessels within her 
 ports, as belong to states against whom she has 
 declared war, or is about to declare it. Now we 
 may remember the rule, as Vattel lays it down, 
 to be, that a nation is not at liberty to seize that 
 part of her enemy's property which is in her do- 
 minions at the time of the declaration, because it 
 came into her power upon the faith of previously 
 existing peace. But declarations of war arc not 
 construed to take effect merely from the time 
 when a formal notification of hostility is given ; 
 there arc certain preceding acts, of a hostile na- 
 ture, which are deemed to be virtually declara- 
 tions of war, to certain intents and purposes, 
 though they may be explained away and annulled
 
 CAPTURE EACH OTHER'S PROPERTY. 69 
 
 by a subsequent accommodation between the go- of embar- 
 vernments. (d) When, therefore, a nation receives s< 
 certain injuries, for which she sees no prospect of 
 obtaining redress, she is reduced to consider hos- 
 tilities as virtually declared, and issues an embar- 
 go upon the commerce of the offending state, then 
 lying within her ports, in order to indemnify her- 
 self in the only way in which, perhaps, it may be 
 possible for her to obtain indemnification at all. 
 In this case, the hostile property, which comes to 
 her hands after the commission of the injury, may 
 be, and is regarded, as having come to her hands 
 after the declaration of hostilities, though that de- 
 claration have not been duly and formally noti- 
 fied ; and, therefore, the case of embargo is not 
 within the prohibition of Vattel, which reaches to 
 the exemption only of goods in our hands at the 
 time of the declaration, and does not cover pro- 
 perty coining into our territory after that declara- 
 tion, whether such declaration be only virtual, or 
 whether it be announced with all the fullness of 
 formality. Upon the right of seizing on proper- 
 ty under this implied kind of declaration, "and 
 upon the effect of the seizure in the event of an 
 accommodation being adjusted before the for- 
 mal notification of war, Sir William Scott most 
 satisfactorily comments in the case of the Boedes 
 Lust (e). In that case, an embargo had been 
 
 (d) Ante, ch. 1. (e} 5 Rob. Rep. 246,
 
 70 RIGHT OF THE BELLIGERENTS TO 
 
 of embar- laid upon Dutch property bv Great Britain, pre- 
 
 crocs 
 
 viously to an open declaration of war, but under 
 such circumstances of injustice on the part of 
 Holland, as were considered by the British court 
 as amounting to an implied declaration of war ; 
 and the formal declaration, which afterwards su- 
 pervened, was deemed to have a retrospective 
 effect, confirming all that had been done by the 
 embargo under the implied declaration. " The 
 seizure," said Sir William Scott, " was at first 
 equivocal, and if the matter in dispute had ter- 
 minated in reconciliation, the seizure would have 
 been converted into a mere civil embargo, so 
 terminated. That would have been the retro- 
 active effect of that course of circumstances. On 
 the contrary, if the transactions end in hosti- 
 lity, the retroactive effect is directly the other 
 way. It impresses 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 decla- 
 ration of the animus, by which it is done ; that 
 it was done hostili animo, and is to be consider- 
 ed as an hostile measure ab initio. The property 
 taken, is liable to be used as the property of per- 
 sons trespassers ab initio, and guilty of injuries, 
 which they have refused to redeem by any ami- 
 cable alteration of their measures. This is the 
 Accessary course, if no particular compact inter- 
 venes for the restitution of such property taken
 
 CAPTURE EACH OTHER'S PROPERTY. 7i 
 
 before a formal declaration of hostilities." So, in ofembar- 
 the case of the Herstelder (/), Sir William Scott goe: 
 observed, " That actual hostilities are not to be 
 reckoned merely from the date of the declaration, 
 but that such declaration has been applied with a 
 retroactive force." 
 
 Embargoes, we have seen (g-), are of two kinds, 
 warlike, and civil embargoes ; the former are 
 enforced against enemies, the others are employ- 
 ed in the case of allies and subjects. The first 
 kind of embargo is usually issued by a state in 
 time of war or threatened hostilities, prohibiting 
 the departure of ships or goods from some, or all 
 of the ports of such state until further order. And 
 Beawes, in his Lex Mercatoria (h), speaking of 
 the civil embargo, says, " That it is laid on ships 
 and merchandise in the ports of this kingdom by 
 virtue of the King's proclamation, and is strictly 
 legal, when the proclamation does not contravene 
 the ancient laws, or tend to establish 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 (z)." Thus observes Mr. 
 Justice Blackstone () : " The law is, that the 
 King may prohibit any individual of his subjects 
 
 (/) 1 Rob. Rep. 114. 177. 179. Skinner. 93. 1 
 
 () Ante, 68. Skinner. Salk. 32 3 Inst. 162. 
 
 335. as to the King's right to Skinner. 335. 
 
 impose embargoes. (z) Jenkins, 2 Cent. 745. 
 
 (/O'kawes.271. 4 Mod. (Ic) 1 Bla. Com. ch. 7.
 
 72 RIGHT OF THE BELLIGERENTS TO 
 
 ofembar- ^ rom leaving the realm. A proclamation, there- 
 fore, forbidding this, in general for three weeks, 
 by laying an embargo upon all shipping in time 
 of war, will be equally binding with an act of par- 
 liament, because founded on a prior law." 
 
 But this civil embargo cannot be imposed upon 
 British ships in a foreign port, unless by the con- 
 curring authority of the state to which that port 
 belongs ; for the King has no right to disturb the 
 peace of neighbouring nations by any seizures, 
 however useful to the interests of his own people. 
 This may be collected from the judgment of Sir 
 William Scott, in the case of the Gertruyda (/). 
 Even within the jurisdiction of this kingdom the 
 prerogative of the King, with respect to the im- 
 position of embargoes, is of a nature by no means 
 unlimited, or absolute. Among the many re- 
 ports that are to be found, of the great case of 
 Sands and the East India Company, there is one 
 in Salkeld, p. 32, where it is set down as agreed, 
 that the King may lay embargoes ; but then it 
 must be for the public good, and not for the pri- 
 vate advantage of a particular trader or company ; 
 and the embargo which was issued by his Majes- 
 ty to prevent the exportation of corn in 1766, is 
 noticed by Beawes in his Lex Mercatoria, p. 276, 
 as having been illegally imposed, such exporta- 
 tion, says he, being allowed by law at the time ; 
 
 (02 Rob. Rep. 211.
 
 CAPTURE EACH OTHER'S PROPERTY. 73 
 
 and, therefore, the preamble to the Stat. 7 Geo. Of embar- 
 3. ch. 7. for indemnifying all persons advising or 
 acting under the order of council, laying an em- 
 bargo on all ships laden with corn, or flour, dur- 
 ing the recess of parliament in 1766, says, " which 
 order could not be justified by law, but was so 
 much for the service of the public, and so neces- 
 sary for the safety and preservation of his Majes- 
 ty's subjects, that it ought to be justified by act 
 of parliament." This embargo, as was allowed, 
 saved the people from famine ; yet it was declar- 
 ed illegal by the above act of the legislature, in- 
 cluding the King himself, who laid it, which was 
 therefore needful to sanction it ; and the propri- 
 etors of the embargoed ships and cargoes were 
 accordingly indemnified by government. 
 
 The necessity of vesting the sole right of grant- O f letters 
 ins; letters of marque (m) and reprisal in the so- of marc l u . e 
 
 and repri- 
 
 vereign, is obvious ; were the law otherwise, each sal - 
 private sufferer would be a judge in his own 
 cause. 
 
 The statute 4 Hen. 5. c. 7. accordingly de- 
 clares, " That if any subjects of the realm are 
 oppressed in time of truce by any foreigners, 
 the King will grant marque in due form to all 
 that feel themselves grieved, which form is thus 
 
 (m) As to letters of marquo Via. Abr. Prerogative, n. a. 
 in general, see 1 Bla. Com. Com. Dig. Prerogative, 
 25 1. 4 Hen. 5. c. 7 1 B. 4. 
 Wooddes. Vin. Lee, 34. 
 10
 
 71 RIGHT OF THE BELLIGERENTS TO 
 
 of letters directed to be observed : the sufferer must first 
 ru apply to the Lord Privy Seal, and he shall make 
 out letters of request, under the privy seal ; and 
 if, after such request of satisfaction made, the 
 party required do not, within convenient time, 
 make due satisfaction or restitution to the party 
 grieved, the Lord Chancellor shall make him out 
 letters of marque under the great seal, and by vir- 
 tue of these, he may attack and seize the property 
 of the aggressor nation, without hazard of being 
 condemned as a robber, or pirate." 
 
 The case provided for by this statute, is only 
 the case of injuries done to subjects by foreign- 
 ers during peace ; but the letters of marque which 
 are granted during war, are also, says Molloy (ra), 
 grantable with the approbation of the King, or 
 council, or both, and I am inclined to think one 
 reason of committing such a prerogative to the 
 crown may be this : that as the property of a ship, 
 taken without a letter of marque, vests in the 
 King (o), he ought, in justice, to have a discre- 
 tion by himself, or his officers, as to the persons 
 who shall thus take out commissions thus tending 
 to abridge his revenue. 
 
 Letters which have been so granted, may be 
 vacated in three ways ; by express revocation, 
 or by a cessation of hostilities between the na- 
 
 (n) Molloy. b 1. ch. 2. (o) Vin. Ab, Prerog. n. a 
 s. 10. pi. 22.
 
 CAPTURE EACH OTHER'S PROPERTY. 75 
 
 tions which they affect, or by the misconduct of of letters 
 
 . ' . . of marque 
 
 the grantees. Letters granted during war, having and 
 
 sn,l 
 
 usually been designed only for the general annoy- 
 ance of the enemy, may be vacated by the mere 
 express revocation of his Majesty. But with re- 
 gard to letters granted during peace, by way of 
 reparation to subjects for losses actually sustained 
 by them from foreigners, these, says Molloy (/>), 
 can be revoked by no domestic act of the govern- 
 ment, because, after the person injured has peti- 
 tioned, and made legal proof of his loss, and let- 
 ters of request have gone, and no reparation been 
 made, then the letters of reprisal being sealed, 
 create and vest a national debt in the grantee. 
 Even this claim, however, is defeated by the ces- 
 sation of hostilities, as appears from a case de- 
 cided by the Lord Chancellor Nottingham (q\ 
 The defendant, as executor, was entitled to letters 
 of reprisal, granted by the king, for a great sum 
 of money, and containing a clause, that no treaty 
 of peace should prejudice them. But his majesty 
 afterwards, by several treaties of peace with the 
 Dutch, expressly articled that they should not be 
 damnified by these letters patent. The question 
 was, whether the King could, by any treaty . of 
 peace, annul, or, in the technical phrase, amortise 
 this instrument. That great judge was of opinion 
 
 (p) Lib. 1. ch. 2. s. 8. 
 
 fry) 2 Wooddes. 440. 1 Vern. 54.
 
 76 RIGHT OF THE BELLIGERENTS TO 
 
 or letters that letters of reprisal might be revoked and amor- 
 
 of marque . , 
 
 and repri- tised by a truce, and by letters of safe conduct, 
 and a fortiori by a treaty of peace. It seems just 
 and reasonable, that, after a solemn ratification of 
 amity between nations, no retrospect of private 
 grievances, unprovided for by the convention, 
 should be allowed. 
 
 The third method in which letters of marque 
 may become vacated, is by the misconduct of the 
 grantees. In the case of the Mariamne (r), Sir 
 William Scott laid it down that cruelty works a 
 forfeiture of the letters of marque ; and this he 
 affirmed to be the ancient law of the Admiralty, of 
 which the Prize Act, containing the same provi- 
 sion, was to be taken as a formal declaration. 
 " During the contest," said he, " destruction is 
 necessary and lawful, but it is contrary to every 
 principle of the law of nations, that after the con- 
 test has ceased, hostile and destructive force 
 should still be continued." 
 
 The last Prize Act (s) contains several provi- 
 sions for the revocation of letters of marque ; 
 which being regulations of a nature merely mu- 
 nicipal, may be made and varied at the will of 
 the legislature, whose power, of course, is para- 
 mount even to the prerogatives of the crown. It 
 has been decided (t) that a subject of the King 
 
 (r) 5 Rob. Rep. 9. (/) 2 Vern. 592. 
 
 (4) 43 Geo. 3. 160.
 
 CAPTURE EACH OTHER'S PROPERTY. 77 
 
 cannot take goods belonging to the subjects of a or letters 
 
 i i -TJ-> t> i of marque 
 
 prince in amity with the King, by virtue ot let- anc i rep n. 
 ters of marque granted by any other sovereign or sa 
 state. 
 
 But letters granted by the King of this country 
 are not construed strictly against the subject ; for 
 in the case of the Sacra Familia [u], it was de- 
 cided that a vessel cruizing under letters of marque 
 against one state, as for instance, against France, 
 is at liberty, on obtaining notice of hostilities 
 commencing against another, as for instance 
 against Spain, to capture a Spanish vessel, with 
 as full advantage to herself as if the prize had 
 been French. 
 
 Inrcases of recapture, no letter of marque from 
 the King is required, to give to the recaptor the 
 benefit of the same salvage to which he would 
 have been entitled if he had been provided with 
 letters of marque (x). 
 
 The King, however, has the right of releasing 
 any prize previously to its condemnation. This, 
 said Lord Ellenborough, in the case of Sterling 
 v. Vaughan (y), is an implied exception in the 
 grant of prize by the crown. 
 
 The doctrine as to embargoes preceding hos- Re risals 
 tilities, is not peculiar to the British coasts. Its 
 principle has been acknowledged amongst all 
 nations, and forms the basis of the right of re. 
 
 (w) 5 Rob. Rep. 360. Rep. 224. 
 
 Or) The Helen, 2 Rob. (#) 11 East. fi]9.
 
 78 RIGHT OF THE BELLIGERENTS TO 
 
 Reprisals, prisals. " Reprisals," says Vattel (z] " are used 
 between nation and nation, in order to do them- 
 selves justice, when they cannot otherwise obtain 
 it. If a nation has taken possession of what be- 
 longs to another, if she refuses to pay a debt, to 
 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 is due to her, 
 together with interest and damages ; or keep it 
 as a pledge till she has received ample satisfac- 
 tion. In the latter case, it is rather a stoppage, or 
 a seizure, than reprisals ; but they are frequently 
 confounded in common language. The effects 
 thus seized on 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 
 nations, upon this ground of quarrel, come to an 
 open rupture, satisfaction is considered as refused 
 from the moment that war is declared, or hostili- 
 ties commenced ; and then also the effects seized 
 may be confiscated." 
 
 " In reprisals," continues the same author (a), 
 " we seize on the property of the subject just as 
 we would on that of the state, or sovereign ; 
 every thing that belongs to the nation is sub- 
 
 0) Valt. b. 2. cli. 1 8. sect. (a) Vatt. b. 2. ch. 18. sect. 
 312. 344.
 
 CAPTURE EACH OTHER'S PROPERTY. 
 
 ject to reprisals, whenever it can be seized, pro- Reprisals, 
 vided it be not a deposit intrusted to the public 
 faith. As it is only in consequence of that con- 
 fidence which the proprietor has placed in our 
 good faith, that we happen to have such a deposit 
 in our hands, it ought to be respected, even in 
 case of open war ; such is the conduct observed 
 in England, and elsewhere, with respect to the 
 money which foreigners have placed in the public 
 funds." 
 
 Reprisals thus understood and authorized, are 
 made in two ways, either by embargo, as we have 
 already seen, in which case the act is that of the 
 state, or by letters of marque and reprisals, in 
 which case the act is that of the subject, author- 
 ized by the state's permission. " These words, 
 marque and reprisal," says Mr. Justice Black- 
 stone (6), " are synonymous, and signify a taking 
 in return. They are grantable wheresoever the 
 subjects of one state are injured by those of 
 another, if justice be denied by that state to which 
 the offender belongs. And the effect of the grant 
 is to authorize the seizure of the bodies and goods 
 of the subjects of the offending state, which may 
 be detained till satisfaction be made, but no lon- 
 ger (c)." 
 
 " But by the law of nations," says Molloy (rf), 
 
 (6) 1 Bla. Com. cli. 7. 435 to 440. [See Appendix.] 
 (c) Grot. b. 3. c. 2 (d) B. 1. c. 2. s. 18. 
 Vatt. b. 2. c. 13 2 Wooddes.
 
 80 RIGHT OF THE BELLIGERENTS TO 
 
 Reprisals. " letters of marque or reprisal will not authorize 
 the molestation of ambassadors, nor of those who 
 travel for religion ; nor of students, scholars, or 
 their books; nor of women or children, by the civil 
 law; nor those that travel through a country, stay- 
 ing but a little while there, for they are only subject 
 to the law of that place. By the canon law, eccle- 
 siastical persons are expressly exempt from repri- 
 sals." A merchant of another place than that 
 against which reprisals are granted, albeit the factor 
 of such goods were of that place, is not subject 
 to " reprisals." 
 
 Such appears to be at present the law and prac- 
 tice of civilized nations, with respect to hostile 
 ' property in general found within their dominions 
 at the breaking out of a war. There seems, how- 
 ever, something of subtlety in the distinction be- 
 tween the virtual and the actual declaration of hos- 
 tilities, and in the device of giving to the actual 
 declaration a retrospective efficacy, in order to 
 cover the defect of the virtual declaration previ- 
 ously implied. The rule of our ancestors was 
 much clearer and broader. In early times, at the 
 beginning of a war with another country, mer- 
 chants belonging to that country, and found with- 
 in the realm of England, were attached indeed ; 
 that is to say, they were not permitted to go 
 abroad. But Magna Charta provides, that this
 
 CAPTURE EACH OTHER'S PROPERTY. 81 
 
 attachment shall be without harm of body or Reprisals: 
 goods, with this limitation, until it be known to 
 the King, or keeper of the realm in the King's 
 absence, how our merchants, in the country at war 
 with us, shall be entreated : and, if our merchants 
 be well entreated, then theirs shall be likewise 
 with us (e). 
 
 And by the statute 27 Ed. 3. stat. 2. cha. 17. 
 it was enacted, that in case any dispute shall arise 
 between this country and the sovereign of any fo- 
 reign land, the merchants and others of that land 
 shall not be sent suddenly out of our kingdom 
 and territories, on account of such dispute, until 
 they shall be warned and proclamation published : 
 and that they shall go out of this kingdom and 
 territory with their goods freely, within forty days 
 after such warning or proclamation, and that in 
 the mean time, they shall not be in any thing hin- 
 dered or disturbed in their passage, or to make 
 profit with their said merchandise, if they wish to 
 sell them, and in default of wind or ship, or in 
 case (from sickness or other evident cause) they 
 cannot go out of this kingdom in so short a time, 
 then they shall have forty other days, or more, if 
 the King think fit, within which time they may 
 
 0) Magna Charta, 2 inst. 38. Skin. 204.-- -Bac. Abr. 
 
 58. 1 Bla. Com. 260 Mercht. A. 
 
 Bro. Ab. tit. Property, pi. 
 11
 
 82 RIGHT OF BELLIGERENTS TO 
 
 Reprisals, pass conveniently with their merchandises, or sell 
 
 as before (/*). 
 
 Choses in But though the law of our ancestors thus ap- 
 action. pears to have surpassed, in liberality, the institu- 
 tions of their modern descendants, with regard 
 to hostile property found within this realm in the 
 actual possession of the enemy ; yet, with respect 
 to property belonging to the enemy, but not ac- 
 tually rendered into his possession, such as debts 
 which may be due to him, our law, at this day, 
 pursues a policy of a more liberal character. 
 
 When Alexander, by conquest, became master 
 of Thebes, he found, among the treasures of the 
 conquered, an engagement from the Thessalians 
 to pay a hundred talents. The Thessalians hav- 
 ing served with merit in his army, he gave up the 
 engagement to them, and thus remitted the debt. 
 Vattel (), after citing this case, observes, that 
 " the sovereign has naturally the same right over 
 what his own subjects may owe to enemies. He 
 may, therefore, confiscate debts of this nature, if 
 the term of payment happen in time of war ; or 
 at least, he may prohibit his subjects from paying 
 while the war continues." The latter course has 
 been adopted by the British law. We suspend 
 the right of the enemy to the debts which our 
 traders may owe to him, but we do not annul it; 
 we preclude him, during war, from suing to re- 
 
 (/) BeaweF. 38. 
 
 CgO Vatt. b. 3. ch. 5. sec. 77.
 
 CAPTURE EACH OTHER'S PROPERTY. B3 
 
 cover his due ; for we are not to send treasure choses in 
 
 .. ir action. 
 
 abroad for the direct supply ot our enemies in 
 attempts to destroy us ; but, with the return of 
 peace, return the right and the remedy. 
 
 This doctrine of the British law respecting 
 suspension and subsequent restoration of hostile 
 rights and remedies is evidenced by a great many 
 decisions. We will first consider the case of 
 the Hoop (ti), because it comprehends, in one 
 concise view, not only the law of nations respect- 
 ing the power of withholding payment from an 
 enemy of the debts that may be due to him, but 
 the rule of our own law also, with the exceptions 
 which it admits. " It is a principle of law," says 
 Sir William Scott (z), * that during a state of war, 
 there is a total inability to sustain any contract by 
 an 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 an 
 alien enemy carries with it a disability to sue or 
 to sustain, in the language of the Civilians, a per- 
 sona standi in judicio. The peculiar law of our 
 own country applies this principle with great ri<- 
 gour. The same principle is received in our 
 courts of the law of nations ; they are so far Bri- 
 tish courts, that no man can sue therein who is a 
 subject of the enemy, unless under particular cir- 
 
 (/O 1 Rob. Rep. 196. (/) 1 Rob. Rep. 200.
 
 84 RIGHT OF BELLIGERENTS TO 
 
 choses in cumstances, that pro hac vice discharge him from 
 
 action. 
 
 the character of an enemy, such as his coming 
 under a flag of truce, a cartel, a pass, or some 
 other act of public authority, that puts him in the 
 King's peace pro hac vice." 
 
 This short statement sufficiently testifies what 
 is the law on the subject of withholding the debt 
 during war. The following decision (A-) will 
 evince, what is the law on the subject of restoring 
 the debt, at the return of peace. A petition came 
 on in the Court of Chancery, in the matter of 
 Boussmaker, a bankrupt, praying, that the peti- 
 tioner might be admitted to prove, under the 
 commission, a debt which the commissioners had 
 refused to admit, upon the objection that the cre- 
 ditors, applying to prove, were alien enemies. 
 The Lord Chancellor explained the distinctions 
 of the law and its principles, on this important 
 question, whether the right of an alien enemy was 
 destroyed or only suspended by war. " If this," 
 said 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 
 
 (&) Ex parte Boussmaker, (/) 13 Ves. Jun. p. 71, 72. 
 13 Ves.Jun. 71.
 
 CAPTURE EACH OTHER'S PROPERTY. 85 
 
 good, upon the return of peace the right would choses in 
 
 ii< , i action. 
 
 revive: it would be contrary to justice, there- 
 fore, to confiscate this dividend. Though the 
 right to recover is suspended, that 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 
 avoiding contracts with an enemy, is sound 
 and wise ; but where the contract was originally 
 good, and the remedy is only suspended, the pro- 
 position that therefore the fund should be lost, 
 is very different." According to the strictness of 
 the law of nations, we have already seen, that 
 debts due to alien enemies may be confiscated by 
 the state. But in England, and in some other 
 modern states, a gentler law appears to have been 
 established, a law which, though in no way com- 
 pulsory with regard to foreign nations, is binding 
 upon the crown in this particular country. An 
 old case, indeed, of the Attorney General against 
 Weedon and another (m), seems to countenance 
 the prerogative of the British crown in all the 
 rigour of the old law of nations, but that doctrine 
 is questioned by Rolle, in his Abridgment ; and 
 in the case of Furtado v. Rogers (n), Lord AU 
 vanley said, "With respect to the argument, 
 that all contracts made with- the enemy enure to 
 the benefit of the King during war, and that he 
 
 O) Parker's Rep. 207. (n) 3 Bos. and Pul. 191.
 
 86 . RIGHT OF CAPTURE 
 
 choses in may enforce payment of any debt due to an alien 
 enemy from any of his subjects, we think it is 
 not entitled to much weight. Such a course of 
 proceeding never has been adopted, nor is it very 
 probable that it ever will be adopted, as well from 
 the difficulties attending it, as from the disincli- 
 nation to put in force such a prerogative." 
 
 HAVING thus considered the effect of war 
 
 Right of . . 
 
 capture upon that portion of commerce belonging to one 
 kingdom? belligerent, which lies within the dominions of 
 the other ; we will now proceed to consider the 
 effect of war upon that portion of commerce be- 
 longing; to one belligerent, which subsists out 
 
 o O O * 
 
 of the dominions of the other. With respect to 
 the commerce thus subsisting abroad, as there 
 are, for the most part, no general ties of faith 
 that confine the common rights of capture, the 
 broad principle is, that such commerce is liable 
 by the acknowledged laws of nations, to be 
 seized and appropriated by the adverse bellige- 
 rent wherever it is found. To this rule the ex- 
 ceptions are only those admitted by the law of 
 nations in favour of neutral territory, or which 
 may arise from relaxations expressly permitted 
 by one belligerent state to the merchandise of 
 the other. The only commercial exceptions are
 
 OUT OF THE KINGDOM. 
 
 by the protections, which, on peculiar occasions, night of 
 
 capture 
 
 the government affords to particular adventures, O ut of the 
 and the nature of which will be considered in a king 
 subsequent chapter. In some wars, it has been 
 usual to make an exception in favour of small 
 fishing-vessels, from tenderness to a poor and 
 industrious order of people. This, however, as 
 appears from the case of the Young Jacob and 
 Johanna (0), is a matter of forbearance, and not 
 of right. 
 
 We will now consider the mode in which the 
 rights of seizure are usually exercised, and these 
 are by embargo or capture. We have already con- 
 sidered the subject of embargo. Capture, properly 
 so called, bearing avowedly a warlike complexion, 
 is said to be made (p) where a ship is subdued and 
 taken, either by a pirate or by an enemy, whether 
 in open war or by way of reprisals, and whether 
 with intent to appropriate both ship and cargo, or 
 only certain hostile or contraband goods found 
 on board. Of capture by a pirate, nothing can be 
 said, but that it is illegal by all laws, human and 
 divine : and I therefore confine myself to the con- 
 sideration of capture by an enemy. The case of 
 the Jonge Jacobus Baumann (q], is a striking in- 
 stance of what may, or may not be considered as 
 a capture : the vessel bearing that name was 
 
 (o) 1 Rob. Rep. 19. ance, 422. 
 
 (p) 2 Marshall on Insur- (</) 1 Rob. Rep. 243.
 
 88 RIGHT OF CAPTURE 
 
 Right of boarded one morning by an officer and several 
 
 capture 
 
 out of the men belonging to the Apollo Frigate, then lying 
 stranded and in distress, who told the master, a 
 neutral, that he must go down to the assistance of 
 the frigate. The master accordingly went down, 
 and took the whole of the crew on board, to the 
 number of one hundred and seventy, or one hun- 
 dred and eighty men. The ship arrived at Yar- 
 mouth three days afterwards and was navigated, 
 during the passage, by the master himself and his 
 own crew, except that the pilot belonging to the 
 frigate steered through the banks of Yarmouth ; 
 on arriving at Yarmouth, the persons who had 
 been thus preserved had the ingratitude to pro- 
 ceed against the ship as a prize, which they alleg- 
 ed themselves to have taken, on a suspicion of her 
 being engaged in a hostile trade. Sir William 
 Scott said, " the owners of the cargo, indeed, 
 had done no service to the English seamen, and 
 that, therefore, if the cargo appeared to be hostile, 
 there was no reason against its condemnation : but 
 that the master and owner of the ship, had been 
 most materially instrumental in saving one hun- 
 dred and seventy, or one hundred and eighty Brit- 
 ish officers and men to their country, and there- 
 fore, were entitled to be liberally considered by 
 those who had received this benefit ;" and he add- 
 ed these words (r) : " If the ship had really be- 
 
 (r) 1 Rob. Rep. 245.
 
 OUT OF THE KINGDOM. 
 
 longed to an enemy, in my opinion the character Right of 
 of enemy itself must have been blotted out and ob- ou ' t O f the 
 
 , . TP T kingdom. 
 
 literated by such a service as this. 11 1 was com- 
 pelled to condemn this ship, it would be a most 
 reluctant condemnation indeed. I hope and trust 
 that, if the circumstances are true as stated by the 
 master, a condemnation of the vessel would be 
 the very last thing to present itself to the expecta- 
 tion of the asserted captors." 
 
 In case of a conquest by capitulation, property 
 at sea does not seem to be in precisely the same 
 predicament as property upon land. For, from 
 the case of the ships taken at Genoa (s), it appears 
 that a permission to the conquered of withdrawing 
 themselves, their money, merchandises, move- , 
 
 ables, or effects, by sea or land, does not necessa- 
 rily nor usually imply a permission to withdraw 
 property afloat. The permission means, that they 
 may withdraw, either by sea or by land, the pro- 
 perty which it is lawful for them to withdraw, but 
 does not defeat the usual custom, that property at 
 sea cannot be withdrawn at all. And from the 
 same case it further appears, that though one of 
 the articles of a capitulation expressly grant the 
 freedom of trade, still the capitulation shall not be 
 understood to protect property afloat ; a distinc- 
 tion having been usually taken by the commanders 
 
 (*) 4 Rob. Rep. 388. 
 12
 
 90 RIGHT OF CAPTURE 
 
 Right of of fortunate expeditions between this property and 
 
 Ciinl tire 
 
 outoftbe property at land : and Sir Wm. Scott said, in his 
 
 kingdom. -, .. T , 
 
 judgment, " It is in every day's practice to seize 
 all property afloat, and yet to allow a general free- 
 dom of trade exclusive of such particular seizure." 
 When the capture is made previously to the 
 formal declaration of hostilities, and not in open 
 war, it is made under letters of marque and repri- 
 sal. The nature of these has been explained in 
 the foregoing part of this chapter, where the right 
 of a state to seize the property of her rival, found 
 within her dominions, was considered, and there 
 is no distinction between the reprisals upon pro- 
 perty within her dominions, and reprisals upon 
 property without. When, by any of the lawful 
 means which have been enumerated, a belligerent 
 had possessed himself of property belonging to 
 his enemy, it was formerly the custom, among 
 almost all nations, to redeem it from his hands by 
 ransom. But ransom from the hands of an ene- 
 my is now little known to the commercial law of 
 England : for, by the statute 22 Geo. 3. c. 25. 
 the ransom of any ships, or merchandises on board 
 the same, belonging to any subject of this coun- 
 try, and taken by the subjects at war of any state 
 at war with his Majesty, or by any person com- 
 mitting hostilities against his Majesty's subjects, 
 is absolutely prohibited : and by the statutes of
 
 OUT OF THE KINGDOM. 91 
 
 43 Geo. 3. c. 160. and of the 45 Geo. 3. c. 72. (t], Right of 
 such ransom is again prohibited, unless in the outo f t | ie 
 case of extreme necessity, to be allowed by the kl "S dom - 
 Court of Admiralty. And all contracts for ransom 
 contrary to these statutes, are made void, and sub- 
 jected to a penalty of five hundred pounds (u). 
 
 Having examined those cases, in which the of rescue 
 right of the captor takes effect, and invests him ture. re 
 with the benefit of his capture, we will now con- 
 sider those cases in which he is deprived of that 
 benefit by rescue or recapture. Rescue and re- 
 capture are distinguishable from each other. The 
 term recapture is ordinarily employed when a 
 prize, having been captured by an enemy, is re- 
 covered from his possession by the arrival of a 
 friendly force. The term rescue more usually de- 
 notes that recovery which is effected by the rising 
 of the captured party himself against his captor. 
 There is, however, another kind of rescue, which 
 partakes of the nature of recapture : it occurs 
 where the weaker party, before he is overpowered, 
 obtains relief from the arrival of fresh succours, 
 and is thus preserved from the force of the enemy. 
 From the case of the Helen (x), though that case 
 indeed turns upon the duty of recapture, it may 
 
 (/) Marshall, 431. 2. (<r) 3 Rob. Rep. 224. ; and 
 
 () Marshall on Insur- also the Two Friends, 1 Rob. 
 ance, 431. Rep. 271.
 
 92 RIGHT 01' CAPTURE 
 
 or rescue fairly be inferred, that it is also a duty among fel- 
 ture. C low subjects, and equally incumbent of course 
 upon allies, to attempt the rescue of one another 
 from the enemy, wherever there appears to be any 
 reasonable prospect of success. But as to the 
 other kind of rescue, that which is effected by the 
 rising of the captured to defeat their captor, this 
 is a matter rather of merit than of duty. In the 
 - case of the Two Friends (y), Sir William Scott 
 said, " Seamen are not bound by their general 
 duty, as mariners, to attempt a rescue ; nor would 
 they have been guilty of a desertion of their duty 
 in that capacity if they had 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 as one of that number. As to the situa- 
 tion and character of persons engaged in such 
 attempts, it is certainly to be regarded an act per- 
 fectly voluntary, in which each individual is a 
 volunteer, and is not acting as a part of the crew 
 of the ship, or in discharge of any official duty, 
 either ordinary or extraordinary." 
 
 The distinction between the obligation to the 
 performance of the two kinds of rescue, appears 
 to be perfectly reasonable. If it were the bound- 
 en duty of the conquered to rise against their 
 conquerors, their original surrender would have 
 
 (iy) 1 Rob. Rrp. 27 J.
 
 OUT OF THE KINGDOM. 
 
 been a nuqatory act, availing them absolutely of rescue 
 
 and recap- 
 llOthing ; the presumption is always, that a sur- t ure. 
 
 render does not take place till conquest and even 
 escape are hopeless ; and under such circumstan- 
 ces, it is but reasonable, that each man be allow- 
 ed to judge for himself of the opportunities that 
 may justify a subsequent insurrection. But the 
 case is otherwise with a newly arriving force : 
 they are bound to attempt the rescue of their 
 friends. Their strength is fresh and untried, and 
 unless there be a clear superiority against them, 
 it seems but just that they brave the risk of a con- 
 test. Nor is a letter of marque, nor any other 
 commission of the state, required by the law of 
 nations, in order to subject a newly arriving force 
 to the duties of rescue and recapture (z). 
 
 Out of the questions of rescue and recapture p ostlim - 
 arises the consideration of postliminium and sal- nmm 
 vage. " The right of postliminium," says Vat- 
 tel (o), " 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 per- 
 sons or things captured by the enemy are retaken 
 by our allies or auxiliaries, or in any other man- 
 ner fall into their hands, this, so far as relates to 
 the effect of the right, is precisely the same thing 
 
 (2) The Helen, 3 Rob. () Lib. 3. r. 1-4. s. 204. 
 
 Rep. 224.
 
 94 RIGHT OF CAPTURE 
 
 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 either recaptured or rescued from him 
 by the fellow-subjects or allies of the original 
 owner, they do not become the property of the 
 recaptor 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, or jus posliminii, upon certain con- 
 ditions which we shall presently have occasion to 
 consider. But (b) the right of postliminium does 
 not take effect in neutral countries : for when a 
 nation chooses to remain neuter in war, she is 
 bound to consider it as equally just on both sides, 
 so 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 par- 
 ties, 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 favour of the former, and departing 
 from the line of neutrality. Moveables, however, 
 are not entitled to the full benefit of postliminium. 
 Lands, houses, and other fixed possessions, are 
 easily identified, and therefore are completely 
 within the right : and the reason for the excep- 
 
 (6 Vattcl. b. 3. c. 14. s. 208.
 
 OUT OF THE KINGDOM. 
 
 tion of moveablcs is, that in general the identifi- P 
 cation of them is impracticable, and the original 
 
 owners are therefore presumed to have given them 
 
 > 
 
 up as lost. However, even moveables are restor- 
 ed to the original owners, if retaken from the ene- 
 my immediately after his capture of them : in 
 which case the proprietor neither finds a difficulty 
 in recognizing his effects, nor is presumed to have 
 relinquished them. This is the general law of 
 nations with regard to the effect of the right of 
 postliminium upon moveables ; but particular na- 
 tions, as we shall presently see, have relaxed the 
 rigour of that rule in regard to their own subjects, 
 and (by mutual consent) in regard to the subjects 
 of one another. " Prisoners [d] of war who have 
 given their parole, territories and towns which 
 have submitted to the enemy, and have sworn or 
 promised allegiance to him, cannot of themselves 
 return to their former condition by the right of 
 postliminium ; for faith is to be kept even with 
 enemies. But if the sovereign retake those towns, 
 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." 
 
 But it is not so with countries or persons taken 
 by a belligerent state, who were not the subjects 
 of that state during any preceding part of the 
 same war. For the law of postliminium implies 
 
 (d) Vattel. b. 3. c. 14. s. 210, 211.
 
 96 RIGHT OF CAPTURE 
 
 i- that the party claiming it returns to his previous 
 character : and he who, during the whole war, has 
 been the subject of the enemy alone, must be 
 considered, when he falls into the hands of the 
 rival state, not as returning to a previous charac- 
 ter, but as acquiring a character absolutely new. 
 Upon this principle was decided an important 
 question, in the case of the Boedus Lust (e). 
 
 We will now inquire what rights of postlimini- 
 um attach upon property which has been alienat- 
 ed by the enemy. Here we must attend to the 
 distinction before laid down, between immove- 
 able property, which is recoverable by the rights 
 of postliminium, and things moveable, to which 
 that right does not, by the law of nations extend. 
 " Let it be remembered," says Vattel (/*), " as to 
 immoveables, that the acquisition of a town, taken, 
 in war, 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 moment it returns into his power, he 
 restores it to all its rights, and consequently it 
 recovers all its possessions, as far as in their na- 
 ture they are recoverable. It therefore resumes 
 
 (e) 5 Rob. Rep. 233. 
 
 (/) Vattel. b. 3. ch. 14. sect. 21*.
 
 OUT OF THE KINGDOM. 
 
 its immoveable possessions from the hands of 
 those persons who have been so prematurely for- 
 ward to purchase them. In buying them of one 
 who had not an absolute right to dispose of them, 
 the purchasers made a hazardous bargain ; and if 
 they prove losers by the transaction, it is a conse- 
 quence to which they deliberately exposed thenv- 
 selves. 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 libe- 
 rate her from the yoke of the conqueror." 
 
 As to things moveable, we find from the same 
 section that the law is otherwise. And this, in- 
 deed, is of course : for, as moveable property, 
 according to the law of nations, is held to be 
 irrecoverable by the original owner, in virtue of 
 any postliminium, when once it has passed into 
 the complete possession of the enemy, much 
 more is such property to be protected from the 
 effect of postliminium, when it has not only pass- 
 ed into the complete possession of the enemy, 
 but been by him transferred bona fide to a neu- 
 13
 
 mum. 
 
 OF CAPTURE 
 
 tral (g). To this may be added (/z), that, " as 
 things not mentioned in the treaty of peace remain 
 in the same condition in which they happen to be 
 at the time when the treaty is concluded, and are 
 on both sides tacitly ceded to the present possessor, 
 it may be said, in general, that the right of postli- 
 minium no longer exists " after the conclusion 
 of the peace. That right entirely relates to the 
 state of war." 
 
 Though the law of nations in general most 
 clearly establishes that the right of postliminium, 
 with respect to moveables, is extinguished, as soon 
 as those moveables are completely reduced into 
 the possession of the enemy, and that they then 
 may be immediately alienated to neutrals as inde- 
 feasible property, yet there has been a considera- 
 ble difference of opinion and of practice as to the 
 question, what shall be deemed to constitute this 
 complete possession. Some writers on the law of 
 nations have stated it to be merely requisite that 
 the ^property shall have been twenty-four hours in 
 the enemy's power ; others, that the property must 
 have been brought infra prassidia, that is, within 
 the camps, towns, ports, or fleets of the enemy ; 
 and others have drawn other lines, of an arbitrary 
 
 (g) 2 Wooddes. p. 441. sect. 34. 
 (A) Vatt. b. 3. ch. 14. s. 216.
 
 OUT OF THE KINGDOM. 99 
 
 nature. Of late ) r ears, however, a more absolute postiimi- 
 species of possession seems to have been required. 
 " I apprehend," said Sir Wm. Scott, in the case of 
 the Flad Oyen (z), " that by the general practice 
 of the law of nations, a sentence of condemnation 
 is at present deemed generally necessary ; and that 
 a neutral purchaser in Europe, during war, does 
 look to the legal sentence of condemnation as one 
 of the title deeds of the ship, if he buys a prize- 
 vessel. I believe there is no instance in which a 
 man, having purchased a prize- vessel of a bellige- 
 rent, has thought himself quite secure in making 
 that purchase, merely because that ship had been 
 in the enemy's possession twenty-four hours, or 
 carried infra prsesidia." 
 
 At any rate, the rule of condemnation is the 
 general rule applied by England. In our Courts 
 of Admiralty it has always been holden that the 
 property is not changed in favour of a vendee, or 
 recaptor, so as to bar the original owner, till there 
 has been a regular sentence of condemnation (). 
 And in the reign of King Charles the Second, a 
 solemn judgment was given upon this point, and 
 restitution of a ship taken by a privateer was de- 
 creed, after she had been fourteen weeks in the 
 enemy's possession, because she had not been 
 condemned. 
 
 (z) 1 Rob. Rep. 134. 
 
 (fc) Vicl. et 3 Rob. Rep. 236, 7, 8.
 
 100 RIGHT OF CAPTURE 
 
 This judgment of the Court of Admiralty was 
 cited by Lord Mansfield in the case of Goss and 
 Withers (/). And the Courts of Common Law 
 have enforced the same rule, as will be seen from 
 the case of Assievedo against Cambridge (m\ 
 where it was holden that four years possession, 
 and several voyages performed, will not change 
 the property without a sentence of condemnation ; 
 and this condemnation must be prcncunctd by a 
 Court of competent jurisdiction, in the country 
 either of the enemy himself, or of some of his 
 allies, and not in a neutral country. But if, after 
 the time of the enemy's transferring his prize to 
 a neutral, a peace be concluded between that ene- 
 my and the state from whose subject the prize 
 was taken ; then the transfer to the neutral becomes 
 valid, even though there was no legal condemna- 
 tion. For, as we have already seen from Vattel, 
 the right of postliminium no longer exists after 
 the conclusion of peace. And, therefore, in the 
 case of the Schooner Sophie (), the British Court 
 of Admiralty decided, that a ship which had 
 been sold to a neutral, after an illegal condem- 
 nation by a Prize Tribunal, and which, therefore, 
 would not have been considered as fairly trans- 
 
 (/) Goss and Withers, 2 Rep. 97. 
 
 Burr. 683. See also the case (m) Assievedo against 
 
 of the Constant Mary, re- Cambridge, 10 Mod. 79. 
 
 ported in a note to the case See also 3 Rob. Rep. 237, 8. 
 
 of the Rierlighett, 3 Rob. () 6 Rob. Rep. 142.
 
 OUT OF THE KINGDOM. 101 
 
 ferred during war, was to be deemed, by the inter- P 
 
 c i ii 
 
 vention of peace, a legitimate possession in the 
 neutral's hands, and cured of all defects in the title. 
 For as the title of the enemy captor himself, would 
 have been quieted by the intervention of peace, 
 so it was thought to be but reasonable that the 
 general amnesty should have the same effect upon 
 property in the hands of those to whom that ene- 
 my might have assigned it. " Otherwise," ob- 
 served Sir William Scott, " it could not be said 
 that the intervention of peace would have the effect 
 of quieting the possession of the enemy ; because, 
 if the neutral possessor was to be dispossessed, he 
 would have a right to resort back to the bellige- 
 rent seller, and demand compensation from him. 
 And as to a renewal of war, though that may 
 change the relation of those who are parties to it, 
 it can have no effect on neutral purchasers, who 
 stand in the same situation as before." 
 
 When the assignment has been made by the 
 hostile captor, regularly and bona fide, and the 
 party to whom the captor has so made that assign- 
 ment was, at the time of making it, a neutral, the 
 title in the hands of such assignee will not be de- 
 feated by his subsequently becoming an enemy, 
 as appears from the case of the Purissima Con- 
 ception (0). But though, in such instances, the 
 rights of rescue and recapture are gone, so that 
 
 (o) (5 Rob. Rep. 45.
 
 102 RIGHT OF CAPTURE 
 
 the original owner has irrecoverably lost his pro- 
 perty, yet the party to whom it was transferred 
 during neutrality, having become hostile, his pro- 
 perty is of course, in common with all other hos- 
 tile possessions, liable to be seized as prize of 
 war; the only difference being that, instead of 
 passing as a recapture, and reverting to the origi- 
 nal owner, it is considered as a new booty, and 
 belongs either to those who make the seizure or 
 to the state, according to the circumstances of the 
 case. 
 
 The rules which have been stated, are those 
 which govern the right of postliminium by the 
 general law of nations, and to which, therefore, 
 England is obliged in common justice to conform, 
 where the interests of neutrals are concerned. 
 But in cases arising among her own subjects, with 
 one another, and in cases arising between her own 
 subjects and those of her allies, peculiar modifi- 
 cations of the principle have been introduced or 
 acknowledged by her. 
 
 Thus it has been established by several acts 
 of parliament (/>), that, among English subjects, 
 the maritime right of postliminium subsists even 
 to the end of the war ; and, therefore, the ships 
 or goods of the subjects of this country, taken 
 at sea by an enemy, and afterwards retaken, at 
 
 (p) 13 Geo. 1. ch. 4. 160 Vide 2 Burr. 1198. 
 17 Geo. 2. ch. 34. 19 Geo. and 1 Bl. Rep. 27. Hamilton 
 2. ch. 34. 43 Geo. 3. ch. v. Mendes.
 
 OUT OF THE KINGDOM. 103 
 
 any indefinite period of time, and whether before Postiimi- 
 
 nium. 
 
 or after sentence of condemnation, are to be res- 
 tored to the original proprietors. The statute of 
 the 43 Gto. 3. c. 160. s. 39. makes an exception 
 as to ships which have been set forth by the 
 enemy as vessels of war, enacting that these shall 
 not be restored to the original owners, but belong 
 wholly to the recaptors. But if the property re- 
 captured were captured at first in an illegal trade, 
 then the original right is divested, and the pre- 
 vious owner will not be admitted to restitution 
 from the recaptors, as was determined in the case 
 of the Walsingham Packet (q}. 
 
 The rule which this country adopts in giving 
 effect to the right of postliminium between her 
 own subjects and those of her allies, may be 
 gathered from the judgment pronounced by Sir 
 W. Scott in the case of the Santa Cruz (r). It 
 was the case of a Portuguese vessel taken bv the 
 
 J 
 
 French ; and after remaining a month in the ene- 
 my's possession, retaken by the cruizers of this 
 country, which was in alliance with Portugal. 
 " The actual rule of the English maritime law," 
 said Sir W, Scott, " I understand to be clearly 
 this, that the maritime law of England, hav ing- 
 adopted a most liberal rule of restitution with 
 respect to the recaptured property of its own sub- 
 
 (?) 2 Rob. Rep. 77. (r) 1 Rob. Rep. 49.
 
 104 RIGHT OF CAPTURE 
 
 Postiimi. jects, gives the benefit of that rule to its allies. 
 
 nium. 
 
 till it appears that they act towards British pro- 
 perty on a less liberal principle. In such a case 
 it adopts their rule, and treats them according to 
 their own measure of justice." 
 
 It appears from the case of the San Francis- 
 co (.s), that, by a treaty between this country and 
 Spain, the vessels of the respective countries, 
 which have been recapturecl, are to be restored 
 on payment of salvage. 
 
 But though it has been the rule of this coun- 
 
 Salvage. . 
 
 try, as among her own subjects, to restore recap- 
 tured property to the original owner, yet it has 
 not been her rule to make the recaptors afford this 
 restitution altogether gratuitously. By the acts of 
 the 43 Geo. 3. c. ICO. s. 39. the legislature has 
 secured to the recaptors, according to the circum- 
 stances of the recapture, certain rates of salvage : 
 which salvage is, as the term indeed implies, a re- 
 ward given for saving the property, or (which is 
 nearly the same thing) recovering it. The sal- 
 vage allotted to British recaptors, is at the rate of 
 one eighth of the beneficial interest in the whole 
 recaptured property, where the recapture is effect- 
 ed by ships belonging to the royal navy ; and one 
 sixth, where it is effected by private ships ; the 
 judge of the court being at liberty, in cases of re- 
 capture by the joint efforts of king's ships and 
 
 0) 1 Edwards. 279,
 
 OUT OF THE KINGDOM. 105 
 
 private vessels, to order such salvage as he shall salvage. 
 deem reasonable. In our old books, the word 
 salvage is used in another sense, being made to 
 denote the goods saved or recovered. But at pre- 
 sent, it almost universally bears this sense, name- 
 ly, the reward to which the deliverer of such goods 
 becomes entitled for the service he has performed. 
 The reward of salvage is not confined to recap- 
 ture alone, it is given also in cases of rescue. But 
 here, it is necessary to advert again to that dis- 
 tinction which was before pointed out, between 
 the two kinds of rescue. When the rescue is 
 effected by the arrival of a fresh succour, which 
 relieves the weaker party before he falls into the 
 power of the adversary, no salvage is given to the 
 rescuers. Thus it was said by Sir William Scott, 
 in the case of the Franklin (?), " No case has 
 been cited, and I know of none in which military 
 salvage has been given, where the property rescu- 
 ed 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 possession, if not absolute, was not almost in- 
 defeasible, as where the ship had struck, and was 
 so near as to be virtually in the hands and gripe 
 of the enemy." When the rescue is of the other 
 description, that is to say, when it is effected by 
 
 (0 4 Rob. Rep. M7.1 Edvv. Rep. 68. 
 14
 
 100 RIGHT OF CAPTURE 
 
 Salvage, the rising of the captured crew against the captors, 
 a salvage is given; as is manifest from very many 
 cases in the Admiralty Reports, and most parti- 
 cularly from that of the Two Friends (u). 
 
 The allotment of salvage, on recapture and res- 
 cue, is not a matter of British regulation alone ; 
 for salvage, as the court remarked in the cnse last 
 quoted, is a question of the law of nations. The 
 particular rates, indeed, which our acts of parlia- 
 ment assign, are binding only in cases between 
 British subjects (.T); but, in cases where restitu- 
 tion has been made to the subjects of other states, 
 it has been usual, with our courts, to assess such 
 a salvage as the nature of the service performed 
 might reasonably appear to deserve (y}\ and that 
 assessment is usually, though not necessarily made 
 according to the British rates. This was stated 
 by Sir Wm. Scott, in the case of the Two Friends. 
 Nor is there any thing unjust in this requisition 
 of salvage from neutrals upon restitution. The 
 restitution of moveables being, as we have seen, 
 a matter of favour and relaxation, not enjoined 
 in any way by the strict law of nations, we, of 
 course, have a right to annex a condition to our 
 liberality. And, after all, as Lord Mansfield ob- 
 served, in the case of Cornu against Blackburn (z)y 
 
 (u) 1 Rob. Rep. 27 1 . (#) Marshall, 474. 
 
 (x) Two Friends, I Rcb. (~) Dougl. 648. 
 Rep. 271.
 
 \ 
 OUT OF THE KINGDOM. 107 
 
 there is no exaction in the case ; for no man can salvage. 
 be compelled to pay salvage, unless he chooses to 
 have the property back. 
 
 If the property of a nation, not engaged in hos- 
 tility with the enemies of this country, happen to 
 be taken as prize by them, and retaken out of-, 
 their hands by his majesty's subjects, the proba- 
 bility of its condemnation in the courts of the 
 country of the captors is to be considered ; and 
 unless there appear to be ground, on which it 
 may be supposed that it would have been con- 
 demned in those courts, it is to be restored with, 
 out the payment of any salvage. In the late war, 
 the conduct of the cruizers and prize courts of 
 France, having given reason to apprehend that 
 neutral property, arrested by the former on the 
 high seas, would, in almost all cases, be condemn- 
 ed by the latter, salvage was usually allowed to 
 the recaptors of neutral property out of the hands < 
 of the French by our Court of Admiralty, and 
 such allowance was not thought unreasonable by 
 the neutral merchants. But this was treated as an 
 exception to the general rule, founded on particu- 
 lar circumstances (0). 
 
 (a) Eleonora Catherine, Huntress, 6 Rob. Rep. 104. 
 
 4 Rob. Rep. 156. War- Abbot's La\vf of Shipping. 
 
 Oushen, 2 Rob. Rep. 299 part 3. c. 11. s. 13, 
 Carlotta, 5 Rob. Rep. 54
 
 CHAPTER IV 
 
 EFTECT OF WAR UPON THE COMMERCE OF NEUTRALS.- 
 THEIR GENERAL RIGHT TO CARRY ON THEIR ACCUSTOMED 
 COMMERCE. PROTECTION AFFORDED BY NEUTRAL TER- 
 RITORY AND PORTS. ILLEGAL COMMERCE; AS CONTRA. 
 
 BAND VIOLATION OF BLOCKADE CARRYING DESPATCHES 
 
 OR TROOPS AND SUBMISSIONS, BY A NEUTRAL, TO OUT- 
 RAGES OF ONE OF THE BELLIGERENTS. 
 
 Right of 'To mitigate, as much as possible, the calami- 
 carry on ties and sufferings of warfare, and to confine them 
 customed to the belligerent powers, nations have found it 
 ce ' convenient mutually to adopt certain principles, 
 which, like the common law of our own country, 
 have become fixed and settled by usage, confirm- 
 ed by precedents and illustrated by the writings 
 of learned men. These principles have also been 
 adverted to, and ratified by treaties between civi- 
 lized nations in all ages ; and this public law esta- 
 blishes, that countries, not engaged in war, nor 
 interposing in it, shall not be affected by the dif- 
 ferences of contending nations; but, to use the 
 very words of the eminent judge, who now pre- 
 sides with so much learning in the Court of Ad-
 
 commerce. 
 
 EFFECT OF WAR ON, &c. ii>0 
 
 miraltv, " upon the breaking: out of war, it is the Right of 
 
 J ' . neutrals to 
 
 riffht of neutrals to carry on their accustomed carry on 
 
 ... r their a c- 
 
 trade, with an exception of the particular cases 01 customed 
 a trade to blockaded places, or in contraband ar- 
 ticles, and of their ships being liable to visitation 
 and search ()." 
 
 Every maritime war in Europe, since civiliza- 
 tion gradually made the benefits of commerce 
 appreciated, has produced discussions about the 
 rights of those nations that remained at peace. In 
 some instances their commerce certainly suffered ; 
 but where their rights were supported, the balance 
 of advantages was greatly in their favour. The bel- 
 ligerents themselves found a mutual benefit in the 
 exchange of their own produce, which could only 
 be effected by neutral carriers. The intercourse 
 with their colonies was enlarged by all, but prin- 
 cipally by the weaker party ; and though the va- 
 rying opinions of the belligerents of the compa- 
 rative advantages they derived from this inter- 
 course, produced occasional interruptions, neu- 
 trals still maintained their rights, partly from the 
 power they were able to throw into one scale or 
 the other, but principally by the general advanta- 
 ges which were recognised by all. Though, how- 
 ever, power and advantage were the real founda- 
 
 (a) Lord Erskine's speech, the Orders in Council, 10 
 8th of March, 1808, upon Cobbetl's Parl. Deb. 935.
 
 110 EFFECT OF WAR 
 
 Right of tion of this practice, the variety of interests, and 
 carry on the constant charges in them, produced the neces- 
 customtd slt Y of some unvarying tribunal ; for this purpose, 
 
 sommerce. tne Om i ons o f a f ew w j se meil f or 
 
 ter means, were erected into a code of interna- 
 tional law ; and though the contradictions and 
 fanciful extravagances of some of their opinions 
 still leave great room for arbitrary interpretations, 
 something was gained towards permanency and 
 juctice, by the admission of these authorities (). 
 In the case of Barker v. Blakes (r), where a 
 neutral ship, trading to a hostile port, had been 
 detained for the purpose of search, and thereby 
 lost her voyage, the underwriters being called 
 upon to indemnify the neutral owner, attempted 
 to set aside his claim, on the ground, that a neu- 
 tral could not, in a British court, recover an in- 
 demnity for losses incurred in a trade which he 
 had carried on with the enemies of Britain, in 
 contravention of her interests and policy. But 
 the right of the neutral to carry on such a trade, 
 was vindicated and clearly established by Lord 
 Ellenborough, who decided, not only that a neu- 
 tral has a right to pursue his general commerce 
 with the enemy, but that he has a right even to 
 act as the carrier of the enemy's goods from his 
 own to the enemy's country, without being sub- 
 
 (b) Baring on the Orders (c) 9 East. 283. 
 ia Council, 30, 1.
 
 ON THE COMMERCE OF NEUTRALS. ill 
 
 iect to anv confiscation of the ship, or of the neu- Right of 
 
 J neutrals fo 
 
 tral articles which may be on board, though cer- carry on 
 
 i their ac- 
 
 tainly not without the risk of having his voyage C ustomed 
 
 . . r . .. commerce. 
 
 interrupted by the seizure of hostile property. 
 
 As, on the one hand, a neutral has a free and propertyof 
 
 , r t neutrals in 
 
 just right to carry the property oi enemies m nis an enemy's 
 own vessels ; so, on the other, his own property is 
 inviolable, though it be found in the vessels of 
 enemies (d). " It is to be restored to the owners," 
 says Vattel (e), " though without any allowance 
 for detention, decay, Sec. The loss sustained by 
 the neutrals, on this occasion, is an accident to 
 which they expose themselves by embarking their 
 property in an enemy's ship ; and the captor, in 
 exercising the rights of war, is not responsible for 
 the accidents which may thence result, any more 
 than if his cannon kills a neutral passenger who 
 happens unfortunately to be on board an enemy's 
 vessel (/)." 
 
 The law, on this subject, does not appear to have 
 been always so distinctly understood ; and it was 
 an old saying, mentioned by Grotius (g), " that 
 goods found in our enemies' ships are reputed 
 theirs." But the sense of the maxim amounts 
 only to this, that it is commonly presumed in 
 
 (f/) See Marshal, B. 1. (e) Vatt.b. 3. c. 7. s.116. 
 
 chap. 8. sect. 5., where he (/) Marshall, b. 1. ch. 8. 
 
 cites the Consolato del Mare, s. 5. 
 
 and Bynkershook. ( s ) Lib. 3. ch. 6. s. 6,
 
 113 EFFECT OF WAR 
 
 Property such case, that the whole belongs to one and the 
 
 of neutrals 
 
 in an ene- same master ; a presumption, however, which, by 
 
 my's ship . , r 
 
 protected, evident proofs to the contrary, may be taken off ; 
 and so it was formerly adjudged in Holland, in a 
 full assembly of the sovereign court, during the 
 war with the Hanse Towns, in the year 1338, and 
 from thence hath passed into a law. At present, 
 the law is so completely settled, that if a neutral, 
 in partnership with any other trader, engage in a 
 trade which, to that partner, is illegal, yet the share 
 of the neutral is not affected by the illegality of 
 such partner's trade. This may be collected 
 from the case of the Franklin (/z), which was a 
 case of a partnership between Mr. John Bell, resid- 
 ing in America, a neutral country, and Mr. Wil- 
 liam Bell, residing in England, a belligerent coun- 
 try. The partnership appeared to have carried on 
 a trade in tobacco with the enemy ; a trade which, 
 to Mr. John Bell, as a neutral, residing in a neu- 
 tral country, was perfectly lawful, but w r hich to 
 Mr. William Bell, residing in a belligerent coun- 
 try, and therefore invested, as we have seen (i\ 
 with the national character of a belligerent, was 
 of course illegal, as all trade with the enemy has 
 previously been shown to be, according to the 
 laws of all nations. The tobacco was seized; 
 the share of Mr. William Bell was condemned : 
 
 (/j) 6 Rob. Rep. 127. ; see Acton. Rep. 14. 
 also the case of Zulema, 1 (z) Ante, 32 to 54.
 
 OX THE COMMERCE OF NEUTRALS. 113 
 
 but that of Mr. John Bell, who retained his neu- property 
 tral character, was saved harmless." But if the , H nene- 
 neutral voluntarily constitute himself agent of the protected. 
 belligerent, and make use of false papers, his 
 share in the cargo will also become liable to con- 
 demnation (k). 
 
 Nor does the general inviolability of the neu- protection 
 tral character extend solely to the protection of b y aneu- 
 neutral property ; in some instances it goes even tral port< 
 further, and protects the property of belligerents 
 themselves. Thus " it is unlawful," says Vat- 
 tel (/), "to attack an enemy in a neutral country, 
 or to commit in it any other act of hostility. The 
 Dutch East India fleet having put to Bergen, in 
 Norway, in 1666, to avoid the English, the Bri- 
 tish admiral had the temerity to attack them there, 
 but the governor of Bergen fired on the assailants ; 
 and the court of Denmark complained, though 
 perhaps too faintly, of an attempt so injurious to 
 her rights and dignity. At present the whole 
 space of the sea, within cannon shot of the coast, 
 |s considered as making a part of the territory j 
 and, for that reason, a vessel taken under the can- 
 non of a neutral fortress, is not a lawful prize (m)." 
 
 Professor Martens, in his summary of the Law 
 of Nations (), enforces the same doctrine, and 
 
 (Ar) The Zulema, 1 Acton, (01) Vatt. b. 1. c. 23. s. 289, 
 
 Rep. 14. (n) Mart. b. 8. ch. 6. sect. 
 
 (0 Vatt. b. 3. ch. 7. sect. 6.; vid. et 1 Molloy, b. 1. 
 
 132. c, 3, s. 7.; andc.,1. 9. 16. 
 15
 
 H4 THE EFFECT OF WAR 
 
 Protection adds, m a note, that " when two vessels, theenc- 
 
 afforded _ , , 
 
 by a neu- mies of each other, meet in a neutral port, or when 
 one pursues the other into such port, not only 
 must they refrain Trom all hostilities while they 
 remain there, but, should one set sail, the other 
 must not set sail in less than twenty- four hours 
 afterwards." 
 
 Some important cases have been tried in the 
 British Court of Admiralty, in which the immu- 
 nity of neutral domain, has been strenuously and 
 most ably enforced by the learned judge who pre- 
 sides there. Such were the cases of the Twee 
 Gebroeders (0), and of the Anna (/>), in the lat- 
 ter of which, Sir William Scott observed, " cap- 
 tors must understand, that they are not to station 
 themselves in the mouth of a neutral river, for the 
 purpose of exercising the rights of war from that 
 river j much less in the very river itself. They 
 are not to be standing on and off, overhawling ves- 
 sels in their course down the river, and making 
 the river as much subservient to the purposes of 
 war, as if it had been a river of their own country." 
 But the principal decision is the Twee Gebroe- 
 ders (q}. In that case, boats had been sent out 
 from L'Espiegle, a British ship, which was itself 
 lying in the Eastern Eems, within the protection 
 of the neutral territory of Prussia, to capture the, 
 
 (o) 3 Rob. Rep. 330. (</) 3 Rob. Rep. 162. 
 
 00 5 Rob. Rep. 373.
 
 ON THE COMMERCE OF NEUTRALS. lid 
 
 vessel called the Twee Gebroeders, with three Protection 
 
 afforded 
 
 others, which were all lying a little way out at by a neu- 
 
 , tral port, 
 
 sea. A claim was given m against the captors 
 by the Prussian consul, in consequence of the 
 violation of his country's neutrality. In that case, 
 Sir William Scott, said, " It is said, that the ship 
 was, in all respects, observant of the peace of the 
 neutral territory ; that nothing was done by her, 
 which could affect the right of territory, or from 
 which any inconvenience could arise to the coun- 
 try, within whose limits she was lying: in as 
 much as the hostile force which she employed, 
 was applied to the captured vessel lying out of the 
 territory. But that is a doctrine that goes a great 
 deal too far ; I am of opinion, that no use of a 
 neutral territory for the purposes of war, is to be 
 permitted, I do not say remote uses, such as pro- 
 curing provisions and refreshments., and acts of 
 that nature, which the law of nations universally 
 tolerates ; but, that no proximate acts of war are, 
 in any manner, to be allowed to originate on neu- 
 tral grounds : and I cannot but think, that such* 
 an act as this, that a ship should station herself 
 on neutral territory, and send out her boats on 
 hostile enterprises, is an act of hostility much too 
 immediate to be permitted. For supposing, that 
 even a direct hostile use should be required to 
 bring it within the prohibition of the law of im
 
 t!6 THE EFFECT OF WAR 
 
 Protection tions, nobody will say, that the very act of send- 
 
 afforded . rr. . 
 
 by a neu- ing out boats to effect a capture, is not itself an 
 01 f * act directly hostile, not complete, indeed, but in- 
 choate and clothed with all the characters of hos- 
 tility. If this could be defended, it might as well 
 be said, that a ship, lying in a neutral station, 
 might fire shot on a vessel lying out of the neu- 
 tral territory ; the injury, in that case, would not 
 be consummated, nor received on neutral grounds, 
 but no one would say, that such an act would not 
 be an hostile act immediately commenced within 
 the neutral territory. And what does it signify 
 to the nature of the act, considered for the pre- 
 sent purpose, whether I send out a cannon shot, 
 which shall compel the submission of a vessel 
 lying at two miles distance, or whether I send 
 out a boat, armed and manned, to effect the very 
 same thing at the same distance ? It is, in both 
 cases, the direct act of the vessel lying in neu- 
 tral ground. The act of hostility actually begins, 
 in the latter case, with the launching, and man- 
 ning, and arming the boat, that is sent out on 
 such an errand of force. 
 
 " If it were necessary, therefore, to prove, 
 that a direct and immediate act of hostility had 
 been committed, I should be disposed to hold, 
 that it was sufficiently made out by the facts 
 of this case. But direct hostility appears not 
 to be necessary ; for whatever has an immediate
 
 ON THE COMMERCE OF NEUTRALS. 117 
 
 connection with it is forbidden. You cannot, Protection 
 
 afforded 
 
 without leave, carry prisoners or booty into a neu- by aneu- 
 
 , , , tral port., 
 
 tral territory, there to be detained : because such 
 an act is an immediate continuation of hostility. 
 In the same manner an act of hostility is not to 
 take its commencement on neutral ground. It is 
 not sufficient to say, it is not completed there ; 
 you are not to take any measure there, that shall 
 lead to immediate violence ; you are not to avail 
 yourself of a station in neutral territory, making, 
 as it were s a vantage ground of the neutral coun- 
 try, a country which is to carry itself with perfect 
 equality between both belligerents, giving neither 
 the one or the other any advantage. Many in- 
 stances have occurred, in which such an irregular 
 use of a neutral country has been warmly resent- 
 ed : and some, during the present war. The prac- 
 tice which has been tolerated in the northern states 
 of Europe, of permitting French privateers to 
 make stations of their ports, and to sally out to 
 capture British vessels in that neighbourhood, is 
 of that number : and yet, even that practice, un- 
 friendly and noxious as it is, is less than that com- 
 plained of in the present instance : for here, the 
 ship, without sallying out at all, is to commit the 
 hostile act. Every government is perfectly justi- 
 fied in interposing to discourage the commence- 
 ment of such a practice; for the inconvenience,
 
 11 THE EFFECT OF WAR 
 
 Protection to which the neutral territory will be exposed, is 
 
 afforded , T ~ . 
 
 by a neu- obvious. It the respect due to it is violated by 
 one party, it will soon provoke a similar treatment 
 from the other also, till, instead of neutral ground, 
 it will soon become the theatre of war." 
 
 Neutral But the immunity which neutral territory im- 
 
 ship no . 11. 
 
 immunity parts, is not imparted by neutral ships; for an en- 
 my emy's goods may be regularly captured, on board 
 go s ' a neutral ship, as in any other situation. Thus 
 Vattel (r) lays it shortly down, that " if we find 
 an enemy's effects on board a neutral ship, we 
 seize them by the rights of war : but we are na- 
 turally bound to pay the freight to the master of 
 the vessel, who is not to suffer by such seizure." 
 But this freight is not, in all cases, to be measured 
 by the charter party (s), but particular states have 
 sometimes relaxed the rigour of the rule, and 
 granted, by treaty, a privilege of immunity to all 
 goods found sailing in each other's ships, to whom- 
 soever such goods may belong : the maxim in 
 such cases, being, " Free ships, free goods." 
 Such a privilege was granted by this country to 
 Portugal, in the treaty of 1654 (f). 
 
 These are the immunities which may be k- 
 
 * 
 
 gaily afforded by neutrals to the subjects of one 
 belligerent nation, against the hostility of the 
 
 (V) Vatt. b. 3. cli. 7. sect, ling Riget, J Rob. Rep. 82. 
 I \ 5. (0 5 Rob. Rep. 52. 6 
 
 (..) 1 Moll. T. 18. T \vil- Rob. Rep. 24. 41. 358.
 
 ON THE COMMERCE OF NEUTRALS. Il 
 
 other. We will now proceed to those instances illegal 
 
 commerce 
 
 where neutrals, so far from affording immunity to O f neutral*, 
 the commerce of strangers, forfeit, by misconduct, 
 even that immunity, which would otherwise be- 
 long to their own. This misconduct is of vari- 
 ous kinds. We will first speak of the cases 
 where neutrals are found engaged in contraband 
 commerce (u}. 
 
 What commerce shall be deemed contraband Contra. 
 
 . . ... band com- 
 
 is a question which has given rise to various dis- 
 cussions, between the forces of belligerent states, 
 and the merchants of neutral nations. " The 
 catalogue of contrabands," said Sir William Scott, 
 in the case of the Jonge Margaretha (x), " has 
 varied very much, and sometimes in such a man- 
 ner as to make it very difficult to assign the reason 
 of the variations ; owing to particular circumstan- 
 ces, the history of which has not accompanied the 
 history of the decisions." The King having, by 
 his prerogative, the power to promulgate who are 
 his enemies, is bound to watch over the safety of 
 the state, he may, therefore, make new declara- 
 tions of contraband, when articles come into use 
 as implements of war which were before innocent ; 
 this is not the exercise of discretion over contra- 
 band ; the law of nations prohibits contraband, and 
 it is the usus bellici which shifting from time to 
 
 () See Agton's Rep. 25. 0) 1 Rob. Rep. 1SQ
 
 120 THE EFFECT OF WAR 
 
 
 time, make the law shift with them (y). Thus 
 of neutrals, much, at least, is acknowledged in ail hands, as 
 Vattel (z) has laid it down, that commodities par- 
 ticularly useful in war are contraband, such as 
 arms, ammunition, horses, timber for ship- build- 
 ing, and every kind of naval stores. But torse 
 and Cordilla hemp, found unfit for naval service, 
 have been held not to be contraband. The great- 
 est difficulty seems to have occurred in the in- 
 stance of provisions : which have not been held 
 universally contraband, though Vattel (a) admits 
 that they become so on certain occasions, when 
 there is an expectation of reducing the enemy by 
 famine. In modern times, one of the principal 
 criteria adopted by the courts for the decision of 
 the question, whether any particular cargo of pro- 
 visions be confiscable as contraband, is to ex- 
 amine whether those provisions be in a rude or in 
 a manufactured state. For all articles, in such ex- 
 aminations, are treated with greater indulgence in 
 their native condition, than when they are wrought 
 up for the convenience of the enemy's immediate 
 consumption. " Thus," said Sir Wm. Scott, in 
 the case of the Jonge Margaretha (), " Iron un- 
 wrought is treated with indulgence, though an- 
 
 (y) Lord Erskine's Speech sect. 112. 
 
 8th March, 1808, on the Or- (a) Vatt. b. 3. ch. 7. sect. 
 
 tiers in Council, 10 Cobbett's 112. 
 
 Par. Deb. 958-9. (6) 1 Rob. Rep. 189. 
 
 (;) Vatt. b. 3. chap. 7.
 
 ON THE COMMERCE OF NEUTRALS. 12.1 
 
 ehors and other instruments, fabricated out of it, illegal 
 
 , , TT . c commerce 
 
 are directly contraband. Hemp is more favour- O f neutrals. 
 ably considered than cordage : and wheat is not 
 considered so obnoxious a commodity, as any of 
 the final preparations of it for human use." 
 
 But these differences of opinion, with respect 
 to the nature of provisions, appear to have arisen, 
 rather from individual carelessness or misappre- 
 hension, than from any radical confusion in the 
 law of nations on this subject. That they are, in. 
 strictness, confiscable as contraband, appears to 
 be undeniable. In the case of the Haabet (c), Sir 
 William Scott explained the strict law, and the 
 relaxations of modern practice, in the following 
 words : " The right of taking possession of car- 
 goes of this description, Commeatus, or provi- 
 sions, going to the enemy's ports, is no peculiar 
 claim of this country ; it belongs generally to 
 belligerent nations. The ancient practice of Eu- 
 rope, or at least of several maritime states of Eu- 
 rope, was to confiscate them entirely. A century 
 has not elapsed since this claim has been asserted 
 by some of them ; a more mitigated practice has 
 prevailed in later times, of holding such cargoes 
 subject only to a right of pre-emption ; that is, to 
 a right of purchase, upon a reasonable compensar 
 tion to the individual whose property is thus di- 
 verted. I have never understood, that, on the 
 
 (c) 2 Rob. Rep. 182. 
 16
 
 122 THE EFFECT OF WAR. 
 
 illegal side of the belligerent, this claim goes beyond the 
 
 commerce c 
 
 ofneutrak. case ol cargoes avowedly bound to the enemy's 
 ports, or suspected, on just grounds, to have a 
 concealed destination of that kind : or that, on the 
 side of the neutral, the same exact compensation 
 is to be expected, which he might have demand- 
 ed from the enemy in his own port. The enemy 
 may be distressed by famine, and may be driven 
 by his necessities to pay a famine price for the 
 commodity, if it gets there : it does not follow 
 that acting upon my rights of war in intercepting 
 such supplies, I am under the obligation of pay- 
 ing that price of distress." 
 
 From the foregoing opinions of Sir Wm. Scott, 
 it may be collected that all provisions, going to an 
 enemy's port are, in strictness, confiscable as con- 
 traband; but that, in the case of provisions in 
 their rude state, such as wheat, the strict right of 
 confiscation is waived by the belligerent for the 
 more lenient exercise of pre-emption ; that, ne- 
 vertheless, where those provisions are manufac- 
 tured for use, as, if the wheat be baked into bis- 
 cuit, the rigour of the original right revives, and 
 the penalty of confiscation for contraband may be, 
 in strictness, enforced. 
 
 From a further position, laid down by the 
 same learned judge in the case of the Jonge Mar-
 
 commerce 
 of neu 
 trals. 
 
 ON THE COMMERCE OF NEUTRALS. 123 
 
 garetha (e), it will be found, that of all circum- illegal 
 
 commt 
 
 stances in the interpretation of contraband, none O f neu- 
 will be deemed more materially to affect the car- 
 go than the destination with which it is sailing. 
 " The most important distinction," continued 
 he, " is, whether the articles were intended for the 
 ordinary use of life, or even for mercantile ships' 
 use, or whether they were going with a highly 
 probable destination to military use. Of the mat- 
 ter of fact on which the distinction is to be ap- 
 plied, the nature and quality of the port to which 
 the articles were going, is not an irrational test ; 
 if the port is a general commercial port, it shall 
 be understood that the articles were going for 
 civil use, although occasionally a frigate, or other 
 ships of war, may be constructed in that port. On 
 the contrary, if the great predominant character 
 of a port be that of a port of naval military equip- 
 ment, it shall be intended that the articles were 
 going for military use, although merchant ships 
 resort to the same place, and although it is possi- 
 ble that the articles might have been applied to 
 civil consumption ; for it being impossible to 
 ascertain the final application of an article aneipi- 
 tis usus, it is not an injurious rule which de- 
 duces, 'both ways, the final use from the imme- 
 diate destination ; and the presumption of a hos- 
 
 (e) 1 Rob. Rep. 189. Vid. Rep. 97 6 Rob. Rep. 126. 
 
 et 4 Rob. Rep. 33.S Rob. 6 Rob. Rep. 93.
 
 124 THE EFFECT OF WAR 
 
 ilk-gal tile use, founded on its destination to a military 
 
 of neu! rCC port, is very much inflamed if, at the time when 
 
 the articles were going, a considerable armament 
 
 was notoriously preparing, to which a supply of 
 
 those articles would be eminently useful." 
 
 There are some articles decidedly contraband 
 in their nature, such as tar and pitch ; which, 
 however, when they are the produce of the claim- 
 ant's own country, have been exempted from the 
 penalty attaching upon contraband in general ; 
 as it has been deemed a harsh exercise of a bel- 
 ligerent right, to prohibit a material branch of a 
 neutral's natural trade. " But," said Sir William 
 Scott, in the case of the Sarah Christina (f), 
 " this relaxation is understood with a condition 
 that the cargo may be brought in, not indeed for 
 confiscation, but for pre-emption." 
 
 Except in cases of relaxation like these, where 
 the practice of pre-emption has interposed, it 
 usually happens that when the goods are once 
 clearly shewn to be contraband, confiscation to the 
 belligerent captor ensues, as a matter of course. 
 " Barely to stop such goods," says Vattel (g), 
 " would in general prove an ineffectual mode, 
 especially at sea, where there is no possibility of 
 entirely cutting off all access to the enemy's 
 harbours. Recourse is, therefore, had to the ex- 
 
 (/) 1 Rob. Rep. 237. (g) Vatt. b. 3. ch. 7. seel. 
 1 Rob. 26 1 Rob. 89 113. 
 1 Rob, 242.
 
 ON THE COMMERCE OF NEUTRALS. 125 
 
 pedient of confiscating all contraband goods that illegal 
 
 . , , f c . commerce 
 
 we can seize on, in order that the tear ot loss may O f neutrals 
 operate as a check on the avidity of gain, and de- 
 ter the merchants of neutral countries from sup- 
 plying the enemy with such commodities. And, 
 indeed, it is an object of such high importance to 
 a nation at war, to prevent, as far as possible, the 
 enemy's being supplied with such articles as will 
 add to his strength, and render him more dange- 
 rous, that necessity, and the care of her own wel- 
 fare and safety, authorize her to take effectual 
 methods for that purpose, and to declare that all 
 commodities of that nature, destined for the ene- 
 my, shall be considered as lawful prize. On this 
 account, she notifies to the neutral states her de- 
 claration of war; whereupon the latter usually 
 give orders to their subjects to refrain from all 
 contraband commerce with the nations at war, 
 declaring, that if they are captured in carrying on 
 such trade, the sovereign will not protect them. 
 This rule is the point where the general custom 
 of Europe seems at present fixed, after a number 
 of variations. And, in order to avoid perpe- 
 tual subjects of complaint and rupture, it has, 
 in perfect conformity to sound principles, been 
 agreed that the belligerent powers may seize and 
 confiscate all contraband goods which neutral 
 persons shall attempt to carry to their enemy, 
 without any complaint from the sovereign of
 
 126 THE EFFECT OF WAR 
 
 illegal those merchants ; as, on the other hand, the power 
 
 commerce j , , 
 
 of neutrals at war does not impute to the neutral sovereigns 
 these practices of their subjects." 
 
 It is necessary for a neutral, if he would escape 
 the danger of these seizures, to be exceedingly 
 circumspect in his whole voyage. From the case 
 of the Trende Sostre (/*), it appears that he will 
 not be permitted with impunity to touch at an 
 enemy's port, if he have contraband goods on 
 board, upon any excuse, however genuine, of sell- 
 ing other things less objectionable in their nature. 
 Innocent articles, if they are so unfortunate as to 
 be in company with obnoxious commodities, must 
 take the ill consequences resulting from such an 
 association. They must proceed to some other 
 port, where the enemy is not established, and 
 where the obnoxious commodities consequently 
 lose their contraband character, and become fair 
 articles of general trade. For though sailcloths 
 and hemp are most mischievous materials, if they 
 be sailing to a hostile market, yet a belligerent na- 
 tion interposes no objection against the transfer 
 of such commodities from a neutral possessor to 
 her own subjects, or to another neutral. 
 
 It is a metaphorical maxim very frequently to 
 be met with in the cases upon these captures, 
 that contraband is of an infectious nature, and 
 
 (7t) Reported in a note to the case of the Lisette, 6 Rob. 
 Rep. 390.
 
 commerce 
 
 ON THE COMMERCE OF NEUTRALS. 
 
 contaminates the whole cargo. The innocence, illegal 
 therefore, of any particular article, is not usually of 
 admitted to exempt it from the general confisca- il 
 tion. By the ancient law of Europe, the ship also 
 was liable to condemnation : " Nor can it be said," 
 observed Sir Wm. Scott, in the case of the Rin- 
 gende Jacob (i), " that such a penalty was unjust, 
 or not supported by the general analogies of law, 
 for the owner of the ship has engaged it in an un- 
 lawful commerce. But in the modern practice of 
 the Courts of Admiralty of this country, (and I be- 
 lieve of other nations also,) a milder rule has been 
 adopted, and the carrying of contraband articles 
 is attended only with the loss of freight and ex- 
 penses, except where the ship belongs to the owner 
 of the contraband cargo, or where the simple mis- 
 conduct of carrying a contraband cargo has been 
 connected with other malignant and aggravating 
 circumstances (&)." Among such circumstances, 
 those of false destination and false papers are consi- 
 dered as the most heinous (/). " These," as it was 
 said by the Court in the case of the Neutralitet(m), 
 " constitute excepted cases out of the modern 
 rule, and continue them under the ancient one." 
 
 (0 1 Rob. Rep. 89. Jonge Tobias, 1 Rob. 330. 
 
 (fc) Charlotte, 5 Rob. (7) Mercurius, 1 Rob. 288. 
 
 275. EleonoraWilhelmina, (m) 3 Rob. Rep. 295. 
 
 6 Rob. 331. Parkin v. See also the Baltic, 1 Acton's. 
 
 Dick, 2 Campb. 221 Rep. 25. and id. 333. 
 
 Ringende Jacob, 1 Rob. 89.
 
 123 THE EFFECT OF WAR 
 
 illegal And it has been recently decided that contraband, 
 of neu- concealed out, affects the ship, however remote 
 her return voyage may be (n), and that the mis- 
 conduct of a supercargo in this respect affects the 
 ship-owner (o). The ancient law and the modern 
 relaxations are collected by Dr. Robinson, in a 
 very learned note to the case of the Franklin (/>). 
 violation Having thus fully considered the nature of this 
 ade' lock contraband commerce, and its consequences to the 
 neutral who engages in it, we will now examine 
 how a neutral may forfeit the immunities of his 
 national character, by violations of blockade. 
 " If," says Vattel (g), " I lay siege to a place, or 
 simply blockade it, I have a right to hinder any- 
 one from entering, and to treat as an enemy who- 
 soever attempts to enter the place, or carry any 
 thing to the besieged, without my leave ; for he 
 opposes my undertaking, and may contribute to 
 the miscarriage of it, and this involves me in all the 
 misfortunes of an unsuccessful war." It has been 
 well observed (;*), that amongst the rights of belli- 
 gerents, there is none more clear and incontrover- 
 tible, or more just and necessary as to its applica- 
 
 (n) The Margaret, 1 Ac- tween military and commer- 
 
 ton's Rep. 333. cial blockade, and their ef- 
 
 (o) 1 Acton's Rep. 25. feet, see 1 Acton's Rep. 128. 
 
 (p) Franklin, 3 Rob. Rep. (r) Dr. Phillimore on li- 
 
 221. note. cense trade, 49.-- -I Acton's 
 
 (5) Vatt. b. 3. ch. 7. sect. Rep. 59. 
 117. As to distinction be.
 
 ON THE COMMERCE OF NEUTRALS. 129 
 
 tion, than that which gives rise to the law of violation 
 blockade, as it has been ascertained, defined, and a de. 
 administered by the maritime tribunals in this 
 country. The greater the research that shall be 
 made into the principles of natural law, the more 
 the details of the diplomatique and conventional 
 history of Europe shall be studied, the more will 
 it appear that this right has its origin in the purest 
 sources of maritime jurisprudence, that it is sanc- 
 tioned by the practice of the best times, and above 
 all, that it is so essentially connected with the vital 
 interests of Great Britain, that the renunciation 
 of it, under any circumstances, must be regarded 
 as the renunciation of one of the firmest charters 
 of our naval pre-eminence, and as the surrender of 
 one of the surest bulwarks of our national inde- 
 pendence. Clear, however, and indisputable as 
 this right is, just and necessary as is the exercise 
 of it, it cannot be denied but that it is one of the 
 most severe and harsh in its operation of any that 
 is inscribed in the whole code of public law. It 
 is under this impression that tribunals of the law 
 of nations, before they have enforced the provis- 
 ions of a blockade, have uniformly required it to 
 be established by clear and unequivocal evidence, 
 first, that the party proceeded against has had due 
 notice of the existence of the blockade, and se- 
 condly, that the squadron allotted for the purposes 
 of its execution, was fully competent to cut off all 
 17
 
 130 THE EFFECT OF WAR 
 
 violation communications with the interdicted port. These 
 ade. ( points have been deemed so indispensably requi- 
 site to the existence of a legal blockade, that the 
 failure of either of them has been held to amount 
 to an entire defeazance of the measure, and this 
 even in cases where the notification of it has issued 
 immediately from the fountain of supreme autho- 
 rity (s}. 
 
 " On the question of blockade," said Sir Wil- 
 liam Scott, in the case of the Betsy (t), " three 
 things must be proved, 1st, the existence of an 
 actual blockade; 2ndly, the knowledge of the 
 party ; and thirdly, some act of violation, either by 
 going in or by coming out with a cargo laden 
 after the commencement of blockade." We will 
 consider each of these three points in its order. 
 
 First, then, there must be the existence of an 
 actual blockade. It must have been declared by 
 competent authority ; and, as a declaration of block- 
 ade is a high act of sovereignty, it was held, in the 
 case of the Henrick and Maria (w), that a com- 
 mander of a king's ship is not to extend it. But, 
 from the case of the Rolla (x), it should seem that 
 this limitation of a commander's power is held to 
 subsist only " on stations in Europe, where go- 
 
 (s) This was decided in also the case of the Nancy, 
 
 the Court of Appeal, in Feb. 1 Acton's Rep. 59. 
 
 1792. Dr. Phillimoreon Li. (M) 1 Rob. Rep 146. 
 
 cense Trade, 52. in notes. (x) 6 Rob. Rep. 367. 
 
 (0 1 Rob. Rep. 92. See
 
 ON THE COMMERCE OF NEUTRALS. 131 
 
 vernment is almost at hand to superintend the. Actual 
 
 -. . , . , blockade 
 
 course of operations ; and that a commander nec essaty. 
 going out to a distant station, may reasonably be 
 supposed to carry with him such a portion of 
 sovereign authority delegated to him as may be 
 necessary to provide for the exigencies of the 
 service on which he is employed." 
 
 The blockade must not only have been declared 
 by competent authority, but must be also an ac-^ 
 tually existing blockade. A blockade is then 
 only to be considered as actually existing, when 
 there is a power to enforce it (y}. " The very 
 notion of a complete blockade," said Sir William 
 Scott, in the case of the Stert (z\ "includes that 
 the besieging force can apply its power to every 
 point of the blockaded state. If it cannot, there 
 is no blockade of that part where its power can- 
 not be brought to bear." We find, however, 
 from the case of the Frederick Molke (a), that 
 " it is not an accidental absence of the blockading 
 force, nor the circumstance of being blown off by 
 wind, (if the suspension and the reason of the sus- 
 pension are known,) that will be sufficient in law 
 to remove a blockade." But if the relaxation hap- 
 pen not by such accidents as these, but by the 
 
 O) Mercurius, 1 Rob. Cobbett's Pail. Deb. 049, 
 
 Rep. 80. 950. 
 
 0) 4 Rob. Rep. 66. 1 () 1 Rob. Rop. 86. I 
 
 Acton. 04, 5. Ld. Erskine's Rob. 93, <Jl. 147. 156.- 1 
 
 speech, 8th March, 1808, on Acton's Rop. 59. 
 the Orders in Council, 10
 
 THE EFFECT OF WAR 
 
 mere remissness of the cruizers stationed to main- 
 tain the blockade, (who are too apt, by permitting 
 the passage of some vessels to give fair ground to 
 others for supposing the blockade concluded,) 
 then it is impossible for a court of justice to say 
 that the blockade is actually existing. " It is in 
 vain," said Sir William Scott, in the case of the 
 Juffrow Maria Schroeder (/>), "for governments 
 to impose blockades, if those employed on that 
 service will not enforce them. The inconvenience 
 is very great, and spreads far beyond the indivi. 
 dual case. Reports are eagerly circulated, that 
 the blockade is raised ; foreigners take advantage 
 of the information ; the property of innocent per- 
 sons is ensnared, and the honour of our own 
 country is involved in the mistake." 
 
 Mr. Serjeant Marshall (c), in his excellent work 
 on insurance, observes, that, " not only a single 
 port, but a number of ports, and even a great ex- 
 tent of coast, may be blockaded. In the month 
 of March, 1799, the British government notified 
 to all neutral powers, that the ports of Holland, 
 were all invested and blockaded by the British 
 forces : and that every vessel, of whatever flag, 
 every cargo, and every bottom, attempting to 
 enter them, would become forfeited by the law of 
 nations, as attempting to carry succour to the be- 
 
 (6) 3 Rob. Rep. 156 (c) Marshall, b. 1. c. 3. 
 Ibid. 158, 159. note 1 Ac. s. 31 Acton Rep. 63. 
 ton's Rep. 59.
 
 ON THE COMMERCE OF NEUTRALS. 133 
 
 sieged. It must be admitted, that in no former Actual 
 
 blockad 
 necessary. 
 
 war had the blockading system been pushed bl 
 
 to this extent ; but this has been not for want of 
 right, but for want of power. If a single port 
 may be blockaded by a single squadron, which has 
 never yet been disputed, a number of squadrons 
 may blockade a certain extent of coast ; and if a 
 country possesses the power and means, and will 
 incur the expense and hazard, of covering the 
 whole extent of an enemy's coast, it becomes 
 entitled, upon the same principle, to the same 
 exemption from neutral interference, as if, with a 
 single division, it invested a single fortress." 
 
 The second point to be examined is the know- Knovv . 
 ledge which the neutral may have respecting the }^j:j?J| f 
 blockade of any particular port : since, in order necessary. 
 to affect him with the penal consequences of a 
 violation, it is absolutely necessary -for him to have 
 been sufficiently informed of the blockade itself, 
 This sufficient information may be communicated 
 to him in two ways : by a formal notification from 
 the blockading power, or by the notoriety of the 
 fact. " To make a notification effectual and valid," 
 said Sir William Scott, in the case of the Rolla (r/), 
 "all that is necessary is that it shall be commu- 
 nicated in a credible manner : because, though one 
 mode may be more formal than another, yet any 
 communication which brings it to the knowledge 
 of the party, in a way which could leave no doub* 
 
 (rf) 6 Rob. Rep. 367.
 
 134 THE EFFECT OF WAR 
 
 Know- in his mind as to the authenticity of the informa- 
 ifiocikade tion, would be that which ought to govern his 
 '' conduct, and will be binding upon him. It is at 
 all times most convenient that the blockade should 
 be declared in a public and distinct manner, in- 
 stead of being left to creep out from the conse- 
 quences produced by it." 
 
 The effect of a notification to a foreign govern- 
 ment, is to include all the individuals of that na- 
 tion. " It would be the most nugatory thing in 
 the world," said Sir William Scott, in the case 
 of the Neptunus (e), " if individuals were allow- 
 ed to plead their ignorance of it. It is the duty 
 of foreign governments to communicate the infor- 
 mation to their subjects, whose interests they are 
 bound to protect : I shall hold, therefore, that a 
 neutral master can never be heard to aver, against 
 a. notification of blockade, that he is ignorant of 
 it." A subsequent decision in the case of the 
 Adelaide (/"), goes further yet, and establishes, 
 that a notification given to one state must be pre- 
 sumed, after reasonable time, to have reached the 
 subjects of neighbouring states also, binding them, 
 though not of its own force, yet by way of evi- 
 dence. But a reasonable time is allowed for the 
 promulgation of the notice, so that neutrals arc 
 
 (<?) 2 Rob. Rep. 110. facto upon neutrals. 1 Ac. 
 
 Wclvaart Van Pillaw,2 Rob. ton Rep. 61 and 62. 
 
 128. as to the effect of gene- (/) 2 Rob. Rep. 110. in 
 
 ral notoriety of blockade de notes.
 
 r 
 
 ON THE COMMERCE OFv NEUTRALS. 135 
 
 held to be bound by it, not from the precise mo- Know- 
 
 i ledge of 
 
 ment when it was given to the government, but blockade 
 from the period when it may fairly be supposed m 
 to have reached themselves (g}. 
 
 When once the notice, actually or construc- 
 tively, has reached the neutral, he is not permitted 
 to go to the station of the blockading force, upon 
 pretence of inquiring whether blockade have ter- 
 minated. " The merchant," said Sir William 
 Scott, in the case of the Spes and Irene (/z), " is 
 not to send his vessel to the mouth of the river, 
 and say, ' If you don't meet with the 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 introducto- 
 ry ? The true rule is, that, after the knowledge of 
 an existing blockade, you are not to go to the very 
 station of blockade under pretence of inquiry." 
 
 In adventures from America, indeed, the Court 
 allowed some relaxation of this rule, on account 
 of the distance of that country. This relaxation, 
 as explained in the last mentioned case, was, " that 
 ships sailing from America, before the knowledge 
 of the blockade had reached America, should be 
 entitled to a notice, even at the blockaded port, 
 and that ships sailing afterwards, might sail on a 
 
 (g) Jonge Petronella, 2 Rob. 298. 
 Rob. Rep. 1 31 Calypso, 2 (h) 5 Rob. Rep. 76.
 
 136 THE EFFECT OF WAR 
 
 Know- contingent destination even for that port, with the 
 
 ledge of r- IT T* i 
 
 blockade purpose of calling at some British port, or at some 
 '' neutral port, for information, and that they should 
 be allowed the benefit of such a contingent desti- 
 nation to be ascertained and rendered definite, by 
 the information which they should receive in 
 Europe. But in no case was it held that they 
 might sail to the mouth of a blockaded port to 
 inquire whether a blockade, of which they had 
 received previous formal notice, was still in exis- 
 tence or not. If particular parties are innocent 
 in their intention, it is still a measure of necessary 
 caution, and of preventive legal policy, to hold 
 the rule general, against the liberty of inquiring 
 at the very mouth of the blockaded port : which 
 would amount, in practice, to a universal license 
 to attempt to enter, and, on being prevented, to 
 claim the liberty of going elsewhere." 
 
 The indulgence, thus limited, was considered 
 as due in reason to the American merchants. 
 " For," observed Sir William Scott, in the case 
 of the Betsy (i), " Lying at such a distance, 
 where they cannot have constant information of 
 the state of the blockade, whether it continues 
 or is relaxed, it is not unnatural that they should 
 send their ships conjecturally, upon the expec- 
 
 (z) 1 Rob. Rep. 332. and see also 1 Acton Rep. 
 Neptunus, 2 Rob. 114. 141.161. 
 Vro\v Johanna, 2 Rob. 109.;
 
 ON THE COMMERCE OF NEUTRALS. 137 
 
 tation of finding the blockade broken up, after it Know. 
 
 1 1 f 
 
 had existed for a considerable time. A very blockade 
 great disadvantage indeed would be imposed upon 
 them, if they were bound rigidly by the rule, 
 which justly obtains in Europe, that the blockade 
 must be conceived to exist till the revocation of 
 it is actually notified. For, if this rule is rigidly 
 applied, the effect of the blockade would last two 
 months longer upon them than on the trading na- 
 tions of Europe, by whom intelligence is received 
 almost as soon as it is issued." 
 
 The receipt of the notification will not prevent 
 a neutral, who, at the time of receiving it, is lying 
 in the very port blockaded, from retiring freely : 
 and it has even been laid down in the case of the 
 Betsy (), that he may retire with a cargo which 
 he may already have laden, and which has there- 
 by become actually neutral property : the dis- 
 tinction being, that he is not at liberty to make 
 any fresh purchase after the notification. From 
 the case of the Rolla (/) it appears, that the court 
 will hold every cargo to be a fresh purchase . 
 which was not delivered, previously to the notifi- 
 cation, either on board the neutral ship itself, or 
 in lighters. 
 
 The notification of blockade must be legal and 
 regular. During a blockade, which extended 
 
 (A:) 1 Rob. Rep. 92. and (/) 6 Rob. Rep. 364, 
 152. 
 
 18
 
 1S8 THE EFFECT OF WAR 
 
 Know- only to Amsterdam, an English commander gave a 
 
 ledg-e of j ptii 
 
 blockade notice to a neutral entering Amsterdam, of block- 
 r> ade upon all Dutch ports. The notice was held 
 to be invalid (m), 1st, with reference to the other 
 ports, because, as we have seen, a commander 
 of a King's ship has no right to enlarge a block- 
 ade ; and, 2dly, with reference to Amsterdam 
 itself, " Because," said Sir William Scott, " it 
 took from the neutral all power of election as to 
 what other part of Holland he should enter, when 
 he found the port of his destination under block- 
 ade. A commander 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 con- 
 demnation." 
 
 No formal notification can ever be necessary 
 for vessels lying within the blockaded port. " The 
 continued fact," said Sir William Scott, in the 
 case of the Vrow Judith (n), " is itself a suffi- 
 cient notice ; it is impossible for those within to 
 be ignorant of the forcible suspension of their 
 commerce ; the notoriety of the thing supersedes 
 the necessity of particular notice to each ship." 
 
 This brings us to the consideration of the other 
 mode, in which, as we have already seen, a neu- 
 tral may receive what shall be deemed sufficient 
 
 (w) Henrich and Maria, 3^4. 
 1 Rob. 140 Rolla, 6 Rob. (n) 1 Rob. Rep. 152.
 
 ON THE COMMERCE OF NEUTRALS. 139 
 
 information of a blockade, that is, by the noto- Know- 
 
 1 J f 
 
 riety of the fact. " If," says Sir William Scott, blockade 
 in the case of the Columbia (o), " you can affect ne 
 a neutral with the knowledge of the fact, a formal 
 warning becomes an idle ceremony, of no use, 
 and not to be required. But the sight of one ves- 
 sel, before a harbour, would not be sufficient no- 
 tice to a neutral, though that vessel might alone 
 be adequate to the operations of the blockade." 
 There must be an apparent, or notorious block- 
 ade, in order to affect a neutral with knowledge, 
 unless there be individual proof that he had re- 
 ceived specific information of it (p). On the 
 other hand, if the fact be of a nature manifestly 
 notorious, a person violating such a blockade will 
 be considered, prima facie, as having knowingly 
 offended ; but he may be admitted to give evi- 
 dence of his ignorance. For there is a distinc- 
 tion between this case, of a knowledge by the no- 
 toriety of the fact, and the before-mentioned cases, 
 of knowledge by formal notice. In these cases 
 we have seen, that no plea of ignorance is ever 
 admitted ; in this, such a plea will be allowed, if 
 fairly established. This rule is laid down in the 
 cases of the Hurtige Hane (q] and of the Nep- 
 tunus (r). In the latter, there is also this further 
 
 (o) 1 Rob. Rep. 156. 1 6 Rob. 65. 
 
 Rob. Rep. 83. 1 Rob. Rep. (f/) 3 Rob. Rep. 321. 
 
 146. (r) 2 Rob. Rep. 110. 
 
 (p) Mercurius. 1 Rob, 83.
 
 440 THE EFFECT OF WAR 
 
 Know- distinction taken between the two classes of cases : 
 blockade that, in the cases of a notification formally given, 
 ^ the act of sailing to the blockaded port with a 
 contingent destination to enter if the blockade be 
 raised, and to proceed if it be not, is sufficient to 
 constitute the offence. It is to be presumed, that 
 the notification will be formally revoked, and that 
 due notice will be given of it ; till that is done, 
 the port is to be considered as closed up ; and, 
 from the moment of quitting port to sail on such 
 a destination, the offence of violating the blockade 
 is complete, and the property engaged in it subject 
 to confiscation. It may be different in a blockade 
 existing de facto only. There, no presumption 
 arises as to the continuance ; and the ignorance 
 of the party may be admitted, as an excuse, for 
 sailing on a doubtful and provisional destina- 
 tion." 
 
 What is a Thus, we have gone through two of the three 
 blockade. 01 P om ts which are chiefly necessary to be consider- 
 ed in the question of blockade, namely, the exist- 
 ence of an actual blockade, and the neutral's 
 knowledge of it. It remains for us to examine 
 the third point, namely, the violation of the block- 
 ade, so existing and so known. This violation 
 may be, either, by going into the place blockaded, 
 or by coming out of it with a cargo laden after 
 the commencement of the blockade. But, in 
 order to constitute such a going into the block- 
 aded port as will subject the neutral to the penal-
 
 ON THE COMMERCE OF NEUTRALS. 141 
 
 ties of confiscation, it is not necessary that the what is a 
 
 . P , violation of 
 
 entrance be completed into the very heart ot the blockade. 
 harbour. Vessels are not permitted even to place 
 themselves in the vicinity, if their situation be so 
 near that they may, with impunity, break the 
 blockade whenever they please. " If a vessel 
 could, under pretence of proceeding farther, ap- 
 proach close to the blockaded port, so as to be in 
 a condition to slip in without obstruction, then," 
 said Sir Wm. Scott, in the case of the Neutrali- 
 tet (s), "it would be impossible that any block- 
 ade could be maintained. It would, I think, be 
 no unfair rule of evidence, to hold, as a presump- 
 tion de jure, that she goes there with an intention 
 of breaking the blockade ; and if such an inference 
 may possibly operate with severity in particular 
 cases, where the parties are innocent in their in- 
 tentions, it is a severity necessarily connected 
 with the rules of evidence, and essential to the 
 effectual exercise of this right of war." Still less 
 is a neutral permitted to place himself in such a 
 situation as to be within the protection of the bat- 
 teries on the shore (t). 
 
 A blockade is broken as completely by coming 
 out as by going in. " There may be instances, 
 indeed, of innocent egress," said Sir Wm. Scott, 
 in the case of the Frederick Molke (n), " instances 
 
 0) 6 Rob. Rep. 30. wartung, 6 Rob. 1 82. 
 
 (t) Charlotte Christine, 6 () 1 Rob. Rep. 86. 92, 
 Rob. Rep. 101. -Gute Er- 150. 175. 6 Rob. Rep.
 
 142 THE EFFECT OF WAR 
 
 what is a where the vessels have gone in before the block- 
 Moc & kade a de ; and, under such circumstances, it could not 
 be maintained that they might not be at liberty to 
 retire. But the utmost that can be allowed to a 
 neutral vessel, is, that having already taken on 
 board a cargo before the blockade begins, she 
 may be at liberty to retire with it. But it must 
 be considered as a rule which this court means to 
 apply, that neutral ships departing, can only take 
 away a cargo, bona fide purchased and delivered 
 before the commencement of the blockade. If 
 she afterwards take on board a cargo, it is a frau- 
 dulent act, and a violation of the blockade." 
 What ex- ^ n some cases, the violations of blockade may 
 iatlonsTf ^ e excusa kle. In cases of this nature, the whole 
 blockade, burthen of exonerating himself from the penal 
 consequences lies upon the party. He must show 
 that he was led into the blockaded port by some 
 accident which he could not control, or by some 
 want of information which he could not obtain ; 
 in doing this, he must prove his whole case ; and 
 however innocent his intentions may have been, 
 he must explain his conduct in a way consistent, 
 not only with the innocence of himself and his 
 owner, but he must bring it within those princi- 
 ples which the court has found it necessary to lay 
 
 364. 5 Rob. Rep. 27. 256. wards. 33. ; and see ease of 
 2 Rob. Rep. 124. 1 Ed. Charlotte, 1 Edwards. 252.
 
 ON THE COMMERCE OF NEUTRALS. 
 
 down for the protection of the belligerent right, what ex- 
 
 , . , , 1111 i - cuses vio- 
 
 and without which, no blockade can ever be mam- knonsof 
 tained. An excuse that the ship went in to pro- 
 cure a pilot for another port is insufficient (y}. 
 
 The invention of neutrals has been abundantly 
 fertile in providing excuses for their violations of 
 blockade, but these excuses are received by the 
 belligerent Courts of Admiralty with much sus- 
 picion. " An excuse," said Sir William Scott, 
 in the case of the Fortuna (z), " in order to be 
 admissible, must shew an imperative and over- 
 ruling compulsion to enter the particular port un- 
 der blockade. This can scarcely ever be the case 
 with respect to mere want of provisions. That 
 want may drive the master to seek some port, but 
 can hardly force him to resort exclusively to the 
 port blockaded." A continued gale of wind, how- 
 ever, may sometimes furnish an excuse. 
 
 If a place be blockaded only by sea, it is no 
 violation of the belligerent rights for a neutral to 
 carry on commerce with it by inland communi- 
 cations. In the case of the Ocean (a), which was 
 a case arising out of the blockade of Amsterdam, 
 Sir William Scott said (6), " The legal conse- 
 quences of a blockade must depend on the means 
 of a blockade, and on the actual or possible appli- 
 
 (y) The Arthur, 1 Ed- change, 1 Edwards. 39. 
 
 wards. 203. Hurtige Hane, 2 Rob. 121 
 
 (s) 5 Rob. Rep. 27. () 3 Rob. Rep. 297. 
 Adonis, 5 Rob. 256. E\- (b} Ocean, 3. Rob. 297.
 
 144 THE EFFECT OF WAR 
 
 What ex- cation of the blockading force. On the land side, 
 SationsTf Amsterdam neither was nor could be affected by 
 Blockade. a blooding naval force. It could be applied 
 only externally ; the internal communications of 
 the country were out of its reach, and in no way 
 subject to its operation." And in another case (c ), 
 arising out of the same blockade, he said, " The 
 blockade of Amsterdam is, from the nature of the 
 thing, a partial blockade, a blockade by sea ; and 
 if goods are going to Embden, with an ulterior 
 destination by land to Amsterdam, or by an inte- 
 rior canal navigation, it is not, according to my 
 conception, a breach of the blockade. 
 Effect of We will now consider the effect of those viola- 
 tions of blockade which have been thus defined. 
 " Prima facie," said Sir William Scott, in the 
 case of the Neptunus (</), " the cargo is consider- 
 ed as liable to the same judgment with the ship." 
 But evidence will be generally admitted, on the 
 part of the owners of the cargo, to exonerate them 
 from the guilt in which the vessel is implicated ; 
 for though the presumption is always against 
 them, yet it is not impossible that the master 
 alone may have been to blame. In cases, how- 
 ever, where any privity appears between the own- 
 
 (c) Jong Pictor, 4 Rob. Rob. 147. Adonis, 5 Rob. 
 
 7Q._Stert, 4 Rob. (J5. 256 Exchange, 1 Edw. 39. 
 
 Maria, 6 Rob. 204. Mercurius, 1 Rob. 60. 
 
 (</) 3 Rob. Rep. 173 Alexander. 4 Rob. 93. 
 JuilYow Maria Sclira'der, 3
 
 ON THE COMMERCE OF NEUTRALS. 145 
 
 ers of the cargo and. the master, the subsequent Effect of 
 
 violation of 
 
 imputation of the entire blame to the master alone blockade. 
 will not avail to protect the owners of the cargo. 
 
 In the Juffrow Maria Schroeder (c-), the cargo 
 was even placed in a worse situation than the 
 sliip : for the ship was restored on the ground of 
 her having been permitted, by license, to take a 
 cargo in, and being therefore fairly at liberty to 
 bring a cargo out : but an evil intention appear- 
 ing on the part of the owners of the cargo to slip 
 it out whenever an opportunity should occur, the 
 cargo was condemned. From the same case it 
 farther appears, that where a ship has contracted 
 guilt, by sailing with an intention of entering a 
 blockaded port, or by sailing out, " The offence 
 is not purged away until the end of the voyage ; 
 till that period is completed, it is competent to 
 any cruizers to seize and proceed against her for 
 that offence (/)." "When a vessel enters an 
 interdicted port," said Sir William Scott, in the 
 case of the Christianberg (g), " the offence is 
 consummated, and the intention is for the first 
 time declared. It is not till the vessel comes out 
 again, that any opportunity is afforded of vindi- 
 cating the law, and of enforcing the restriction of 
 this order. It is objected, that, if the penalty is 
 
 (c) 3 Rob. Rep. 147. (g) 6 Rob. Rep. 376. 
 
 (/)Juffrow Maria Schroe- Welvaart Van Pillaw, 2 
 der, 3 Rob. 147. Acton.25. Rob. 128. 
 
 19
 
 J46 THE EFFECT OF WAR 
 
 Effect of applied to the subsequent voyage ; it may travel 
 
 violation i i " ... 
 
 of block- on with the vessel for ever. In principle, per- 
 haps, it might, not unjustly, be pursued farther 
 than to the immediate voyage. But we all know 
 that, in practice, it has not been carried farther 
 than to the voyage succeeding, which affords the 
 first opportunity of enforcing the law." 
 
 But, though the offence is consummated by 
 the act of sailing, yet if, between the times of 
 sailing and of capture, the blockade have been 
 raised, that offence is held to be wiped away. 
 This was decided in the case of the Lisette (h), 
 on the ground, that the necessity of applying the 
 penalty to prevent future transgression, continued 
 no longer, after the cessation of the blockade. 
 
 Now with respect to the circumstances under 
 which a blockade may be deemed to have ceased, 
 the case of the Hoffnung (z), seems to have firmly 
 established, that the raising of a blockade by a 
 superior force is a total defeasance of that block- 
 ade, and of its operations. " A new course of events 
 arises," said Sir William Scott, " which may 
 tend to a very different disposition of the block- 
 ading force, and which introduces, therefore, a 
 very different train of presumptions in favour of 
 
 (/j) 6 Rob. Rep. 387. SPG 1 Acton's Rep. 59. 61. 
 (0 6 Rob. Rep. 112. 261. 
 Tuketen, 6 Rob. 65.; and
 
 ON THE COMMERCE OF NEUTRALS. 147 
 
 the ordinary freedom of commercial speculations. Effect of 
 In such a case, the neutral merchant is not bound blockade. 
 to foresee, or to conjecture, that the blockade will 
 be resumed ; and therefore, if it is to be renew- 
 ed, it must proceed de novo, and without refer- 
 ence to the former state of facts which has been 
 so effectually interrupted." 
 
 On the same principle on which contrabands illegal 
 of war and infractions of blockade, have been in- 
 terdicted in the commerce of neutrals, I mean, 
 the principle, that a neutral has no right to relieve 
 a belligerent, against the direct hostility of his 
 enemy, it has been held, that other acts of illegal 
 assistance, afforded to an enemy, expose to con- 
 fiscation the property of the neutral concerned in 
 them. Among these, none is of a more injurious 
 nature than the conveyance of hostile despatches. 
 A full review of the authorities and a summary of 
 the principles on this subject, will be found in 
 Sir William Scott's judgment in the case of the 
 Atalanta (). The vessel bearing that name, had 
 been captured, carrying despatches from a French 
 colony to Paris. The mischievous consequence 
 of such a service is indefinite, infinitely beyond 
 the effect of any contraband that can be conveyed ; 
 the carrying of two or three cargoes of stores is 
 necessarily an assistance of a limited nature : but, 
 
 (A) 6 Rob. Rep. 440. 1 Ewd. 41.
 
 148 THE EFFECT OF WAR 
 
 illegal as. in the transmission of despatches, may be con- 
 conveying* veyed the entire plan of a campaign, that may de- 
 feat all t j ie p ro j ects O f the other belligerent in that 
 
 quarter of the world. 
 
 The strict rule of the law of nations originally 
 was, as we have already seen, that, in cases of 
 contraband, the ship should be confiscated as well 
 as the cargo. Modern practice, has, in most cases 
 of contraband, though not in all, very leniently 
 relaxed that rule. But as the conveyance of des- 
 patches is a much greater offence, and as that of- 
 fence, though committed by the master, is to be 
 taken as virtually the offence of the owner of the 
 ship, according to that rule of law which makes 
 the principal responsible for the acts of his agent, 
 the Court, in this case, thought it proper to con- 
 demn the ship. In cases of contraband, the for- 
 feiture of the goods themselves, and the loss of 
 the freight by the master, are penalties of consi- 
 derable force. " But," observed Sir William 
 Scott, " to talk of the confiscation of despatches 
 would be ridiculous. There would be no freight 
 dependant on it, and therefore, the same precise 
 penalty cannot, in the nature of things, be ap- 
 plied. It becomes absolutely necessary, as well 
 as just, to resort to some other measure of con- 
 fiscation, which can be no other than that of the 
 vehicle."
 
 ON THE COMMERCE OF NEUTRALS. 149 
 
 The owners of the cargo, as appears from the illegal as- 
 
 . , sistance by 
 
 same case (/) are responsible only as in other in- conveying 
 stances, where they are actually culpable, or where ^ 
 a privity subsists between them and the master, 
 which involves them, by implication, in his de- 
 linquencies. 
 
 The case of the Caroline (m}, turns upon the 
 same question ; and Dr. Robinson has subjoined 
 a valuable note, containing several interesting au- 
 thorities. In this case of the Caroline, however, 
 the ship and cargo were restored to the neutral 
 claimants, because it appeared that the despatches 
 on board were not (as in the last case) going to 
 the mother country of the enemy, from the ene- 
 my's colony, but only from the enemy's ambas- 
 sador resident in a neutral country. " The neu- 
 tral country," said Sir Wm. Scott, " has a right 
 to preserve its relations with the enemy, and you 
 are not at liberty to conclude, that any communi- 
 cations between them, can partake, in any degree, 
 of the nature of hostility against you. The ene- 
 my may have his hostile projects to be attempted 
 with the neutral state ; but your reliance is on 
 the integrity of that neutral state, that it will not 
 favour, nor participate in such designs, but, as 
 far as its own counsels and actions are concerned, 
 will oppose them. Another distinction," con- 
 
 (/) Vide et Rapid, 1 Ed- (m) 6 Rob. Rep. 461. 
 wards, 228. Madison, 1 Edwards, 224.
 
 150 THE EFFECT OF WAR 
 
 illegal as- tinuecl the learned judge, " arises from the cha- 
 
 sistance by . . . 
 
 conveying racter ol the person, who is employed in the cor- 
 es.* 11 " respondence. He is not an executive officer of 
 the government, acting simply in the conduct of 
 its own affairs, within its own territories, but an 
 ambassador resident in a neutral state, for the pur- 
 pose of supporting an amicable relation with it. 
 I have before said, that persons discharging the 
 functions of ambassadors, are, in a peculiar man- 
 ner, objects of the protection and favour of the 
 law of nations." 
 
 Carrying Equally intolerable is the employment of a neu- 
 ps> c ' tral ship, as a transport for the private men, or for 
 the officers of the enemy ; and such vessels were 
 accordingly condemned, in the cases of the Friend- 
 ship (), and the Orozembo (o). 
 
 Trade con- There is yet another species of commerce, which 
 treaty! * s ill e g a l to the neutral engaged in it. It is that 
 which he may be carrying on, in contravention of 
 particular treaties, concluded with either bellige- 
 rent. In this case, the belligerent, whose compact 
 is thus violated, has a right to call the neutral to 
 account for his misconduct (//). 
 
 It appears also to be admitted, that if a belli- 
 
 Submis- 
 
 sionofneu- Cerent adopts a mode of conduct towards a neu- 
 tral to out- 
 
 rages of tral, which amounts to an act of hostility, and 
 
 one of the 
 
 ( rt ) 6 Rob. Rep. 420. shall, p. 1. ch. 8. sec. 15. p. 
 
 (o) 6 Rob. Rep. 430. 319. 
 
 (/?) See the cases in Mar.
 
 ON THE COMMERCE OF NEUTRALS. 151 
 
 in which that neutral acquiesces, the other bel- Submis- 
 
 i i- / \ -i u A. 'c sionofneu- 
 
 ligerent has a right to retaliate (q) ; and that it a tra | to out- 
 decree interdicting a neutral from trading with oseof the 
 us, or visiting our ports is executed upon him, it 
 is an interdiction he has no right to submit to, 
 because the moment it is executed, we are injur- 
 ed by the interruption of his commerce with us. 
 If he submits, from favour, to the unjust bellige- 
 rent, he directly interposes in the war, and the 
 neutral character is at an end ; retaliation then 
 would not only be strictly applicable, but just and 
 legal ; and if he submits from weakness or from 
 any other cause not hostile or fraudulent, we have 
 an unquestionable right, without any invasion of 
 neutrality, to insist, that what he suffers from the 
 enemy he shall consent to suffer from us, other- 
 wise he would keep an open trade with the enemy 
 at our expense, relieving him from the pressure 
 of the war, and becoming an instrument of its 
 illegal pressure upon us. In that case also the 
 term retaliation, though not applicable perhaps in 
 literal strictness, as it applies to the neutral, is 
 substantially and justly applicable to him ; because 
 it is, in fact, retaliation upon the enemy through 
 the sides of the neutral, in a case where the injury 
 to us cannot exist without the participation of the 
 
 (</) Lord Holland's speech Deb. 783. See also Baring 
 26 Feb. ISO'S, on Orders in on Orders in Council. 110, 1. 
 Council, 10 Cobbett's Parl.
 
 152 THE EFFECT OF WAR, &c. 
 
 Submis- neutral, in doing or suffering, by either of which 
 
 sion of ..... i / \ T 
 
 neutral to our commerce is alike interrupted (r). It was on 
 one'ofthf this principle that Sir William Scott, jn the case 
 rent? 6 ^ ^ ie Nayade (s), decided, that goods the pro- 
 perty of a merchant resident in Portugal, and 
 consigned from thence to Bourdeaux, were luible 
 to capture by a British vessel, the Portuguese 
 having submitted to repeated insults from France, 
 though she had not declared war. 
 
 (r) Lord Erskine's speech bett's Parl. Deb. 938. 
 8 March 1808, on the Or- (s) 4 Rob. Rep. 251. 
 ders in Council, 10 Cob-
 
 CHAPTER y. 
 
 OF NEUTRALS CARRYING ON COMMERCE USUALLY INTER- 
 DICTED IN TIME OF PEACE, VIZ. THE COASTING TRADE 
 
 AND COLONIAL TRADE OF THE -RULE OF THE WAR, 
 
 1756, AND RELAXATIONS WHAT PROPERTY OF ENEMY 
 
 LIABLE TO CONFISCATION FORCIBLE EMPLOYMENT OF 
 
 NEUTRAL SHIPS OF VISITATION AND SEARCH AND CON- 
 SEQUENCE OF RESISTANCE AND OF THE PAPERS AND DO- 
 CUMENTS USUALLY REQUIRED ON BOARD A NEUTRAL 
 SHIP. 
 
 IN the preceding chapter we considered the ille- 
 gal acts by the commission of which a neutral trade 
 may forfeit the natural immunities of his own 
 commerce, as by contraband traffic, transgressions 
 of blockade, the conveyance of despatches or of 
 troops, and by the contravention of particular trea- 
 ties, or submission to the outrages of one of the 
 belligerents. All these illegal acts are of an intel- 
 ligible and unequivocal character ; any one of 
 these acts themselves being brought to light, there 
 can remain no doubt respecting the unfairness of 
 20
 
 THE EFFECT OF WAR 
 
 that specific transaction. But the class of cases 
 which we are, in this chapter, to examine, are of 
 a less decided character, they are cases of com- 
 merce so constituted, as not to be necessarily frau- 
 dulent, though it is usually so. I speak of that 
 commerce which either belligerent forbids to neu- 
 tral states in time of peace, but permits them to 
 enjoy in time of war ; possibly, indeed, with a fair 
 design, but more probably with the fraudulent 
 and collusive intention of covering and withdraw- 
 ing his own possessions from the grasp of his 
 enemy's hostility. The possibility of fair dealing 
 makes it impracticable to decide, ipso facto, on 
 any particular adventure, that it is fraudulent and 
 collusive ; and therefore, on the other hand, the 
 strong probability of fraud and collusion has made 
 it necessary for the belligerents to declare that 
 such adventures shall not be tolerated at all. 
 
 The principal branches of trade which are thus 
 incessantly liable to abuse, and from which it has 
 therefore been deemed necessary that neutrals shall 
 be totally excluded, are the enemy's coasting 
 trade, and the enemy's colonial trade. 
 
 It has long been the policy of almost all na- 
 tions, to preserve, exclusively, in the hands of 
 their own subjects, all the traffic carried on be- 
 tween the ports of their own coast ; and nothing,
 
 ON THE COMMERCE OF NEUTRALS. 155 
 
 except the accidental and insuperable necessities coasting 
 of war, has been usually thought sufficient to 
 justify the slightest deviation from that policy. 
 When a neutral, therefore, presents himself in the 
 character of a trader engaged in the coasting trade 
 of the enemy, does he not present himself in the 
 character rather of the enemy's ally than of a neu- 
 tral properly so called ? Is he not the willing and 
 active instrument of relieving one belligerent from 
 the extremities to which the other has lawfully 
 reduced him ? " Is there nothing," to use the 
 words of Sir William Scott (a), " like a depar- 
 ture from the strict duties, imposed by a neutral 
 character and situation, in stepping in to the aid 
 of the depressed party, and taking up a com- 
 merce, whicli so peculiarly belonged to himself, 
 and to extinguish which was one of the principal 
 objects, and proposed fruits of victory ? Is not 
 this, by a new act, and by an interposition neither 
 known nor permitted by that enemy in the ordi- 
 nary state of his affairs, to give a direct opposi- 
 tion to the efforts of the conqueror, and to take 
 off that pressure which is the very 'purpose of war 
 to inflict, in order to compel the conquered to a 
 due sense and observance of justice? 
 
 " As to the coasting trade," continues the 
 learned judge, " supposing it to be a trade not 
 
 () The Emanuel, 1 Rob. Rob. Rep. 252. 
 Rep. 296. The Ebenezer, 6
 
 THE EFFECT OF WAR 
 
 
 
 usually open to foreign vessels, can there be de- 
 scribed a more effective accommodation that can 
 be given to an enemy during a war, than to un- 
 dertake it for him during his own disability ? Is 
 it nothing 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 ef- 
 fects of such an importation ? Suppose 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 interposed, to bring the coals of the 
 north for the supply of the manufactures, 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 hos- 
 tility, short of an actual military assistance in the 
 war ? The duties of neutrality are clearly ex- 
 pressed in Lord Howick's letter to Mr. Rist (6), 
 in the following words : " Neutrality, properly 
 considered, does not consist in taking advantage 
 of every situation between belligerent states, by 
 which emolument may accrue to the neutral, 
 whatever may be the consequences to either bel- 
 ligerent party ; but in observing a strict and honest 
 
 (&) 10 Cobbctt's Parl. Deb. 406.
 
 ON THE COMMERCE OF NEUTRALS. 1 57 
 
 impartiality, so as not to afford advantage, in the Coasting 
 
 . , . , . P . trade. 
 
 war, to either ; and particularly in so far restrain- 
 ing 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 neutral is " non 
 interponere se bello, non hoste immincnte hostem 
 eripere;" and yet it is manifest that lending a neu- 
 tral navigation to carry on the coasting trade of 
 the enemy, is in direct contradiction to this defi- 
 nition of neutral obligations, as it is in effect, to 
 rescue the commerce of the enemy from the dis- 
 tress to which it is reduced, by the superiority of 
 the British navy to assist his resources, and to pre- 
 vent Great Britain from bringing him to reasona- 
 ble terms of peace." 
 
 Formerly the Courts of Admiralty in Great 
 Britain, were so strict in the enforcement of the 
 prohibition against the interference of neutrals in 
 the coasting trade of the enemy, that all neutral 
 vessels found engaged in that trade, were subject- 
 ed to the penalty of confiscation. In later times, 
 and until the late Orders in Counsel, that penalty 
 was alleviated, and the neutral was considered sub- 
 ject only to the forfeiture of the freight : which, as 
 we have before seen (c), is in other cases usually 
 paid by the captor to the neutral owner, whenever 
 he takes from that neutral any cargo belonging to 
 
 (c) Ante. But now see Orders in Council, 7 Jan. 1807.
 
 158 THE EFFECT OF WAR 
 
 coasting the enemy. For though it be perfectly fair that 
 we seize on the property of an enemy, whereso- 
 ever we find it, yet it is also necessary, in point of 
 justice, that we indemnify the neutral for the loss 
 which we thus occasion him to undergo. His 
 trade, in carrying innocent merchandize for the 
 enemy, being a trade completely legitimate as to 
 him, and in no way affected in its legitimacy by 
 the hostility of the belligerents. But when he is 
 detected in the act of interfering with a trade which 
 is not legally permitted to him, a trade which the 
 hostility of the belligerents is the sole cause of 
 throwing into his power (d), then he is no longer 
 , entitled to the same indemnity ; and he is treated 
 with very ample indulgence, in being suffered to 
 escape without the confiscation of his ships, in 
 addition to the forfeiture of his freight. The strict 
 ancient law, and the modern relaxations, are col- 
 lected and digested in the reply of the King's Ad- 
 vocate upon the case of the Johanna Tholen (e}. 
 
 But the relaxation of the ancient penalty was 
 not suffered to take effect, when, in addition to 
 the generally obnoxious nature of the trade itself, 
 there appeared to be circumstances of specific 
 
 (rf) See the French Na^pi- (e) 6 Rob. Rep. 72. See 
 
 gation Act, which prohibits also Dr. Robinson's note to 
 
 the coasting trade of France that case ; and ee also 
 
 being carried on except in another note, 6 Rob. Rep. 
 
 French-built ships, 1 Ac- 250. 
 ton, 277.
 
 ON THE COMMERCE OF NEUTRALS. ( 159 
 
 fraud in the individual instance. Therefore, in coasting 
 the case of the Johanna Tholen (/), the Court r 
 held, that the carrying on of the enemy's trade 
 with false papers subjected the ship to confisca- 
 tion ; and, in the case of the Ebenezer (g], the 
 same sentence was pronounced, with respect to 
 the cargo, which happened in that instance to be 
 the property, not of an enemy, but of the neutral 
 himself. For it is impossible not to feel that the 
 fabrication of false papers (/z), which are intended 
 to deceive the captors respecting the vessel's real 
 destination, is a gross aggravation of the guilt 
 originally incurred, by the simple act of illegal 
 traffic. 
 
 The strict rigour of the prohibition of the in- 
 terference of neutrals in the coasting trade of a 
 belligerent, was renewed by the Order in Council 
 of the 7th January, A. D. 1807, which directs, 
 that if any vessel shall be found proceeding 
 from one port in possession of France to another 
 such port, she shall be captured and brought in, 
 and, together with her cargo, shall be condemned 
 as lawful prize (z). 
 
 Precisely analogous in its principle is the rule colonial 
 which prohibits the neutral from engaging in the trade 
 
 (/) 6 Rob. Rep. 72. The 191. 
 
 Ebenezer, 6 Rob. Rep. 252. (0 See observations on 
 
 () 6 Rob. Rep. 250. See this Order, in Lord Erskine's 
 
 also Carolina, 3 Rob. Rep. speech, 8th March, 1808, on 
 
 75. the Orders iu Council; 10 
 
 (A) Phoenix. 3 Rob. Rep. Cobbett's Pail. Deb. 945, G.
 
 160 THE EFFECT OF WAR 
 
 Colonial enemy's colonial trade. "Upon the breaking 
 out of a war," said Sir Wm. Scott, in the case 
 of the Immanuel (), " it is the right of neu- 
 trals to carry on their accustomed trade, with the 
 exception of the particular cases of a trade to 
 blockaded places, or in contraband articles, (in 
 both which cases their property is liable to be 
 condemned,) and of their ships being liable to 
 visitation and search, in which case, however, they 
 are entitled to freight and expenses. I do not 
 mean to say that, in the accidents of a war, the 
 property of neutrals may not be variously entan- 
 gled and endangered. In the nature of human 
 connections, it is hardly possible that inconve- 
 niences of this kind should be altogether avoided. 
 Some neutrals will be unjustly engaged in cover- 
 ing the goods of the enemy, and others will be 
 unjustly suspected of doing it. These incon- 
 veniences are more than fully balanced by the en- 
 largement of their commerce. The trade of the 
 belligerents is usually interrupted, in a great 
 degree, and falls, in the same degree, into the lap 
 of neutrals. But, without reference to accidents 
 of the one kind or other, the general rule is, that 
 the neutral has a right to carry on, in time of war, 
 his accustomed trade, to the utmost extent of 
 
 (7r) 2 Rob. Rep. 197, 198. the Orders in Council, 10 
 ana see Lord Erskine's Cobbett's Parl. Deb. 936. 
 speech, 8th March, 1808, on
 
 ON THE COMMERCE OF NEUTRALS. 161 
 
 which that accustomed trade 'is capable. Very colonial 
 different is the case of a trade which the neutral 
 has never possessed, which he holds by no title of 
 use and habit in times of peace, and which, in fact, 
 can obtain in war by no other title than by the 
 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, generally 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 to a double use ; that of sup- 
 plying a market for the consumption of native 
 commodities, and that of furnishing to the mother 
 country the peculiar commodities of the colonial 
 regions (/). Upon the interruption of a war, what 
 are the rights of belligerents and neutrals respec- 
 tively, with regard to colonial territories ? It is an 
 indubitable right of the belligerent to possess him- 
 self of such places as of any other possession of 
 his enemy. This is his common right ; but he 
 has the certain means of carrying such a right into 
 effect, if he has a decided superiority at sea. Such 
 
 colonies are dependant for their existence, as colo- 
 
 % 
 
 nies, on foreign supplies ; if they cannot be suppli- 
 
 (/) See the French Navi- tiou of the produce from 
 
 gation Act, 1 Acton. 277. their colonies in any ships 
 
 which prohibits the importa- but their own. 
 21
 
 162 THE EFFECT OF WAR 
 
 Colonial ed and defended, they must fall to the belligerent 
 of course ; and if the belligerent chooses to apply 
 his means to such an object, 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 consequences 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 enemy out 
 of the possession which he had exclusively main- 
 tained against the whole world, and with whom 
 we had never presumed to interfere ; but we will 
 interpose to prevent his absolute surrender, by the 
 means of that very opening which the prevalence 
 of your arms alone has affected. Supplies shall 
 be sent, and their products shall 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 have been expended, not 
 for your own interest, but for the common benefit 
 of others. Upon these grounds, it cannot be con- 
 tended 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
 
 ON THE COMMERCE OF NEUTRALS. 16 
 
 the pressure of war ; for when the enemy, under colonial 
 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." 
 
 Sir Win. Scott proceeds, in the same case, to 
 observe upon certain other instances of relaxation, 
 afforded by belligerents to neutrals during war, 
 which do not, like the relaxations of the coasting 
 and colonial trades, subject the neutral to any 
 penalty for availing himself of them. " The ad- 
 mission of foreigners," continues he, " into the 
 merchant service, as well as into the military ser- 
 vice of this country, the permission given to ves- 
 sels to import commodities not the growth, pro- 
 duce, and manufacture of the country to which 
 they belong, and other relaxations of the act of 
 navigation, and other regulations founded there- 
 on ; these, it is true, take place in war, and arise 
 out of the state of war : but then they do not arise 
 out of the predominance of the enemy's force, or 
 X)ut of any necessity resulting therefrom; and that 
 I take to be the true foundation of the principle. 
 It is not every convenience, or even every neces- 
 sity, arising out of the state of the war, but that
 
 164 THE EFFECT OF WAR 
 
 colonial necessity which arises out of the impossibility of 
 
 trade. . ... ,. 
 
 otherwise providing against the urgency ot dis- 
 tress inflicted by the hand of a superior enemy, 
 that can be admitted to produce such an effect. 
 Thus, in time of war, every country admits for- 
 eigners into its general service. Every country 
 obtains, by the means of neutral vessels, those 
 products of the enemy's country which it cannot 
 possibly receive either by means of its navigation, 
 or its own. These are ordinary measures, to 
 which every country has resort in every war, 
 whether prosperous or adverse. They arise, it is 
 true, out of the state of the war, but are totally 
 independent of its events, and have therefore no 
 common origin with these compelled relaxations 
 of the colonial monopoly. These are acts of dis- 
 tress, signals of defeat and depression; they are 
 no better than partial surrenders to the force of 
 the enemy, for the mere purpose of preventing a 
 total dispossession." 
 
 These were the chief grounds of general prin- 
 ciple, upon which the Court of Admiralty pro- 
 ceeded to condemnation in the case of the Imma- 
 nuel (m] ; and the doctrines there laid down were 
 most fully confirmed by the judgment of the 
 Court of Appeal, in the case of the Wilhelmi- 
 na (). The judgment in this case was delivered 
 
 (m) 2 Rob. Rep. 197. 
 
 (n) 4 Rob. Rep. Appendix, 4.
 
 ON THE COMMERCE OF NEUTRALS. 165 
 
 / 
 by the Lord Chancellor, and it concluded in these colonial 
 
 decisive terms : " It has already been pronounced 
 to be the opinion of this Court, that, by the gene- 
 ral law of nations, it is not competent in neutrals 
 to assume, in time of war, a trade with the colony 
 of the enemy which was not permitted in time of 
 peace ; and, under this general position, the Court 
 is of opinion that this ship and cargo are liable 
 to confiscation." 
 
 The prohibition by which neutrals are forbid- 
 den to avail themselves of the relaxations extend- 
 ed by belligerents, reaches only to those cases 
 where such relaxations did not exist in time of 
 peace. Where the relaxation did exist in time 
 of peace, its benefit is continued to the neutral 
 during war ; in accordance with the leading rule, 
 which enjoins that war shall not place the neutral 
 in a worse situation than that in which he would 
 have found himself if peace had continued. And, 
 therefore, in the case of the Juliana (0), which was 
 the case of a neutral vessel sailing between France 
 and Senegal, then a French colony, the Court hav- 
 ing ascertained, after much investigation, that 
 France had been accustomed to leave open the 
 trade of Senegal to foreign ships, as well before 
 as since the war, restored the vessel to the neutral 
 claimants. 
 
 (o) 4 Rob. Rep, 321. 
 
 V
 
 166 THE EFFECT OF WAR 
 
 colonial It was in the year 1756 that the strict rule, 
 which we have been hitherto considering, was, 
 for the first time, practically established, and uni- 
 versally promulgated, the case which demanded 
 its application having then, for the first time, oc- 
 curred (p}. It has therefore become generally 
 known by the title of " the rule of the war 1756 ; 
 by which every one understands the rule that 
 neutrals are not to carry on, in time of war, a trade 
 which was interdicted to them in time of peace (7)." 
 iieiaxa- Having seen distinctly what is the strict mea- 
 ruie S Qf 1S sure of the belligerent's right, as comprised in the 
 foregoing rule, we will now inquire what relaxa- 
 tions have been introduced by the more lenient 
 policy of later times. These relaxations are com- 
 prehensively and clearly stated by Dr. Robinson 
 in the Appendix to the 4th vol. of his Reports. 
 The following are the points of information most 
 important to our present purpose. 
 
 " During the war between England and Ame- 
 rica, and the several powers of Europe that inter- 
 fered to foment those differences, the principle 
 was altogether intermitted and on this ground, 
 that France had professed, a short time before the 
 commencement of hostilities, to have altogether 
 
 (/i) 6 Rob. Rep. Appen- (</) See observations on 
 dix, note 1. 4 Rob. Rep. this rule, Baring on Orders 
 Appen. 13. in Council. 3L. &c. 80. &c,
 
 ON THE COMMERCE OF NEUTRALS. 167 
 
 abandoned the principle of monopoly, and meant, R 
 
 . . , lions of the 
 
 as a permanent regulation, to admit neutral mer- ru i e O f 
 
 1 *7 Ifi 
 
 chants to trade with the French colonies in the 
 West Indies. The event proved the falsehood 
 of that representation : but, for a time, the effect 
 was the same. The Court of Admiralty of this 
 country did not, during that war, apply the prin- 
 ciple, or interrupt the intercourse of neutral ves- 
 sels in that branch of commerce more than in any 
 other. 
 
 " Soon after the commencement of the late war, 
 the first set of instructions that issued, were fram- 
 ed, not on the exception of the American war, 
 but on the antecedent practice : and directed 
 cruizcrs i to bring in, for lawful adjudication, all 
 vessels loaden with goods, the produce of any co- 
 lony of France, or carrying provisions or supplies 
 for the use of any such colony.' The relaxations 
 that have since been adopted, have originated 
 chiefly in the change that has taken place in the 
 trade of that part of the world, since the establish- 
 ment of an independent government on the Con- 
 tinent of America. In consequence of that event, 
 American vessels had been admitted to trade in 
 some articles, and on certain conditions, with the 
 colonies both of this country and France. Such 
 a permission had become a part of the general 
 commercial arrangement, as the ordinary state of 
 their trade in time of peace. The commerce of
 
 168 THE EFFECT OF WAR. 
 
 Peiaxa- America was therefore abridged by the foregoing 
 rule of instructions, and debarred of the right generally 
 ascribed to neutral trade in time of war, that it 
 may be continued, with particular exceptions, on 
 the basis of its ordinary establishment. In con- 
 sequence of representations made by the Ame- 
 rican government to this effect, new instructions 
 to our cruizers were issued on the 8th January, 
 1794, apparently designed to exempt American 
 ships, trading between their own country and the 
 colonies of France. The directions were, * to 
 bring in all vessels loaden with goods the produce 
 of the French West India Islands, and coming 
 directly from any port of the said islands to any 
 port in Europe." 
 
 " In consequence of this relaxation of the ge- 
 eneral principle, in favour of American' vessels, 
 a similar liberty of resorting to the colonial mar- 
 ket for the supply of their own consumption, 
 was conceded to the neutral states of Europe. 
 To this effect, a third set of public instructions 
 issued 25th January, 1798, which recite, as the 
 special cause of further alteration, the present 
 state of the commerce of this country, as well 
 as that of neutral countries, and direct cruizers 
 4 to bring in all vessels coming with cargoes the 
 produce of any island or settlement belonging 
 to France, Spain, or Holland, and coming di- 
 rectly from any port of the said islands, or settle-
 
 ON THE COMMERCE OF NEUTRALS. 169 
 
 ments, to any port of Europe, not being a port 
 
 ~ , . , . p ., tionsofthe 
 
 of this kingdom, nor a port of the country to ril | eo f 
 which such ships, being neutral ships, belonged.' ' 
 
 " Neutral vessels were, by this relaxation, al- 
 lowed to carry on a direct commerce between the 
 colony of the enemy and their own country : a 
 concession rendered more reasonable by the events 
 of war, which, by annihilating the trade of France, 
 Spain, and Holland, had entirely deprived the 
 states of Europe of the opportunity of supplying 
 themselves with the articles of colonial produce 
 in those markets. This is the sum of the general 
 rule, and of the relaxations in the order in which 
 they have occurred. On the effect and extent of 
 the law to be extracted from the rule and the ex- 
 ceptions taken together, much argument has been 
 displayed, and several important judgments have 
 been delivered." 
 
 The illegality of the direct trade between the 
 colony and the parent state of the enemy, was 
 settled in the case of the Immanuel (r). A trade 
 between the country of the enemy and the colony 
 of his ally, was held, in the case of the Rose (.y), 
 to be upon the same footing ; and in the case of 
 the New Adventure (), which was the case of a 
 ship going from the French settlement of Goree 
 
 (r) 2 Rob. Rep. 186 (s) 4 Rob. Rep. App. 
 
 Reeve's Shipping, 271. (t) 4 Rob. Rep. App. 
 
 22
 
 170 THE EFFECT OF WAR 
 
 to the Spanish colony of the Havannah, it was de- 
 
 tionsofthc i i i i- rii t 
 
 rule of cided, that even this species of trade, though not 
 
 1 ef* 
 
 at all connected with either parent state, but carri- 
 ed on simply from the settlement of one enemy to 
 the colony of another, fell within the general prin- 
 ciple of the rule, and was therefore unlawful to 
 the neutral. These cases refer to principles of 
 the original rule, which have never been relaxed 
 by any instructions (u). 
 
 We next advance to the consideration of those 
 cases which have arisen out of the instructions or 
 relaxations just mentioned. The Danish ship 
 Wilhelmina was taken on a voyage^ from a hostile 
 colony to a port of Europe, which was not a port 
 either of this kingdom or of the country to which 
 the ship or cargo belonged. It was therefore con- 
 sidered as a case not falling within the protection 
 of the instructions, and a condemnation ensued. 
 \ In the case, indeed, of the Hector (w), and in the 
 subsequent case of the Sally (x), the instructions 
 appear to have been construed a little more favour- 
 ably than their tenor dictated. Those were cases 
 of American ships, captured on voyages from 
 hostile colonies in the West Indies to another 
 West Indian Island, that of St. Thomas, which 
 was then a neutral possession. The trade thus car- 
 
 (z<) See 4 Rob. Rep. App. Appendix. 
 . (o>) Heetor, 4 Rob. Rep. (x) Sally, ibid.
 
 ON THE COMMERCE OF NEUTRALS. 171 
 
 lied on by the American neutrals, was not to any Reiaxa- 
 
 _ . . tions of the 
 
 port of this kingdom, nor to a port ot their own rui e of 
 country ; and, upon principle, would therefore 
 have been subject to confiscation; but the instruc- 
 tions had directed the capture only of ships com- 
 ing from the hpstile colonies to Europe ; and as 
 this produce had not been carried out of the West 
 Indies, it was restored, although it should seem, 
 that, everi.without any instructions at all, the trade 
 was inherently illegal. However, it was thought 
 right, at *that time, to put a liberal interpretation 
 on the instructions,* and to consider as exempted, 
 that which was hot specifically included ; though, 
 in the Sally, the Court professed merely to act on 
 the authority of the Hector, and intimated that, if 
 the question had< been a new one, their decision 
 would have been different. In the case of the Lu- 
 cy (y], an attempt was made by a neutral claimant, 
 to extend the indulgence still further. It was the 
 case of a neutral Swedish vessel, taken on a voyage 
 from a hostile colony to a neutral American port. 
 Here tpo the adventure was certainly not pointed 
 out for confiscation by the letter of the instruc- 
 tions ; but the Court thought proper to" decide upon 
 the principle, which they did not conceive to have 
 
 been in this instance relaxed by the instructions : 
 * 
 
 (y) 4 Rob. Rep. App.
 
 Reiaxa- and they therefore proceeded to condemnation. 
 
 rule of The Master of the Rolls pronounced judgment to 
 the following effect : " In the case of the Sally, 
 the Court thought they were going further than 
 they should have been disposed to go, if it had 
 not been for the authority of the Hector : now we 
 are required to go further. In neither of those 
 cases was the produce of the colonies carried out 
 of the West Indies. If an American vessel would 
 not be permitted to trade from Saint Domingo to 
 Sweden, there can be no reason why the same rule 
 should not be applied to Swedish vessels, trading 
 between the colony of the enemy and America." 
 On the other hand, in the case of the Margarc- 
 tha Magdalena (r), which was the case of a ship 
 captured on a voyage, bona fide, from a hostile 
 colony to her own port, the protection of the in- 
 structions was held to be fairly applicable, and the 
 property was restored. In the case of the Provi- 
 dentia (), a vessel having been captured in a trade 
 with a hostile colony, which trade, even in time of 
 war, was not generally open to all neutrals but per- 
 mitted only to particular persons, by special passes 
 or licenses, it was contended, on the part of the 
 captors, that the instructions were not meant to 
 protect these adventures, but merely to exempt 
 
 (=) 2 Rob. Rep. 138. (a) 2 Rob. Rep. 142.
 
 ON THE COMMERCE OF NEUTRALS. 173 
 
 that trade which was generally open to all neutrals. R 
 
 _. , . tionsofthe 
 
 But the court thought it proper to put a more ri: i e O f 
 liberal interpretation on the instructions : " If," 
 said Sir William Scott, " a distinction was in- 
 tended between cases of trade generally open, and 
 cases in which a special license or pass is neces- 
 sary, that distinction ought to have been expressly 
 inserted in the instructions, as an exception. 
 There is nothing in the general terms to direct 
 neutrals to such interpretation. It would be, 
 therefore, to operate with surprise upon them and 
 to mislead them into a trade to their own undoing, 
 to put such an interpretation upon the King's in- 
 structions. Unless it can be shewn that it was 
 the particular meaning of the instructions to ex- 
 cept vessels under this license, I must hold, that 
 it is not in the terms of them to inquire whether 
 they are going with a pass or not. So I under- 
 stand them, and till I am instructed to the con- 
 trary by the superior court, I shall so interpret 
 them, as importing a general permission, and as 
 not affected by the special license ; the law being 
 simple and universal in its language, and there 
 being nothing to lead me to think that there was 
 any such reserve in the mind of the legislature." 
 But it is not possible, consistently with the jus- 
 tice which a belligerent nation owes herself, to 
 exercise this liberality of interpretation towards 
 neutrals in all cases. In that of the Rends-
 
 174 THE EFFECT OF WAR 
 
 Reiaxa- borg (&), a contract had been made between a 
 rule of neutral merchant and the Dutch East India Com- 
 pany, with the avowed object of securing the 
 Dutch property from English hostility. The 
 adventure, it is true, was to Copenhagen, the port 
 of the neutral merchant himself, and therefore, by 
 the letter of the instructions, appeared to be legal : 
 but the Court were of opinion, that a commerce, 
 fbrmed with such express views, facilitated as it 
 was by the enemy with peculiar privileges, and 
 conducted on so immense a scale, was not to be 
 considered as a neutral traffic, though the property 
 did really belong to the neutral merchants who 
 claimed it. " It is a possible thing," said Sir 
 Wm. Scott, " that the commerce may not be neu- 
 tral although the property is ; and, if that is the case, 
 the mere neutral ownership will not be a sufficient 
 title to restitution : with respect to the avowed 
 object of the enemy in entering into the contract, 
 namely, the view of preserving his property from 
 British capture ;" the learned judge proceeded to 
 speak in the following terms : " It has been argu- 
 ed that the motive does not concern the buyers : 
 that the motive of the sellers is nothing to the 
 buyers, is laid down as a position, true in the most 
 unlimited extent. I think that is advanced a lit- 
 tle too largely ; because if the motive is disclosed, 
 
 (6) 4 Rob. Rep. 121.
 
 ON THE COMMERCE OF NEUTRALS 175 
 
 it is possible that the duties of neutrality may, on R 
 
 ... . . tionsofthe 
 
 the disclosure of such a motive, create some new ru i e O f 
 obligations on the neutral purchaser, arising from *' 
 his relation to the other belligerent ; the grand 
 fundamental duty of neutrality being, that he is 
 not to relieve one belligerent from the infliction of 
 his adversary's force, knowing the situation of 
 affairs upon which the interposition of his act 
 would have such a consequence. Neutrals may 
 not be bound to inquire very accurately ; but if 
 it is clearly declared, either by the fact itself or a 
 fortiori, by express acknowledgments, they are 
 bound to take notice of it and regulate their con- 
 duct accordingly. If one belligerent is in a state 
 of distress, created by the superiority of his ene- 
 my, and on that account gives invitations to neu- 
 trals, for other pretended reasons, it is not neces- 
 sary for me to say how far the neutral is bound to 
 scrutinize the truth of those reasons, and to de- 
 cline, in all cases, a beneficial invitation upon his 
 own private surmises. But if a belligerent come 
 and say, I am in the utmost distress ; my enemy 
 is all powerful ; without your assistance, I am a 
 lost man : in such a case,, it is an invitation which 
 he is manifestly not at liberty to accept. He can- 
 not afford such assistance, without being guilty 
 of a direct interposition in the war. Nor does it 
 affect the justice of the case at all, that such as- 
 sistance is not given gratuitously; though done
 
 THE EFFECT OF WAR 
 
 lucraiidi causa, it is not less an unlawful interposi- 
 tions of the . 
 rule of tion ; a man does not send contraband out of 
 
 pure love of the enemy, but with a view of ob- 
 taining- advantage to himself, from the relief of the 
 enemy's distress. If it is a sound principle of the 
 law of nations, that you are not to relieve the dis- 
 tress of one belligerent to the prejudice of another; 
 any advantage that you may derive from such an 
 act, will not make it lawful. The adversary has 
 a full right to destroy his commerce. By his own 
 confession the adversary is effecting this ; he "has 
 the power, as well as the right, and you are not, 
 from a prospect of advantage to yourself, or from 
 any other motive to step in, on every outer/, for 
 help to rescue him from the gripe of his adver- 
 sary." 
 Colonial The colonial trade which a neutral may not 
 
 trade not ,. , , . " . 
 
 to be car- carry on directly, he may not carry on circuitous- 
 - ty J " An American," said Sir William Scott, in 
 
 " the case of the Poll y W " has undoubtedly a 
 right to import the produce of the Spanish colo- 
 nies for his own use ; and, after it is imported 
 bona fide into his own country, he would be at 
 liberty to carry it on to the general commerce of 
 Europe." 
 
 Then arises the question, what shall be consi- 
 dered a fair importation for the use of the neu- 
 tral, and what shall be considered only a colour- 
 
 (c) 2 Rob. Rep. 361 1 Acton's Rep. 171.
 
 ON THE COMMERCE OF NEUTRALS. 177 
 
 able importation to protect the enemy's adven- Colonial 
 
 trade not 
 
 tures ? So many cases had occurred where the to be car. 
 
 , , ., -i riedoncir- 
 
 importation, from the hostile colony into the neu- cuitousiy 
 tral country, had been merely fraudulent, the pro- tr y a i n s ! U 
 duce being, in truth, hostile property covered by 
 a neutral name, and destined for the mother coun- 
 try of such hostile colony, that it had become 
 very difficult for the court to decide, what species 
 of importation should be deemed a fair and honest 
 importation, sufficient to break the continuity of 
 the voyage, and relieve the neutral from the sus- 
 picion of hostile collusion (d). The question at 
 length was discussed, upon an appeal before the 
 Lords Commissioners, in the case of the Wil- 
 liam (<?), and the Master of the Rolls, in giving 
 judgment, expressed himself to the following 
 effect : " What, with reference to this subject, is 
 to be considered a direct voyage from one place 
 to another ? Nobody has ever supposed that a 
 mere deviation from the straightest, and a shortest 
 course in which the voyage could be performed, 
 would change its destination and make it cease to 
 be a direct one within the intendment of the in- 
 structions. Nothing can depend on the degree, 
 or the direction of the deviation, whether it be 
 of more or fewer leagues : whether towards the 
 coast of Africa, or towards that of America. 
 
 (d) Polly, 2 Rob. Rep. (e) 5 Rob. Rep. 387. 
 361. -Maria, 5 Rob. 365. 
 23
 
 178 THE EFFECT OF WAR 
 
 c.ioniai Neither will it be contended that the point, from 
 
 trade not . i ,1 r u 
 
 to be car- which the commencement ot a voyage is to be 
 reckoned, changes as often as the ship stops in 
 tne course of it- Nor will it the more change, 
 because a party may choose arbitrarily, by the 
 ship's papers, or otherwise, to give the name of a 
 distinct voyage to each stage of a ship's progress. 
 The act of shifting the cargo from the ship to the 
 shore, and from the shore back again to the ship, 
 does not necessarily amount to the termination of 
 one voyage, and the commencement of another. 
 It may be wholly unconnected with any purpose 
 of importation into the place where it is done. 
 Supposing the landing to be merely for the pur- 
 pose of airing or drying the goods, or of repairing 
 the ship, would any man think of describing the 
 voyage as beginning at the place where it happen- 
 ed to become necessary to go through such a pro- 
 cess ? Again, let it be supposed that the party has 
 a motive for desiring to make the voyage appear 
 to begin at some other place than that of the ori- 
 ginal lading, and that he therefore lands the cargo, 
 purely and solely for the purpose of enabling him- 
 self to affirm, that it was at such other place that the 
 goods were taken on board, would this contrivance 
 at all alter the truth of the fact ? Would not the real 
 voyage still be from the place of the original ship- 
 ment, notwithstanding the attempt to give it the
 
 ON THE COMMERCE OF NEUTRALS. 178 
 
 appearance of having; beqrm from a different place ? Colonial 
 
 trade not 
 
 The truth may not always be discernible, but to be car- 
 
 . ,. i i riedoncir- 
 
 when it is discovered, it is according to the truth, cuitousiy 
 and not according to the fiction, that we are to 
 give to the transaction its character and denomi- 
 nation. If the voyage, from the place of lading 
 be not really ended, it matters not by what acts 
 the party may have evinced his desire of making 
 it appear to have ended. That those acts have 
 been attended with trouble and expense, cannot 
 alter their quality or their effect. The trouble 
 and expense may weigh as circumstances of evi- 
 dence to shew the purpose for which the acts 
 were done, but if the evasive purpose be admitted 
 or proved, we can never be bound to accept, as a 
 substitute for the observance of the law, the means, 
 however operose, which have been employed to 
 cover a breach of it. Between the actual impor- 
 tation by which a voyage is really ended, and the 
 colourable importation which is to give it the ap- 
 pearance of being ended, there must necessarily be 
 a great resemblance. The acts to be done must 
 be almost entirely the same, but there is this dif- 
 ference between them : the landing of the cargo, 
 the entry at the Custom-house, and the payment 
 of such duties as the law of the place requires, 
 are necessary ingredients in a genuine importa- 
 tion ; the true purpose of the owner cannot be 
 effected without them. But, in a fictitious im-
 
 ISO THE EFFECT OF WAR 
 
 colonial portation, they are mere voluntary ceremonies 
 
 trade not 
 
 to be car- which have no natural connection whatever with 
 
 riedoncir- , . 
 
 cuitousiy the purpose ot sending on the cargo to another 
 t / al " eu market, and which, therefore, would never be re- 
 sorted to by a person entertaining that purpose, 
 except with a view of giving to the voyage, which 
 he has resolved to continue, the appearance of be- 
 ing broken by an importation which he has re- 
 solved not really to make." 
 
 In consequence of some complaints of the con- 
 duct of our Vice Admiralty Court, on the part of 
 America, an official correspondence took place be- 
 tween Lord Hawkesbury and Mr. King, in 1801, 
 in the course of which the Advocate General, on 
 the 16th of March in that year, in his official cha- 
 racter, made the following report as to the law 
 concerning the colonial trade : " The general 
 principle respecting the colonial trade has, in the 
 course of the present war, been relaxed to a cer- 
 tain degree in consideration of the present state 
 of commerce. It is now distinctly understood, 
 and has been repeatedly so decided by the High 
 Court 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. The
 
 ON THE COMMERCE OF NEUTRALS. 181 
 
 direct trade, however, between the mother coun- colonial 
 try and its colonies has not, I apprehend, been re- to be car- 
 cognised as legal either by his Majesty's govern- " 
 ment or by his tribunals. What is a direct trade, 
 or what amounts to an intermediate importation 
 into the neutral country, may sometimes be a 
 question of some difficulty. 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 touching in the neutral country to take 
 fresh clearances, may properly be considered as a 
 fraudulent evasion, and is, in effect, the direct 
 trade (f) ; but the High Court of Admiralty has 
 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 neu- 
 tral country, breaks the continuity of the voyage, 
 and is such an importation as legalizes the trade, 
 although the goods be reshipped in the same ves- 
 sel, and on account of the same neutral proprie- 
 tors, and be forwarded for sale to the mother coun- 
 try or the colony." It is said, that in the case of 
 the Essex, contrary to prior determinations, it was 
 decided in the Court of Appeal, that if an Ame- 
 rican ship, which has exported goods from a 
 French colony to America, and there only given 
 bond for the payment of the duties instead of 
 
 (/) See 1 Acton's Rep. 171.
 
 182 THE EFFECT OF WAR 
 
 Colonial actually paying them, and then conveys the goods 
 
 trade not -.-, i i i -n i -i i 
 
 to be car- to r ranee, this is decisively illegal, and subjects 
 
 tne cargo to capture and condemnation ; a doc- 
 trais? U trine, which it has been insisted, is contrary to 
 legal principles (g). Upon the whole it should 
 seem, that the genuineness of these adventures is 
 a matter to be judged of, not by any definite and 
 precise criterion, but by the particular circum- 
 stances of each particular case. 
 The penal- r ^ ne penalty in these cases of colonial trade, as 
 
 of as m ^ le otner cases of illegal commerce car- 
 
 tins rule. r j ec j on by neutrals, is confiscation. It was for 
 some time the custom that the ship should be re- 
 stored, and the cargo alone confiscated ; but, in 
 later times, the strictness of the original principle 
 has been revived, and ship and cargo are both con- 
 demned (h}. 
 
 These are the chief regulations and decisions 
 of a permanent nature, respecting the interference 
 of neutrals with the enemy's colonial trade. I 
 say, of a permanent nature, because I apprehend 
 that their principles, being founded in natural 
 justice and the established jurisprudence of na- 
 tions, will be recurred to, and universally acknow- 
 
 (g) Baring on Orders in nerva, 2 Rob. Rep. 229. : 
 
 Council, 81, 2., but quaere and the Volant, note to tin; 
 
 if the case of the Essex was report of the Wilhelmina, 
 
 decided on this ground. 4 Rob. Append. 1 Acton's 
 
 (h) Jonge Thomas in a Rep. 171, 
 note to the report of the Mi-
 
 ON THE COMMERCE OF NEUTRALS. 183 
 
 lodged by the neutral powers, as soon as the pe- The penal- 
 riod shall return when neutrals will be permitted breach of 
 
 . , ,. . . this rule. 
 
 to acknowledge any principles at all in questions 
 of international law. The Decrees of France and 
 the Orders in Council of Great Britain, and all 
 those various inventions of aggression and retali- 
 ation which have abounded through the present 
 war, do not appear to me to wear the same pro- 
 bability of permanence, adopted as they have been 
 in particular emergencies, and calculated for indi- 
 vidual objects. 
 
 Besides the coasting and colonial trades, there vviiatinte- 
 are some other commercial transactions, of a na- T ^^f ^ e 
 ture so liable to abuse, that belligerents have felt P r P ert y 
 
 renders it 
 
 themselves justified in settiner aside the claims liable to 
 
 confisca- 
 
 which neutrals have preferred respecting them. tion. 
 In the case of the Marianna (z), a hostile ship, 
 which had been bought of a neutral, this neutral 
 put in a claim against the captors, suggesting 
 that the purchase money had not been paid to 
 him, and that he had therefore retained a lien 
 upon the property for the payment of that money. 
 But the court said, " 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 claims outstanding, 
 between other parties, which can have no opera- 
 tion as to them. If such a rule did not exist, it 
 
 (0 6 Rob. Rep. 24.
 
 184 THE EFFECT OF WAR. 
 
 Whatinte- would be quite impossible for captors to know, 
 
 rest of the , , , ,. . 
 
 enemy in upon what grounds they were proceeding to make 
 renders^ ^ n y seizure. The fairest and most credible do- 
 confisca- cuments, declaring the property to belong to the 
 enemy, would only serve to mislead them, if such 
 documents were liable to be overruled by liens, 
 which could not in any manner come to their 
 knowledge. It would be equally impossible for 
 the Court, which has to decide upon the question 
 of property, to admit such considerations. The 
 doctrine of liens depends very much on the parti- 
 cular rules of jurisprudence which prevail in dif- 
 ferent countries. To decide judicially on such 
 claims, would require of the Court a perfect know- 
 ledge of the law of covenant, and the application 
 of that law in all countries, under all diversities 
 in which that law exists. From necessity, there- 
 fore, the Court would be obliged to shut the door 
 against such discussions, and to decide on the 
 simple title of property with scarcely any excep- 
 tions." 
 
 Of the same class, is the case of the Jose* 
 phine (Ic). Silver had been shipped by a hostile 
 merchant to his agent in Hamburgh, for the pur- 
 pose, as it was asserted, of satisfying a debt to an 
 American neutral. The cargo was captured : 
 and the American, for whose payment it was 
 thus stated to have been destined, put in a claim 
 
 C/0 4 Rob. Rep. 25.
 
 ON THE COMMERCE OF NEUTRAXS. 185 
 
 in the British Court of Admiralty. The claim What in- 
 was disallowed : " For," said the Court, " even t h e enemy 
 if the asserted intention, on the enemy's part, of renders It* 
 applying the silver to the payment of the neutral JjoJJj^. 
 were ever so sincere, it always remained revocable. tlon> 
 The hostile merchant retained the power of con- 
 verting it to any purpose of his own, and the neu- 
 tral claimant had no document whatever, giving 
 him the control over it. Under these circum- 
 stances, the hostile merchant must be taken to be 
 the legal proprietor ; and, as his property, this sil- 
 ver must be condemned." 
 
 The belligerent, when he thinks fit, has ofReiaxa- 
 
 x ^.u i j. r ntionsocca- 
 
 course a power to remit the strictness ot any of Anally ai- 
 his own rights, and such remissions are not un- lowed< 
 frequently made by orders in council, and royal 
 instructions to the commanders of vessels, enjoin- 
 ing them to spare certain branches of trade in par- 
 ticular places, or for a particular time. When- 
 ever these relaxations are afforded by the govern- 
 ment, the Court of Admiralty shews itself uni- 
 formly liberal in their constructions. It will be 
 unnecessary to multiply instances in order to illus- 
 trate this favourable temper in the judicial inter- 
 pretation of public dispensations ; one case will be 
 amply sufficient. In the case of the Nostra Sig- 
 nora de Piedade (/), instructions had been issued 
 by the King in council, directing the comman- 
 ders of ships not to molest neutral vessels laden 
 
 (/) 6 Rob. Rep. 41. 
 
 24
 
 18$ THE EFFECT OF WAR 
 
 solely with corn, and going to Spain, to whomso- 
 '" ever that corn might belong. The ship in ques- 
 tion was not laden solely with corn, having on 
 board, besides grain, a few dozen of oars and 
 other insignificant articles ; nor was she going to 
 Spain, in the common acceptation of those words, 
 but was captured in a voyage from one Spanish 
 port to another. Sir William Scott gave judg- 
 ment to the following effect : " The corn consti- 
 tutes the cargo, and although there were on board 
 some other small articles, they are not material, I 
 think, to affect the privilege of the principal cargo, 
 being corn, going under the humane permission of 
 his Majesty to an enemy afflicted with famine and 
 pestilence. At the same time it is objected, that 
 this cargo does not come under the literal terms 
 of the instructions which are described to be for 
 the importation of corn, &c. But it would, in my 
 opinion, be no more than the fair interpretation of 
 the humane intention of these instructions, to con- 
 > sider them as extending as. well to the distribution 
 of corn between the provinces of Spain, as to an 
 importation directly from any other country. In- 
 deed, the indulgence would be in a great measure 
 fruitless without this construction : if cargoes, on 
 board neutral ships, are entitled to protection in 
 coming from the north of Europe to the northern 
 ports of Spain, they are to be protected also by 
 the same spirit of the same instructions, in being
 
 ON THE COMMERCE OF NEUTRALS. 187 
 
 distributed afterwards between the provinces of Reiaxa- 
 that kingdom. I am therefore disposed to hold Anally ai- 
 this cargo entitled to protection, unless the privi- 
 lege shall have been forfeited by any fraudulent 
 or improper conduct ; since every grant of this 
 kind must be fairly and honourably acted upon, 
 and if fraud is interposed, and the parties resort to 
 subterfuges of ill faith for their protection, they 
 may justly be considered to have forfeited all 
 benefit from the special indulgence which lias 
 been granted to them." 
 
 We now arrive at the view of those cases where suspen- 
 the law of nations, in consideration of the urgent ^"ts of 16 
 necessities of war, permits the suspension of some neutrals- 
 of the absolute rights of neutrals. The absolute 
 rights of neutrals may be summed up in the terms 
 of that rule which has been before mentioned, 
 " that a neutral is not to be placed in a worse situ- 
 ation by the war, than that in which he would have 
 remained if peace had continued uninterrupted." 
 To this rule of absolute right the urgent necessi- 
 ties of war form the only exception. 
 
 " By virtue of these urgent necessities of war, Forcible 
 vessels are frequently detained," says Beawes, in 
 his Lex Mercatoria, " to serve a prince in an ex- 
 pcdition; and, for this, have often their lading 
 taken out, if a sufficient number of empty ones 
 are not procurable to supply the state's necessity :
 
 188 THE EFFECT OF WAR 
 
 Forcible and this without any regard to the colours they 
 rStof bear, or whose subjects they are ; so that it fre- 
 ships*&c. quently happens, that many of the European na- 
 tions may be forcibly united in the same service, 
 at a juncture when most of their sovereigns are at 
 peace and in amity with the nation which they are 
 obliged to serve. Some have doubted of the lega- 
 lity of the thing ; but it is certainly conformable 
 to the law both of nature and nations, for a prince, 
 in distress, to make use of whatever vessels he 
 finds in his ports, that are fit for his purpose, and 
 may contribute to the successes of his enterprises ; 
 but under this condition, that he makes them a 
 reasonable recompense for their trouble, and does 
 not expose either the ships or men- to any loss or 
 damage." 
 
 " In the law of dominion," says Molloy (m), 
 " extreme necessity seems excepted ; hence it is, 
 that the vessels and ships, of what nature and na- 
 tion soever, that should be found riding in the 
 ports or havens of any prince or state, may be 
 seized on and employed upon any service of that 
 sovereign that shall seize the same ; being but a 
 harmless utility, not divesting the owners of their 
 interest or property." After putting a case on 
 this point, he proceeds : " Who would not pluck 
 a shipwrecked man from his plank, or a wounded 
 man from his horse, rather than suffer himself to 
 
 (w) Molloy, b. 1. ch. 6. sec. 1 and 2.
 
 ON THE COMMERCE OF NEUTRALS. 189 
 
 perish ? To slight which, is a sin, and to pre- Forcible 
 serve, the highest wisdom. Besides, in the taking men t of 
 
 of the vessel, the right is not taken from the ghips,\c. 
 owner, but only the use, which, when the neces- 
 sity is over, there is a condition of restoring an- 
 nexed tacitly to such a seizure. And, doubtless, 
 the same right remains to seize the ships of war 
 of any nations, as w r ell as those of private interest, 
 the which may be employed as occasion shall pre- 
 sent. So the Grecians seized on ships of all na- 
 tions that were in ports, by the advice of Xeno- 
 phon ; but, in the time, provided food and wages 
 to the mariners." 
 
 But these are nice points of casuistry, which 
 few will submit to have settled for them, by the 
 reasonings of their neighbours. But surely no- 
 thing but a necessity, really and absolutely the 
 most perilous and extreme, can authorize such in- 
 vasions of neutral right. For, if the calls of con- 
 venience or passion are to be interpreted into the 
 dictates of necessity, (a species of interpretation 
 too common, both with public and with private 
 men,) the laws of security and property are a dead 
 letter, and the only law is the law of the strongest. 
 The great danger consists in this ; that, of the ne- 
 nessity which is set up as the excuse, the interest- 
 ed party must be himself the judge ; and having 
 only his own conscience to consult as to its exis- 
 tence he is but too apt to persuade himself, that.
 
 190' THE EFFECT OF WAR 
 
 Forcible it is the same thing to possess the power, and to 
 labour under the necessity. The mode in which 
 ^is suspension of neutral right is most usually 
 and commodiously made, is that of embargo; 
 and this species of civil embargo which is always 
 attended with compensation to those whose ships 
 are attacked by it, is distinguishable from that 
 kind of warlike embargo, which we have before 
 explained to be a mode of seizing the property of 
 enemies. 
 
 The rights of a belligerent nation against the 
 
 tion and" delinquencies of neutrals would exist in vain, if 
 a " were not armed with a practical power, by 
 
 of w ]^ ^ those rights may be enforced. Such a 
 
 resistance. o J 
 
 power, by the law of nations, regularly exists ; 
 and it is called the power of visitation and search. 
 " We cannot prevent the conveyance of contra- 
 band goods," says Vattel (w), " without searching 
 neutral vessels that we meet at sea. We have, 
 therefore, a right to search them." This is clear 
 and satisfactory, if, upon making this search, the 
 vessel be found employed in contraband trade, or 
 in carrying despatches or troops, or in any other 
 illegal commerce, she is brought in for adjudica- 
 tion in the Court of Admiralty. If, on the other 
 hand, her commerce appear to be legitimate, she 
 is dismissed without further molestation or incon- 
 venience. 
 
 Neutrals have made many struggles against 
 
 (n) Vattel, b. 3. ch. 7. sect. 1 14.
 
 ON THE COMMERCE OF NEUTRALS. 191 
 
 this right of visitation and search, and particularly ofvisita- 
 
 ... f. -I-. lion and 
 
 b the celebrated league, whic.n was formed dur- searc i, and 
 
 resistance - 
 
 ing the American war, with the empress of Rus- ^S-es of 
 sia at its head. A declaration, dated the 28th of 
 February, 1781 (o), was delivered to the minister 
 of each of the belligerent powers, purporting, 
 " that neutral ships ought to be at liberty to 
 navigate freely from port to port, and upon the 
 coast of the nations at war ; that the goods and 
 effects of the subjects of the belligerent powers 
 should be free, with the exception of contraband 
 goods. That no goods should be considered as 
 a contraband, but such as were specified in the 
 10th and llth articles of the treaty of commerce 
 between Russia and Great Britain, dated 20th of 
 June, 1766, that to ascertain what should be deem- 
 ed a blockaded port, it was determined that none 
 should be admitted to come within that descrip- 
 tion, but such only, where by reason of the near 
 approach of the ships employed in the attack, there 
 was an apparent danger that they would be able 
 to enter it. And finally, that these principles 
 should serve as a basis, for all proceedings and 
 judgments upon the legality of prises." 
 
 The right of visitation and search was not 
 strictly enforced by Great Britain under these cir- 
 cumstances ; but it was not abandoned. Similar 
 attempts, subsequently made, have been defeated 
 
 (o) Marshall on Insurance, b. 1. cb. 8. sec. 5.
 
 192 THE EFFECT OF WAR 
 
 of visita- and totally overthrown ; and the right, at this day, 
 search and subsists practically as well as theoretically. Such 
 quences of opposition, (illegal according to the soundest prin- 
 stance. c jpj es o f international jurisprudence,) is adverted 
 to in terms of strong disapprobation, by three of 
 the judges in the case of Garrels v. Kensington (/>). 
 The whole international law upon this subject 
 is admirably summed up by Sir Willam Scott, in 
 his judgment on the case of the Maria (q\ where 
 he establishes three important points which fol- 
 low : First, that the right of visiting and search- 
 ing merchant ships, upon the high seas, whatever 
 be the ships, whatever be the cargoes, whatever 
 be the destinations, is an incontestable right of the 
 lawfully commissioned cruisers of a belligerent 
 nation, " I say, be the ships, the cargoes, and the 
 destinations, what they may ; because, till they 
 are visited and searched, it does not appear what 
 the ships, or the cargoes, or the destinations are, 
 and it is for the purpose of ascertaining these 
 points, that the necessity of this right of visitation 
 and search exists." The second point is, that the 
 
 (j>) Carrels v. Reusing- page 102, that the preten- 
 
 ton, 8. T. R. 230. See also sions to a right to search a 
 
 Lord Erskine's speech, 8th national ship for any thing, 
 
 March, 1808, upon the Or- appears generally exploded 
 
 ders in council, 10 Cobbett's and renounced by all parties. 
 
 Parl. Deb. 955. Mr. Bar. (?) 1 Rob. Rep. 340 
 
 ing observes, in his Work See also 1 Edwards's Rep. 
 
 upon the Orders in Council, 208.
 
 ON THE COMMERCE OF NEUTRALS. 
 authority of the sovereign of the neutral country o 
 
 , . p r t' " an 
 
 being interposed in any manner ot mere iorce, sea r c h and 
 cannot legally vary the rights of a lawfully com- queues of 
 missioned belligerent cruiser: " Two sovereigns 1>esistance - 
 may unquestionably agree, if they think fit, as in 
 some late instances they have agreed, by special 
 covenant, that the presence of one of their armed 
 ships along with their merchant ships shall be 
 mutually understood to imply, that nothing is to 
 be found in that convoy of merchants ships in- 
 consistent with amity or neutrality ; and if they 
 consent to accept this pledge, no third party has 
 a right to quarrel with it, any more than with any 
 other pledge which they may agree mutually to 
 accept. But surely no sovereign can legally com- 
 pel the acceptance of such a security by mere 
 force. The only security known to the law of 
 nations upon this subject, independent of all spe- 
 cial covenant, is the right of personal visitation 
 and search, to be exercised by those who have 
 the interest in making it." The third point is, 
 that the penalty for the violent contravention of 
 this right, is the confiscation of the property so 
 withheld from visitation and search. " I stand 
 with confidence upon all fair principles of reason, 
 upon the distinct authority of Vattel, upon the in- 
 stitutes of other great maritime countries, as well 
 as those of our own country, when I venture to 
 lay it clown, that, by the law of nations, as now 
 25
 
 194 THE EFFECT OF WAR. 
 
 of visita- understood, a deliberate and continued resistance 
 
 tion and , , _ 
 
 search and to search, on the part of a neutral vessel, to a lavv- 
 quem-esof ful cruiser, is followed by the legal consequence 
 resistance - of confiscation." 
 
 A rescue effected by the crew, after capture, 
 when the captors are in actual possession, is con- 
 sidered a resistance within the application of the 
 penalty : " For a rescue," said Sir William Scott, 
 in the case of the Dispatch (r), can be nothing 
 else than, as the very term imports, a delivery from 
 force by force. In the case of the Elsabe (s), it is 
 laid down as settled, that the resistance of the con- 
 voying ships is the resistance of the whole con- 
 voy; whence it follows, that in such cases the 
 whole convoy is subject to confiscation. But 
 from the case of the Pennsylvania (#), it appears, 
 that if a neutral vessel has been captured, and the 
 captors, whether from \yant of hands to navigate 
 her, or for the sake of making other prizes, or 
 from any other motive, allow the neutral com- 
 manders to resume the direction of the vessel, 
 without any express agreement bindingthose com- 
 manders to bring her in for adjudication in pur- 
 suance of the original capture, then the escape of 
 the neutral will not be regarded as a rescue or a 
 resistance. On the same principle it was said by 
 the Court, in the case of the Saint Juan Bap- 
 
 (r) 3 Rob. Rep. 278. (7) 1 Acton, 33. 
 
 fs) 4 Rx>b. Rep. 408.
 
 ON THE COMMERCE OF NEUTRALS. 195 
 
 tista (w), that a mere attempt to escape before any of visita- 
 possession assumed by the captor, does not draw searchand 
 with it the consequences of condemnation. And quences of 
 the same case further establishes, that, unless the resistan<s ? 
 neutral vessel have reasonable grounds to be satis- 
 fied that a war has actually broken out, even a di- 
 rect resistance will not superinduce the penalty : 
 for, without a war, there is no such thing as a neu- 
 tral character, nor any foundation for the several 
 duties which the law of nations imposes on that 
 character. Nor has the penalty been deemed to 
 attach in those instances where a disposition to re- 
 sistance has at first been betrayed, but afterwards 
 abandoned without being actually carried into 
 operation (x). In the case of the Mentor (y), 
 Sir William Scott said, " As to the instructions 
 that were given to the master of an American ship 
 by his employers, directing him not to speak to 
 -any British cruiser, it must be understood, that 
 every commissioned cruiser has an undoubted 
 right of inquiring, and it is not the arbitrary de- 
 crees of the other belligerent that can abrogate 
 it. On strict principle, to defeat that right by 
 evasion might be as penal as to resist it by force, 
 though it has not been so held in practice ; but 
 certainly it is conduct which is always to be view- 
 
 (u) 5 Rob. Rep. 33. 409. Catharina Elizabeth, 
 
 (a?) Maria, 1 Rob. Rep. 5 Rob. Rep. 232. 
 340. Elsabe, 4 Rob. Rep. (#) 1 Edwards, 208.
 
 196 THE EFFECT OF WAR 
 
 ofvisita- cd with jealousy, and cannot be set up as an ex- 
 
 tion and j . 
 
 search and cuse, advantageous to the parties, m any matter 
 quences of requiring explanation of their conduct." Where 
 resistance, ^g penalty attaches at all, it appears to attach to 
 the cargo as completely as to the ship : u If a 
 neutral master," said Sir William Scott, in the 
 case of the Catharina Elizabeth (z), " attempts a 
 rescue, he violates a duty which is imposed upon 
 him by the law of nations, to submit to come in 
 for inquiry, as to the property of the ship or car- 
 go ; and if he violates that obligation by a recur- 
 rence to force, the consequence will undoubtedly 
 reach the property of his owner ; and it would, I 
 think, extend also to the confiscation of the whole 
 cargo intrusted to his care, and thus fraudulently 
 attempted to be withdrawn from the rights of 
 war." 
 
 When the ridit of visitation and search is ex- 
 Papers and . . 
 documents ercised upon a neutral vessel, the first object of 
 
 on board inquiry is generally the ship's papers. The fol- 
 " lowing are the papers and documents which are 
 usually required, by way of evidence of a vessel's 
 neutral character, and which are, therefore, ex- 
 pected to be uniformly found on board. 
 
 1. The passport. This is a permission from the 
 neutral state to the captain or master of the ship to 
 proceed on the voyage proposed, and usually con- 
 tains his name and residence, the name, descrip- 
 
 (=) 5 Rob. Rep. 232.
 
 
 ON THE COMMERCE OF NEUTRALS. 197 
 
 tion and destination of the ship, with such other p : . pe rs 
 
 rr,i and docu- 
 
 matters as the practice of the place requires. 1 his me nts re- 
 document is indispensably necessary for the safe- 
 ty of every neutral ship. Hubner says, that this 
 is the only paper that is rigorously insisted upon 
 by the Barbary corsairs, by the production of 
 which alone, their friends are protected from in- 
 sult. 
 
 2. The sea letter, or sea brief, which specifies 
 the nature and quantity of the cargo, the place 
 from whence it comes, and its destination. This 
 paper is not so necessary as the passport, because 
 that, in most particulars, supplies its place. 
 
 3. The proofs of property, which ought to 
 shew that the ship really belongs to the subjects 
 of a neutral state. If she appear to either belli- 
 gerent to have been built in the enemy's country r 
 proof is generally required that she was purchas- 
 ed by the neutral before, or captured and legally 
 condemned since, the declaration of war ; and in 
 the latter case, the bill of sale, properly authenti- 
 cated, ought to be produced. Even Hubner ad- 
 mits that these proofs are so essential to every 
 neutral vessel, for the prevention of frauds, that 
 those which sail without them will have no rea- 
 son to complain if they are interrupted in their 
 voyages, and their neutrality even disputed. 
 
 4. The muster roll, which the French call rol e 
 d'equipage, contains the names, ages, quality,
 
 19* THE EFFECT OF WAR 
 
 Papers place of residence, and, above all, the place of 
 
 and docu- ... 
 
 ments re- birth, of every person of the ship's company. 
 
 quisite on r i ' . ~ 
 
 board a -I his document is or great use m ascertaining the 
 "essef. ship's neutrality. It must naturally excite a vio- 
 lent suspicion, if the majority of the crew be 
 found to consist of foreigners ; still more, if they 
 be natives of the enemy's country. 
 
 5. The charter party. This instrument serves 
 to authenticate many of the facts, on which the 
 proof of the ship's neutrality must rest, and is, 
 therefore, extremely necessary. 
 
 6. The bill of lading, by which the captain 
 acknowledges the receipt of the goods specified 
 therein, and promises to deliver them to the con- 
 signee, or his order. Of this there are usually 
 several duplicates ; of which one is delivered to 
 the captain, one kept by the shipper of the goods, 
 and one transmitted to the consignee. This in- 
 strument being only the evidence of a private 
 transaction between the owner of the goods and 
 the captain, does not carry with it the same de- 
 gree of authenticity as the charter party. 
 
 7. The invoices, which contain the particulars 
 and prices of each parcel of goods, with the amount 
 of the freight, duties, and other charges thereon, 
 which are usually transmitted from the shippers to 
 their factors or consignees. These invoices prove 
 by whom the goods were shipped, and to whom 
 consigned. They carry with them, however, but
 
 ON THE COMMERCE OF NEUTRALS. 199 
 
 little authenticity, being easily fabricated, where p a p er s 
 fraud is intended. 
 
 8. The log-book, or ship's journal, which con- 
 
 tains an accurate account of the ship's course, J^f 1 
 with a short history of every occurrence during 
 the voyage. If this be faithfully kept, it will 
 throw great light on the question* of neutrality. If 
 it be in any respect fabricated, this may, in gene- 
 ral, be easily detected. 
 
 9. The bill of health, which is a certificate, 
 properly authenticated, that the ship comes from 
 # place where no contagious distemper prevails, 
 and that none of the crew, at the time of her de- 
 parture, were infected with such distemper. This 
 bill of health is generally found on board of ships 
 coming from the Levant, or from the coast of 
 Barbary, where the plague so frequently prevails. 
 
 Upon the subject of the ship's documents, it is 
 to be observed, that, though by the law of nations, 
 the want of some of these papers may be taken as 
 strong presumptive evidence, yet the want of none 
 of them amounts to conclusive evidence against 
 a ship's neutrality (). 
 
 (a) 8 Term Rep. 434. 437. 562 Mayne and Webber.* 
 Parke, 363.
 
 CHAPTER VI. 
 
 OF THE NAVIGATION LAM'S OF GREAT BRITAIN. 
 
 HAVING, in the preceding chapters, considered 
 the legal effect of war upon the commerce of bel- 
 ligerents and neutrals, I propose, in this chapter, 
 to compress and illustrate the various provisions 
 of the navigation laws, by which the legislature of 
 Great Britain has prohibited, or, in a certain degree, 
 restricted, the intercourse of foreign vessels with 
 her own ports, or those of her dependent posses- 
 sions. This inquiry will enable us the better to as- 
 certain the object and effect of Licenses, and Or- 
 ders in Council, which will be the subject of the 
 last chapter of this work. 
 
 It appears to have been the favourite and uni- 
 form object of British policy, to confine our foreign 
 trade, as far as was consistent with the extent of 
 it, to the shipping and mariners of this country ; 
 and, in order to accomplish that object, to hold 
 out peculiar privileges and immunities to the 
 mariners and shipping of Great Britain, and to 
 prohibit, under severe penalties, the communica-
 
 OF THE NAVIGATION LAWS, &c. 201 
 
 tion of these immunities to the shipping and 
 mariners of foreign states. It will not be an 
 uninteresting task to point out how gradually the 
 principles of these laws developed and unfolded 
 themselves, before they were digested into one 
 permanent and regular code. 
 
 The Act 5 R. 2. stat. 1. ch. 3. is generally Ancient 
 considered as the first of the British Navigation 
 Laws (a). This act ordained, that none of the 
 King's liege people should export or import mer- 
 chandize, except in ships of the King's liegance. 
 
 But subsequent statutes of the same reign seem 
 to have permitted the employment of foreign ves- 
 sels when there was not sufficient British shipping, 
 or when the owners of the British shipping de- 
 manded unreasonable freight. 
 
 The Statute 1 Hen. 7. ch. 8. prohibited the 
 traffic in any wine of Guienne or Gascony, unless 
 brought in English or Irish ships, and by mariners 
 of England, Ireland, Wales, Calais, or the Marches 
 of the same. Having expired, it was revived by 
 4 Hen. 7. chap. 10. and its provisions were ex- 
 tended to Thoulouse woad, with the requisition 
 that the master, as well as the majority of the 
 mariners, should be of one of the countries before 
 mentioned, or of Berwick. These acts are re- 
 
 (a) There was a prior act, amongst the acts of naviga- 
 
 42 Edw. 5. c. 8. ; but this tion. Reeves' Law of Ship- 
 
 cannot be properly ranked ping, 11, 12. 
 26
 
 202 OF THE NAVIGATION LAWS 
 
 Ancient markable for having brought forward, in a spe- 
 cific form, two of the leading provisions of the 
 modern navigation code ; the requisition as to the 
 British property of the vessels, and the requisi- 
 tion as to the British character of the master and 
 mariners. The third great requisition, that the 
 ship should be British built, as well as British 
 owned and British navigated, was reserved for 
 later times. As to other merchandizes than the 
 wines and woad abovementioned, the same Sta- 
 tute of 4 Hen. 7. c. 10. permits such general 
 trade to be carried on by merchants, strangers, in 
 any vessels, but forbids that any other persons, in- 
 habiting here, shall carry it on in ships belonging 
 to foreigners, except where sufficient British ship, 
 ping cannot be obtained. But merchandize forc- 
 ed in by stress of weather, or enemies, was ex- 
 empted from the provisions of the act. This law 
 was confirmed bv Stat. 32 H. 8. ch. 14. 
 
 
 
 The policy of these provisions received a check 
 by the 5 and 6 Edw. 6. c. 18. which permitted 
 the importation of the before- mentioned wines and 
 woad in any vessel, and with any master or mari- 
 ners ; and the Acts of 4 Hen. 7. and 5 Rich. 2. 
 were absolutely repealed by the Statute of 1 Eliz. 
 ch. 13. ; but as to vessels, the restriction was re- 
 imposed by the 5 Eliz. c. 5. s. 11. Several acts 
 about this time, by the imposition of duties upon 
 foreign navigation, enforced the spirit of the Bri
 
 OF GREAT BRITAIN. 203 
 
 tish policy : but the only direct provisions were Ancient 
 those of the Stat. 5 Eliz. c. 5. which forbade the Acts?* 1 ' 
 purchase of fish from foreign vessels, in pursu- 
 ance of the tenor of an act passed in the 33 H. 8. 
 ch. 2. the earliest of those legislative provisions 
 by which the fisheries are considered as connect- 
 ed with navigation. It was by this statute of Eli- 
 zabeth also that those parts of our present policy 
 were introduced which relate to the coasting trade. 
 The act provided, that no person should cause to 
 be loaden or carried, in any bottom whereof a 
 stranger born was owner, ship-master, or part 
 owner, any kind of fish, victual, wares, or things 
 of what kind or nature soever, from one port or 
 creek of this realm to another port or creek of the 
 same, on pain of forfeiting the goods so laden or 
 carried. 
 
 A permission was given to all persons being 
 subjects to export wheat, rye, barley, malt, peas, 
 or beans, when they did not exceed certain prices, 
 into any parts beyond sea, in ships, crayers, or 
 other vessels, whereof English subjects should be 
 the only owners. 
 
 This statute went further than any of those 
 which had preceded it, by forbidding an alien 
 born to become part owner of the vessels employed 
 in the coasting trade ; and it continued in force 
 till the conclusion of the reign of Charles the First.
 
 204 OF THE NAVIGATION LAWS 
 
 Ancient In the mean time, James the First, by some 
 charters and proclamations, enforced the exclu- 
 sive employment of British shipping in the plan- 
 tation trade. 
 
 The republican parliament of England, in A. D. 
 1646, encouraged British shipping in the planta- 
 tion trade by fiscal exemptions ; and introduced 
 another of the leading principles in our navigation 
 code, that of confining to the mother country the 
 trade of its colonies and plantations. In 1650, 
 another restriction was laid upon the plantations 
 in general, which has continued in some degree 
 to the present time. It was in these words : " The 
 Parliament doth forbid and prohibit all ships of 
 any foreign nation whatsoever to come to, or trade 
 in, or traffic with, any of the English plantations 
 in America, or any islands, ports, or places there- 
 of, which are planted by, and in possession of the 
 people of this commonwealth, without license 
 first had and obtained from the Parliament or 
 Council of State." 
 
 But the most important of all the statutes which 
 passed before the Restoration, was the famous Act 
 of Navigation, passed by the Parliament on the 
 9th of October, 1651. It directs, " That no goods 
 or commodities whatsoever, of the growth, pro- 
 duction, or manufacture of Asia, Africa, or Ame- 
 rica, or of any part thereof, or of any islands be-
 
 OF GREAT BRITAIN. 205 
 
 longing to them, or any of them, or which are Ancient 
 described or laid down in the usual charts or maps ACWV 
 of those places, as well of the English plantations 
 as others, shall be imported or brought into this 
 commonwealth of England, or into Ireland, or any 
 other lands, islands, plantations, or territories, to 
 this commonwealth belonging, or in their posses- 
 sion, in any other ship or vessel whatsoever, but 
 only in such as do truly and without fraud belong 
 only to the people of this commonwealth, or the 
 plantations thereof, as the proprietors or right own- 
 ers thereof, and whereof the master and mariners 
 are also, for the most part of them, of the people 
 of this commonwealth." 
 
 Having thus secured the import trade of Asia, 
 Africa, and America, the act proceeds to direct, 
 " That no goods, the growth, production, or ma- 
 nufacture of Europe, or of any part thereof, shall 
 be imported or brought into this commonwealth 
 of England, or into Ireland, or any other lands, 
 islands, plantations, or territories, to this common- 
 wealth belonging, or in their possession, in any 
 ship or vessel whatsoever, but in such as do truly 
 and without fraud belong only to the people of 
 this commonwealth, as the true owners and pro- 
 prietors thereof, and in no other, except only such 
 foreign ships and vessels as do truly and properly 
 belong to the people of that country or place of 
 which the said goods are the growth, production,
 
 206 OF THE NAVIGATION LAWS 
 
 Ancient or manufacture, or to such ports where such goods 
 
 Navigation 
 
 Acts. can only be, or most usually are, first shipped for 
 transportation ; and no goods or commodities that 
 are of foreign growth, production, or manufacture, 
 and which are to be brought into this common- 
 wealth in shipping belonging to the people there- 
 of, shall be by them shipped or brought from any 
 other place or country, but only those of their 
 growth, production, or manufacture, or from those 
 ports where the said goods and commodities can 
 only, or are, or usually have been, first shipped 
 for transportation, and from none other place or 
 country." 
 
 The fisheries Were the next object of this Act, 
 which accordingly provided, that no sort of cod- 
 fish, ling, herring, pilchard, or any other kind of 
 salted fish usually fished for and caught by the peo- 
 ple of this nation, nor any oil made of any kind 
 of fish whatsoever, nor any whale-fins, or whale- 
 bones, should be imported into this common- 
 wealth, or into Ireland, or any other lands, islands, 
 plantations, or territories thereto belonging, or in 
 their possession, but only such as should be 
 caught in vessels that truly and properly belonged 
 to the people of this nation, as proprietors and 
 right owners." 
 
 Nor did the Act, in its prohibitions upon foreign 
 shipping, confine itself to imports alone ; it also 
 ordained, that such fish should not be exported 
 from any place belonging to this commonwealth
 
 OF GREAT BRITAIN. 207 
 
 in any other ship or vessel than such as truly and Ancient 
 
 J . . Navigation 
 
 properly appertained to the people 01 this com- Acts. 
 mon wealth, as right owners, and whereof the mas- 
 ter and mariners were, for the most part of them, 
 English. 
 
 Finally, the Act extended its care to the coast- 
 ing trade ; with regard to which it directed, that 
 no person whatever should load or carry, in any 
 bottom, ship, or vessel, whereof any stranger born 
 (unless such as were denizen, or naturalized) 
 were owner, part owner, or master, any fish, vic- 
 tual, wares, or things of what kind or nature so- 
 ever, from one port or creek of this common- 
 wealth to another. 
 
 The great purpose of this celebrated act was to 
 cripple the trade of the Dutch, who were, in those 
 times, the greatest mercantile people of the world. 
 "And although," says Mr. Reeves, in his excel- 
 lent History of the Navigation Acts (), " this 
 measure brought upon the country an obstinate 
 and bloody war, and though the authority on which 
 this act was founded was unconstitutional and 
 usurped, yet a plan so wise and solid was strenu- 
 ously maintained by those who formed it : and it 
 was not suffered to pass away with the transient 
 
 (ft) Page 53. The origin to the general jealousy enter- 
 
 of this statute has been as. tained by the nation against 
 
 cribed by some to the pique the Dutch. Ludiow's Me- 
 
 of an indiyidualj by others moirs, yol 1. p. 345.
 
 208 OF THE NAVIGATION LAWS 
 
 Ancient government from which it derived its origin : the 
 vets. ^ great features of it were adopted by the lawful go- 
 vernment at the Restoration of Charles II. when 
 a new Act of Navigation rose out of the ashes of 
 this, and became the basis of all those laws that 
 have since been made for the increase of shipping 
 and navigation." 
 
 The Navi. We now arr% ive at that new and still subsisting 
 ACULS ^ Ct ^ Navigation to which the author just cited 
 car.'2.c. alludes : the Act of 12 Cha. 2. c. 18. Those of 
 
 Jo. 
 
 its provisions which may properly be considered 
 t within our present object are threefold ; relating, 
 first, to the coasting trade of this country ; se- 
 condly, to the trade of this country with other in- 
 dependent states ; and, thirdly, to the trade which 
 she carries on herself, or permits other states to 
 carry on, with her plantations and foreign posses- 
 sions. 
 
 Though it has been deemed expedient thus to 
 give a short historical sketch of the most material 
 statutes which preceded the Restoration, in order 
 to afford a general view of the undigested policy 
 of our ancestors, it will not be necessary to spe- 
 cify, in the order of their succession, the whole 
 list of important statutes which have passed since 
 the Act of 12 Car. 2. ; because they are already 
 collected so accurately, up to the year 1792, in that 
 excellent work on the Law of Shipping and Na- 
 vigation by Mr. Reeves ; but on each of the three 
 heads proposed to be considered, a single con-
 
 OF GREAT BRITAIN. 209 
 
 solidated abstract of the Statute Law, with the The Navi- 
 
 , . . ... , gallon 
 
 decisions upon it, will be given. Act. 
 
 First, then, we will examine the regulations coasting 
 which respect the coasting trade ; that is, the trade 
 from one port of this country to another port of 
 the same country. 
 
 The following is the enactment of the Statute 
 12 Car. 2. c. 18. s. 6. " That it shall not be 
 lawful to any person or persons whatsoever to 
 
 _ 
 
 load, or cause to be loaden and earned, in any 
 bottom or bottoms, ship or ships, vessel or vessels 
 whatsoever, whereof any stranger or strangers 
 born (unless such as shall be denizens, or natu- 
 ralized) be owners, part-owners, or master, and 
 whereof three- fourths of the mariners, at least, 
 shall not be English, any fish, victual, wares, 
 goods, commodities, or things of what kind or 
 nature soever the same shall be, from one port or 
 creek of England, Ireland, Wales, islands of 
 Guernsey or Jersey, or town of Berwick-upon- 
 Tweed, to another port or creek of the same, or 
 of any of them." 
 
 In the second place, we are to consider the Foi . eigll 
 foreign trade of this country herself; that is, her 
 trade with other independent states. By this Navi- 
 gation Act, the 12 Cha. 2. c. 18. s. 8. (c), it is 
 
 (c) A license by the King, passing it. Ander. Hist. Com. 
 contrary to this statute, was 1 vol. p. 473. Reeves on 
 declared void by proclaina. Shipping, 201. 
 tion 5 two years after the 
 
 27
 
 210 ON THE NAVIGATION LAWS 
 
 8 ' 
 
 Foreign enacted, " That no goods or commodities of the 
 growth, production, or manufacture of Muscovy, 
 or of any of the countries, dominions, or territo- 
 ries, to the Great Duke or Emperor of Muscovy 
 or Russia belonging ; as also that no sort of masts, 
 timber, or boards, no foreign salt, pitch, tar, rosin, 
 hemp, or flax, raisins, figs, prunes, olive oils, no 
 sorts of corn or grain, sugar, potashes, wines, 
 vinegar, or spirits called aqua- vitas, or brandy 
 wine, shall be imported into England, Ireland, 
 Wales, or town of Berwick-upon-Twecd, in any 
 ship or ships, vessel or vessels whatsoever, but in 
 such as do truly and without fraud belong to the 
 people thereof, or some of them, as the true own- 
 ers and proprietors thereof, and whereof the mas- 
 ter, and three-fourths of the mariners, at least, are 
 English : And that no currants no commodities 
 of the growth, production, or manufacture of any 
 of the countries, islands, dominions, or territories, 
 to the Othoman or Turkish Empire belonging, 
 shall be imported into any of the beforementioned 
 places in any ship or vessel but which is of Eng- 
 lish built, and navigated as aforesaid, and in no 
 other, except only such foreign ships and vessels 
 as are of the built of that country or place of 
 which the said goods are the growth, production, 
 or manufacture respectively, or of such port where 
 the said goods can only be, or most usually are,
 
 OF GREAT BRITAIN. 211 
 
 first shipped for transportation, and whereof the Foreign 
 master, and three fourths of the mariners, at lea*, 
 are of the said country or place, under the penalty 
 and forfeiture of ship and goods, as in the last- 
 mentioned clause." 
 
 This exception as to foreign ships is construed 
 to apply not only to Turkey, but to Russia, and 
 to all the enumerated articles before mentioned in 
 the same section (d}. But by a subsequent sta- 
 tute (e), foreign ships, British-owned, were sub- 
 jected to the payment of alien's duty. 
 
 Such is the ground- work of all the law on the 
 subject of the European trade ; but some altera- 
 tions have been introduced by subsequent statutes. 
 That of the 27th Geo. 3. c. 19. s. 10. after recit- 
 ing the statutes from which I have repeated the 
 foregoing extracts, proceeds to ordain, " That 
 any of the commodities enumerated in the said 
 act, being the growth, production, or manufacture 
 of Europe, may be imported into Europe under 
 certain conditions, which it is not material to par- 
 ticularize, either in ships which, before the first 
 day of May, 1786, did truly and without fraud 
 wholly belong to his Majesty's dominions, or 
 which are of the built of his Majesty's dominions, 
 and registered respectively according to law, or in 
 
 ((/) Reeves. 198. (c) 13 and 14 C. 2. c. 1. s. 6,
 
 2 ON THE NAVIGATION LAWS 
 
 Foreign ships or vessels the built of any countries or places 
 trade. *ii>Europe belonging to or under the dominion of 
 the sovereign or state in Europe of which the said 
 goods or commodities so enumerated or described 
 as aforesaid, are the growth, production, or manu- 
 facture respectively, or of such ports where the 
 said goods or commodities can only be, or are 
 most usually first shipped for transportation, such 
 ships or vessels being navigated with a master and 
 three fourths of the mariners, at the least, belong- 
 ing to such countries, or places, or ports respec- 
 tively, and in none other ships or vessels what- 
 ever ; any law, usage, or custom to the contrary 
 notwithstanding." 
 
 The Act of 2 W. & M. sess. 1. c. 9. declares, 
 that throwing of silk is not nor ought to be con- 
 strued a manufacture within the intention of the 
 said Act for the encouraging and increasing of 
 shipping and navigation ; and that no thrown silk 
 of the growth or production of Turkey, Persia, 
 East India, or China, or of any other country or 
 place, (except only such thrown silk as is or shall 
 be of the growth or production of Italy, Sicily, or 
 of the kingdom of Naples, and which shall be 
 imported in such ships or vessels, and navigated 
 in such manner as in the said Act of Navigation 
 is directed or allowed, and brought from some of 
 the ports of those countries or places whereof the 
 same is of the growth or production, and which
 
 OF GREAT BRITAIN. 213 
 
 shall come directly by sea, and not otherwise), shall Foreign 
 
 , , . , P -r- European 
 
 be brought or imported into the kingdom ol -kng- trade, 
 land, dominion of Wales, the islands of Jersey or ,, * 
 Guernsey, or the town of Berwick-upon- Tweed." 
 So that only such silk as is really the growth of 
 Italy, Sicily, and Naples,* may be imported within 
 the meaning of the Navigation Act. Yet during 
 the war, the prohibition has been frequently relax, 
 ed, and the importation of thrown silk from a 
 friendly country permitted in any vessel what- 
 ever (/). 
 
 There is, however, one "European production, 
 namely, the timber of Germany, which the Act 
 of Charles II. allowed to be imported in vessels 
 of the country of which it was the growth or pro- 
 duction, or in vessels of the most usual port, but 
 which the Stat. 6 Geo. 1. c. 15. confines to Eng- 
 lish shipping alone. This Statute repeals a pre- 
 vious prohibition, forbidding the importation of 
 timber from Germany in any ships whatsoever, 
 and allows its importation in British vessels : 
 '" l Enacting," in the second section, " That it 
 shall be lawful for any of his Majesty's subjects 
 to import any quantity or quantities of fir timber, 
 fir planks, masts, and deal-boards, being of the 
 growth of Germany, into this kingdom, from any 
 port or place in Germany, in British built ships 
 only, so as the owner or owners are his Majesty's 
 
 (/) 43 Geo. 3. c. 153.
 
 214 ON THE NAVIGATION LAWS 
 
 Foreign British subjects, and whereof the master and 
 trade 1 ! 6 three-fourths of tlie mariners at least are British 
 
 subjects." 
 
 Trade These are the principal regulations with respect 
 
 Africa, ' to prohibiting or limiting foreigners in the trade 
 rica. ' between this country and the rest of Europe. As 
 to the trade of this country with Asia, Africa, and 
 the greatest part of America, our policy is still 
 stricter anfl. more exclusive. The Act of Navi- 
 gation lays down the following ordinance (g) : 
 " That no goods or commodities whatsoever, of 
 the growth, production, or manufacture of Africa, 
 Asia, or America, shall be imported into Eng- 
 land, Ireland, or Wales, islands of Guernsey and 
 Jersey, or town of Berwick-upon- Tweed, in any 
 other ship or ships, vessel or vessels whatsoever, 
 but in such as do truly and without fraud belong 
 only to the people of England or Ireland, domi- 
 nion of Wales, or town of Berwick-upon-Tweed, 
 or of the lands islands, plantations, or territories 
 in Asia, Africa, or America, to his Majesty be- 
 longing, as the proprietors and right owners 
 thereof, and whereof the master and three-fourths 
 at least of the mariners are English, under the pe- 
 nalty of the forfeiture of all such goods and com- 
 modities, and of the ship or vessel in which they 
 were imported, with all her guns, tackle, furniture, 
 ammunition, and apparel : one moiety to his Ma- 
 te) 12 Car. 2. c. 18. s. 3.
 
 OF GREAT BRITAIN. 215 
 
 jesty, his heirs and successors, and the other Trade 
 
 , . i i 11 r WIth Asia 
 
 moiety to him or them who shall seize, inform, or Africa, 
 sue for the same in any Court of Record by bill, r" ca> 
 information, plaint, or other action, wherein no 
 essoin, protection or wager of law shall be allow- 
 ed." 
 
 An exception to this rule has been made in fa- 
 vour of the Portuguese dominions in South Ame- 
 rica by the 48 Geo. 3. c. 11. which " enacts, 
 That it shall be lawful to import into the united 
 kingdom directly from Brazil, or any of the terri- 
 tories and possessions of the crown of Portugal 
 on the continent of South America, in ships or 
 vessels built in the kingdom of Portugal before 
 the first day of January, 1808, or in ships or 
 vessels built in any of the aforesaid territories or 
 possessions on the continent of South America, 
 or in ships or vessels taken by the ships or vessels 
 of war belonging to the Portuguese government, 
 or belonging to any subjects of the said govern- 
 ment, having commissions or letters of marque 
 and reprisals from the Portuguese government, 
 and condemned as lawful prize in any Court ot 
 Admiralty in the Portuguese government," and 
 " owned by subjects of the Portuguese govern- 
 ment, resident in the said territories and posses- 
 sions on the continent of South America, and 
 whereof the master and three-fourths of the mari- 
 ners at least are subjects of the Portuguese go-
 
 
 216 ON THE NAVIGATION LAWS 
 
 Trade vernment, and residents in the said territories and 
 
 with Asia, . . 
 
 Africa, possessions, any goods, wares, or merchandize, the 
 rica, r '" growth, produce, or manufacture of the said ter- 
 ritories and possessions, which are not prohibited 
 by law to be imported from foreign countries." 
 Trade There is one part of America which does not 
 
 ed'staYe"*" fal1 within the force of the Navigation Act of 12 
 of Ameri- &. 2 . ; I mean the territory of the United States. 
 What may be the exact predicament of our com- 
 mercial relations with those countries at the pre- 
 sent moment, it is not indeed very easy to declare : 
 still less, in the present uncertainty of the negotia- 
 tions, is it possible to point out the law as it is 
 likely to stand hereafter ; so that for practical pur- 
 poses, that part of the Navigation Code which 
 relates to the United States, might almost as well 
 be omitted in a legal work in this peculiar crisis 
 of the political world. We will, however, shortly 
 state the leading regulations of the law which has 
 ordinarily governed our intercourse with the coun- 
 tries in question. Those ordinances originated in 
 the Stat. of the 37 Geo. 3. c. 97. which enacts, 
 " That it shall be lawful to import into this king- 
 dom, directly from any of the territories of the 
 United States of America, in British-built ships 
 or vessels, owned, navigated, and registered ac- 
 cording to law, or in ships built in the countries 
 belonging to the United States of America, or any 
 of them, or in ships taken by any of the ships or
 
 OF GREAT BRITAIN. 217 
 
 vessels of war belonging to the government, or Trade 
 any of the inhabitants of the said United States, e a states 
 having commissions or letters of marque and re- 
 prisal from the government of the said United 
 States, and condemned as lawful prize in any 
 Court of the Admiralty of the said United States, 
 and owned by the subjects of the said United 
 States, or any of them, and whereof the master and 
 three-fourths of the mariners at least are subjects 
 of the said United States, any goods, wares, or 
 merchandize, the growth, production, or manu- 
 facture of the said United States, which are not 
 prohibited by law to be imported from foreign 
 countries." 
 
 The 27th section declares, that the act shall 
 continue in force so long as the said treaty be- 
 tween his Majesty and the United States shall 
 continue in force. The treaty has ceased to be 
 in force long since, but the statute was continued 
 by several subsequent enactments (/z), up to the 
 end of the cession of parliament in the year 1808. 
 Before the conclusion of that session, these parti- 
 cular provisions were continued for another year, 
 and the 49 Geo. 3. c. 59. re-enacted them with- 
 out any limitation as to their continuance. It may 
 therefore be presumed that this last act is still in 
 permanent force, except as it may be from time 
 to time affected by momentary measures of non- 
 
 (A) 45 Geo. 3. c. 35.- 3. Stat. 2. c. 2. 48 Geo. 3. 
 46 Geo. 3. c. 1647 Geo. c. 6. 48. Geo. c. 85. 
 28
 
 ON THE NAVIGATION LAWS 
 Trade intercourse or embargo, adopted in Congress, or 
 
 with Unit- ... 
 
 states by any temporary retaliations which may be re- 
 sorted to on this side of the Atlantic. 
 
 There are a few commodities, however, which 
 form exceptions to all the provisions of the Na- 
 vigation Act respecting the trade of England 
 with Europe, Asia, Africa, America in general, 
 or the United States, These commodities, for a 
 certain time, may be imported in any ships what- 
 soever. One of them is unmanufactured tobacco ; 
 and the Stat. 49 Geo. 3. c. 25. enacted, that it 
 might be imported from any place whatever, in 
 any ship belonging to any country in amity with 
 his Majesty, however navigated, until the 25th 
 March, 1811. The others are cochineal and in- 
 digo, which, by the Stat. of the 49 Geo. 3. ch. 
 18. made to continue several previous acts, may 
 be imported, until the 25th of March, 1814, in 
 any ship belonging to any state in amity with his 
 Majesty, from any port or place, provided that no 
 cochineal or indigo, the growth or produce of any 
 of the countries within the limits of the East In- 
 dia Company's charter, shall be imported, except 
 by and on the account, or with the license, of the 
 said company.'* 
 
 With respect to a few kinds of goods, there 
 is a still .a greater liberty : a liberty not consisting 
 merely in temporary relaxations, but in the total
 
 OF GREAT BRITAIN. 219 
 
 and permanent absence of all restriction whatso- Trade 
 
 . . . with Unit- 
 
 ever. Such are masts, timber, or boards, pitch, eci states 
 tar, rosin, hemp, or flax, which, by the 47 Geo, 
 
 nca. 
 
 3. sec. 2. ch. 27. may be imported in any vessel 
 belonging to any state in amity with his Majesty, 
 navigated in any manner whatever. 
 
 And such, lastly, are bullion and prize goods, 
 which form an exception, not only to these re- 
 strictions, but also to the regulations respecting 
 the coasting trade. This general exception is 
 created by the 15th section of the 12 Car, 2. ch, 
 18, which provides, that nothing in the act shall 
 extend to bullion, nor to goods taken by way of 
 reprisals by any ship or ships belonging to Eng- 
 land, Ireland, or Wales, islands of Guernsey or 
 Jersey, or town of Berwick-upon-Tweed, and 
 whereof the master and three-fourths of the man- 
 ners at least are English, having commission 
 from his majesty, his heirs or successors. 
 
 Besides all these relaxations, it has been usual to 
 make temporary suspensions, during war, of many i] 
 enactments in the Navigation Law with respect in 
 to commodities in general, or to particular arti- 
 cles. Other temporary provisions may deserve a 
 particular notice through the probability of their 
 re-enactment from time to time ; but those which 
 are ordained only upon die pressure of war, will 
 terminate of course in the restoration of peace (?'). 
 
 (?) See Statutes at large, Index, Tit. Importation.
 
 220 ON THE NAVIGATION LAWS 
 
 Decisions. We will now briefly inquire into the decision* 
 which the Courts have pronounced upon those 
 parts of the Navigation Law which relate to the 
 trade of this country with other independent 
 states. These decisions turn altogether upon the 
 8th sec. of the Act of 1 Car. 2. c. 18. ; the sec- 
 tion respecting the shipping in which foreigners 
 may carry on such branches of trade as are per- 
 mitted to them. 
 
 It was once supposed and decided, that this 
 section enjoined the importation of Russian com- 
 modities, and of the other enumerated foreign ar- 
 ticles, in Russian ships, English manned. This 
 doctrine was laid down in the case of Scott v. 
 Schwartz (). It was contended by the counsel 
 for the crown, and admitted and reasoned upon at 
 length by the Chief Baron Comyns, " That the 
 words expressing the ships in which Russia goods 
 should be imported, such as belong to the people 
 thereof, <kc. must mean the people of Russia, and 
 not the people of England : and that the policy 
 of that provision was, that Russia ships should be 
 the bringers of those articles, but they should be 
 navigated by English masters and mariners ; and 
 comparing it with the wording respecting the im- 
 portation of articles from Turkey, which requires 
 the ship to be English-built, it was said, that 
 the manning of Russia ships with English mari- 
 
 (/O Comyns' Rep. 677.
 
 OF GREAT BRITAIN. 221 
 
 tiers? was a policy extremely beneficial to English 
 navigation, and such as both countries would find 
 an advantage in ; but that it was foreseen, that 
 Turkish ships would hardly be suffered by the 
 Mahometans to be navigated by Italian sailors, 
 nor would it be proper for Christian powers to 
 condescend to suffer it ; and therefore the act re- 
 quires, in that case, that where the mariners were 
 English, the ship also should be such. This 
 seems to have been the decided opinion of the 
 Chief Baron upon that occasion." 
 
 But Mr. Reeves, in his history of the Naviga- 
 tion Laws (/), observes, " That very little verbal 
 criticism would have drawn from these words a 
 very different construction. For, in the first 
 place, it is not only the goods of Russia that are 
 in question, but also various enumerated goods 
 which are not expressed to be the produce of any 
 particular country ; and therefore, when we admit 
 that ships belonging to the people thereof may, 
 when referred to Russia, have an antecedent to 
 which they may refer, it may be asked, what peo- 
 ple are referred to where no country is mentioned 
 as the place where the enumerated goods are pro^ 
 duced ? So that in all cases, except that of Rus- 
 sian commodities, this construction upon these 
 words leaves them without effect or meaning. 
 
 " In the next place, this construction seems to 
 
 (0 P. 226.
 
 222 ON THE NAVIGATION LAWS 
 
 Decisions, be taken contrary to the obvious method of trac- 
 ing the antecedent referred to. For the words 
 being, that no goods, &c. of Russia, &c. nor any 
 masts, &.c. shall be imported into England, Ireland, 
 Wales, or Berwick, in any ship or vessel whatso- 
 ever, but in such as do truly and without fraud be- 
 long to the people thereof, or some of them, as the 
 true owners and proprietors thereof, and whereof 
 the master and three-fourths of the mariners at least 
 are English, the natural construction is to refer 
 the people thereof to the last antecedent, viz. 
 England, Ireland, Wales, and Berwick, and not 
 to Russia. 
 
 Lastly, upon comparing this description of the 
 ships, and the manning of them, with other de- 
 scriptions of ships in the same act, it appears to 
 be the same form of words as is used in various 
 places, in former parts of the act, to describe 
 English shipping. It is used in the first section 
 to describe die shipping for the plantation trade ; 
 in the third section, to describe those that are to 
 bring the commodities of Asia, Africa, and Ame- 
 rica ; it is nearly repeated in the fourth section ; 
 and as much of it as regards ships is used in the 
 fifth section, relating to the fishery ; it is likewise 
 used in several parts of the act subsequent to the 
 eighth section. Indeed, this is the sense in which 
 this provision is understood on a subsequent occa-
 
 OF GREAT BRITAIN. 223 
 
 sion. In the case of Scott v. Ditchez (/ft), Lord Decisions. 
 Chief Baron Parker lays down the law in that 
 sense, without noticing the determination to the 
 contrary, or that there was any doubt ever enter- 
 tained upon the subject. 
 
 The exception at the close of this section has 
 occasioned some discussion (n] : " Except only 
 such foreign ships as are of the built of the coun- 
 try or place of which the goods are the growth, 
 &c. or of such port where the goods can only be, 
 or most usually are, first shipped for transporta- 
 tion, and whereof the master and three-fourths of 
 the mariners at least are of the said country or 
 place." 
 
 The most material doubt upon these words was, 
 whether they applied only to the latter part of the 
 section, relating to currents and the Turkey trade, 
 or extended to the whole of the section. It was 
 maintained by the crown lawyers, in the before 
 mentioned case of Scott v. Schwartz (o), that it 
 was confined to the Turkey trade ; but this was 
 over- ruled by the Chief Baron Corny ns, who 
 clearly thought the exception extended to the 
 whole section, upon the consideration that the 
 goods of Russia, and the enumerated goods, as 
 well as currents and the commodities of Turkey, 
 are all declared in the ninth section to be aliens 
 
 (m) Parker's Rep. 27. 29. (o) Comyn's Rep. 677. 
 () Reeves, 29. 230.
 
 224 ON THE NAVIGATION LAWS 
 
 Decisions, goods, if they are imported in other than English 
 shipping." 
 
 It was for some time contended by many, that 
 English-built ships, sold to foreigners and navi- 
 gated by them, were qualified under this section 
 of the Navigation Act. But this opinion was 
 over-ruled by the decision in the case of Scott v. 
 D'Achez [p] ; where an English ship, having be- 
 come French property, imported French wine and 
 vinegar from France, the master and ti.ree-fourths 
 of the mariners being French. In favour of this 
 ship, it was objected, that the main design of the 
 act was, that the English, and not foreign nations, 
 should be carriers ; and therefore they may carry 
 as well in foreign built ships, being their proper- 
 ty, as in ships of the built of their own country, 
 if they qualify them according to the tenth section, 
 and navigate them with a master and three-fourths 
 of the mariners English ; and this is enforced in 
 the eleventh section. Again, if a foreign ship 
 may have the privilege of an English ship, pari 
 ratione, or rather a fortiori, an English ship, be- 
 ing foreign property, should be entitled to the 
 like privilege, taking the encouragement of ship- 
 building to be the second consideration of the 
 act. For, in the present case, our own timber 
 and workmen were employed, and we had the 
 benefit of rigging and furniture ; whereas, if she 
 
 (/O Parker's Rep. 30. &c.
 
 OF GREAT BRITAIN. 225 
 
 had been French-built, she would have been duly Decisions. 
 qualified to have imported those articles, and we 
 should not have had the advantage of building 
 and equipping. 
 
 To these objections it was answered and resolv- 
 ed, by the Chief Baron Parker, that they were in- 
 deed spacious, but were founded on a supposi- 
 tion, that we could have prohibited the importa- 
 tion of European goods in foreign bottoms ; but, 
 as that could not be done with safety to our trade, 
 the force of the objections vanished. 
 
 It was seen, said he, that many countries in 
 Europe, as France, Spain, and Italy, could more 
 easily buy ships than build them ; that, on the 
 other hand, countries like Russia, and others in 
 the. North, had timber and materials enough for 
 building ships, but wanted sailors. It was from 
 a consideration of this inaptness in most coun- 
 tries to accomplish a complete navigation, that 
 the parliament prohibited the importation of most 
 European goods, unless in ships owned and na- 
 vigated by English, or in ships of the built of ? 
 and manned by sailors of that country of which 
 the goods were the growth. The consequence 
 would be, that foreigners could not make use 
 of ships they bought, though English subjects 
 might. This would force them to have recourse 
 to our shipping ; and the general intent of the act, 
 to secure the carrying trade to the English, would 
 20
 
 220 ON THE NAVIGATION LAWS 
 
 Decisions, be answered as far as it possibly could. On the 
 other hand, if foreign property had been sufficient 
 to qualify ships, foreigners might have bought 
 ships where they pleased, and manned them with 
 their own sailors ; and then not only the freight, 
 but the employment of our sailors, would have 
 been lost to England ; and preventing this must 
 greatly counterbalance any advantage that could 
 accrue to England from the building and equipping 
 ships for foreign use ; which too, being a secon- 
 dary consideration in making the act, was not to 
 defeat the primary one. 
 
 The Chief Baron remarked, that, with all the 
 desire the parliament had to encourage English 
 shipping, and notwithstanding they had, with 
 that view, required the productions of our own 
 colonies, and those of Asia, Africa, and America, 
 to be imported only in English shipping, yet they 
 wisely foresaw, that if they restrained the importa- 
 tion or exportation of European goods, unless in 
 our own ships, and manned with our own seamen, 
 other states would do the same ; and this, in its 
 consequences, would amount to a prohibition of 
 all such goods, which would be extremely detri- 
 mental to trade, and, in the end, defeat the very 
 design of the act. This exposition of the Act of 
 Navigation is certainly the true one. 
 
 The requisite, that " the master and three-
 
 OF GREAT BRITAIN. 2S7 
 
 fourths of the mariners should be of the same Decisions. 
 country or place," led also to considerable discus- 
 sion. This point was decided in the case of 
 Scott and Schwartz (q] ; and in which it was ad- 
 judged to be the design of the act, that no foreign 
 ships should import any of the goods enumerated 
 and described in this section, if mariners were 
 brought from any foreign kingdom to navigate 
 them. From the same case we may further col- 
 lect, that though the act does not precisely fix 
 and determine who shall be the people of a coun- 
 try, yet it gives a larger extent and signification 
 of the phrase than belongs to the term natives ; 
 and the precise notation of it is left to the general 
 import and common understanding of the words. 
 In this case of Scott and Schwartz (r), there 
 was a ship, Russian built, from Riga, navigated 
 by a master who was born out of the Russian do- 
 minions, but who had, nine years before, been 
 admitted a burgher of Riga, and had ever since 
 continued so, residing there when not engaged in 
 voyages. There were eleven mariners, four of 
 whom were born in Russia; the fifth was born in 
 Ireland, there bound apprentice to the master, and 
 as such went with him to Riga ; for three or four 
 years before the seizure, he served on board this . 
 ship, and sailed in it from Riga on the present 
 voyage. The other six were born out of the do- 
 
 (</) Comyns' Rep. 677. (r) Comyns' Rep. 68.9.
 
 228 ON* THE NAVIGATION LAWS 
 
 Decisions, minions of Russia ; but one had resided at Riga 
 for eight years next before the seizure ; another, 
 five years ; another, four years ; another, seven 
 years ; and the last four had, during the same pe- 
 riod, sailed from Riga in that and other vessels. 
 It was understood there was no such thing as 
 naturalization known in Russia. 
 
 The Chief Baron Comyns was of opinion, that 
 the master being a burgher, and having taken an 
 oath of allegiance to the Empress, as was proved 
 on the trial, there was hardly any thing more 
 cogent than this to denominate a man of a coun- 
 try ; he must be a subject of the Empress. As 
 to the other four mariners, he thought them to be 
 people of the country within the meaning of the 
 act : first, because the act seems to intend nothing 
 more than fixed and settled inhabitants there ; 
 and a residence of four or five years might well 
 satisfy that expression : secondly, because it seem- 
 ed to answer the intent of the act ; which was not 
 so much to create difficulties to other countries to 
 find mariners amongst themselves, as to prevent 
 their supplying themselves with them from other 
 countries than England : thirdly, because, by the 
 civil law, such a residence gives a country a right 
 to the resident's service : fourthly, because, in 
 the present case, it was not found by the special 
 verdict, that these persons had ever any habitation
 
 OF GREAT BRITAIN. 229 
 
 or residence out of the Empress of Russia's do- Decisions. 
 minions ; and what does not appear, is not to 
 be intended. It was found that they had made 
 several voyages from Russia, but it did not ap- 
 pear that they had made any voyage from any other 
 country ; so that they might properly be said to be 
 mariners of Russia, but not of any other country: 
 and as the act speaks of mariners of the country, 
 and does not sav mariners born in the countrv, 
 
 *r tf 
 
 and as mariners is a denomination they must ac- 
 quire, for they cannot be born manners ; if there- 
 fore they were of that country while they were 
 mariners, and never were mariners of any other 
 country, they seem to satisfy the words and intent 
 of the act. 
 
 Upon the whole, it was said, that it would be 
 almost impracticable, and make commerce very 
 hazardous, if a merchant was to search out the 
 nativity of every mariner he employed, and in 
 case of mistake or misinformation, was to forfeit 
 his ship and cargo. 
 
 Having thus fully considered the trade of Eng- Trade 
 land herself upon her own shores, and with the with . our 
 
 colonies 
 
 dominions of all other states, we are next to exa- 
 mine the regulations affecting the trade of the 
 British possessions abroad. The Statute 12 Car. 
 2. c. 18. contains the following enactment : " For 
 the increase of shipping, and encouragement of 
 the navigation of this nation, wherein, under the 
 good providence and protection of God, the
 
 230 ON THE NAVIGATION LAWS 
 
 Trade wealth, safety, and strength of this kingdom is 
 colonies, so much concerned ; be it enacted? That no goods 
 or commodities whatsoever shall be imported into 
 or exported out of any lands, islands, plantations, 
 or territories to his Majesty belonging, or in his 
 possession, or which may hereafter belong unto, 
 or be in the possession of his Majesty, his heirs 
 and successors, in Asia, Africa, or America, in 
 any other ship or ships, vessel or vessels whatso- 
 ever, but in such ships or vessels as do truly, and 
 without fraud, belong only to the people of Eng- 
 land or Ireland, dominion of Wales, or town of 
 Berwick-upon-Tweed, or are of the built of, and 
 belonging to, any the said lands, islands, planta- 
 tions, or territories, as the proprietors and right 
 owners thereof, and whereof the master and three- 
 fourths of the mariners at least are English." 
 
 Some material alterations have been made in 
 this act by the Statute 45 Geo. 3. c. 5-7. which 
 was passed to consolidate and extend several pre- 
 vious ordinances. It enacts, in the first section, 
 that " wool, cotton- wool, indigo, cochineal, drugs 
 of all sorts, cocoa, logwood, fustic, and all sorts 
 of wood for dyers' use, hides, skins, and tallow, 
 beaver, and all sorts of furs, tortoise-shell, hard 
 wood, or mill-timber, mahogany, and all other 
 woods for cabinet ware, horses, asses, mules, and 
 cattle, being the growth or production of any of 
 the colonies or plantations in America, or of any
 
 OF GREAT BRITAIN. 231 
 
 country on the continent of America belonging to 
 
 or under the dominion of any foreign European C0 i mes. 
 sovereign or state, and all coin and bullion, dia- 
 monds, and precious stones, may be imported 
 from any of the said countries into the several 
 ports of Kingston, Savannah La Mar, Montego 
 Bay, Saint Lucea, Antonio, and Saint Ann, in 
 the island of Jamaica, the port of Saint George in 
 the island of Grenada, the port of Rosseau in the 
 island of Dominica, the port of Saint John's in 
 the island of Antigua, the port of San Josef in the 
 island of Trinidad, the port of Scarborough in the 
 island of Tobago, the port of Road Harbour in 
 the island of Tortola, the port of Nassau in the 
 island of New Providence, one of the Bahama isl- 
 ands, the ports of Pitt's Town and Portland Har- 
 bour in Crooked Island, another of the Bahama 
 islands, the port of Kingston in the island of Saint 
 Vincent, and the principal port in the island of 
 Bermuda, in any foreign sloop, schooner, or other 
 vessel whatever, not having more than one deck, 
 and being owned and navigated by persons inha- 
 biting any of the said colonies or plantations in 
 America, or countries on the continent of Ameri- 
 ca, belonging to or under the dominion of any 
 foreign European sovereign or state, any law, cus- 
 tom, or usage to the contrary notwithstanding." 
 To these ports the Statute 46 Geo. 3. chap. 72.
 
 232 ON THE NAVIGATION LAWS 
 
 Trade has added Road Harbour in the island of Tor- 
 
 with our , 
 
 colonies, tola. 
 
 By the second section it is provided, " That 
 tobacco, the growth or production of any island 
 or continental country of America, under the do- 
 minion of any foreign European state, may be also 
 imported into the same ports. The importation 
 of foreign coffee and sugar is permitted by sect. 4. 
 but limited to the ports of Nassau and Pitt's Town, 
 to the principal port in the island of Bermuda, and 
 such other port or ports in the Bahama and Cai- 
 cocs islands as shall be approved by his Majesty 
 in council ; and the 7th section provides, that no 
 foreign ship shall import, from any of the before- 
 mentioned places in America, any goods except 
 those before enumerated. 
 
 The 8th section permits, " That British rum 
 and Negroes, and all goods legally imported, ex- 
 cept masts, yards, bowsprits, pitch, tar, turpentine, 
 and such iron as shall have been brought from the 
 British colonies or plantations in America, may 
 be again exported to any of the colonies or plan- 
 tations in America, or any countries on the con- 
 tinent of America, belonging to or under the do- 
 minion of any foreign European sovereign or state, 
 jn any sloop, schooner, or other vessel whatever, 
 not having more than one deck, and being owned
 
 OF GREAT BRITAIN. 233 
 
 and navigated by persons inhabiting any such Trade 
 colony, plantation, or country." colonies! 
 
 So much of this enactment as relates to Negroes 
 is annulled by 47 Geo. 3. St. 1. c. 36. which 
 cleared the present age from the crime and shame 
 of preceding generations, by the final and total 
 abolition of the slave trade (s). 
 
 And the second section, and the Statute 46 
 Geo. 3. chap. 72. provide, that tobacco, the 
 growth of foreign islands in the West Indies, or 
 of the possessions of foreign European states in 
 America, may be exported from the ports where 
 it had been imported, and brought into this king- 
 dom, in the like foreign vessels as before-men- 
 tioned. 
 
 But the possessions in America and the West 
 Indies have not been the only objects of legislative 
 attention in modern times. The Statute 3 7 Geo. 
 3. chap. 117. makes provision for regulating the 
 trade of foreign ships with the British possessions 
 in India. It enacts, that during the continuance 
 of the exclusive trade of the United Company of 
 Merchants of England trading to the East Indies, 
 and during the term for which the possessions of 
 the British territories in India is secured to the 
 said United Company, it shall and may be lawful 
 
 (*) An American ship en- subject to capture. Caseofthe 
 gaged in sLive trade is now Amedie. 1 Acton's Rep. 240. 
 30
 
 234 ON THE NAVIGATION LAWS 
 
 ind'a. for the ships and vessels of countries and states in 
 amity with his Majesty, to import and export 
 from the British possessions in India such goods 
 and commodities as they shall be permitted to 
 import into and export from the said possessions 
 by the directors of the said company, who are 
 hereby directed to frame such regulations for car- 
 rying on the trade to and from the said possessions, 
 and the countries and states in amity with his 
 Majesty, as shall seem to them most conducive to 
 the interest and prosperity of the said British pos- 
 sessions in India, and of the British empire." 
 
 Malta and With respect to Malta, it is provided by the 
 
 Gibraltar 
 
 41 Geo. 3. c. 103. " That Malta and its depen- 
 dencies shall be deemed part of Europe for all pur- 
 poses." And the 27th Geo. 3. c. 19. enacts, with 
 respect to Gibraltar, " That it shall and may be 
 lawful for any person or persons whatever to im- 
 port or bring into Great Britain from Gibraltar, in 
 any ship or vessel which, before the 1st day of 
 May, 1786, did truly, without fraud, wholly belong 
 to his Majesty's dominions, navigated and regis- 
 tered according to law, the goods, wares, or mer- 
 chandizes, being the growth or production of the 
 dominions of the Emperor of Morocco, and which 
 shall have been imported into Gibraltar directly 
 from any part of the said dominions not lying or 
 being to the southward, of the port of Mogadore,
 
 OF GREAT BRITAIN. 235 
 
 in ships or vessels of the built of his Majesty's Malta and 
 dominions, as before described, navigated and 
 registered according to law, or in ships or vessels 
 belonging to the subjects of the said Emperor of 
 Morocco. 
 
 These are the chief enactments respecting the 
 trade of the British possessions abroad ; enact- 
 ments, however, which, during time of war, have 
 been usually suspended by specific Acts of Par- 
 liament. 
 
 The multiplicity of enactments, however, does Decisions, 
 not appear to have secured that certainty which is 
 of so much importance in all matters of positive 
 regulation ; as may be perceived from the case of 
 the ship Recovery (#), which came on before Sir 
 Wm. Scott in the Admiralty Court. The ship 
 in question was an American ; in spite of any pro- 
 hibitions that might exist against the trade of for- 
 eigners to the British colonies, she had taken in 
 a cargo at a British settlement in the East Indies, 
 and was proceeding with the goods from Bombay 
 to Rotterdam. On that voyage she was captured, 
 and the owners came into the Admiralty Court to 
 claim her. The claim was resisted by the captors, 
 on the ground of illegality : the voyage having, as 
 they contended, been undertaken in contravention 
 of the Navigation Laws. " It is well known," 
 
 (0 6 Rob. Rep. 34 J .
 
 236 ON THE NAVIGATION LAWS 
 
 Decisions, said Sir William Scott, in his judgment on this- 
 case, " that our establishments in that quarter of 
 the world have stood on a very peculiar footing, 
 which it has been, perhaps, the policy of this 
 country not to define with great exactness. They 
 may have assumed a different character at different 
 times ; and it may be very important in effect, and 
 very proper in point of principle, that the general 
 maxims of our navigation system should be ap- 
 plied to them in their present state, although there 
 might have been a great anomaly in practically 
 applying them at a former period. It will not, 
 however, be necessary for me to enter into a dis- 
 cussion of the policy of such a measure. 
 
 " With regard to the fact, I had always enter- 
 tained the notion that they had not hitherto been 
 so applied. But a case occurred not many years 
 since, which brought the consideration of the 
 question in a distinct form before the Courts of 
 common law. After repeated arguments, and 
 much deliberation, the Court of King's Bench 
 expressed an opinion, that the Navigation Laws 
 did extend to those countries ; and on a writ of 
 error, the judgment of the King's Bench in that 
 case was affirmed, with a complete adoption of 
 the doctrine laid down. An Act of Parliament 
 was afterwards passed to quiet the alarm which 
 had been occasioned by this exposition of the 
 law, and to recognise, in general terms, the
 
 OF GREAT BRITAIN. 237 
 
 policy of admitting foreign vessels to a regulated Decisions, 
 trade, on certain conditions which the East India 
 Company were empowered to impose. But no- 
 thing appears to have been ever done under those 
 powers of the Act ; and now, for the first time, 
 the question arises, What is the state of the law, 
 as applicable to this peculiar situation of things, 
 the provisional relaxation of the Act of Parliament, 
 and the total inaction on the part of the East In- 
 dian Company, who have, for more than eleven 
 years, delayed to apply the regulations under which 
 the Act of Parliament had expressed it to be ex- 
 pedient that foreign ships should be admitted ? 
 
 " This is a question of very considerable mag- 
 nitude and importance. But there is, I think, a 
 preliminary question, which may supersede the 
 necessity of pronouncing a decision upon it ; and 
 that is, Whether the more general question is pro- 
 perly brought before the Court in its present form? 
 If it is not, I shall not be desirous of delivering 
 my sentiments upon it, unless I am called upon 
 in another form of proceeding, which would bring 
 it before me as a case of undisputed jurisdiction." 
 
 It is much to be regretted for our present pur- 
 pose, that this preliminary question arose ; for the 
 learned judge concluded by determining that he 
 had not jurisdiction to entertain that question of 
 law, which belonged more properly to the Reve-
 
 238 ON THE NAVIGATION LAWS 
 
 Decisions, nuc Court ; and we have lost the benefit of a de- 
 cision which, from the great learning and compre- 
 hensive understanding of the judge, we have every 
 reason to suppose would have set this important 
 doubt at rest for ever. 
 
 The Court of Common Pleas, in the cases of 
 March v. Abel (u], and Chalmers and Bell (cc), 
 decided, that the traffic of foreigners with these 
 settlements was illegal by the Navigation Acts. 
 But both these cases arose upon policies of in- 
 surance, effected upon the passing of that Act of 
 the 37 Geo. 3. ch. 117. to which Sir William 
 Scott alludes in his judgment in the case of the 
 Recovery (y), as recognising and legalizing a re- 
 gulated and conditional trade. So that we have 
 no express decision upon the law as it stands at 
 this moment. 
 
 Every provision which we have hitherto notic- 
 ed, has for its object to enforce some or all of these 
 three requisites ; that the ships employed be Bri- 
 tish owned, British built, and British navigated. 
 Therefore it will be necessary to ascertain what 
 the phrases British owned, British built, and Bri- 
 tish navigated, are legally understood to signify. 
 
 A ship is considered as British owned when it 
 
 British 
 
 owned, belongs to some of his Majesty's subjects in 
 Great Britain, Ireland, Jersey, Guernsey, or the 
 
 (u) 3 B. and P. 35. (y) 6 Fvob. Ptcp. 341. 
 
 f.r) 3 Bos. and Pul. 604.
 
 OF GREAT BRITAIN. 239 
 
 Isle of Man, or some of the King's colonies, plan- British 
 
 . . . ., . owned. 
 
 tations, is anas, or territories in Asia, Airica, or 
 America (z] ; but no subject whose usual resi- 
 dence is in any country not under the dominion of 
 his Majesty, is to be deemed a British subject, for 
 this purpose, during such residence, unless he be 
 a member of some British factory, or agent for, 
 or copartner in a house or copartnership actually 
 carrying on trade in Great Britain or Ireland. 
 
 There were formerly numerous advantages en- British 
 joyed by vessels that were British owned, though 
 they were not built in this country, or, as it is 
 termed, British built; and ship-building was not 
 sufficiently advanced to justify the legislature in 
 confining the privileges of British ships to those 
 vessels built in this country. But in the last cen- 
 tury, the great increase of our shipping rendered 
 it expedient to adopt such a measure, and it was 
 accordingly enacted by the 26th Geo. 3. e. 60. 
 sec. 1. " That no ship or vessel foreign built (ex- 
 cept such ships or vessels as have been, or shall 
 hereafter be taken by any of his Majesty's ships 
 or vessels of war, or by any private or any other 
 ship or vessel, and condemned as lawful prize in 
 any Court of Admiralty,) nor any ship or vessel 
 built or rebuilt upon any foreign made keel or bot- 
 
 C~) 26 Geo. 3. c. 60. s. 8.
 
 240 ON THE NAVIGATION LAWS 
 
 British torn, in the manner heretofore practised and allow- 
 ed, although owned by British subjects and navi- 
 gated according to law, shall be any longer enti- 
 tled to any of the privileges or advantages of a 
 British built ship, or of a ship owned by British 
 subjects ; and that all the said privileges and ad- 
 vantages shall hereafter be confined to such ships 
 only as are wholly of the built of Great Britain 
 or Ireland, Guernsey, Jersey, and the Isle of Man, 
 or of some of the colonies, plantations, islands, or 
 territories in Asia, Africa, or America, which now 
 belong, or at the time of building of such ships 
 or vessels did belong, or which may hereafter be- 
 long to, or be in the possession of, his Majesty, 
 his heirs or successors." 
 
 To this act there were some exceptions with 
 respect to certain vessels belonging to British sub- 
 jects before the 1st May, 1786. But these excep- 
 tions could operate no longer than the vessels 
 which were built or building before the 1st May, 
 might continue fit for service. 
 
 By a more modern statute, however, the con- 
 struction of the phrase British shipping has been 
 a little enlarged. This statute is the 37th Geo. 3. 
 c. 63. of which the following is an extract : 
 " Whereas in consequence of articles of capitula- 
 tion, whereby certain foreign colonies or settle- 
 ments, or parts thereof, have been, or may hereaf- 
 ter be surrendered to his Majesty during the pre-
 
 OF GREAT BRITAIN. 241 
 
 sent war, certain foreign ships and vessels may British 
 have been put, or may be put, under his Majes- 
 ty's protection : Be it enacted, That all foreign 
 ships and vessels which in consequence of any 
 such capitulation shall have been, or may be so 
 put under his Majesty's protection, at the time of, 
 or in consequence of the surrender of any foreign 
 colony or settlement, or part of any foreign colony 
 or settlement, to his Majesty, shall and may be 
 registered in like manner as ships taken and con- 
 demned as lawful prize, may, by the laws now in 
 force, be registered, and shall, by virtue thereof, 
 become entitled to the privileges and advantages 
 of British ships or vessels under the regulations 
 and restrictions herein after mentioned." 
 
 Then follow certain provisions as to the mode of 
 registering ; and the 3d section enacts, " That it 
 shall be lawful for any such ship or vessel being 
 registered, and having a certificate of registry, as 
 aforesaid, and being navigated as British ships are 
 now, or may hereafter be required by law to be 
 navigated, to import and export to and from any 
 place or places whatsoever, such goods and mer- 
 chandizes respectively, and none other, as may be 
 .imported and exported by any ship or vessel taken 
 and condemned as lawful prize ; such importa- 
 tions and exportations to be made in like manner, 
 arid under and subject to the like duties, condi- 
 
 31
 
 242 ON THE NAVIGATION LAWS 
 
 British tions, regulations, and restrictions, and subject to 
 the like penalties and forfeitures for the breach 
 thereof, as if the same were made by any ship or 
 Tessel taken and condemned as lawful prize : Pro- 
 vided always, that such ships and vessels, so put 
 under his Majesty's protection, shall not be allow- 
 ed to import or export any goods whatsoever to 
 or from any port in Europe not in the possession 
 of his Majesty." 
 
 In all other respects these vessels appear to be 
 in the same condition with prize ships, which by 
 the statute 33 Geo. 3. c. 66. sec. 45. are to be 
 deemed British built. 
 
 Various acts have, from time to time, been 
 passed enjoining the registry of vessels, a form 
 without which no vessels above a certain size can 
 obtain the rights of British ships. But as these 
 acts are matter of merely municipal regulation, 
 and do not immediately affect the commerce of 
 foreigners, I shall not particularize them. 
 
 The Stat. 27 Geo. 3. c. 19. sec. 19. enacts, that 
 all ships not entitled to the privileges of a British 
 ship, or of a ship owned by British subjects, be- 
 fore the 1st May, 1786, and all ships not duly 
 registered, shall, although such ships and vessels 
 may be owned by his Majesty's subjects, beheld 
 and deemed, to all intents and purposes, as alien 
 ships.
 
 OF GREAT BRITAIN. 
 
 But there is one exception which deserves to British 
 be noticed ; it is that enacted by the 35th Geo. 
 3. ch. 115. ; the words are as follow : " Whereas 
 the Court of Directors of the United Company 
 of Merchants of England trading to the East In- 
 dies, with the approbation of the board of com- 
 missioners for the affairs of India, have sent in- 
 structions to their presidencies in the East Indies 
 to take up such proper ships as they can procure 
 for sending home investments of goods from In- 
 dia and China, and other parts within the limits 
 of the said company's trade, in the place of ships 
 usually sent from this country to India and China 
 for that purpose, which last mentioned ships now 
 are, or may be engaged in the public service : 
 and whereas the ships so to be taken up may not 
 be British built, or have been registered as such, 
 and may not be navigated as required by the laws 
 now in force : 
 
 " Be it enacted, That if, during the continu- 
 ance of the present war, and for 18 months after 
 the conclusion thereof, any such ship shall arrive 
 in the ports of this kingdom, freighted with goods 
 in the manner, and from any of the places within 
 the limits before mentioned, it shall and may be 
 lawful, upon representation made by or on behalf 
 of the said company to his Majesty in council, 
 for his Majesty, by and with the advice of his 
 privy council, to authorize the importation and 
 entry of such goods, subject to the like duties.
 
 244 ON THE NAVIGATION LAWS 
 
 Britibh and no other, as if they were imported in British 
 built ships, though such goods shall be brought 
 in ships which may not be British built, nor have 
 been registered as British built ships, nor navigat- 
 ed as required by the laws now in force ; provid- 
 ed the said ships shall have been built within the 
 territories belonging to the said United East In- 
 dia Company, or the ports under the immediate 
 protection of the British flag in the East Indies : 
 And also to permit such ships to export from this 
 kingdom to the British settlements in the East 
 Indies, or to any of the places within the limits 
 before mentioned, with the license and consent of 
 the said company, any goods, wares, or merchan- 
 xlizes whatsoever, ordnance and military stores 
 excepted, any law, usage, or custom to the con- 
 trary thereof notwithstanding." 
 
 This act extended only to the expiration of 18 
 months after the conclusion of the war ; but by 
 the 42d Geo. 3. c. 20. its provisions are continu- 
 ed during the continuance of the exclusive trade to 
 the East Indies granted to the company by 35th 
 Geo. 3d. ch. 52. 
 
 On the whole, as the exceptions during war, 
 and those which have been before noticed respect- 
 ing ships built or building before May, 1786, are 
 in their nature but temporary, we may consider 
 the general law as to British ownership and Bri- 
 tish built to be this : That a vessel, in order to 
 be entitled to any of the advantages of a British
 
 OF GREAT BRITAIN. S45 
 
 ship, must be the property of the King's subjects summary. 
 in Great Britain or Ireland, Guernsey, Jersey, or the 
 Isle of Man, or in some of the colonies, plantations,- 
 islands, or territories in Asia, Africa, or America, 
 belonging to or in the possession of his Ma- 
 jesty : Further, it must have been built in some 
 of the dominions last enumerated, unless it be a 
 prize vessel, legally condemned, or a vessel put 
 under his Majesty's protection by any capitula- 
 tion at the time, or in consequence of the surren- 
 der of any foreign colony or settlement to his Ma- 
 jesty ; in which case, however, such vessel can- 
 not import or export any goods to or from any 
 port in Europe not in his Majesty's possession : 
 Finally, the forms required by the register acts 
 must have been duly observed. 
 
 A ship thus far qualified, that is to say, a ship British na- 
 which, according to the statutes, is to be deemed vi s aled - 
 English owned and English built, needs yet ano- 
 ther qualification to complete her immunity; she 
 must be not only British owned and British built, 
 but British navigated also. 
 
 The Statute of the 12th Car. 2. c. 18. wherein 
 it requires a trading ship to be either English 
 owned or English built, requires also that the 
 master and three-fourths of the mariners be sub- 
 jects of the King, and the Statute of 13th and 
 14th Car. 2. c. 11. sec 6. explains, that the num- 
 ber of mariners are to be accounted according to
 
 ON THE NAVIGATION LAWS 
 
 British na- what they shall have been during the whole voy- 
 age. By the Stat. 34th Geo. 3. c. 68. s. 3. it is 
 ordained, that whenever that or any other act re- 
 quires, " that the master and the whole, or any 
 proportion of the mariners shall be British sub- 
 jects, they must be so during the whole voyage, 
 unless in case of sickness, death, desertion of the 
 whole, or part of the crew being taken prisoners 
 in the voyage." And in order to prevent doubts, 
 the same statute, in the 7th section, enacts, that 
 all foreign mariners who shall have served or who 
 shall serve on board any of his Majesty's ships or 
 vessels of war, in time of war, for three years, and 
 who shall have obtained from the commanding 
 officer certificates testifying that they have so serv- 
 ed, and testifying also their fidelity and good be- 
 haviour during such service, and who shall have 
 taken the oath of allegiance, and complied with 
 certain forms particularly mentioned by the act, 
 shall be entitled to be employed as masters of 
 British ships or vessels, or as British mariners on 
 board any British ships or vessels within the in- 
 tent and meaning of any of the laws in force at the 
 time of the passing of that act ; but the act, in 
 the 8th section, excludes from the power of obtain- 
 ing this qualification every person, however other- 
 wise qualified, who, after he has become quali- 
 fied, has taken or shall take the oath of allegiance
 
 OF GREAT BRITAIN. 
 
 to any foreign sovereign or state, for any purpose, British na- 
 
 vigated. 
 
 except under the terms of some capitulation upon 
 a conquest by an enemy, and for the purpose of 
 such qualification only. 
 
 At the same time, the same section permits, 
 that " the navigation on the seas of America and 
 the West Indies, from any port of America and 
 the West Indies, to any port of America and the 
 West Indies, any Negroes belonging to any per- 
 son or persons being or having become his Ma- 
 jesty's subjects in manner aforesaid, and with the 
 qualifications aforesaid, and in the seas to the east- 
 ward of the Cape of Good Hope, from any port 
 to the eastward of the Cape of Good Hope to any 
 other port to the eastward of the Cape of Good 
 Hope, Lascars and other natives of any of the 
 countries to the eastward of the Cape of Good 
 Hope, may be employed as British sailors, sea- 
 men, or mariners, in manner heretofore practised." 
 There is, however, a provision, in its nature 
 temporary, against the employment of Negroes 
 from the colonies then lately belonging to the 
 French King, except under certain conditions. 
 
 The 12th section enacts, that in case any Bri- 
 tish ship shall be found at sea having on board a 
 greater number of foreign mariners than is allow- 
 ed by this act, or any law now in force, or here- 
 after to be made, and the master of such ship or 
 vessel shall produce a certificate of the actual ne-
 
 'MS ON THE NAVIGATION LAWS 
 
 British na- cessity of engaging such foreign mariners in some 
 foreign port, by occasion of the sickness, death, 
 or desertion of the like number of British mari- 
 ners, or of the same having been taken prisoners 
 during his voyage, and that British mariners could 
 not be engaged in such foreign port to supply 
 their room ; and that for the safe navigation of 
 such ship or vessel it became necessary to engage 
 and employ such foreign mariners, under the 
 hand of his Majesty's consul at the foreign port 
 where the said foreign mariners were so engaged, 
 or, if there is not any such consul there, under 
 the hands of two known British merchants at such 
 foreign port, it shall not be lawful for any of the 
 persons authorized by this act to make seizures 
 of ships or vessels navigated contrary to the direc- 
 tions of this act, to stop or detain any such ship 
 
 i 
 
 or vessel so found at sea, or to hinder her from, 
 proceeding on her voyage ; but such persons 
 shall, and are hereby required to indorse the cer- 
 tificate so produced, testifying the production 
 thereof, and when and where met with at sea, and 
 that the number of foreign mariners correspond 
 with the certificate of such British consul, or 
 such known British merchants, for the considera- 
 tion and investigation of the commissioners of 
 his Majesty's customs in England and Scotland 
 respectively. 
 
 The Statute 13 Geo. 2. c. 3. sec. 1, and 4. con-
 
 OF GREAT BRITAIN. 249 
 
 tains a proviso enabling the King, at all times British 
 when it shall be found necessary to declare war n * 
 against any foreign power, to publish a proclama- 
 tion to permit all merchant ships and other trad- 
 ing vessels and privateers to be manned with 
 foreign mariners and seamen during such war, so 
 as the number of such foreign seamen or mari- 
 ners do not exceed three-fourths of the mariners at 
 any one time employed to navigate such merchant 
 ship, or other trading ship or vessel, or privateer, 
 and that one fourth, at least, of the mariners or 
 seamen so employed, be at all times natives, or 
 his Majesty's naturalized subjects of Great Bri- 
 tain ; sudden death, and the hazard and casualties 
 of war and the seas, saved and excepted. 
 
 And this right is reserved to the King by 33 
 Geo. 3. c. 68. sec. 9. 
 
 Since the union of Great Britain and Ireland, 
 regulations similar to those which we have noticed, 
 have been made by the legislature with respect to 
 the navigation of Irish ships by subjects of the 
 united kingdom. 
 
 We have seen that a vessel of which a foreigner 
 is part-owner, is excluded in certain branches of 
 trade from the privileges of a British ship, though 
 it be British built and British navigated. Wher- 
 ever, therefore, a foreigner purchases a share in a 
 vessel, the shares of the other owners, of course, 
 
 32
 
 250 ON THE NAVIGATION LAWS 
 
 British became materially prejudiced. To remedy this 
 evil, it was enacted by the 34 Geo. 3. ch. 68. sec. 
 20. " That no foreigner, or other person or per- 
 sons whatsoever, not being a natural- born sub- 
 ject of his Majesty, his heirs or successors, shall 
 be entitled to, or purchase, or contract for, any 
 part or parts, share or shares, of any British ship 
 or vessel whatsoever, belonging only to natural- 
 born subjects of his Majesty, his heirs or succes- 
 sors, without the consent, in writing, of the owner 
 or owners of three-fourth parts in value, at least, 
 of such ship or vessel, for that purpose first had 
 and obtained, and indorsed on the certificate of 
 the register of such ship before two witnesses; and 
 all agreements, contracts, purchases, and sales of 
 any part or share of any British ship or vessel, 
 belonging only to natural-born subjects of his Ma- 
 jesty, his heirs or successors, made, entered into, 
 contracted for, or concluded, by any such foreign- 
 er, or other person or persons, not being a natural- 
 born subject or subjects of his Majesty, his heirs 
 or successors, without such consent first had and 
 obtained, and indorsed as aforesaid, shall be, and 
 are hereby declared to be, absolutely null and 
 void, to all intents and purposes whatsoever." 
 Policy of It now remains only to add a few words upon 
 JiSTS. a " the g enera l policy of the Acts of Navigation; 
 various, indeed, and difficult to be digested, but 
 concurring and combining, throughout all their
 
 OF GREAT BRITAIN. 251 
 
 numerous and complicated ordinances, to the one policy of 
 
 i i -i i it. the naviga- 
 
 great object ot enlarging and strengthening the tion acts . 
 maritime power of Great Britain. Dr. Adam 
 Smith (a) observes, that there are two cases in 
 which it will generally be advantageous to lay 
 some burden upon foreign, for the encouragement 
 of domestic industry. The first is when some 
 particular sort of industry is necessary for the de- 
 fence of the country. The defence of Great Bri- 
 tain, for example, depends very much upon the 
 number of its sailors and shipping. The Act of 
 Navigation, therefore, very properly endeavours to 
 give the sailors and shipping of Great Britain the 
 monopoly of the trade of their own country, in 
 some cases by absolute prohibitions, and in others 
 by heavy burdens upon the shipping of foreign 
 countries. 
 
 When the Act of Navigation was made, though 
 England and Holland were not actually at war, 
 the most violent animosity subsisted between the 
 two nations. It had begun during the government 
 of the long Parliament, which first framed this 
 act, and it broke out soon after in the Dutch wars, 
 during that of the Protector and of Charles the 
 Second. It is not impossible, therefore, that some 
 of the regulations of this famous act may have 
 proceeded from national animosity. They are as 
 
 (a) 2 Smith's W. N. 2 12. Savary. See Beawes' Lex 
 The good policy of there- Merc. 16. 17, 
 Kulations is also admitted bv
 
 252 ON THE NAVIGATION LAWS 
 
 Policy of wise, however, as if they had been all dictated by 
 tracts'.*" the most deliberate wisdqm. National animosity, 
 at that particular time, aimed at the very same 
 object which the most deliberate wisdom would 
 have recommended, the diminution of the naval 
 power of Holland, the only naval power which 
 could endanger the security of England. 
 
 The Act of Navigation is not favourable to 
 foreign commerce, or to the growth of that opu- 
 lence which can arise from it. The interest of a 
 nation, in its commercial relations to foreign na- 
 tions, is like that of a merchant, with regard to the 
 different people with whom he deals, to buy as 
 cheap, and. to sell as dear as possible. But it will 
 be most likely to buy cheap, when, by the most 
 perfect freedom of trade, it encourages all nations 
 to bring to it the goods which it has occasion to 
 purchase ; and for the same reason, it will be most 
 likely to sell dear, when its markets are thus filled 
 with the greatest number of buyers. The Act of 
 Navigation, it is true, lays no burden upon foreign 
 ships that come to export the produce of British 
 industry. Even the ancient aliens duty, which 
 used to be paid upon ail goods exported as well 
 as imported, has, by several subsequent acts, been 
 taken off from the greater part of the articles of 
 exportation. But if foreigners, either by prohibi- 
 tions or high duties, are hindered from coming to
 
 OF GREAT BRITAIN'. 253 
 
 sell, they cannot always afford to come to buy ; Policy of 
 
 the naviga- 
 
 because, coming without a cargo, they must loose tbn acts. 
 the freight from their own country to Great Bri- 
 tain. By diminishing the number of sellers, 
 therefore, we necessarily diminish that of buyers, 
 and are thus likely not only to buy foreign goods 
 dearer, but to sell our own cheaper, than if there 
 was a perfect freedom of trade. As defence, how- 
 ever, is of much more importance than opulence, 
 the Act of Navigation is, perhaps, the wisest of 
 all commercial regulations of England (6). 
 
 " Experience," says Mr. Reeves (c), tl has 
 shewn the advantage of adhering to this maritime 
 policy. The inducement and obligation to em- 
 ploy British ships, had the effect of increasing their 
 number. The increase of their number became 
 a spur to seek out employment for them. Fo- 
 reign trade and the fisheries were, by various ex- 
 pedients, made subservient to advance the interests 
 of shipping. Trade and shipping thus recipro- 
 cally contributed to advance each other ; and, thus 
 combined, they constituted very considerable 
 sources of national wealth. Having been at first 
 
 (5) M. Savary observes the French, to adopt similar 
 
 upon the sound policy of the regulations See Beawes' 
 
 English Navigation Act, and Lex Mercatoria, 16. 
 
 urges his own countrymen, (c) Law of Shipping, 548.
 
 254 ON THE NAVIGATION LAWS 
 
 Policy of encouraged for the sake of the navy, they were 
 tioVact?*" afterwards encouraged for their own. From being 
 subordinate and auxiliary to another object, they 
 are now become principal objects themselves in 
 the national policy ; and, in the mean time, the 
 naval power of the country is sure of supply and 
 support, without being directly in contemplation. 
 " This action and re action between shipping 
 and trade, has even been promoted by the effects 
 of naval armaments. It has been found, that after 
 the conclusion of a war, there has constantly been 
 a great increase of mercantile shipping. This has 
 been caused, first, by the government having 
 employed, during the war, a number of transports, 
 which has induced the merchants to invest their 
 money in the building of ships for that service. 
 Secondly, the privateers which were fitted out 
 during hostilities have no employment at the 
 peace but the merchants' service. Transports 
 and privateers fall into foreign trade or the fishe- 
 ries ; and in this manner, does the service of the 
 navy pay back to trade and navigation the obliga- 
 tions it had before received. 
 
 " If the wisdom of any scheme of policy is to 
 be measured by its effects and consequences, our 
 navigation system is entitled to the praise of hav- 
 ing attained the end for which it was designed. 
 Whether we regard the primary or inferior ob-
 
 OF GREAT BRITAIN. 255 
 
 jects in this system ; whether it is the increase of policy of 
 shipping, the extension of our foreign trade, or 
 the strength of our navy, they have all advanced 
 to a degree of consideration unexampled, and they 
 owe that advancement to this system."
 
 CHAPTER VJI. 
 
 OF THE PREROGATIVE OF THE KING WITH RESPECT TO 
 ORDERS IN COUNCIL AND LICENSES, AND OF THE TEM- 
 PORARY STATUTES ENLARGING HIS AUTHORITY. 
 
 HAVING, in the preceding chapters, considered 
 the legal effect of war upon the commerce of bel- 
 ligerents, prohibiting all trading between them, 
 and the reciprocal right of capturing each other's 
 property, and how far neutrals are affected by the 
 hostilities that exist between other powers, and 
 the general policy of Great Britain with respect to 
 the Navigation Laws, we will, in this chapter, con- 
 sider those dispensations, with the exceptions by 
 virtue of Licenses and Orders in Council, found- 
 ed either in the King's prerogative, or on some 
 Act of Parliament. We have several times had 
 occasion incidentally to observe, that, notwith- 
 standing the general prohibition, it has been the 
 custom to grant dispensations from the general 
 rule in peculiar circumstances of policy or hard- 
 ship. These dispensations arc sometimes general, 
 extending to a whole class of cases ; and some- 
 times particular, affecting only individual adven-
 
 PREROGATIVE OF THE KING, &c. 257 
 
 tures. The general dispensations are of two des- 
 criptions, by die permission of the King, and by 
 Acts of Parliament. The first are usually issued 
 in council, and vary, of course, from time to time 
 with the exigencies of the state. The Acts of 
 Parliament for temporary purposes of public con- 
 venience are passed from time to time, usually to 
 last till the termination of the war, or for some 
 other more definite period, and by which the ge- 
 neral strictness of the commercial code, and more 
 particularly of the Navigation Law, is for a while 
 suspended. The dispensations of a particular 
 nature are chiefly of two kinds, passports and 
 licenses. We will first consider those dispensa- 
 tions by license, or otherwise, which the King, 
 by virtue of his prerogative, may grant, and then 
 those founded on particular Acts of Parliament. 
 
 1st. Dispensations by the King's Prerogative. 
 
 The King is usually denominated the arbiter 
 of commerce (a}. The King, with the advice of 
 his council, has the right of regulating the com- 
 merce of this kingdom, except where there have 
 been particular provisions made by Statute, over 
 which he has no authority (b}. 
 
 It was formerly a doctrine generally prevalent, Prociama* 
 that the proclamations of the King were of equal 
 
 (a) 1 Bla. Com. 273. 
 (6) 2 East. 2961 Taunt. 227. 
 33
 
 258 PREROGATIVE OF THE KING WITH 
 
 Prociama- force with the Statute Law, and an enactment 
 declaratory of the principle thus assumed was 
 passed in the year 1539 (c). This Statute, which 
 was enforced by 34 and 35 of H. 8. c. 23. declar- 
 ed, that the King, with the advice of his council, 
 might set forth proclamations under such penal- 
 ties and pains as should seem necessary, which 
 should be observed as if they were made by Act 
 of Parliament ; and though there was a proviso, 
 that this should not be prejudicial to any person's 
 inheritance, offices, liberties, chattels, or life, yet 
 that reservation was little better than a nullity, 
 when the Statute immediately proceeded to enact, 
 that whosoever should willingly offend against any 
 article contained in the said proclamations, he 
 should pay such forfeitures, or be so long impri- 
 soned, as should be expressed in the said procla- 
 mations ; and that if any offender should depart 
 the realm to avoid answering the offence, he should 
 be adjudged a traitor. Happily, however, these 
 provisions no longer exist to disgrace the code of 
 British jurisprudence. If they had continued, 
 the constitution, of which we are now so proud, 
 would be but one degree removed from an abso- 
 lute despotism ; and the parliament, instead of en- 
 joying the exclusive right of legislation, would 
 possess but a legislative power, concurrent with 
 that of the King in his sole capacity (d). This 
 
 (c) 31 II. 8. c. 8. 
 
 (d) 4 Hume Hist. 196, 7- C Hume Hist. 5<2.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 259 
 
 obnoxious act was formally repealed in the com- Prockma- 
 mencement of the reign of Edward VI (e] ; and 
 at this day the prerogative of the King, with re- 
 gard to proclamations and other acts, extends only 
 where it does not interfere with the Statutes, or 
 the common law of the land [f] ; and in Coke's 
 Reports (g) it is said, that the King cannot, by 
 his proclamation, make a thing unlawful which 
 was before lawful, and therefore nothing will be 
 punishable after proclamation which was not so 
 before. But, with this limitation, there is still 
 left to the King a very extensive power. He 
 may, by virtue of his prerogative, declare war or 
 make peace ; may grant letters of marque and 
 reprisal, and licenses dispensing with the rigour 
 of war, passports and letters of safe conduct (h}. 
 He may promulgate blockades according to his 
 direction of the national force ; he may also make 
 new declarations of contraband, when articles 
 come into use as implements of war, which were 
 before innocent ; he may relax from the utmost 
 rights of war, and from its extreme severities (i). 
 What is termed the war prerogative of the King, 
 is created by the perils and exigencies of war for 
 
 0) I Edw.6. c. 12. 11 East. 138. 
 
 (/) 12 East. 296. 1 (A) Com. Dig. Prerogative. 
 
 Taunt. 227. (z) Lord Erskine's speech, 
 
 (g) 12 Co. 75.; but see March 8, 1808, on Orders in 
 
 Hob. 251. Bac. Ab. Prero- Council, 10 Cobbett's Part, 
 
 gative, p. 549. 4 Mod, 179. Deb. 958, 9.
 
 560 PREROGATIVE OF THE KING WITH 
 
 Proclama- the public safety, and by its perils and exigencies 
 >ns, -c. j g therefore limited. The King may lay on a ge- 
 neral embargo, and may do various other acts 
 growing out of sudden emergencies ; but in all 
 these cases the emergency is the avowed cause, 
 and the act done is as temporary as the occasion. 
 The King cannot change, by his prerogative of 
 war, either the law of nations or the law of the 
 land, by general and unlimited regulations (). 
 
 Licenses. With respect to licenses, in the case of the 
 Hoffhung (/), which was a vessel licensed to im- 
 port Spanish wool from the hostile territory of 
 Holland, Sir William Scott said, " It is indubi- 
 table that the King may, if he pleases, give an 
 enemy liberty to import : he may, by his prero- 
 gative of declaring peace and war, place the whole 
 country of Holland in a state of amity ; or, a for- 
 tiori, he may exempt any individual from the ope. 
 ration of a state of war." But the license to ena- 
 ble an enemy to import goods must be express, 
 for an enemy will not be protected by a general 
 license (m) ; and it has not been usual to grant 
 licenses to an enemy (). The right itself is es- 
 tablished by the common law (0) ; and in the case 
 
 (k) Lord Erskine's speech, (i) 1 Acton's Rep. 313. 
 
 March 8, 1808, on the Or- 322. 328. 
 
 tiers in Council, 10 Cobbett's (n) Philimore, 2 Edit. 9. 
 
 Parl. Deb. 961. in notes, and Preface, xx. 
 
 (/) 2 Rob. Rep. 162. ; see xxi. 
 
 also 1 Acton's Rep. 313. (o) 2 Roll. Abr. 173. pi. 
 
 322. 32S. 3. : and 8 Term Rep. 550.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 261 
 
 of Vandyck v. Whitmore (/>), Lord Ellenborough Licenses. 
 said, though the King may, at common law, 
 license a trading with an enemy's country, yet he 
 may also qualify his license ; in which case the 
 parties seeking to protect themselves tinder it 
 must conform to its regulations. 
 
 The most usual mode in which a dispensation 
 is granted to individuals from the general prohi- 
 bition upon all traffic with the enemy, is by the 
 grant of licenses. The nature of these licenses is 
 clearly explained, and certain rules for their con- 
 struction most ably laid down, by the Court in 
 the case of the Cosmopolite (q}. In this case Sir 
 William Scott said, " A license is a high act of 
 sovereignty ; an act immediately proceeding from 
 the sovereign authority of the state, which is alone 
 competent to decide on all the considerations of 
 commercial and political expediency, by which 
 such an exception from the ordinary consequences 
 of war must be controled. Licenses being then 
 high acts of sovereignty, they are necessarily stricti 
 juris, and must not be carried farther than the in- 
 tention of the great authority which grants them 
 may be supposed to extend. I do not say that 
 they are to be construed with pedantic accuracy, 
 or that every small deviation should be held to 
 vitiate the fair effect of them. An excess in the 
 quantity of goods permitted might not be consi- 
 
 (p) 1 East. 47/i. (7) 4 Rob. Rep. 11.
 
 262 PREROGATIVE OF THE KING WITH 
 
 Licenses, dered as noxious to any extent. A variation in 
 the quality or substance of the goods might be 
 more significant, because a liberty assumed of im- 
 porting one species of goods under a license grant- 
 ed to import another, might lead to very danger- 
 ous abuses. In several cases of licenses, this Court 
 has had occasion to observe, that articles have been 
 introduced which might interfere with our own 
 manufactures, not merely raw materials for the 
 necessary employment of the skill and labour 
 of British artizans, but the finished productions 
 of foreign industry and art, which might come in 
 competition with those of our own ; and it has 
 been observed, not without surprise, that some 
 licenses themselves have given a countenance to 
 this practice. Where the licenses have expressly 
 permitted the introduction of such goods, this 
 Court cannot take upon itself to withhold from 
 the individual the benefit of such licenses, how- 
 ever obtained ; but it will always consider it to be 
 its duty to look to the license for the enumeration 
 of the goods that are to be protected by it. In 
 the present case it appears, that the terms of the 
 license have not been followed in this respect. 
 Here is a license for barilla wool, liquorice, or. 
 chilla wood, and dying wood ; yet there are other 
 articles, a considerable quantity of wine and some 
 hides, on board. It is said that these, compara- 
 tively with the burden of the vessel, form but a 
 very trifling part of the cargo. Be the quantity
 
 RESPECT TO ORDERS IN COUNCIL, &c. 263 
 
 what it may it ought to have been provided for in Licenses, 
 the enumeration which the merchant submitted to 
 the discretion of government when he applied for 
 his license. As it now stands, I must consider 
 this part of the cargo as totally denuded of any 
 authority " under the license, and therefore sub- 
 ject to condemnation." 
 
 The same point, as to the nature of the arti- 
 cles constituting the cargo, was again decided in 
 the case of the Vriendschap (r). The question 
 turned upon a quantity of barilla sent from London 
 to Rouen ; the claimants had obtained a license to 
 export certain enumerated articles thither, but the 
 barilla was not included in that license ; Sir Wil- 
 liam Scott condemned it. " The shipper," said 
 he, " obtains a license, which is a thing stricti 
 juris, to be obtained by a fair and candid repre- 
 sentation, and to be fairly pursued. Is this a fair 
 execution of the license ? I cannot think it is. 
 It is certainly a good logical rule, not to argue ab 
 abusu contra usum ; but if it is clear that the abuse 
 would be certain and frequent, and impossible to 
 be prevented in numerous cases which must 
 occur, then the abuse so probable, certain, and 
 frequent, is a fair argument against the allowance 
 of the practice. If the Court is convinced, that, 
 out of a thousand instances, there would be nine 
 hundred and ninety-nine of abuse, in opposition 
 
 (Y) 4 Rob. Rep. 96.
 
 264 PREROGATIVE OF THE KING WITH 
 
 Licenses, to one fair and bona fide execution of such an in- 
 tention as is here alleged, it is reasonable to con- 
 clude, that such a practice would not be permitted. 
 If this could be admitted, what has any British 
 merchant to do, but to put articles of any sort on 
 board under such pretences ? and how is it possi- 
 ble to prevent them from going without molesta- 
 tion into the hands of the enemy ?" 
 
 In the case of the Cosmopolite (s), Sir Wm. 
 Scott said, " Another material circumstance in all 
 licenses is the limitation of time in which they are 
 to be earned into effect ; for as it is within the 
 view of government, in granting these licenses, to 
 combine all commercial and political considera- 
 tions, a communication with the enemy might be 
 very proper at one time, and at another very unfit 
 and highly mischievous ; it might be highly pro- 
 per in 1799, and highly inexpedient in 1801. 
 Time therefore appears to be a very important in- 
 gredient ; if the party takes upon himself to ex- 
 tend the term of the license in this respect, it 
 would be, in my opinion, a license not reasonably 
 assumed." The same point was decided in the 
 case of Vandyck v. Whitmore (t). 
 
 In this case of the Cosmopolite Sir William 
 Scott goes on to say, " Two circumstances are 
 required to give the due effect to a license : first, 
 that the intention of the granter shall be pursued ; 
 
 (s) 4 Rob. Rep. 12. 13. (t) 1 East. 475. 4 Rob. 13.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 265 
 
 and, secondly, that there shall be an entire bona Licenses. 
 fides on the part of the user. It has been con- 
 tended, that the latter alone should be sufficient, 
 and that a construction of the grant merely erro- 
 neous should not prejudice. This is, I think, 
 laid down too loosely. It seems absolutely essen- 
 tial, that that only shall be done which the granter 
 intended to permit ; whatever he did not mean to 
 permit is absolutely interdicted; and the party 
 who uses the license engages not only for fair in- 
 tention, but for an accurate interpretation and exe- 
 cution. When I say an accurate interpretation 
 and execution, I do not mean to exclude such a 
 latitude as may be supposed to conform to the 
 intentions of the granter, liberally understood." 
 
 But these are not all the particulars in which a 
 license is construed strictly by the Courts : the 
 port of shipment also appears to be of moment. 
 In the case of the Twee Gebroeders (u), it appear- 
 ed that the vessel had obtained a license for the 
 purpose of bringing away a cargo from Bourdeaux 
 to any port of this kingdom. The parties inte- 
 rested, however, thought proper, without any com- 
 munication with government, to change this li- 
 cense, so as to accommodate it to a voyage from 
 the port of St. Martin's : Sir William Scott con- 
 demned the ship and cargo. " It has been said," 
 observed he, in giving judgment, " that specific 
 
 () 1 Edwards, 95. 
 34
 
 266 PREROGATIVE OF THE KING WITH 
 
 Licenses, licenses were at the time obtained for the purpose 
 of carrying on this trade from St. Martin's, and that 
 the deviation cannot therefore be considered as 
 contrary to the policy of government ; but I can- 
 not consider that as a sufficient excuse : such an 
 alteration can only be made upon a particular rep- 
 resentation, leaving government to judge of the 
 terms on which it may be proper to comply with 
 the request. What is the ground of the policy 
 of granting licenses at all, but that government 
 may see what communication is going on with 
 the enemy : and therefore I do not think that a 
 case, in which the real port is not disclosed, does 
 come within that latitude of interpretation which 
 the necessities of commerce might tolerate. Par- 
 ties cannot be permitted to take licenses for one 
 purpose and apply them to another ; in such a case 
 it would be going beyond the powers of this Court 
 to extend its protection." 
 
 With respect to the limitation of the use of 
 the license to the precise persons for whose ad- 
 vantage it has been obtained, some difference of 
 opinion appears to have prevailed. In the case 
 of Defflis v. Parry (x], the following facts were 
 proved : A license had been granted to Messrs. 
 Bridge and Smith, enabling themselves, or their 
 agents, or the bearers of their bills of lading on 
 
 (.r) 3 Bos. and Pul. 3.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 265 
 
 board six ships, to import certain goods. Other Licenses, 
 persons, by the permission of Messrs. Bridge and 
 Smith, had imported goods in one of these ships, 
 and bills of lading had been made out, by which 
 the captain undertook to deliver the cargo, not to 
 Messrs. Bridge and Smith, but to the shippers or 
 their order : the shippers accordingly wrote to the 
 merchants in London, by whom they were em- 
 ployed, enclosing one of the bills of lading indors- 
 ed in blank. But the same shippers also indorsed 
 one general bill of lading for the whole cargo to 
 Messrs. Bridge and Smith. The question was, 
 whether this bill of lading, indorsed to Messrs. 
 Bridge and Smith, who evidently had not the pro- 
 perty of the goods, should be considered as the 
 true bill of lading, or only as a fraudulent paper 
 for the purpose of protecting the property of those 
 who were not within the terms of the license ? 
 Lord Alvanley thought the general bill of lading, 
 indorsed to Messrs. Bridge and Smith, sufficient 
 to protect the whole transaction. " I have no dif- 
 ficulty," concluded his Lordship, " in saying, that 
 it was the intention of government, that any goods 
 which should come to this country under their 
 bill of lading, and with their permission, should 
 be protected by the license. I believe it to be 
 within the knowledge of government, that this 
 sort of use is made of the licenses granted to indi* 
 viduals. We are not to construe the acts of
 
 268 PREROGATIVE OF THE KING WITH 
 
 Licenses, government strictly against the merchants : if it 
 had been intended that the license should have 
 been more confined, I think it would have been so 
 expressed. It appears to me, that a fair use has, 
 in this instance, been made of the license, the 
 terms of which fully warranted the transaction." 
 
 This cause was tried in the Common Pleas on 
 the 27th of January, 1802 ; but in the month of 
 May following, a case, precisely similar, came on 
 
 in the Admiralty Court before Sir William Scott, 
 
 
 
 who decided contrary to this judgment of the 
 
 Common Pleas. This was the case of the Jonge 
 
 Johannes (z). Messrs. Bridge and Smith were 
 
 the ostensible owners in this case also. This 
 
 license, as in the last case, extended not only to 
 
 themselves, but to their agents and to the bearer of 
 
 their bills of lading ; and, as before, a general bill 
 
 of lading had been made out to them, while there 
 
 were other bills of lading, by which the master 
 
 was bound to deliver the several parcels to the 
 
 order of the Dutch shippers. Sir William Scott 
 
 thus expressed himself upon the facts of this 
 
 case : "Is it possible to say that these parties 
 
 come under either of the descriptions of persons 
 
 mentioned in the license ? Bridge" and Smith are 
 
 certainly not the importers, because the real and 
 
 effective bills of lading consign the goods to other 
 
 persons ; they cannot claim any interest before the 
 
 (3) 4 Rob. Rep. 263.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 269 
 
 Court. Are the claimants the agents of Bridge Licenses. 
 and Smith ? Certainly not: that house appears 
 rather to act as the agents of these persons, and to 
 have no original interest in the shipment. Then 
 the only possible character in which the claimants 
 can stand before the Court, is that of bearers of 
 their bills of lading, as deriving a title from bills 
 of lading transferred from Bridge and Smith. 
 There was a general bill of lading on board, con- 
 signing the property to Bridge and Smith ; but 
 it appears clearly that this was meant to operate 
 only as a formal paper, by which no right what- 
 ever was to be conveyed ; there being other bills 
 of lading on board, by which the master was bound 
 to deliver the several parcels to the order of the 
 Dutch shippers. Then how can I restore these 
 goods under either of these titles ? The only per- 
 sons to whom I am authorized to restore, are 
 Bridge and Smith as importers, or their agents, 
 or persons holding their bills of lading, and claim- 
 ing under bills of lading which Bridge and Smith, 
 after having conducted the importation from the 
 enemy on their own account, had transferred to 
 them. Seeing that there is no apparent violation 
 of good faith towards the public in the parties in- 
 terested in this claim, I am sorry to be obliged to 
 pronounce that there is no character in which they
 
 270 PREROGATIVE OF THE KING WITH 
 
 Licenses, caw receive restitution. The great principle in 
 these cases is, that subjects are not to trade with 
 the enemy, without the special permission of the 
 government ; and a material object of the control 
 which government exercises over such a trade is, 
 that it may judge of the particular persons who 
 are fit to be entrusted with an exemption from the 
 ordinary restrictions of a state of war (a). I hardly 
 conceive I am, upon any principle, warranted to 
 declare, that when a license is granted to one per- 
 son, it may be extended to the protection of all 
 other persons who may be permitted by that per- 
 son to take advantage of it." 
 
 The case of the Aurora (b] establishes the same 
 general doctrine as to the employment of the li- 
 cense by the party to whose use it was granted, 
 or by some person legally connected with him, 
 for the purpose of that particular transaction. 
 
 The license which came into question in the 
 case of Timson and Merac (c), was very liberally 
 construed by the Court of King's Bench. This 
 license was proved to have been obtained for Me- 
 rac and Co. and other British merchants, to autho- 
 rize an importation of brandy, being, according to 
 the words of the instrument, the property of the 
 
 (a) See Argument in the (&) 4 Rob. Rep. 218. 
 Hendrick. 1 Acton's Rep. (c) 9 East. 35. 
 
 326.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 271 
 
 said persons, or some of them, as might be spe- Licenses, 
 cified in their bills of lading. Under this license 
 brandy was imported, of which Merac and Co. 
 were the guarantees, but in which they had no 
 absolute property of their own. "If," said Lord 
 Ellenborough, " the license had only extended to 
 cover the property of Merac and Co. and they 
 had no other interest in the goods than appears 
 upon the statement of this case, it might have been 
 contended not to be sufficient to cover this adven- 
 ture ; but it includes other British merchants ; 
 and it afterwards says, being the property of the 
 said persons or some of them. It might, indeed, 
 have been a more certain means of avoiding fraud, 
 if the names of the persons really interested were 
 specified in the license ; but the act of parliament 
 does not require this, and it appeared at the trial 
 that the license in question was in the common 
 form. The articles, however, licensed to be im- 
 ported, are specified, together with the ship and 
 the time ; and there could be no more than that 
 ship could contain in one cargo ; and these checks 
 seem to have been thought sufficient for the pur- 
 pose in view, without greater particularity." 
 
 The same liberality of construction appears 
 also in the case of Rawlinson against Janson (d). 
 A license had been granted, extending protection 
 to the cargo in question, upon satisfactory proof 
 
 (d) 12 East. 223.
 
 272 PREROGATIVE OF THE KING WITH 
 
 Licenses, being made, that such cargo was really shipped 
 by, or under the directions of Henry Noden or 
 his agents, for the purpose of being exported to 
 some port on the river Elbe, Weser, or Jalide. 
 It appeared that Henry Noden, on whose applica- 
 tion this license was obtained, after the goods 
 were shipped, was only an agent for the persons 
 really interested in the cargo, who were British 
 merchants at Liverpool. Lord Ellenborough 
 held that this was sufficient to protect the ad* 
 venture under the license, and the plaintiffs re- ' 
 covered. Upon a motion for a new trial, the At- 
 torney-General took the opinion of Court, whe- 
 ther this were a sufficient compliance with the 
 terms of the license ? But all the Court were sa- 
 tisfied that it was sufficient ; and Lord Ellenbo- 
 rough said, " that the object of inserting the name 
 of a particular person in these licenses, was to 
 prevent their being obtained and handed about at 
 large, by which means they might have been 
 made an improper use of. But he had no doubt 
 that Henry Noden, the person named, being- 
 proved to be the agent of the British merchants 
 really interested in the adventure, sufficiently iden- 
 tified the license with it." However, the case of 
 Barlow and M'Intosh (e) throws much light on 
 the two preceding decisions, and shews that they 
 are not to be construed in quite so favourable 
 a manner as the terms of them might induce a 
 
 (e) 12 East. 311.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 273 
 
 hasty observer to conclude. A license had been Licenses, 
 granted enabling Richard Smith and other mer- 
 chants to import and export certain articles. The 
 captain of the ship produced at the trial this license, 
 which he had received, previously to the voyage, 
 from Mr. Schmaling, a merchant in London, the 
 shipper of the goods in question, and which li- 
 cense was on board during the whole voyage. 
 The counsel, in support of the license, referred 
 to the before mentioned cases of Defflis and Pa- 
 vey, and Timson and Merac, as cases turning on,- 
 the generality of these trading licenses, which had 
 received a liberal construction, in furtherance of 
 the trading interests of the country, meant to be 
 facilitated by them. But the Court observed, 
 that in the latter of these cases, the license was 
 granted in the name of Merac and Co. who were 
 sued upon their guarantee of the contract for the 
 importation of the goods under the license ; and 
 in the other case, the importers of the goods under 
 the license were proved to have acted in connec- 
 tion with the persons 10 whom the license was 
 granted; and therefore those transactions were 
 quite in the regular course. Le Blanc, J. further 
 observed, that the license, in this case, did not 
 appear, by any evidence, to have been in the ship- 
 per' > hands till above three months after the date 
 of it, when it was given by him to the captain. 
 35
 
 PREROGATIVE OF THE KING WITH 
 
 Licenses. And Lord Ellenborough, Ch. J. said, " That, pre- 
 vious to the time when the license was proved to 
 have been in the possession of Schmaling, and to 
 have been by him delivered to the captain, it 
 might have served for three voyages to Holland. 
 It might have dropped out of the pocket of the 
 person entitled to it, and been found by the pre- 
 sent possessor of it. The possibility of such facts 
 existing, consistently with the evidence given at 
 the trial, called upon the shipper of the goods, 
 who endeavours to avail himself of it, to connect 
 himself by other evidence than the mere posses- 
 sion of the particular license ; otherwise, in the 
 absence of all proof of such connection, there was 
 a natural suspicion, a preponderance of probabili- 
 ty, that the license had been used before to cover 
 an antecedent voyage, and against the lawful use 
 of it upon the voyage in question. The state of 
 the commercial world may make it expedient to 
 grant licenses in this very general form ; but this 
 generality subjects the practice to abuse. If the 
 party who produces and seeks to avail himself of 
 it, be required to shew when and how he obtained 
 the possession of it, that will be a salutary check 
 upon the abuse of it. I did not require the as- 
 sured, at the trial, to shew that he was the per- 
 son who obtained the license from the Privy 
 Council Office. I am aware of the difficulties 
 which may exist in disclosing the names of the
 
 RESPECT TO ORDERS IN COUNCIL, &c. 275 
 
 real parties to the adventure, and the adventure Licenses, 
 itself; but he might have shewn that he obtained 
 possession of it lawfully from the person by whom 
 it was taken out. But if it be sufficient for a par- 
 ty, at any time, to stand upon his mere possession 
 of such a general license, there can be no check 
 whatever upon any indefinite abuse of them." 
 
 There is another case (f) respecting the per- 
 sons by whom the license may be employed, 
 which relates not, like the preceding cases, to the 
 question, whether the party employing the license 
 be in reality the party for whose benefit govern- 
 ment intended it should operate, but to the ques- 
 tion of national character. The point in dispute 
 was, whether a license granted to Mr. Ravie of 
 Birmingham, for the importation of certain goods 
 from Holland into this country, would operate to 
 protect a shipment made by him in person in Hol- 
 land, and under papers describing die firm of his 
 house as Ravie and Co. of Amsterdam ? Sir 
 William Scott decided that it would not, and con- 
 demned the property. It has recently been decid- 
 ed that a general license is to be construed strictly, 
 and not to extend to protection of enemy's pro- 
 perty (g) ; but a license particularly specifying 
 any flag, protects even enemy's property (h}. 
 
 (/) J.onge Kassina,5llob. ton. 313. 
 
 Rep. 297. (A) The Hendrick, 1 Ac- 
 
 () The Josephine, 1 Ac- ton. 322. 2 Rob. 162.
 
 '276 PREROGATIVE OF THE KING WITH 
 
 Licenses. Sometimes a license is granted upon an express 
 condition ; and then it is, of course, required that 
 the condition be truly and fairly performed. This 
 was decided in the case of Vandyck and Whit- 
 more (e), where 'Lord Keny on said, " Though the 
 King may, at common law, license a trading with 
 the enemy generally, yet he may also qualify his 
 license ; in which case the party seeking to pro- 
 tect himself under such license must conform to 
 the requisitions of it." The same point will also 
 be found in a note of the case of Gordon and 
 Vaughan, annexed to the case of Shiffner and 
 Gordon (&). 
 
 A license, by its very nature, is calculated to 
 subsist only during the continuance of the war in 
 which it was granted. " Peace having been con- 
 cluded," says Sir William Scott, in the case of 
 the Planters Winsch (/), " a license is necessarily 
 done away and destroyed, having no subject mat- 
 ter to act upon." 
 
 We will now inquire, how far a license granted 
 by an ally in the war, is legally capable of pro- 
 tecting the property which it is designed to cover ? 
 In all innocent articles of commerce, it appears 
 that a state is, of course, atliberty to authorize the 
 dealings of her subjects with the enemy, without 
 any express permission from any of her allies ; but 
 
 (0 1 East. 486. (0 5 Rob. Rep. 22. 
 
 (k) 12 East. 302.
 
 RESPECT TO ORDERS IN COUNCIL, &G. 277 
 
 in articles that are contraband of war, the rule is Licenses, 
 otherwise, because the common cause may be di- 
 rectly and materially injured by such traffic. Sir 
 William Scott, in the case of the Neptunus (m), 
 said, " A practice has crept in of admitting par- 
 ticular 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 and dilute 
 his own rights. 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 uninterrupted trade with the enemy, the 
 consequence may be, that it will supply that aid 
 and comfort to the enemy, especially if it is an 
 enemy depending, like Holland, very materially on 
 the resources of foreign commerce, which may be 
 very injurious to the prosecution of the common 
 cause and the interests of its ally. It should seem 
 that it is not enough, therefore, to say that the one 
 state has allowed this practice to its own subjects ; 
 it should appear to be, at least, desirable that it 
 could be shewn, that either the practice is of such 
 u nature as can in no manner interfere with the 
 
 (;) 6 Rob. Rep. 403.
 
 278 PREROGATIVE OF THE KING WITH 
 
 Licenses, common operations, or that it has the allowance of 
 the confederate state." 
 
 A license duly granted by the King by virtue 
 of his prerogative, or in pursuance of an Act of 
 Parliament, legalizes a trade with the enemy in 
 every respect. It was therefore held, in the case 
 of Kensington v. Inglis (;), that where a certain 
 trading with an alien enemy, for specie and goods 
 to be brought from the enemy's country in his ships 
 into our colonial ports, was licensed by the King's 
 authority, that an insurance on the enemy's ship, 
 as well as on the goods and specie put on board for 
 the benefit of the British subjects, was inciden- 
 tally legalized ; and that it was competent for the 
 British agent of both parties in whose name the 
 insurance was effected, to sue upon the policy in 
 time of war ; the trust not contravening any rule 
 of law or of public policy, and there being no per- 
 sonal disability in the plaintiff on the record to 
 sue. But it was observed by Lord Ellenborough 
 in that case, that the King's license cannot have 
 the effect of removing the personal disability of 
 an alien enemy, so as to enable him to sue in his 
 own name. If, however, the alien reside in this 
 country with the King's permission, he might, 
 in such case, sue in his own name. It was there- 
 fore held, in the case of Usparicha v. Noble (), 
 
 O) 8 East. 273. () 3 East. 332.
 
 RESPECT TO ORDERS IN COUNCIL, &c. 279 
 
 that a native Spaniard, domiciled here in time of Licenses. 
 war between this country and Spain, having been 
 licensed in general terms by the King to ship 
 goods in a neutral vessel from hence to certain 
 ports in Spain, such commerce was legalized for 
 all purposes of its due and effectual prosecution, 
 either for the benefit of the party himself or of his 
 correspondents, though residing in the enemy's 
 country ; and that such goods may therefore be 
 insured by him, either on his own account or as 
 agent for them, and that he might sue and reco- 
 ver upon the policy in his own name in case of a 
 loss. 
 
 With respect to the issuing of Orders in Coun- orders in 
 cil by virtue of the King's prerogative, and inde- Council> 
 pendently of any Act of Parliament, there is little 
 to be said which has not been anticipated in our 
 general remarks on the power of the King as ar- 
 biter of commerce. Many of the rights which he 
 possesses in that capacity are exercised through 
 the medium of Orders in Council. It is usual, 
 when a permission is to be given to a particular 
 individual, to grant it by license ; but Orders of 
 Council are of a more general nature, and contain 
 dispensations or prohibitions extending to a whole 
 brunch of commerce. 
 
 It is scarcely necessary to add, that any thing 
 which the Statute Law or the Common Law has 
 ordained, cannot be contravened by an Order in
 
 280 PREROGATIVE OF THE KING WITH 
 
 orders in Council, except in those cases where an Act of 
 Parliament comprehends, amongst its own clauses, 
 a power to the King of dispensing with its enact- 
 ments (o). 
 
 2dly. Of Dispensations founded on particular Acts 
 of Parliament by Orders in Council, &fr. 
 
 Though we have seen that the King has not, 
 by virtue of his prerogative, a power to dispense 
 with the common law or any legislative provision, 
 yet it has been usual, particularly during war, to 
 give to the King in Council a power of modify- 
 ing or dispensing with such provisions as it may 
 be found expedient, in particular conjunctures, to 
 alter or suspend ; for the interests of commerce 
 being of so variable a nature, and depending so 
 much on circumstances suddenly arising, it would 
 be very difficult, not to say impossible, during 
 war, to make them generally subject to any per- 
 manent legislative provision. Thus the 43 Geo. 
 3. c. 153. s. 15. and 16. after reciting that it is 
 expedient that his Majesty, by Order in Council, 
 &c. should be authorized to permit, during the 
 continuance of hostilities, and until six months 
 after the ratification of a definitive treaty of peace, 
 the importation, in any neutral ships whatever, of 
 any goods from any port belonging to a state not 
 in amity with his Majesty, enacts, " That it shall 
 
 (o) I Taunt. 227. 12 East. 296.
 
 RESPECT TO ORDERS IN COUNCIL, &c, Z$l 
 
 and may be lawful for his Majesty by Order in orders in 
 Council, and, in Ireland, for the Lord Lieutenant, 
 or other chief governor or governors, and the Privy 
 Council of Ireland, by Order in Council, from 
 time to time, when and as often as the same shall 
 be judged expedient, to permit, during the con- 
 tinuance of hostilities, and until six months after 
 the ratification of a definitive treaty of peace, any 
 such goods, wares, or merchandize, as shall be 
 specified in any such Order in Council, to be im- 
 ported from any port or place belonging to any 
 kingdom or state not in amity with his Majesty, 
 in ships belonging to the subjects of any kingdom 
 or state in amity with his Majesty, any law then 
 in force in die United Kingdom, or in Great Bri- 
 tain or Ireland respectively, to the contrary there- 
 of notwithstanding." 
 
 By the 45 Geo. 3. c. 34. after reciting that it- 
 was expedient, under the then circumstances, to 
 permit certain goods to be imported, under cer- 
 tain restrictions, in foreign ships belonging to 
 subjects of states in amity with his Majesty, it 
 was enacted, " That it shall be lawful for his Ma- 
 jesty, by and with the advice of his Privy Coun- 
 cil, to grant a license to any British subject to 
 import into this kingdom, for his own account 
 or for account of a subject of any state in amity 
 with his Majesty, from any country in America 
 belonging to any foreign European sovereign or 
 36
 
 282 PREROGATIVE OF THE KING WITH 
 
 Orders in state, any goods of the growth or produce, whe- 
 ther manufactured or otherwise, of any such coun- 
 try, not prohibited to be used or consumed in 
 this kingdom, in any ship belonging to any state 
 in amity with his Majesty, and under such rules, 
 regulations, restrictions, and securities, as his Ma- 
 jesty, with the advice of his Privy Council, shall 
 approve : subject to the same duties as if import- 
 ed in a British-built ship, and to the same rules 
 respecting the payment thereof; with a proviso 
 that all sugar and coffee imported in pursuance of 
 the Act shall be warehoused immediately on im- 
 portation, and shall not be taken out of warehouse 
 to be used or consumed in this kingdom, but only 
 for exportation to foreign ports ; provided always, 
 that no such license shall be granted to any per. 
 son who shall not have exported, or given such 
 security as shall be required for exporting, from 
 this kingdom, according to law, to the possessions 
 in America belonging to the same European so- 
 vereign or state, any goods or commodities bear- 
 ing such proportion in value to the goods so to 
 be imported as his Majesty, by and with the ad- 
 vice aforesaid, shall think reasonable, and direct." 
 The Statute then provides, that if any question 
 shall arise in any case, whether any thing which 
 shall be done was authorized to be done by vir- 
 tue of any such license, the proof that such thing
 
 RESPECT TO ORDERS IN COUNCIL, &c. 28S 
 
 was done under the circumstances, and according Orders in 
 to the terms and conditions in such license to be 
 expressed, shall be on the person or persons re- 
 spectively claiming the benefit of such license. 
 
 By the 46 Geo. 3. c. 111. after reciting that, 
 during the late and the present war, emergencies 
 had arisen, and licences been granted contrary to 
 law, but justifiable by the necessity of the case, 
 with a view to the necessary supply of the British 
 West India islands, and of lands and territories 
 belonging to his Majesty on the continent of 
 South America, and that it is proper that provi- 
 sion should be made for meeting such emergen- 
 cies in future, without the necessity of frequent 
 violation of the law by his Majesty's officers, it is 
 enacted, " That it shall be lawful for his Majesty, 
 by and with the advice of his Privy Council, to 
 permit or authorize the governors or governor of 
 the said islands and territories, in such manner, 
 and under such restrictions, as to his Majesty, by 
 and with the advice of his Privy Council, shall 
 seem fit to permit, when the necessity of the case 
 shall appear to his Majesty, with the advice of his 
 Privy Council, to require it, during the present 
 war, the importation into, and the exportation 
 from, any island in the West Indies, in which de- 
 scription the Bahama Islands, and the Bermuda
 
 284 PREROGATIVE OF THE KING WITH 
 
 Orders in or Summer Islands, are included, or any lands or 
 
 Council, . , . r- rx i 
 
 territories on the continent of South America be- 
 longing to his Majesty, of any such goods as shall 
 be mentioned in such Order of his Majesty in 
 Council, in any ships or vessels belonging to the 
 subjects of any state in amity with his Majesty, 
 in such manner as his Majesty, by and with the 
 advice aforesaid, shall direct, subject to certain 
 modifications mentioned in the Act." 
 
 The 47 Geo. 3. sec. 2. c. 27. empowers his 
 Majesty, by Order in Council, to grant licenses 
 for permitting naval stores to be imported from 
 any place in amity with him, in any ship belong- 
 ing to any state in amity, and navigated in any 
 manner. 
 
 The 48 Geo. 3.c. 37. reciting that neutral ships, 
 bound to ports on the continent of Europe from 
 which the British flag had been excluded, had ar- 
 rived in the ports of the United Kingdom, having 
 been warned or brought into such ports in conse- 
 quence of his Majesty's Orders in Council for 
 that purpose, and parts of the cargoes of such 
 vessels had been admitted to entry for home con- 
 sumption, or warehoused for exportation, and 
 other parts of such cargoes, consisting of goods 
 the growth, produce, or manufacture of countries 
 within the limits of the charter granted to the 
 East India Company, and not imported by the
 
 RESPECT TO ORDERS IN COUNCIL, &c. 285 
 
 said East India Company, and warehoused for Orders in 
 
 nil. Council, 
 
 exportation only ; and in consequence of the late 
 events in Portugal, wine and other commodities 
 had been brought from the dominions of the 
 crown of Portugal in vessels not owned and navi- 
 gated according to law, all such importations, &c. 
 are declared lawful, and the persons concerned are 
 indemnified ; and his Majesty, &c. is empowered, 
 by Order in Council, during hostilities, to per- 
 mit goods to be imported in any vessels from any 
 ports from which the British flag is excluded. 
 
 The 48 Geo. 3. c. 126, authorizes goods se- 
 cured in warehouses in the port of London to be 
 removed under Order in Council, to any other 
 port in Great Britain, for exportation in Europe. 
 The second section enacts, that it shall be lawful 
 for his Majesty, by Order in Council, or by his 
 royal proclamation, to direct that all or any such 
 licenses as, by virtue of any Act of Parliament, 
 his Majesty may lawfully grant under his sign 
 manual, shall and may be granted by one of his 
 Majesty's principal Secretaries of State, in pursu- 
 ance of an Order of Council specially authorizing 
 the grant of such license ; a duplicate of which 
 order shall, in all cases, be annexed to such li- 
 cense (/>). 
 
 (/>) See the form of such Trade, Appendix. Nos. F. 
 Order in Council and license and II. 
 in Dr. Phillimoreon Licence
 
 286 PREROGATIVE OF THE KING WITH 
 
 Orders in The third section authorizes the exportation of 
 
 Council. . n i i~* 
 
 goods, by Order in Council, in smaller ships than 
 were otherwise allowed by law. 
 
 The 49 Geo. 3. c. 25. permits unmanufactured 
 East Indian or South American tobacco to be 
 imported by Order in Council. 
 . The 49 Geo. 3. c. 60. enacts that, by Order in 
 Council, during hostilities, goods, the produce of 
 any country, may be imported into the United 
 Kingdom from any port of Europe or Africa, in 
 British or friendly ships, however navigated, 
 orders in When Orders in Council are made in pursu- 
 ance of these Acts, the derivation of the power 
 from the Acts is frequently acknowledged in the 
 recital at the beginning of the order, as in that of 
 the 21st December, 1808. "At the Court at 
 the Queen's Palace, the 21st December, 1808, 
 present the King's Most Excellent Majesty in 
 Council, his Majesty, by virtue of the powers re- 
 served to him by two certain Acts passed in the 
 48th year of his reign, intituled, &c. is pleased to 
 order, by and with the advice of his Privy Coun. 
 cil, and it is hereby ordered, that until further or- 
 der be made therein, the operation of the aforesaid 
 Acts be suspended, Sec." 
 
 The power to make these Orders of Council, 
 and to grant licenses in pursuance of them, being
 
 RESPECT TO ORDERS IN COUNCIL, &c. 287 
 
 derived from these Acts of Parliament, is of a Orders in 
 limited nature, and cannot be extended further 
 than the Acts themselves permit. The construc- 
 tions of licenses granted by virtue of the King's 
 prerogative, already considered, will in general be 
 applicable to licenses founded on these Statutes.
 
 ALLY. 
 
 illegal for an ally to carry on commerce with the enemy, page 11. 
 
 principle of the rule, 11, 12. 
 
 property engaged in the commerce liable to confiscation, 11. 
 
 ALIEN ENEMY (See title " Hostile Character.") 
 
 who is one, 30. 
 
 distinction between a permanent and temporary enemy, 30. 
 
 hostile character for commercial purposes subjecting property to 
 seizure, 31 to 64 (See title " Hostile Character.") 
 
 debts due to alien enemy not forfeited, but only right of action sus- 
 pended, 82 to 86. 
 
 BILLS OF EXCHANGE. 
 
 question,whether those drawn in an enemy's country are valid ? 25, 6. 
 
 BILL OF HEALTH. 
 
 how far it affords evidence of neutrality, 199. 
 
 BILL OF LADING. 
 
 how far it affords evidence of neutrality, 198. 
 
 BLOCKADE. 
 
 who has the power to declare it, 259. 
 
 why a neutral state is affected by it, 128. 
 
 what points essential to a legal blockade, 129, 130. 
 
 1. the power of the besieging force to preserve the blockade, 
 
 2. \vhatknowledgeof the blockade is necessary, 133. [130,1. 
 
 3. what is a violation of blockade, 140 to 142. 
 what excuses the violations, 142. 
 
 consequences of violation as to seizure of ship, cargo, &c. 144. 
 
 CANNON-SHOT. [113. 
 
 distance within which, enemy's property protected on neutral coast, 
 
 CAPTURE. (See title " Embargoes.") 
 
 1. what property liable to it. 
 
 illegal commerce between belligerents without license, 1 to 27. 
 what constitutes a hostile character, so as to subject property 
 
 to seizure, 31 to 64. 
 property transferred in transitu, 60. 
 
 2, upon breaking out of war. 
 
 right of capture in general, and on what principle allowed, 65,6, 
 37
 
 290 INDEX. 
 
 CAPTURE (coH^nwed.) 
 
 2. upon breaking out of war (continued). 
 
 of embargoes on breaking out of hostilities, 68. 
 
 of letters of marque and reprisal, 73. 
 
 of reprisal, 77 to 80. 
 
 observations on the modern practice of seizures under colour 
 of embargoes, 80, 1. [dern practice, 82. 
 
 choses in action of an enemy not confiscated according to mo- 
 right of capture considered generally, 86, 7. 
 exemption in favour of small fishing-vessels, 87. 
 what property cannot be legally captured, 87, 8. 
 property ailoat may be seized, notwithstanding permission to with- 
 ransom not lawful, 90. [draw effects, 89, 90. 
 
 rescue and recapture, 91, 2. 
 postliminium, 93 to 104. 
 salvage, 104. 
 
 CARTEL SHIP. 
 
 illegal to carry on commerce with the enemy by means of one, 9, 10. 
 
 CHARTER-PARTY- 
 
 how far it affords evidence of neutrality, 198. 
 
 CHOSES IN ACTION. 
 
 on breaking out of war, contracts due to enemy not forfeitedj only 
 suspended, 82, 3. 
 
 COASTING TRADE. 
 
 why it is illegal to carry on that of the enemy during war, 154. 
 neutral ships as well as enemies goods forfeited, 157 to 159. 
 
 COLONIAL TRADE. 
 
 why not lawful to neutrals to carry on that of the enemy, 55, 6, 7. 
 
 159 to 166. 
 relaxations of the rule of the war 1756, and permission to neutrals 
 
 to frade with colonies, 166. 
 
 colonial trade not to be carried on circuitously by neutrals, 176. 
 penalty for violation of these rules, forfeiture of ship and cargo, 183, 
 
 COMMERCE. (See title " Hostile Character.") 
 illegal between subjects of belligerent states, 1. 
 reasons of this Law of Nations, 2, 3, 4. 
 the sovereign may dispense with the rule, and why, 3, 13, 14, 
 instances of the rule being rigidly enforced, 4, 5. 
 omission to obtain license subjects goods to confiscation, 6. 
 illegal to import enemies goods, even in neutral ships, 6, 14, 15. 
 illegal to remit supplies to a British colony during its tempo- 
 rary subjection to an enemy, 6, 7. 
 particularly objectionable in a cartel ship, 9.
 
 INDEX. 291 
 
 COMMERCE (continued.) 
 
 illegal for an ally to carry on commerce with the enemy, 11. 
 
 property engaged in, liable to confiscation, 11. 
 attempts to elude the rule unavailable, 12, 13. 
 
 by a fictitious destination, and letting the goods be token to a 
 
 neutral port, and thence forwarded, illegal, 13, 14. 
 by a purchase made by a neutral agent, illegal, 14. 
 exception in favour of a bona fide purchaser from a neutral, 
 purchase in partnership w ith a neutral, illegal, 14, 1 5. [14, 15. 
 these rules enforced in courts of common law, 15. 
 
 commerce with an enemy an indictable offence, 17. 
 exceptions and qualifications to this rule. 
 
 goods shipped before notice of hostilities may proceed, 17. 
 goods intended to go to an enemy's port, but captured by the 
 
 British forces before arrival, not liable to seizure, 18. 
 mere intention to trade illegally, not sufficient, 18. 
 but all possible measures must be taken to countermand, on 
 
 first notice of hostilities breaking out, 19. 
 withdrawing effects, on breaking out of war, illegal without 
 exception to this rule, 21 to 25. [license, 20, 21. 
 
 negotiation of bills of exchange, how far legal, 25. 
 goods purchased for the use of government, 25, 6, 7. 
 legal for an Englishman resident in a neutral country to carry on 
 commerce with enemy of Great Britain, 37, 8. [50, 1. 
 but not to establish a house of trade in an enemy's country, 
 commerce of neutrals during war, 108. (See title " Neutrals.") 
 contraband commerce, 119. (See title "Contraband.") 
 
 CONDEMNATION. 
 
 necessary to prevent the jus poslliminium, 99, 100. [102, 3. 
 don't pass the property absolutely as between t\vo British subjects, 
 
 CONTRABAND COMMERCE, 
 
 prohibited to neutrals, 109. 
 
 what articles are contraband, 119. 
 
 the King may declare new articles to be such, 119. 
 
 arms and warlike stores, 119, 120. 
 
 provisions, 120, I, 2. 
 
 pre-emption, 124. 
 
 why confiscated, 124. 
 
 how far they subject other goods and the ship to sei/ure, 126, 7, 
 
 how far the carrying them affects the return voyage, 128. 
 
 ENEMY. (See title "Commerce.") 
 illegal to trade with, 1. 
 reason of the law, 2, 3. 
 
 EMBARGOES. 
 
 of embargoes on breaking out of hostilities, 68.
 
 292 INDEX. 
 
 EMBARGO E 
 
 on what principles they are said to be lawful, 68. 
 of embargoes in general, 71 to 73. 
 
 FISHING VESSELS. 
 
 what protected from capture, 87. 
 
 HOSTILE CHARACTER. 
 
 what constitutes it for particular purposes, and subjects the pro- 
 perty to confiscation, 
 
 1. having land in an enemy's territory, produce of it may be 
 
 seized by another belligerent, 32. 
 
 2. by residence in enemy's country, 34, 5, 37, 8, 51. 
 
 what constitutes such a residence, 38, 9. 
 temporary absence not material, 46. 
 residence of an agent, 47. 
 
 mode of residence, 49. [enemy, 50, I. 
 
 hostile character by carrying on permanent trade with 
 summary of the rules, 51. 
 
 residence only affects that particular trade, 52, 3. 
 on breaking out of hostilities, neutrals have a right to 
 withdraw effects, 54, 5. 
 
 3. by carrying on particular trading usually allowed by the 
 
 other belligerent only to her own subjects, 56. 
 
 4. by sailing under enemy's flag, 58. 
 
 property bearing this character cannot be transferred in tran- 
 situ, 60, 1. 
 
 ILLEGALITY 
 
 of commerce between subjects of belligerent states, 1. 
 of commerce between an ally and a belligerent, 11. 
 
 INFRA PR^SIDIA, 
 
 rule as to, 98, 9. 
 
 sentence of condemnation now necessary, 99, 100. 
 
 INVOICES. 
 
 how far they afford evidence of neutrality, 198. 
 
 KING 
 
 may license commerce with enemy, and why, 3, 4, 260, 1, 2, 3. 
 
 his prerogative as arbiter of commerce, 257. 
 
 has now power to dispense with the common or statute law, 257. 
 
 his proclamations, when void, 257, 8. 
 
 his existing power as to declaring peace or war, 259. 
 
 declaring contraband, 259. 
 
 issuing letters of marque, 259. 
 
 passports and safe conducts, 259, 
 
 promulgating blockades, 259. - 
 
 imposing embargoes, 260.
 
 INDEX. 293 
 
 LAW OF NATIONS 
 
 prohibits commerce between belligerents without leave of the sove- 
 reign, 1 to 27. 
 allies and belligerents, 11. 
 
 LETTERS OF MARQUE AND REPRISAL. 
 
 the right to grant them vested in the King, 73. 
 how to obtain them, 73, 4. 
 how vacated or destroyed, 74, 5. 
 
 by express revocation, 74. 
 
 by cessation of hostilities, 74. 
 
 by misconduct, 76. 
 
 by other means, 76. 
 how construed, 77. 
 power of the King to release a prize, 77. 
 
 LICENSES. (See titles " Orders in Council^ and " Commerce.") 
 the King may license commerce with enemy, and why, 260, 1, 2, 
 
 3. 13, 14. 
 
 misapprehension in not obtaining one, no excuse, 6. 
 when withdrawing effects without it may be legal, 21. 
 when the omission to obtain it may be excusable, 26, 7. 
 may be granted to an enemy, 260, 1. 
 are to be construed strictly, 261, 2, 3, 265. 
 what deviation or excess will be illegal as to quality or descrip- 
 tion of goods, 261, 2, 3. 
 how far limited as to time, 264. 
 
 port of shipment, 265. 
 persons to whom granted, 266 to 276. 
 granted on condition, 276. 
 how long it endures, 276. 
 granted by an ally, how far binding, 276. 
 general effect as to its giving validity to incidental contract, 278 S 9. 
 
 LOG-BOOK. 
 
 how far it affords evidence of neutrality, 199. 
 
 MARQUE AND REPRISAL. (See title " Letters of Marque and 
 Reprisal.'") 
 
 MUSTER-ROLL, 
 
 how far required on board a neutral ship, 197. 
 
 NATIONS, LAW OF, 
 
 prohibits commercial intercourse between belligerents, 1. 
 prohibits commercial intercourse between ally and belligerent, 1 1. 
 attempts to elude this law futile, 12, 13. 
 
 NAVIGATION LAWS. 
 
 policy of Great Britain in relation to thorn, ^00
 
 294 INDEX. 
 
 NAVIGATION LAWS- (continued). 
 the more ancient statutes, 201. 
 the navigation act, 208. 
 the more modern acts and decisions, 211. 
 
 relating to our coasting tradr, 209. 
 
 relating to our European trade, 209. 
 
 relating to our trade with Asia, Africa, and America, 214. 
 
 relating to our trade with the United States of America, 216 
 
 decisions thereon, 220. 
 
 relating to trade with our colonies, 229. 
 
 relating to trade with India, 233. 
 
 relating to our trade with Malta and Gibraltar, 234. 
 
 decisions, 235. 
 
 of the terms and requisites of a " British owned" ship, 238. 
 British built, 239. 
 British navigated, 245. 
 policy of the navigation acts in general, 250 to 255. 
 
 NEUTRALS. 
 
 duties of neutrality in general, 156, 7. 
 
 a British subject cannot import goods purchased of an enemy, even 
 in a neutral ship, 8, 15. [gerenf, 14. 
 
 cannot legally purchase as agent for one belligerent of another belli- 
 
 a neutral may bona fide sell his own property in an enemy's port 
 to a subject of another belligerent, 14. [belligerents, 15. 
 
 partnership with a neutral no protection to illegal commerce between 
 
 neutral state, if submits to insults of a belligerent, when the other 
 belligerent may treat her as at war, 28, 9. 
 
 if a subject of a neutral slate be taken adhering to one of the belli- 
 gerent powers, he is only a temporary alien, 30. 
 
 residence in a neutral country enables a British subject to trade 
 
 with an enemy of England, 37, 8. [* r >5 51. 
 
 but not to establish a house of trade in an enemj'scoun. 
 
 residence of a neutral in an enemy's country subjects his property 
 to capture by the other belligerent, 34 to 54. 
 
 but the neutral is allowed reasonable time, on breaking out of hos- 
 tilities, to remove his effects, 54, 5. 
 
 hostile character imposed by trading with enemy in commerce which 
 she usually allows only to her own subjects, 55, 6, 7. 
 
 property transferred in transitu liable to seizure, 6*0 to 64. to64. 
 
 property sold by a neutral and going to enemy, liable to seizure, 62 
 
 salvage payable by a neutral on recapture, where there was proba- 
 bility of condemnation, 107. 
 
 effect of war upon the commerce of neutrals, 108. [tions, 108, 9. 
 
 right of neutrals to carry on their accustomed trade, and excep- 
 
 neutral has a right to act as the carrier of the enemy's goods, 1 10. 
 
 his property is not liable to seizure in an enemy's ship, 110, 11. 
 
 and this though he is in partnership with the enemy, 112, 13.
 
 INDEX. 295 
 
 NEUTRALS (continued). 
 
 but it is otherwise if he use false papers, &c. 112, 13. 
 
 protection to enemy's property in and near a neutral port, 113. 
 
 neutral ship affords no protection to enemy's property, 118. 
 
 of illegal commerce carried on by neutrals, 1 18. 
 
 contraband of war, 119. (See title " Contraband."') 
 violation of blockade, 128. (See title " Blockade.") 
 illegal assistance to enemy, by conveying despatches, 
 troops, &c. 147. [to outrages of the enemy, 150. 
 
 forfeiture of the immunities of the neutral character by submission 
 
 prohibitions against neutrals carrying on commerce usually inter, 
 dieted, 153, 4. 
 
 coasting trade, 154. (See title " Coasting Trade.") 
 colonial trade, 159. (See title " Colonial Trade.") 
 relaxations of the rule of the war 1756, 166. [176. 
 
 colonial trade not to be carriedon circultously byneutrals, 
 forfeiture of ship and cargo for infraction of these rules, 
 182. 
 
 what property of neutral in which enemy interested is liable to cap. 
 
 occasional relaxations allowed, 185, 6. [ture, 183. 
 
 exceptions to the general protection of neutrals, 187. 
 
 forcible employment of neutrals ships, 187. [tance, 190. 
 right of visitation and search, and consequence of resis- 
 
 documents required on board a neutral ship, as evidence of her neu- 
 trality, 196 to 199. 
 
 ORDERS IN COUNCIL. (See titles "Licenses," and "Commerce.") 
 granted by virtue of the King's prerogative, 279. 
 
 are invalid if contrary to common or statute law, 279, 80. 
 granted by virtue of particular Acts of Parliament, 28Q to 287. 
 
 PARTNERSHIP 
 
 with a neutral won't legalize commerce with a belligerent, 15. 
 
 PASSPORT, 
 
 how far required on board neutral ships, 196. 
 
 POSTLl MINIUM 
 
 defined, 93. 
 
 how far a sentence of condemnation is necessary, 99, 100. 
 
 PRE-EMPTION. 
 
 when goods are brought in for it, 124. 
 
 PREROGATIVE. (See title " King") 
 
 PROCLAMATIONS 
 
 of the King, when invalid, 257, 8, 9. 
 
 RANSOM, 
 
 not legal. 90, 1-
 
 2>96 INDEX. 
 
 ^/ 
 
 RECAFfURE 
 
 defined, and consequences, 91, 2. 
 
 REPRISALS. 
 
 the nature of them, 77 to 80. 
 
 RESCUE 
 
 defined, and consequence of, 91, 2. 
 
 RESIDENCE. (See title " Hostile Character.") 
 
 3 
 
 RULE OF THE WAR 1756, 166, 7, &c. 
 
 SALVAGE, ' 
 
 on recapture, 104. 
 
 on rescue, 105. 
 
 on neutral's property, 107. 
 
 SEA LETTER, OR BRIEF, 
 
 how far required on board neutral ships, 19F. 
 
 SEIZURE. (See title " Capture.") 
 
 SHIPS. (See title " Navigation Lazes.") [ligerent powers, 6. 
 
 neutral ships no protection for commerce between subjects of bel- 
 cartel ship, illegal to carry on commerce by means of, 9, 10. 
 
 TRADE. (See title " Commerce.") 
 
 illegal between subjects of belligerent states and allies, 1 to 27. 
 
 TRANSFERS IN TRANSITU. [seizure, 60. 
 
 transfers of enemy's property, whilst in transitu, don't protect from 
 
 VISITATION AND SEARCH. 
 
 grounds on which the right of searching a neutral ship is founded,! 90. 
 what neutral ships and cargoes liable to be searched, 192. 
 duty to submit to it, 192, 3. 
 
 forfeiture for opposition is confiscation of ship and cargo, 193. 
 consequences of a rescue, 194. 
 
 WAR 
 
 defined, and what amounts to it, 28. [27. 
 
 renders commerce between subjects of belligerent states illegal, 1 to 
 re:iders commerce between ally and belligerent illegal, 11. 
 exceptions to these rules, 17 to 27. 
 
 WITHDRAWING EFFECTS. 
 
 how far legal to withdraw effects from an enemy's country, 19, 2O, 
 measures to be observed, 21, 2. [l } 23.
 
 APPENDIX. 
 
 , PAGE 2. 
 
 " There can be no doubt," says Bynkershoek, "but that from 
 the nature of war itself, all commercial intercourse ceases between 
 enemies. For to what purpose will trade be carried on, if, as is 
 clearly the case, the goods of enemies brought into our country 
 are liable to confiscation? And if he who hafing obtained the 
 right of killing his enemy, should go with merchandize into the 
 hostile country, and the enemy should kill him in the midst of 
 commercial intercourse, would you think it justly done? But 
 every commercial intercourse ceases. Hence in declarations of 
 war, commerce with the enemy is prohibited, and it is often done 
 by subsequent edicts." " The utility, however, of merchants, 
 and the mutual wants of nations, have almost got the better of the 
 law of war as to commerce. Hence it is alternately permitted 
 and forbidden in time of war, as princes think it most for the in- 
 terests of their subjects. A commercial nation is anxious to 
 trade, and accommodates the laws of war to the greater or less 
 want which it may be in of the merchandizes of others. Thus 
 sometimes a mutual commerce is permitted generally; sometimes 
 as to certain merchandizes only while others are prohibited, and 
 sometimes it is prohibited altogether. But in whatever manner 
 it may be permitted, whether generally, or specially, it is always, 
 in my opinion, so far a suspension of the laws of war. And in 
 this manner, there is partly war and partly peace between the sub- 
 jects of both princes." 
 
 Grotius remarks " cum alicui bellum indicitur, simul indi- 
 citur ejus populi hominibus." 
 
 Vattel observes, " the Latins had a term to distinguish a. pub- 
 lic enemy from a private," or individual " enemy." And adds, 
 ' that a public enemy may be free from such odious sentiments as 
 are entertained by a private enemy ; for he does not desire our 
 hurt, and is only for maintaining his rights. This is a necessary 
 38
 
 2S8 APPENDIX. 
 
 remark for regulating our dispositions towards a public enemy.' T 
 And he agrees with Grotius above quoted, and says, " when the 
 head of a nation declares war, it implies the whole nation declares 
 war and nations are concerned with each other respectively 
 only as bodies, in their quality as nations." 
 
 PAGE 60. 
 
 Vattel. L. 3. c. 7. s. 116 (not 107.) "The effects of neutrals 
 found in an enemy's ship, are to be restored to the owners against 
 whom there is no right of confiscation, but without any allowance 
 for detainder, decay, Sec. The loss sustained by the neutrals is 
 an accident, to which they expose themselves by sending them in 
 an enemy's ship ; and the captor in making use of the law of war, 
 is not answerable for any accidents resulting from it, no more 
 than if a neutral passenger who happened unfortunately to be in 
 an enemy's ship should be killed in the engagement." Again, 
 L. 3 c. v. sect. 75 " It is not the place where a thing is, which 
 determines the nature of that thing, but the quality of the person 
 to whom it belongs ; things belonging to neutral persons, which 
 happen to be in an enemy's country, or the enemy's ships, are ta 
 be distinguished from those belonging to the enemy. But the 
 owner must prove clearly that they are his, as in default of such 
 proof, a thing is naturally presumed to belong to the nation with 
 which it is found." 
 
 PAGE 65. 
 
 Vattel, B. 1 1 1. c. 8. " The end of a just war is to revenge or 
 prevent injury; that is, to procure by force the justice which 
 cannot otherwise be obtained. The lawful end gives a right only 
 to those means which are necessary for obtaining such end. 
 Whatever exceeds this is censured by the law of nature, and must 
 be condemned at the tribunal of conscience The sovereign who 
 would preserve a pure conscience, and punctually discharge the 
 duties of humanity, is never to lose sight of this great principle, 
 that nature gives him the right of making war only in cases of 
 necessity, when a remedy must be used against obstinate injustice 
 or violence He -will be careful that the remedy do not fall with
 
 APPENDIX. 299 
 
 greater weight and cause more calamity than is requisite for the 
 defence of his rights and the care of his safety." " In giving an 
 idea of the moderation with which, in the most just war, we are 
 to use the right of pillaging an enemy's country, the whole cen- 
 tres in this general rule ; all damage done to an enemy unneces- 
 sarily, every hostility which does not tend to put an end to the 
 war, is licentiousness condemned by the law of nature. As, with 
 regard to hostilities against an enemy's person, the law of nations 
 only prohibits such means as are odious and really unlawful ; so 
 the same law condemns every act of hostility, which contributes 
 nothing to the success of our arms, does not increase our forces, 
 nor weaken those of our enemy. When rigour is not absolutely 
 necessary, it is beautiful (honestum) to listen to the voice of hu- 
 manity and clemency." 
 
 Grotius c. v. refers to Cicero the following maxim : "It is 
 not against the law of nature to plunder him, whom it is lawful 
 to kill ;" and to Polybius for saying, " that by the right of war 
 it is lawful to take away or destroy the cities, ships, fruits of 
 the earth, and such things of an enemy." Again, c. vi. " Be- 
 sides the impunity of some acts allowed to be used against our 
 enemies, those things may be acquired by a just war, according 
 to the law of nature, which are either equivalent to that which is 
 due to us, but which we cannot otherwise get, or which damnifies 
 the injurerj yet within the bounds of a. just punishment." 
 
 PAGE 79. 
 
 Grotius B. 111. c. 2. " Theodoriclc called it a base license, 
 for one man to be kept as a pledge for another But though this 
 be true, yet by the law of nations it may be and has been admit- 
 ted, that whatever debts any state contracts, or is engaged for by 
 not restoring to others what is their right, all the goods both cor- 
 poral and incorporal of their subjects shall be obliged to dis- 
 charge." But this principle is qualified and limited ; for he says, 
 'this might let in all manner of injuries:" and Barbeyrac ob- 
 serves in a note on this chapter of Grotius, " that reprisals, be- 
 ing in some degree an act of hostility, the end of civil society re- 
 quires that private persons should not make use of this right but 
 with the permission of the sovereign."
 
 300 APPENDIX. 
 
 Valtel, B. 111. c. 8. observes, "that by military authority 
 prisoners have sometimes been hanged by way of retaliation for a 
 similar act done by the commander of an enemy's army, with a 
 view to oblige him to observe the laws of war." He adds, " it is 
 a sad extremity to put a prisoner to death for the fault of his gene- 
 ral" and says, " that Scipio's generosity is rather to be imitat- 
 ed, who having reduced some Spanish princes who had revolted 
 against the Romans, declared to them that on a breach of their 
 faith, he would not call the innocent hostages to an account, but 
 themselves, and that he would not revenge it on a disarmed ene- 
 my, but on those who should be found in arms."
 
 APPENDIX. 301 
 
 The following Copies of a LETTER and INSTRUCTION'S from the 
 Right Hon. Sir WILLIAM SCOTT and Sir JOHN NICHOLL, pre- 
 pared at the instance of His Excellency JOHN JAY, Esquire, 
 though not in the London edition of this toor&, cannot other, 
 wise than prove acceptable to the American reader. 
 
 TO HIS EXCELLENCY JOHN JAY, ESQUIRE, &C. 
 SIR,. 
 
 I HAVE the honour of sending the paper drawn up by Dr. Ni. 
 choll and myself; it is longer and more particular than perhap s 
 you meant ; but it appeared to be an error on the better side, ra- 
 ther to be too minute, than to be too reserved in the information 
 we had to give; and it will be in your Excellency's power either 
 to apply the whole or such parts as may appear more immediate- 
 ly pertinent to the objects of your inquiry. 
 
 I take the liberty of adding, that I shall at all times think my. 
 Self much honoured by any communications from you, either dur- 
 ing your stay here, or after your return, on any subject in which 
 you may suppose that my situation can give me the power of be- 
 ing at all useful to the joint interests of both countries ; If they 
 should ever turn upon points in which the duties of my official 
 station appear to me to impose upon me an obligation of reserve, 
 I shall have no hesitation in saying, that I feel them to be such : 
 On any other points, on which you may wish to have an opinion 
 of mine, you may depend on receiving one, that is formed with as 
 much care as I can use, and delivered with all possible frankness 
 and sincerity. 
 
 I have the honour to be, 
 
 With great respect, &c. 
 
 WILT JAM SCOTT. 
 
 Commons, Sept. 10th, 1704.
 
 302 APPENDIX. 
 
 Paper inclosed in the foregoing letter. 
 SIR, 
 
 WE have the honour of transmitting, agreeably to your Excel, 
 lency's request, a statement of the general principles of proceed- 
 ing in prize causes, in British courts of admiralty, and of the mea- 
 sures proper to be taken when a ship and cargo are brought in as 
 prize within their jurisdictions. 
 
 The general principles of proceeding cannot, in our judgment, 
 be stated more correctly or succinctly, than we find them laid 
 down in the following extract from a report made to his late Ma. 
 jesty in the year 1753, by Sir George Lee, then judge of the pre- 
 rogative court, Dr. Paul, his majesty's advocate-general, Sir Dud- 
 ley Rider, his majesty's attorney -general, and Mr. Murray (af- 
 terwards Lord Mansfield) his majesty's solicitor-general. 
 
 u When two powers are at war, they have a right to make pri- 
 zes of the ships, goods, and effects of each other, upon the high 
 seas : Whatever is the property of the enemy, may be acquired 
 by capture at sea ; but the property of a friend cannot be taken 
 provided he observes his neutrality. 
 
 " Hence the law of nations has established, 
 
 " That the goods of an enemy, on board the ship of a friend, 
 may be taken. 
 
 " That the lawful goods of a friend, on board the ship of an 
 enemy, ought to be restored. 
 
 " That contraband goods, going to the enemy, though the pro- 
 perty of a friend, may be taken as prize; because supplying the 
 enemy with what enables him better to carry on the war, is a de- 
 parture from neutrality. 
 
 " By the maritime law of nations, universally and immemoru 
 ally received, there is an established method of determination, 
 whether the capture be, or be not, lawful prize. 
 
 Before the ship, or goods, can be disposed of by the captor, 
 there must be a regular judicial proceeding, wherein both parties 
 may be heard ; and condemnation thereupon as prize, in a court 
 of admiralty, judging by the law of rations and treaties. 
 
 " The proper and regular court, for these condemnations, is th* 
 court of that state to whom the captor belongs.
 
 APPENDIX. 303 
 
 "The evidence to acquit or condemn, with or without, costs 
 or damages, must, in the first instance, come merely from the ship 
 taken, viz. the papers on board, and the examination on oath, of 
 the master, and other principal officers ; for which purpose there 
 are officers of admiralty in all the considerable sea ports of every 
 maritime power at war, to examine the captains, and other prin- 
 cipal officers of every ship, brought in as a prize, upon general and 
 impartial interrogatories : If there do not appear from thence 
 ground to condemn, as enemy's property or contraband goods go- 
 ing to the enemy, there must be an acquittal, unless from the 
 aforesaid evidence, the property shall appear so doubtful, that it 
 is reasonable to go into farther proof thereof. 
 
 " A claim of ship, or goods, must be supported by the oath of 
 some body, at least as to belief. 
 
 " The law of nations requires good faith ; Therefore every 
 ship must be provided with complete and genuine papers ; and tho 
 master at least should be privy to the truth of the transaction. 
 
 " To enforce these rules, if there be false or colourable pa- 
 pers ; if any papers be thrown overboard ; if the master and 
 officers examined in preparatorio, grossly prevaricate ; if pro- 
 per ship's papers are not on board ; or if the master and crew 
 cannot say, whether the ship or cargo be the property of a friend 
 or enemy, the law of nations allows, according to the different 
 degrees of misbehaviour, or suspicion, arising from the fault of the 
 ship taken, and other circumstances of the case, costs to be paid, 
 or not to be received, by the claimant, in case of acquittal and 
 restitution : On the other hand, if a seizure is made w ithout 
 probable cause, the capture is adjudged to pay costs and dama- 
 ges : For which purpose all privateers are obliged to give secu- 
 rity for their good behaviour; and this is referred to, and ex- 
 pressly stipulated, by many treaties. 
 
 "Though from the ship's papers, and the preparatory exami- 
 nations, the property does not sufficiently appear to be neutral, 
 the claimant is often indulged with time to send over affidavits to 
 supply that defect; If he will not shew the property by suffi- 
 cient affidavits, to be neutral, it is presumed to belong to the 
 enemy. Where the property appears from evidence not on board 
 the ship, the captor is justified in bringing her in. and excused
 
 304 APPENDIX. 
 
 paying costs, because he is not in fault ; or, according to the cir- 
 cumstances of the case, may be justly entitled to receive his costs. 
 
 " If the sentence of the court of admiralty is thought to be er- 
 roneous, there is in every maritime country, a superior court of 
 review, consisting of the most considerable persons, to which the 
 parties who think themselves aggrieved, may appeal ; and this su- 
 perior court judges by the same rule which governs the court of 
 admiralty, viz. the law of nations, and the treaties subsisting with 
 that neutral power, whose subject is a party before them. 
 
 " If no appeal is offered, it is an acknowledgment of the jus- 
 tice of the sentence by the parties themselves, and conclusive. 
 
 " This manner of trial and adjudication is supported, alluded 
 to, and enforced, by many treaties. 
 
 " In this method, all captures at sea were tried, during the last 
 Avar, by Great Britain, France, and Spain, and submitted to by 
 the neutral powers ; In this method, by courts of admiralty act- 
 ing according to the law of nations, and particular treaties, all 
 captures at sea have immemorially been judged of in every coun- 
 try pf Europe. Any other method of trial would be manifestly 
 unjust, absurd and impracticable." 
 
 Such arc the principles which govern the proceedings of the 
 prize courts. 
 
 The following are the measures which ought to be taken by the 
 captor, and by the neutral claimant upon a ship and cargo being 
 brought in as prize. 
 
 The captor immediately upon bringing his prize into port, sends 
 up or delivers upon oath to the registry of the court of admiralty 
 all papers found on board the captured ship. In the course of a few 
 days, the examinations in preparatory of the captain and some of 
 the crew, of the captured ship, are taken upon a set of standing 
 interrogatories, before the commissioners of the port to which the 
 prize is brought, and which are also forwarded to the registry of 
 the admiralty as soon as taken. A monition is extracted by the 
 captor from the registry, and served upon the royal exchange, no- 
 tifying the capture, and calling upon all persons interested to ap- 
 pear and shew cause, why the ship and goods 'should not be con- 
 demned. At the expiration of twenty days, the monition is re- 
 turned into the registry with a certificate of its service, and if any
 
 APPENDIX. 305 
 
 claim has been given, the cause is then ready for hearing, upon 
 the evidence arising out of the ship's papers, and preparatory ex- 
 aminations. 
 
 The measures taken on the part of the neutral master or pro- 
 prieto* of the cargo, are as follows : 
 
 Upon being brought into port, the master usually makes a pro. 
 test, which he forwards to London, as instructions (or with such 
 further directions as he thinks proper) either to the correspon- 
 dent of his owners, or to the consul of his nation, in order to 
 claim the ship, and such parts of the cargo as belong to his own- 
 ers, or with which he was particularly entrusted : Or the master 
 himself, as soon as he has undergone his examination, goes to 
 London to take the necessary steps. 
 
 The master, correspondent, or consul applies to a proctor, 
 who prepares a claim supported by an affidavit of the claimant, 
 stating briefly, to whom as he believes, the ship and goods claim- 
 ed, belong, and that no enemy has any right or interest in them : 
 Security must be given to the amount of sixty pounds to answer 
 costs, if the case should appear so grossly fraudulent on the part 
 of the claimant as to subject him to be condemned therein. 
 
 If the captor has neglected in the mean time, to take the usual 
 steps (but which seldom happens, as he is strictly -enjoined both 
 by his instructions and by the prize act to proceed immediately to 
 adjudication) a process issues against him on the application of 
 the claimant's proctor, to bring in the ship's papers and prepara- 
 tory examinations, and to proceed in the usual way. 
 
 As soon as the claim is given, copies of the ship's papers and 
 examinations are procured from the registry, and upon the return 
 of the monition the cause may be heard. It however seldom hap- 
 pens (owing to the great pressure of business, especially at the 
 commencement of a war) that causes can possibly be prepared for 
 hearing immediately upon the expiration of the time for the re- 
 turn of the monition ; In that case, each cause must necessarily 
 take its regular turn : correspondent measures must be taken 
 by the neutral master if carried within the jurisdiction of a vice 
 admiralty court, by giving a claim supported by his affidavit, 
 and offering security for costs, if the claim should be pronounced 
 grossly fraudulent. 
 39
 
 306 APPENDIX. 
 
 If the claimant be dissatisfied with the sentence, his proctor 
 enters an appeal in the registry of the court where the sentence 
 was ptven, or before a notary public (which regularly should be 
 entered within fourteen days after the sentence) and he afterwards 
 applies at the registry of the lords of appeal in prize causes (which 
 is held at the same place as the registry of the high court of admi- 
 ralty) for an instrument called an inhibition, and which should be 
 taken out within three months if the sentence be in the high court 
 of admiralty, and within nine months, if in a vice admiralty court, 
 but may be taken out at later periods, if a reasonable cause can 
 be assigned for the delay that has intervened. This instrument 
 directs the judge, whose sentence is appealed from, to proceed no 
 further in the cause ; it directs the registrar to transmit a copy of 
 all the proceedings of the inferior court: and it directs the party 
 who has obtained the sentence to appear before the superior tribu- 
 nal to answer to the appeal. On applying for this inhibition, se- 
 curity is given on the part of the appellant, to the amount of two 
 hundred pounds to answer costs, in case it should appear to the 
 court of appeals, that the appeal is merely vexatious. The inhu 
 bition is to be served upon the judge, the registrar, and the ad- 
 verse party and his proctor, by shewing the instrument under seal, 
 and delivering a note or copy of the contents. If the party can- 
 not be found, and the proctor will not accept the service, the in- 
 strument is to be served " mis et modis," that is by affixing it to 
 the door of the last place of residence, or by hanging it upon the 
 pillars of the royal exchange. That part of the process above 
 described, which is to be executed abroad, may be performed by 
 any person to whom it is committed, and the formal part at home 
 is executed by the officer of the court. A certificate of the service 
 is endorsed upon the back of the instrument, sworn before a sor- 
 rogate of the superior court, or before a notary public, if the ser- 
 vice is abroad. 
 
 If the cause be adjudged in a vice-admiralty court, it is usual 
 upon entering an appeal there, to procure a copy of the proceed- 
 ings which the appellant srnds over to his correspondent in Eng- 
 land, who carries it to a proctor, and the same steps are taken to 
 .procure and serve the inhibition, as where the cause has been ad- 
 ^udijed in the high court of admiralty. But if a copy of the pro.
 
 APPENDIX. 3(# 
 
 eeedings cannot be procured in due time, an inhibition may be 
 obtained, by sending over a copy of the instrument of appeal, or 
 by writing to the correspondent an account only of the time and 
 substance of the sentence. 
 
 Upon an appeal, fresh evidence may be introduced if upon 
 hearing the cause the lords of appeal shall be of opinion, that the 
 case is of such doubt, as that farther proof ought to have been 
 ordered by the court below. 
 
 Further proof usually consists of affidavits made by the as- 
 serted proprietors of the goods, in which they are sometimes joined 
 by their clerks and others acquainted with the transaction, and 
 with the real property of the goods claimed. In corroboration 
 of these, affidavits may be annexed, original correspondence, du- 
 plicates of bills of lading, invoices, extracts from books, &c. 
 These papers must be proved by the affidavits of persons who can 
 speak to their authenticity. And if copies or extracts, they 
 should be collated and certified by public notaries. The affida- 
 vits are sworn before the magistrates or others competent to ad- 
 minister oaths in the country where they are made, and authenti- 
 cated by a certificate from the British consul. 
 
 The degree of proof to be required depends upon the degree of 
 suspicion and doubt, that belongs to the case. In cases of heavy 
 suspicion and great importance, the court may order what is cal- 
 led "plea and proof," that is, instead of admitting affidavits and 
 documents introduced by the claimants only, each party is at li- 
 berty to allege in regular pleadings such circumstances as may 
 tend to acquit or to condemn the capture, and to examine witnesses 
 in support of the allegations, to whom the adverse party may ad- 
 minister interrogatories. The depositions of the witnesses are 
 taken in writing ; if the witnesses are to be examined abroad, a 
 commission issues for that purpose, But in no case is it neces- 
 sary for them to come to England. These solemn proceedings are 
 not often resorted to. 
 
 Standing commissions may be sent to America for the general 
 purpose of receiving examinations of witnesses in all cases where 
 the court may find it necessary for the purposes of justice, to de. 
 cree an inquiry to be conducted in that manner.
 
 308 APPENDIX. 
 
 With respect to captures and condemnations at Martinico, 
 which are the subjects of another inquiry contained in your note, 
 we can only answer in general, that we are not informed of the 
 particulars of such captures and condemnations, but as we know 
 of no legal court of admiralty established at Martinico, we are 
 clearly of opinion that the legality of any prizes taken there, 
 must be tried in the high court of admiralty of England, upon 
 claims given, in the manner above described, by such persons as 
 may think themselves aggrieved by the said captures. 
 
 We have the honour to be, See. 
 
 (Signed) WILLIAM SCOTT, 
 
 JOHN NICHOLL. 
 
 COMMONS, September 10th 3 1794. 
 
 DEPARTMENT OF STATE, 
 Philadelphia, 22d. Nov. 1794. 
 
 I hereby certify, That the foregoing are true copies of an ori- 
 ginal communication from Mr. Jay to the Secretary of State. 
 GEORGE TAYLOR, Jr. Chief Clerk.
 
 APPENDIX. 309 
 
 The ensuing Paper contains a thorough investigation and justifi- 
 cation of the principles adhered to by the Court of Admiralty 
 in England, in cases of capture of the ships and property of 
 neutral powers in tirae of war. It was composed on a memo- 
 rable occasion by the united abilities of the great law officers at 
 that time in the service of the crown, and has ever since been 
 received as the standard of authority in cases of that nature. 
 
 THE DUKE OF NEWCASTLE'S LETTER, 
 
 By his Majesty's order, to Monsieur Mien ELL, the King of 
 Prussia's Secretary of the Embassy, in answer to the Memo- 
 rial, and other papers, delivered by Monsieur Mien ELL to 
 the Duke of Newcastle on the 23d of November and 13th of 
 December, 1752. 
 
 WHITEHALL, Feb. 8, 1753. 
 SIR, 
 
 I LOST no time in laying before the king the memorial which 
 you delivered to me on the 23d of November last, with the papers 
 that accompanied it. 
 
 His majesty found the contents of it so extraordinary, that he 
 would not return an answer to it, or take any resolution upon it, 
 till he had caused both the memorial and the Exposition des Mo- 
 tifs, &c. which you put into my hands soon after by way of jus- 
 tification of what had passed at Berlin, to be maturely consider- 
 ed ; and till his majesty should thereby be enabled to set the pro- 
 ceedings of the courts of admiralty here in their true light ; to the 
 end that his Prussian majesty, and the whole world, might be 
 rightly informed of the regularity of their conduct; in which they 
 appear to have followed the only method which has ever been prac- 
 tised by nations where disputes of this nature could happen ; and 
 strictly to have conformed themselves to the law of nations, uni- 
 versally allowed to be the only rule, in such cases, when there is 
 nothing stipulated to the contrary by particular treaties between 
 the parlies concerned. This examination, and the full knowledge 
 of the facts resulting from it, will she>vso clearly the irregularity
 
 310 APPENDIX. 
 
 of the proceedings of those persons to whom this affair was refer- 
 red at Berlin, that it is not doubted, from his Prussian majesty's 
 justice and discernment, but that he will be convinced thereof, 
 and will revoke the detention of the sums assigned upon Silesia; 
 the payment of which his Prussian majesty engaged to the empress 
 queen to take upon himself, and of which the reimbursement was 
 an express article in the treaties, by which the cession of that 
 dutchy was made. 
 
 I therefore have the king's orders to send you the report made 
 to his majesty upon the papers above mentioned by sir George 
 Lee, judge of the prerogative court ; doctor Paul, his majesty's 
 advocate general in the courts of civil law; sir Dudley Ryder, 
 and Mr. Murray, his majesty's attorney and solicitor general. 
 This report is founded on the principles of the law of nations, 
 received and acknowledged by authorities of the greatest weight 
 in all countries; so that his majesty does not doubt but that it 
 will have the effect desired. 
 
 The points upon which this whole affair turns, and which are 
 decisive, are, 
 
 First,That affairs of this kind are, and can be, cognizable only 
 in the courts belonging to that power where the seizure is made; 
 and consequently that the erecting foreign courts or jurisdictions 
 elsewhere, to take cognizance thereof, is contrary to the known 
 practice of all nations in the like cases : and therefore a proceed, 
 ing which none can admit. 
 
 Secondly, That those courts which are generally styled courts 
 of admiralty, and which include both the inferior courts and the 
 courts of appeal, always decide according to the universal law of 
 nations only ; except in those cases where there are particular 
 treaties between the powers concerned, which have altered the 
 dispositions of the law of nations, or deviate from them. 
 
 Thirdly, That the decisions in the cases complained of appear, 
 by the enclosed report, to have been made singly upon the rule 
 prescribed by the law of nations; which rule is clearly establish- 
 ed by the constant practice of other nations, and by the authority 
 of the greatest men. 
 
 Fourthly, That in the cnse in question, there cannot even be 
 pretended to be any treaty that has altered this rule, or by vir-
 
 APPENDIX. 311 
 
 tue of which the parties could claim any privileges which the law 
 of nations does not allow them. 
 
 Fifthly, That as, in the present case, no just grievance can be 
 alleged, nor the least reason given for saying that justice has been 
 denied when regularly demanded; and as, in most of the cases 
 complained of, it was the complainants themselves who neglected 
 the only proper means of procuring it ; there cannot, consequent- 
 ly, be any just cause or foundation for reprisals. 
 
 Sixthly, That even though reprisals might be justified by the 
 known and general rules of the law of nations, it appears by the 
 report, and indeed from considerations which must occur to every 
 body, that sums due to the king's subjects by the empress 
 queen, and assigned by her upon Silesia, of which sums his Prus- 
 sian majesty took upon himself the payment, both by the treaty 
 of Breslau and by that of Dresden, in consideration of the cession 
 of that country, and which, by virtue of that very cession, ought 
 to have been fully and absolutely discharged in the year 1745, 
 that is to say one year before any of the facts complained of did 
 happen, could not, either in justice or reason, or according to 
 what is the constant practice between all the most respectable 
 powers, be seized or stopt by way of reprisals. 
 
 The several facts which are particularly mentioned above are so 
 clearly stated and proved in the enclosed report, that I shall not 
 repeat the particular reasons and authorities alleged in support of 
 them, and in justification of the conduct and proceedings in ques- 
 tion. The king is persuaded that these reasons will be sufficient 
 also to determine the judgment of all impartial people in the pre- 
 sent case. 
 
 It is material to observe upon this subject, that this debt on 
 Silesia was contracted by the late emperor Charles the Sixth, who 
 engaged not only to fulfil the conditions expressed in the contract, 
 but even to give the creditors such further security as they might 
 afterwards reasonably ask. This condition had been very ill per- 
 formed by a transfer of the debt, which had put it in the power of 
 a third person to seize and confiscate it. 
 
 You will not be surprised, sir, that in an a flair which has so 
 greatly alarmed the whole nation, who are entitled to that pro. 
 fcctiou hich his majesty cannot dispense with himself from-
 
 312 APPENDIX. 
 
 granting, the king has taken time to have things examined to the 
 bottom, and that his majesty finds himself obliged, by the facts, 
 to adhere to the justice and legality of what has been done in his 
 courts, and not to admit the irregular proceedings which have 
 been carred on elsewhere. 
 
 The late war furnished many instances which ought to have 
 convinced all Europe how scrupulously the courts here do justice 
 upon such occasions. They did not even avail themselves of an 
 open war to seize or detain the effects of the enemy, when it ap- 
 peared that those effects were taken wrongfully before the war. 
 This circumstance must do honour to their proceedings ; and will, 
 at the same time, shew, that it was as little necessary as proper 
 to have recourse elsewhere to proceedings entirely new and unu- 
 sual. 
 
 The king is fully persuaded that what has passed at Berlin has 
 been occasioned, singly, by the ill-grounded informations which 
 his Prussian majesty has received of these affairs ; and does not at 
 all doubt but that, when his Prussian majesty shall see them in 
 their true light, his natural disposition to justice and equity will 
 induce him immediately to rectify the steps which have been oc- 
 casioned by those informations, and to complete the payment of 
 the debt charged on the Dutchy of Silesia, according to his en- 
 gagements for that purpose. 
 
 I am, with much consideration, 
 Sir, 
 Your most obedient humble servant, 
 
 HOLLER NEWCASTLlj. 
 
 TO THE KING'S MOST EXCELLENT MAJESTY. 
 
 May it pltasc your Majesty , 
 
 In obedience to your majesty's commands, signified to us by his 
 grace the duke of Newcastle, we have taken the memorial, sen- 
 tence of the Prussian commissioners, and lists marked A. and B. 
 which were delivered to his grace by Monsieur Michell, the Prus- 
 sian secretary here, on the 23d of November last ; and also the 
 printed Exposition des Motifs, &c. which was delivered to his
 
 APPENDIX. 313 
 
 grace the 13th of December last, into our serious consideration; 
 and we have directed the proper officer to search the registers of 
 the court of admiralty, and inform us how the matter appeared 
 from the proceedings there, in relation to the cases mentioned in 
 the said lists A. and B. which he has accordingly done. 
 
 And your majesty having commanded us to report our opinion 
 concerning the nature and regularity of the proceedings under the 
 Prussian commission mentioned in the said memorial, and of the 
 claim or demand pretended to be founded thereupon, and how far 
 the same are consistent with, or contrary to, the law of nations, 
 and any treaties subsisting between your majesty and the king of 
 Prussia, the established rules of admiralty jurisdiction, and the 
 laws of this kingdom; 
 
 For the greater perspicuity,webeg leave to submit our thoughts 
 upon the whole matter in the following method : 
 
 1st, To state the clear established principles of law. 
 
 2dly, To state the fact. 
 
 3dly, To apply the law to the fact. 
 
 4thly, To observe upon the questions, rules and reasoning al- 
 leged in the said memorial, sentence of the Prussian commission- 
 ers, and Exposition des Motifs, &c. which carry appearances of 
 objections to what we shall advance upon the former, heads. 
 First, as to the LAW- 
 
 When two powers are at war, they have a right to make prizes 
 of the ships, goods, and effects of each other upon the high seas : 
 whatever is the property of the enemy may be acquired by cap- 
 ture at sea; but the property of a friend cannot be taken, provid- 
 ed he observed his neutrality. 
 
 Hence the law of nations has established, 
 
 That the goods of an enemy on board the ship of a friend may 
 be taken. 
 
 That the lawful goods of a friend on board the ship of an ene- 
 my ought to be restored. 
 
 That contraband goods going to the enemy, though the proper- 
 ty of a friend, may be taken as prize, because supplying the ene- 
 my with what enables him better to carry on the war is a depar- 
 ture from neutrality. 
 40
 
 314 APPENDIX:. 
 
 By the maritime law of nations universally and immemorially 
 received, there is an established method of determination, whe- 
 ther the capture be, or be not, lawful prize. 
 
 Before the ship or goods can be disposed of by the captor, there 
 must be a regular judicial proceeding wherein both parties may 
 be heard, and condemnation thereupon as prize in a court of ad- 
 miralty, judging by the law of nations and treaties. 
 
 The proper and regular court for these condemnations, is the 
 court of that state to whom the captor belongs. 
 
 The evidence to acquit or condemn^ with or without costs or 
 damages, must, in the first instance, come merely from the ship 
 taken, viz. the papers on board, and the examination on oath of 
 the master and other principal officers; for which purpose there 
 are officers of admiralty in all the considerable seaports of every 
 maritime power at war, to examine the captains and other princi- 
 pal officers of every ship brought in as prize, upon general and 
 impartial interrogatories. If there do not appear from thence 
 ground to condemn as enemy's property, or contraband goods 
 going to the enemy, there must be an acquittal ; unless from the 
 aforesaid evidence the property shall appear so doubtful, that it 
 is reasonable to go into the further proof thereof. 
 
 A claim of ships or goods must be supported by the oath of 
 somebody, at least as to belief. 
 
 The law of nations requires good faith ; therefore every ship 
 must be provided with complete and genuine papers, and the mas- 
 ter at least should be privy to the truth of the transaction. 
 
 To enforce these rules, if there be false or colourable papers, 
 if any papers be thrown overboard, if the master and officers exa- 
 mined in proeparatorio grossly prevaricate, if proper ship's pa- 
 pers are not on board, or if the master and crew cannot say whe- 
 ther the ship or cargo be the property of a friend or enemy, the 
 law of nations allows, according to the different degrees of misbe- 
 haviour or suspicion arising from the fault of the ship taken, and 
 other circumstances of the case, costs to be paid, or not to be re- 
 ceived, by the claimant in case of acquittal and restitution. On 
 the other hand, if a seizure is made without probnble cause, the 
 captor is adjudged to pay costs and drxniagos: for which purpose
 
 APPENDIX. 
 
 till privateers are obliged to give security for their good beha- 
 viour; and this is referred to, and expressly stipulated by, many 
 treaties.* 
 
 Though, from the ship's papers, and the preparatory examina. 
 tions, the property do ot sufficiently appear to be neutral, the 
 claimant is often indulged with time to send over affidavits to sup. 
 ply that defect : if he will not shew the property by sufficient affi- 
 davits to tie neutral, it is presumed to belong to the enemy. 
 Where the property appears from evidence not on board the ship 5 
 the captor isjustified in bringing her in, and excused paying costs, 
 because he is not in fault; or, according to the circumstances of 
 the case, may be justly entitled to receive his costs. 
 
 If the sentence of the court of admiralty is thought to be erro- 
 neous, there is in every maritime country a superior court of re- 
 view, consisting of the most considerable persons, to which the 
 parties, who think themselves aggrieved, may appeal; and this 
 superior court judges by the same rule which governs the court 
 of admiralty, viz. the law of nations, and the treaties subsisting 
 with that neutral power whose subject is a party before them. 
 
 If no appeal is offered, it is an acknowledgment of the justice 
 of the sentence by the parties themselves, and conclusive. 
 
 This manner of trial and adjudication is supported, alluded to^ 
 and enforced by many treaties. f 
 
 * Treaty between England and Holland, 17 Feb. 1668. Art. 13. Treaty 
 3 Dec. 1674. Art. 10. Treaty between England and France at St. Ger- 
 mains, 24th of Feb. 1677. Art. 10. Treaty of Commerce at Ryswick, 
 Sept. 20, 1697, between France and Holland, Art. 30. Treaty of Com- 
 merce at Utrecht, 31 March, 1713, between Great Britain and France, 
 Art. 29. 
 
 j- As appears with respect to courts of admiralty adjudging the prizes 
 taken by those of their own nation, and withfrespect to the witnesses to 
 be examined in those cases, from the following treaties : Treaty between. 
 England and Holland, 17 Feb. 1668. Art. 9 and 14. Treaty 1 Dec. 1674. 
 Art. 11. Treaty 29th of April, 1689. Art. 12, 13 Treaty between Eng- 
 land and Spain, 23 May, 1667. Art. 23. Treaty of Commerce at Ryswick, 
 20 Sept. 1697, between France and Holland. Art. 26 and 31. Treaty be- 
 tween England and France, 3 Nov. 1655. Art. 17 and 18. Treaty of Com- 
 merce between England and France at St. Germain's, 29 March, 1632. 
 Art. 5*and 6. Treaty at St. Germain's^ 24 Feb. 1677. Art. 7 Treaty of
 
 316 APPENDIX. 
 
 In this method all captures at sea were tried, during the last 
 war, by Great Britain, France, and Spain, and submitted to by 
 the neutral powers. In tni 3 method, by courts of admiralty act- 
 ing according to the law of nations and particular treaties, all 
 captures at sea have itnmemorially been jndged of in every coun. 
 try of Europe. Any other method of trial -would be manifestly 
 unjust, absurd, and impracticable. 
 
 Though the law of nations be the general rule, yet U may, by 
 mutual agreement between two powers, be varied or departed 
 from ; and where there is an alteration or exception introduced 
 by particular treaties, that is the law between the parties to the 
 treaty; and the law of nations only governs so far as is not dero- 
 gated from by the treaty. 
 
 Thus by the law of nations, where two powers are at war, all 
 ships are liable to be stopped and examined to whom they belong, 
 and whether they are carrying contraband goods to the enemy ; 
 but particular treaties have enjoined a less degree of search, on the 
 faith of producing solemn passports and formal evidences of pro. 
 perty duly attested. 
 
 Particular treaties too have inverted the rule of the law of na- 
 tions, and by agreement declared the goods of a friend on board 
 the ship of an enemy to be prize, and the goods of an enemy on 
 board the ship of a friend to bs free, as appears from the treaties 
 already mentioned, and many others.* 
 
 Commerce between Great Britain and France, at Utrecht, 31 March, 1713. 
 Art. 26 and 30. Treaty between England and Denmark, 29 Nov. 1669. 
 Art. 23 and 34. Ifclnecciits, \vlio was privy counsellor to tlie king of Prus- 
 sia, and held in the greatest esteem, in his Treatise de Nuvibus ob vectu- 
 rain vetitarum mcrciuni commissis, cap. 2. sect. 17 and 18, speaks of this 
 method of trial. 
 
 With respect to appeals or reviews, from Treaty between England and 
 Holland, 1 Dec. 1674. Art. 12, as it is explained by Article 2. of the Trea- 
 ty at Westminster, 6 Feb. 1715-16 Treaty between England and France, 
 at St. Germain's, 24 Feb. 1677. Art. 12. Treaty of Commerce at Uys- 
 wick, 20 Sept. 1697, between France and Holland, Art. 33 Treaty of 
 Commerce at Utrecht, 31 March, 1713, between Great Britain and France, 
 Art. 31 and 32, and other Treaties. 
 
 * Particularly by the aforesaid Treaty between England and Holland, 1 
 Dec. 1674, and the Treaty of Utrecht between Great Britain and France.
 
 APPENDIX. 317 
 
 So likewise, by particular treaties, some goods reputed contra, 
 band by the law of nations are declared to be free. 
 
 If a subject of (he king of Prussia is injured by, or has a de- 
 mand upon any person here, he ought to apply to your majesty's 
 co'urts of justice, which are equally open and indifferent to fo- 
 reigner or native; so, vice versa, if a subject here is wronged by 
 a person living in the dominions of his Prussian majesty, he ought 
 to apply for redress in the king of Prussia's courts of justice. 
 
 If the matter of complaint be a capture at sea during war, and 
 the question relative to prize, he ought to apply to the judica- 
 tures established to try these questions. 
 
 The law of nations, founded upon justice, equity, convenience, 
 and the reason of the thing, and confirmed by long usage, does 
 not allow of reprisals, except in case of violent injuries directed 
 or supported by the state, and justice absolutely denied in re mi- 
 nime dubid by all the tribunals, and afterwards by the prince.* 
 
 Where the judges are left free, and give sentence according to 
 their conscience, though it should be erroneous, that would be no 
 ground for reprisals. Upon doubtful questions different men 
 think and judge differently; and all a friend can desire is, that 
 justice should be impartially administered to him, as it is to the 
 subjects of that prince in whose courts the matter is tried. 
 Secondly, as to the FACT. 
 
 We have subjoined hereto two lists tallying with those marked 
 A. and B. which were delivered to his grace the duke of Newcas- 
 tle by Mons. Michell, with the said memorial, the 23d of No- 
 Tember last; and also printed at the end of the said Exposition 
 de s Motifs, &c. from whence it will appear, that as to the list A. 
 which contains 18 ships and their cargoes, 
 
 Four, if ever taken, were restored by the captors themselves, to 
 the satisfaction of the Prussians, who never have complained in 
 any court of justice here. 
 
 * Grotins dc jfwe Belli ac Pads, lib. 3. cap. 2. sect. 4, 5. 
 
 Treaty between England and Holland, 31 July, 1667 Art. 31. Repri- 
 sals shall- not be granted till justice has been demanded according to the 
 ordinary course of law. 
 
 Treaty of Commerce at Ryswick, 20 Sept. 1697, between France and 
 Holland, Art._4. Reprisals shall not be granted but on manifest denial of 
 justice.
 
 318 APPENDIX. 
 
 One was restored by sentence, with full costs and damages, 
 which were liquidated at 2801/. 12s. Id. sterling. 
 
 Three ships were restored by sentence, with freight, for such 
 of the goods as manifestly belonged to the enemy, and were con- 
 demned. 
 
 Four ships were restored by sentence, but the cargoes, or part 
 of them, condemned as prize or contraband, and are not now al- 
 leged in the lists A. or B. to have been Prussian property. 
 
 Five ships and cargoes were restored by sentence, but the 
 claimant subjected to pay costs, because, from the ship-papers 
 and preparatory examinations, there was ground to have con. 
 demned, and the restitution was decreed merely on the faith of 
 affidavits afterwards allowed. 
 
 One ship and cargo was restored by sentence upon an appeal, 
 but, from the circumstances of the capture,without costs on either 
 side. 
 
 There need no observations upon this list. As to the eight 
 cases first above mentioned, there cannot be the colour of com- 
 plaint. 
 
 As to the four next, the goods must be admitted to have been 
 rightly condemned, either as enemy's property or contraband, for 
 they are not now mentioned in the lists A. or B. 
 
 If contraband, the ship could have neither freight nor costs, 
 and the -sentences were favourable in restoring the ships, upon 
 presumption that the owners of the ships were not acquainted 
 with the nature of the cargo or the owners thereof. If enemy's 
 property, the ships could not be entitled to freight, because the 
 bills of lading were false, and purported the property to belong 
 to Prussians. 
 
 The ships could not be entitled to costs, because the cargoes, 
 or part of them, being lawful prize, the ships were rightly brought 
 in. 
 
 As the six remaining ships and cargoes were restored, the only 
 question must be upon paying or not receiving costs, which de- 
 pends upon the circumstances of the capture, the fairness of the 
 ship's documents, and conduct of her crew; and neither the Prus- 
 sian commissioners, the said memorial, or eaid Exposition des
 
 APPENDIX. 
 
 Motifs, &c. allege a single reason why, upon the particular cir- 
 cumstances of these cases, the sentences were wrong. 
 As to the list B. 
 
 Every ship, on board which the subjects of Prussia claim to 
 have had property, was bound to or from a port of the enemy ; 
 and many of them appeared to be, in part, laden with the goods 
 of the enemy, either under their own or fictitious names. 
 
 In every instance where it is suggested that any part of the 
 cargo belonged to a Prussian subject, though his property did not 
 appear from the ship's papers, or preparatory examinations, 
 which it ought to have done, sufficient time was indulged to that 
 Prussian subject to make an affidavit that the property was bond, 
 fide in him ; and the affidavit of the party himself has been receiv- 
 ed as proof of the property of the Prussian, so as to entitle him 
 to restitution. 
 
 Where the party will not swear at all, or swears evasively, it 
 js plain he only lends his name to cover the enemy's property, as 
 often came out to be the case beyond the possibility of doubt. 
 
 It appears by a letter 29th of May and 9th of June, 1747, 
 from Mons. Andrie to his Prussian majesty, exhibited in a cause, 
 and certified to be a true extract by Mons. Michell, under his 
 hand, that this colourable manner of screening the goods of the 
 enemy was stated in the following words: 
 
 4i Your majesty's subjects ought not to load on board neutral 
 ships any goods really belonging to the enemies of England, but 
 to load them for their own account,whereby they may safely send 
 them to any country they shall think proper, without any risk. 
 Then, if privateers commit any damage to the ships belonging to 
 your majesty's subjects, you may depend on full justice being 
 done here, as in all the like cases hath been done." 
 List B. contains thirty-three cases. 
 
 Two of them never came before a court of justice in England, 
 but (if taken) were restored by the captors themselves, to the en- 
 tire satisfaction of the owners. 
 
 In sixteen of them the goods claimed by the Prussian subjects 
 appear to have been actually restored, by sentence, to the masters 
 of ships in which they were laden ; and by the customs of the 
 sea the master is in the place of the ladfr, and answerable to him.
 
 320 APPENDIX. 
 
 In fourteen of the cases the Prussian property was not verified 
 by the ship's papers, or preparatory examinations, or claimant's 
 own affidavit, which he was allowed time to make. 
 
 Arid the other cause, with respect to part of the goods, is still 
 depending, neither party having moved for judgment.* And so 
 conscious were the claimants that the court of admiralty did 
 right, there is not an appeal, in a single instance, in list B. ; and 
 but one in list A. 
 
 Thirdly, to apply the law to the FACT. 
 
 The sixth question in the said Exposition dcs Motifs, &c. 
 states the right of reprisals to be, " puisqu'on leur a si long 
 terns denic toute Injustice, qu'ils etoient fondes de demandcr ." 
 
 The said memorial founds the justice and propriety of his 
 Prussian majesty's having recourse to reprisals, because his sub- 
 jects, "n'ontpu obtenir jusqu'' a present aucune justice des tri- 
 bunaux Anglois qu'ils ont reclames ou du gouvernement auquel 
 Us ont ports les plalntes. 1 " And in another part of the memorial 
 it is put, " apres avoir en vain demands des reparations deceux 
 qui seuls pouvoicnt les f aire. 
 
 The contrary of all which is manifest from the above state and 
 lists hereto annexed. 
 
 In six of the cases specified, if such captures ever were made, 
 the Prussian subjects were so well satisfied with the restitution 
 made by the captors, that they never complained in any court 
 whatsoever of this kingdom. 
 
 The rest were judged of by a court of admiralty, the only pro. 
 per court to decide of captures at sea, both with respect to the res- 
 titution and the damages and costs ; acting according to the law of 
 nations, the only proper rule to decide by ; and justice has been 
 done by the court of admiralty so impartially, that all the ships 
 alleged in list A. to have been Prussian were restored, and all 
 the cargoes mentioned in either list A. or B. were restored, ex- 
 cepting fifteen, one of which is still undetermined. 
 
 And, in all the cases in both lists, justice was done so entirely 
 to the conviction of the private conscience of the Prussian claim. 
 
 * The Prussian lias since applied for judgment on the 29th of January, 
 and obtained restitution.
 
 APPENDIX. 3*1 
 
 ants, that they have acquiesced under the sentences without ap- 
 pealing, except in one single instance, where the part of the sen. 
 tence complained of was reversed ; 
 
 Though the Prussian claimants must know that, by the law of 
 nations, they ought not to complain to their own sovereign till 
 injustice in re minime dubid was finally done them, past redress ; 
 and though they must know that rule of the law of nations held 
 more strongly upon (his occasion, because the property of prize 
 was given to (he captors, and ought therefore to be litigated with 
 them. The Prussian who. by his own acquiescence, submits to 
 the captors having the prize, caimot afterwards with justice make 
 a demand upon the state. If the sentence was wrong, it is owing 
 to the fault of the Prussian that it was not redressed. But it is 
 not attempted to be shewn, even now, that these sentences were 
 unjust in any part of them, according to the evidence and circum- 
 stances appearing before the court of admiralty; and that is the 
 criterion. 
 
 For as to the Prussian commission to examine these cases, ex 
 parte, upon new suggestions, it never was attempted in any coun- 
 try of the world before: prize or not prize, must be determined 
 by courts of admiralty belonging to the power whose sxibjects 
 make the capture. Every foreign prince in amity has a right to 
 demand that justice shall be done his subjects in these courts, ac- 
 cording to the law of nations, or particular treaties, where any 
 are subsisting. If in re minime dubid these courts proceed upon 
 foundations directly opposite to the law of nations, or subsisting 
 treaties, the neutral state has a right to complain of such deter, 
 initiation. 
 
 But there never was, nor never can be, any other equitable 
 method of trial. All the maritime nations of Europe have, when 
 at war, from the earliest times, uniformly proceeded in this way, 
 with the approbation of all the powers at peace. Nay, the per- 
 sons acting under this extraordinary and unheard-of commission 
 from his Prussian majesty, do not pretend to say, that in the four 
 cases of goods condemned here, for which satisfaction Is demanded 
 in list A. the property really belonged to Prussian subjects ; but 
 they* profess to proceed upon this principle, evidently false, that 
 though these cargoes belonged to the enemy, yet, being on board
 
 322 APPENDIX. 
 
 any neutral ships, they were not liable to inquiry, seizure, of 
 condemnation. 
 
 Fourthly, from the questions, rules, reasonings, and matters al- 
 leged in the said memorial, sentences of the Prussian commis- 
 sioners, and Exposition des Motifs, &c. the following propo- 
 sitions may be drawn as carrying the appearance of objections 
 to what has been above laid down : 
 
 / '"V " , 
 
 FIRST PROPOSITION. 
 
 " That by the law of nations the goods of an enemy cannot be 
 taken on board the ship of a friend ; and this the Prussian com- 
 missioners lay down as the basis of all they have pretended to 
 do." 
 
 ANSWER. The contrary is too clear to admit of being disput- 
 ed,. It may be proved by the authorities of every writer of the 
 law of nations; some of different countries are referred to.* It 
 may be proved by the constant practice, ancient and modern ; 
 but the general rule cannot be more strongly proved than by the 
 exception which particular treaties have made to it.t 
 
 * II Consolato itel Mare, cap. 273, expressly says, *' The enemy's goods, 
 found on board a friend's ship, shall be confiscated." And this is a book 
 of great authority. 
 
 Grotius de Jure Belli ac Pads, lib. iii. cap. 1, section 5, numero 4, in 
 the notes, cites this passage, in the // Consolato, and in his notes, lib. iii, 
 cap. 6. sect. 6. 
 
 Loccenhis de Jure Maritlmo, lib. ii. cap. 4, sect. 12. 
 
 Voet de Jure Militarl, cap. 5, nu. 21. 
 
 Heinecdus, the learned Prussian before quoted, de Navibus ob Vecturarn 
 uetitarum Merciuin commissis, cap. 2, sect. 9. is clear and explicit upon 
 this point. 
 
 Bynkersboeck ^tuettiones Juris Public!, lib. i. cap. 14, per totum. 
 
 Zoucli (an Englishman) in his book de Judlcio inter Gentes, pars 2, sect. 
 8, numero 6. 
 
 Treaty between Great Britain and Sweden, 23 Oct. 1661. Art. 12 and 
 13; Treaty between Great Britain and Denmark, 19 Nov. 1669. Art. 2 ; 
 and the passport or certificate, settled by that treaty, are material as tothig 
 point, 
 
 f Treaty between France and England, 24 Feb. 1677. Art. 8. 
 
 Treaty of Utrecht between France and ling-land, 1713. Art. 17.
 
 APPENDIX. 323 
 
 SECOND PROPOSITION. 
 
 " It is alleged that lord Carteret, in 1744, by two verbal de- 
 clarations, gave assurances in your majesty's name that nothing 
 on board a Prussian ship should be seized, except contraband; 
 consequently, that all effects not contraband, belonging to the 
 enemy, should be free; and that these assurances, were afterwards 
 confirmed in writing by lord Chesterfield, the 5th of January, 
 1747." 
 
 ANSWER. The fact makes this question not very material, be- 
 cause there are but four instances in lists A. or B. where any 
 goods on board a Prussian ship have been condemned ; and no sa- 
 tisfaction is pretended to be demanded for any of those four car- 
 goes in lists A. and B. However, it may be proper to shew how 
 groundless this pretence is. 
 
 Taking the words alleged to have been said by lord Carteret as 
 they are stated, they do not warrant the inferences endeavoured 
 to be drawn from them. They import no new stipulation diffe- 
 rent from the law of nations, but expressly profess to treat the 
 Prussians upon the same foot with the subjects of other neutral 
 powers under the like circumstances ; i. e. with whom there was 
 no particular treaty. For the reference to neutral powers cannot 
 be understood to communicate the terms of any particular treaty. 
 It is not so said. The treaties with Holland, Sweden, Russia, 
 Portugal, Denmark, Sec. all differ. Who can say which was 
 communicated ? There would be no reciprocity : the king of 
 Prussia does not agree to be bound by the clauses to which other 
 powers have, by their respective treaties, agreed. No Prussian 
 goods on board an enemy's ship have ever been condemned here, 
 and yet they ought, if the treaties with Holland were to be the 
 rule between Great Britain and Prussia; nay. if these treaties 
 were to be the rule, all now contended for, on the part of Prus- 
 sia, is clearly wrong ; because, by treaty, the Dutch, in the last 
 resort, are to apply to the court of appeal here. 
 
 Treaty between England and Holland, 17 Feb. 1668. Art. 10. 
 Treaty between England and Holland, 1 Dec. 1674. Art. 8. 
 Treaty between England and Portugal, 10 July, 1654. Art. 23. 
 Treaty between France and the States General at Utrecht, 11 April, 
 1713. Art. 26.
 
 324 APPENDIX. 
 
 Treaty of Alliance between Great Britain and Holland, at West- 
 minster^ the 6th of Feb. 1715-16, Article II. 
 
 *' Whereas some disputes have happened touching the explans. 
 tion of the 12th, article of the treaty marine in 1674, it is agreed 
 and concluded for deciding any difficulty upon that matter, to de- 
 clare by these presents, that by the provisions mentioned in the 
 said article, are meant those which are received by custom in Great 
 Britain and the United Provinces, and always have been received, 
 which have been granted, and always are granted, in the like 
 case, to the inhabitants of the said countries, and to every foreign 
 nation." 
 
 Lord Carteret is said twice to have refused, in which monsieur 
 Andrie acquiesces, to give any thing in writing, as not usual in 
 England*. 
 
 Supposing the conversations to mean no more than a declara- 
 tion of course th;tt justice should be done to the Prussians in like 
 manner as to any other neutral power with whom there was no 
 treaty, there was no occasion for instruments in writing; because 
 in England the crown never interferes with the. course of justice. 
 No order or intimation is ever given to any judge. Lord Carte- 
 ret therefore know that it was the duty of the court of admiralty 
 to do equal justice, and that they would, of themselves, do what 
 he said to monsieur Andrie. 
 
 Had it been intended, by agreement, to introduce between 
 Prussia and England a variation in any particular from the law 
 of nations, and consequently a new rule for the court of admiral, 
 ty to decide by, it could only be done by a solemn treaty, in writ, 
 ing, properly authorized and authenticated. The memory of it 
 could not otherwise be preserved ; the parties interested and the 
 courts of admiralty could not otherwise take notice of it. 
 
 But lord Chesterfield's confirmation, in a letter of the 5th of 
 January, 1747, being relied upon, the books of the secretary's 
 office have been searched, and the letter to monsieur Michell i* 
 found, which is verbatim as follows :
 
 APPENDIX. 325 
 
 A WHITEHALL, le 5 Janv. 1747.8. 
 
 " MONSIEUR, 
 
 (i Ay ant eu Phonneur de recevoir les ordres du roy sur ce qui 
 a forme le sujct du memoire que vous m'av.ez rends du 8 de ce 
 mois, N. S. Je n'ai pas voulu larder a vous informer, que sa 
 mdjeste,pour ne rien omettre par oit ellc fieut temoigner ses at- 
 tentions envers le roy votre maitre, ne fait nulle dijficulle de de- 
 clarer, qu'elle rtajumuis eu V intention, ni ne Faura jamuis, de 
 donner le moindre empechement a la navigation des sujcts Prus- 
 siens, tant quails auront soin d'exercer leur commerce d'une 
 maniere licite, et conformement a fancien usage elabli et rccon- 
 nu par mi les puissances neutres. 
 
 " Que sa majeste Prussienne ne pent pas ignorer, qu'il y a 
 des traites de commerce qui subsistent actuellement entre la 
 Grande Bretagne et certaines etats neutres, et qu'au moyen des 
 engagemens formellement conlractes de part et d'autre par ccs 
 memes traites, tout ce qui regarde la maniere d'exercer leur 
 commerce reciproquement, a etc fmalcmcnt constate et regie. 
 
 " Qu'en meme terns il ne paroit point qu'aucun traite dc la na- 
 ture susdite existe a present, ou ajarnais existe, entre sa majeste 
 et le roy de Prusse ; mais que pourtant ccla ' jamais empeche 
 que les sujets Prussiens rfayent ele favorises par /' Anglctcrre, 
 par raport a leur navigation, aidant que les autres nations neu- 
 tres : et cela etant,sa majeste ne presuppose //as, que I' idee du roy 
 votre maitre seroit d'cxiger d'elle des distinctions, encore mains 
 des preferences, en faveur de ses sujets a eel egard. 
 
 " Que de plus sa majeste Prussienne cst trap eclair ce pour ne 
 pas connoitre, qifil y a des loix Jixes et etablies dans ce gou~ 
 vernement, dont on ne pent nullement s'ecartcr; et que s'il arri- 
 voit que la marine Angloise s'avisdt de faire la moindre injus- 
 tice aux sujets commerans du roy votre maitre, il y a un tribunal 
 id, savoir, la haute cour de I'amiraute, a laquelle Us se trouventen 
 droit de s^adresser et dc porter leurs plaintes ; assures d^avancc, 
 en fiareil cas, qu'on leur y rendra bonne justice ; les procedes 
 juridiques de ladite courctant et ayant eie dc tout terns hors d'at- 
 teinte et irreprochables ; temoin, nomlre* d'excmples, ait dc
 
 326 APPENDIX. 
 
 vaisseaux neutres, f.ris illidtement, ont ele restitues avecfraixct 
 dommages aitx proprietaires. 
 
 11 Void ce quc le roy m'a ordonne de vous repondre stir le 
 contcnu dc rot re dit we moire ; et sa maje te ne sanroit que se 
 flatter, qu'en consequence de ce qucjeviens d'avancer; il ne res. 
 tera plus rien a desirer au roy votre m ait re relative went a Pob- 
 jet dont il est question ; et le roy s'en croil d'aulant plus asstu /, 
 qu*il cst persuade que sa majeste Prussienne ne voudroit rien dc- 
 mailder que ncfut equitable. 
 
 " Je suis, arcc lien de la consideration, 
 " Monsieur, 
 
 11 Votre tres humble et tres 
 " Obeissant serviteur, 
 
 " CHESTERFIELD." 
 
 There need no observations ; it is explicit, and in express 
 terms puts Prussia upon the foot of other neutral powers with 
 whom there was no treaty, and points out the proper way of ap. 
 plying for redress. 
 
 The verbal declarations made by lord Carteret in 1744, which 
 are said to have been confirmed by this letter from lord Chester- 
 field, cannot have meant more than the letter expresses. 
 
 And it is manifest by the above extract from monsieur Andrie's 
 letter to his Prussian majesty, that in May 1747 monsieur An. 
 drie himself understood that goods of the enemy taken on board 
 neutral ships ought to be condemned as prize. 
 
 It is evident, from authentic acts, that the subjects of Prussia 
 never understood that any new riaht was communicated to them. 
 
 Before the year 1746 the Prussians do not appear to have 
 openly engaged in covering the enemy's property. 
 
 The men of war and privateers could not abstain from captures 
 in consequence of lord Carteret's verbal assurances in 1744, be- 
 cause they never were nor could be known ; and there was no 
 occasion to notify them, supposing them only to promise impartial 
 justice. For all ships of war were bound to act, and courts of 
 admiralty to judge, according to the law of nations and treaties. 
 
 Till 1746 the Prussian documents were, a certificate of the ad- 
 miralty, upon the oath of the builder, that the ship was Prussian
 
 APPENDIX. 327 
 
 built; and a. certificate of the admiralty, upon the oath of the 
 owner, that the ship was Prussian property. 
 
 From 1746 the Prussians engaged in the gainful practice of 
 covering the enemy's goods, but were at a loss in what shape and 
 upon what pretences it might best be done. 
 
 On board the ship the Trois Soeurs was found a pass bearing 
 date at Stettin the 6th of October 1746, under the royal seal of 
 the Prussian regency of Pomerania, Sec. alleging the cargo, which 
 was ship timber, bound for Port L'Orient, to be Prussian pro- 
 perty, and, in consequence thereof, claiming freedom of the ship. 
 
 Claiming freedom to the ship from the property of the cargo 
 being quite new, the proposition was afterwards reversed. And 
 on board a ship called the Jumeaux, was found a pass bearing 
 date at Stettin the 27th of June, 1747, under the royal seal, &c. 
 alleging the ship to be Prussian property, and, in consequence 
 thereof, claiming freedom to the goods. 
 
 But this pass was not solely relied on, for there was also found 
 on board the same ship another pass, bearing date at Stettin the 
 14th of June 1747, under the royal seal, Sec. alleging the cargo 
 to be Prussian property. 
 
 And it is remarkable that the oaths upon which these passes 
 were granted, appeared manifestly to be false; and neither of the 
 cargoes to which they relate are now so much as alleged to have 
 been Prussian property in said list A or B. 
 
 It being mentioned in the said Exposition des Motifs, &c. that 
 Mons. Michel!, in September, 1747, made verbal representations 
 to lord Chesterfield in respect to the cargo taken on board the 
 said ship called the Trois Soeurs, which was claimed as Prussian 
 property, and no mention being made in the lists A. and 15. of the 
 said cargo, we directed the proceedings in that cause to be laid 
 before us; where it appears in the fullest and clearest manner, 
 from the ship.papers and depositions, that the cargo was timber, 
 laden on the account and at the risque of Frenchmen, to whom 
 it was to be delivered at Port L'Orient, thev paying freight ac- 
 cording to charter party ; that ths Prussian claimant was nei- 
 ther freighter, lader, or consignee; and had no other interest or 
 concern in the matter than to lend his name and conscience; for 
 he swore that the cargo was his property, and laden on or be-
 
 328 APPENDIX. 
 
 fore the 6th of October, 1746, and yet the ship was then in bal. 
 last, and the whole of the cargo in question was not laden before 
 May 1747. 
 
 Several other Prussian claims had, in like manner, come out so 
 elearly to be merely colourable, that Mons. Andrie, from his 
 said letter the 29th of May and 9th of June, 1747, appears to 
 have been ashamed of them. 
 
 THIRD PROPOSITION. 
 
 " That Lord Carteret, in his said two conversations, specified, 
 in your Majesty's name, what goods should be deemed contra- 
 band." 
 
 ANSWER. The fact makes this question totally immaterial, 
 because no goods condemned as contraband, or which were alleg- 
 ed to be so, are so much as now suggested to have been Prussian 
 property in the said lists A. and B. ; and therefore, whether as 
 enemy's property or contraband, they were either way rightly 
 condemned ; and, the bills of lading being false, the ships could 
 not be entitled to freight. 
 
 But if the question was material, the verbal declarations of a 
 minister in conversation might shew what he thought contraband 
 by the law of nations, but never could be understood to be equi- 
 valent to a treaty derogating from that law. 
 
 All the observations upon the other parts of these verbal de- 
 claration hold equally as to this. 
 
 FOURTH PROPOSITION. 
 
 a That the British ministers have said that these questions were 
 decided according to the laws of England." 
 
 ANSWER. They must have been misunderstood ; for the law 
 of England says, that all captures at sea, as prize, in time of 
 war, must be judged of in a court of admiralty, according to the 
 law of nations and particular treaties, where there are any. 
 
 There never existed a case where a court, judging according to 
 the laws of England only, ever took cognizance of prize. 
 
 The property of prizes being given during the last war to the 
 captors, your majesty could not arbitrarily release the capture,
 
 APPENDIX. 329 
 
 hut left all cases to the derision of the proper courts, judging by 
 law of nations and treaties where there were any; and it never 
 was imagined that the property of a foreign subject, taken as 
 prize on the high seas, could be affected by laws peculiar to Eng. 
 land. 
 
 FIFTH PROPOSITION. 
 
 " That your majesty could no more erect tribunals for trying 
 these matters than the king of Prussia." 
 
 ANSWER. Each crown has, no doubt, an equal right to erect 
 admiralty courts for the trial of prizes taken by virtue of their 
 respective commissions ; but neither has a right to try the prizes 
 taken by the other, or to reverse the sentences given by the other's 
 tribunal. The only regular method of rectifying their errors is, 
 by appeal to the superior court. 
 
 This is the clear law of nations ; and by this method prizes 
 have always been determined in every other maritime country of 
 Europe as well as England. 
 
 SIXTH PROPOSITION. 
 
 " That the sea is free." 
 
 ANSWER. They who maintain that proposition in its utmost- 
 extent, do not dispute but that when two powers are at war they 
 may seize the effects of each other upon the high seas, and on 
 board the ships of friends; therefore that controversy is not in. 
 the least applicable upon the present occasion.* 
 
 SEVENTH PROPOSITION. 
 
 " Great Britain issued reprisals against Spain, on account of 
 captures at sea." 
 
 ANSWER. These captures were not made in time of war with 
 any power. 
 
 * This appears from Grotius in the passages above cited, lib. 3. cap. 1, 
 sect. 5. nu. 4.' in his notes ; and lib. 3. cap. 6. sect. 6. in his notes. 
 
 42
 
 330 APPENDIX. 
 
 They were not judged of by courts of admiralty, according tr 
 the law of nations and treaties, but by rules, which were them, 
 selves complained of in revenue courts'; the damages were after- 
 wards admitted, liquidated at a certain sum, and agreed to be 
 paid by a convention, which was not performed; therefore re- 
 prisals issued, but they were general. No debts due here to Spa. 
 niards were stopped ; no Spanish effects here were seized; which 
 leads to one observation more. 
 
 The king of Prussia has engaged his royal word to pay the Si. 
 lesia debt to private men. 
 
 It is negotiable, and many parts may have been assigned to the 
 subjects of other powers. It will not be easy to find an instance 
 where a prince has thought fit to make reprisals upon a debt due 
 from himself to private men. There is a confidence that this w'ill 
 not be done. A private man lends money to a prince upon the 
 faith of an engagement of honour, because a prince cannot be 
 compelled, like other men, in an adverse way, by a court of jus. 
 tice. So scrupulously did England, France, and Spain adhere to 
 this public faith, that even during the war they suffered no inqui- 
 ry to be made whether any part of the public debts was due to 
 subjects of the enemy, though it is certain many English had mo- 
 ney in the French funds, and many French had money in ours. 
 
 This loan to the late emperor of Germany, Charles the Vlth, 
 in January 1734-5, was not a state transaction, but a mere pri- 
 vate contract with the lenders, who advanced their money upon 
 the emperor's obliging himself, his heirs and posterity, to repay 
 the principal, with interest, at the rate, in the manner, and at the 
 times in the contract mentioned, without any delay, demur, de- 
 duction or abatement whatsoever; and, lest the words and in- 
 struments made use of should not be strong enough, he promises 
 to secure the performance of his contract in and by such other in- 
 struments, method, manner, form, and words, as should be most 
 effectual and valid to bind the said emperor, his heirs, successors 
 and posterity, or as the lenders should reasonably desire. 
 
 As a specific real security, he mortgaged his revenues arising 
 from the Duchies of Upper and Lower Silesia for payment of 
 principal and interest ; and the whole debt, principal and inte. 
 ?est, was to be discharged in the year 1745. If the money could
 
 APPENDIX. 331 
 
 not be paid out of the revenues of Silesia, the emperor, his heirs 
 and posterity, still remained debtors, and were bound to pay. 
 The eviction or destruction of a thing mortgaged, does not extin- 
 guish the debt or discharge the debtor. 
 
 Therefore the empress queen, without the consent of the lend- 
 ers, made it a condition of her yielding the Duchies of Silesia to 
 his Prussian majesty, that he should stand in the place of the late 
 mperor in respect of this debt. 
 
 The seventh of the preliminary articles between the quern of 
 Hungary and the king of Prussia, signed at Breslau the llth of 
 June 1742, is in these words: " Sa majestc le rot de Prusse se 
 charge du sent payment de la somme hypothequee sur la Silesie 9 
 mix marchands Anglais, selon le contract signe a Londres le 
 7 me de Janvier 1734-5." 
 
 This stipulation is confirmed by the ninth article of the treatv 
 between their said majesties, signed at Berlin the 28th of July 
 1742. 
 
 Also renewed and confirmed by the second article of the treaty 
 between their said majesties, signed at Dresden at 25th of Decem- 
 ber 1745. 
 
 In consideration of the empress queen's cession, his Prussian 
 majesty has engaged to her that he will pay this money selon le 
 contract^ and consequently has bound himself to stand in the place 
 of the late emperor in respect of this money, to all intents and 
 purposes. 
 
 The late emperor could not have seized this money as reprisals, 
 or even in case of open war between the two nations, because his 
 faith was engaged to pay it without any delay, demur, deduction, 
 or abatement whatsoever. If these words should not extend to 
 all possible cases, he hath plighted his honour to bind himself by 
 any other form of words more effectually to pay the money; and 
 therefore was liable at any time to be called upon to declare ex- 
 pressly that it should not be seized as reprisals, or in case of 
 war; which is very commonly expressed when sovereign princes 
 or states borrow money from foreigners. Therefore, supposing 
 for a moment that his Prussian Majesty's complaint was found- 
 ed in justice and the law of nations, and that he had a right to 
 make reprisals in general, he could not, consistent with his en-
 
 332 APPENDIX. 
 
 gagements to the empress queen, seize this money as reprisals. 
 Beside, tWs whole debt, according to the contract, ought to have 
 been discharged in 1745. It should, in respect of the private 
 creditors, in justice and equity, be considered as if the contract 
 had been performed; and the Prussian complaints do not begin 
 till 174(5, after the whole debt ought to have been paid. 
 
 Upon this principle of natural justice, French ships and effects 
 wrongfully taken after the Spanish war, and before the French 
 war, have, during the heat of the war with France, and since, 
 been restored by sentence of your majesty's courts. to the French 
 owners. No such ships or effects ever were attempted to be con- 
 fiscated as enemy's property here during the war ; because, had 
 it not been for the wrong first done, these effects would not have 
 been in your majesty's dominions. So, had not the contract 
 been first broke by non-payment of the whole loan in 1745, this 
 money would not have been in his Prussian majesty's hands. 
 
 Your majesty's guaranty of these treaties is entire, and must 
 therefore depend upon the same conditions upon which the ces- 
 sion was made by the empress queen. 
 
 But this reasoning is, in some measure, superfluous ; be- 
 cause, if the making any reprisals upon this occasion be unjus- 
 tifiable, which we apprehend we have shewn, then it is not dis- 
 puted but that the non-payment of this money would be a breach 
 of his Prussian majesty's engagements, and a renunciation, on his 
 part, of those treaties. 
 
 All which is most humbly submitted to your majesty's royal 
 wisdom. 
 
 GEO. LEE. 
 G. PAUL. 
 D. RYDER. 
 W. MURRAY, 
 
 January 18,
 
 APPENDIX. 333 
 
 Translation of the Earl of CHESTERFIELDS Lsltci* to Mons. 
 MIC ii ELL. 
 
 WHITEHALL, January 5, 1747.8. 
 SIR, 
 
 Having had the honour to receive the king's orders upon the 
 subject of the memorial which you delivered fo me on the 8th in- 
 stant, N.S. I would not delay informing you that his majesty, in 
 order to omit nothing whereby he may shew his attention to the 
 king your master, makes no difficulty in declaring, that his ma- 
 jesty has never had, or will have, any intention to give any in- 
 terruption to the navigation of the Prussian subjects, as long as 
 they shall take care to carry on their commerce in a lawful man- 
 ner, and conformably to the ancient usage as established and ac- 
 knowledged amongst neutral powers. 
 
 His Prussian majesty cannot be ignorant that there are treaties 
 of commerce actually subsisting between Great Britain and cer- 
 tain neutral states, and that by means of the engagements for- 
 merly contracted on each side by those treaties, every thing re- 
 lating to the manner of reciprocally carrying on their commerce 
 has been finally settled and regulated. 
 
 At the same time it does not appear that any such treaty exists 
 at present, or ever did exist, between his majesty and the king of 
 Prussia; nevertheless that has never hindered the Prussian sub- 
 jects being favoured by England, with respect to their naviga- 
 tion, as much as other neutral nations: and his majesty does not 
 suppose that the king your master means to require distinctions 
 from his majesty, much less any preferences, in favour of his sub- 
 jects in this point. 
 
 His Prussian majesty is too well informed not to know that 
 there are in this government fixed and established laws which can- 
 not be departed from ; and that in case any English ships of war 
 should commit the least injustice to the trading subjects of the 
 king your master, here is a tribunal, viz. the high court of admi- 
 ralty,where they have a right to apply and make their complaints : 
 and they may be previously assured, that in such case impartial
 
 334 APPENDIX. 
 
 justice will be administered to them ; the juridical proceedings of 
 the said court being, and having ever been unimpeached and ir- 
 reproachable, as appears by numerous examples of neutral ves- 
 sels illegally taken having been restored with costs and damages 
 to the proprietors. 
 
 This is the answer the king has ordered me to give upon the 
 contents of your said memorial ; and his majesty cannot but flat, 
 ter himself that, in consequence hereof, the king jour master's 
 desire will be fully answered, with relation to the point in ques- 
 tion ; and of which his majesty is the more assured, as he is per- 
 suaded that the king of Prussia would not require any thing but 
 what is equitable. 
 
 I am, 
 
 With much consideration,' 
 Sir, 
 Your most obedient, 
 
 And most humble servant, 
 CHESTERFIELD. 
 
 Translation of Mr. Peter Trapau&s Declaration of his having 
 made satisfaction to the Prussians for the damage received by 
 the ship St. John, No. 16, in list A. 
 
 In the exposition which his Prussian majesty has published of 
 such ships of his subjects as were taken by the English in the last 
 war, I have observed in the list A. No. 16, that the ship St. John, 
 John Grosse captain, is therein mentioned as having received 
 some damages to the prejudice of the Prussian owners. As the 
 fact is known to me, as I was the sole owner of her cargo, I do 
 hereby, as such, testify the truth, for the satisfaction of all whom 
 it may concern ; and I cannot conceive how the Prussian subjects 
 dare demand an indemnification, which they have already more 
 than received, as I am going to convince them. 
 
 In the month of November 1747, I ordered the said ship to be 
 freighted at Bourdeaux, and loaded at Lisbon with 1 58| tons of 
 white wine. On the 1st of December following that ship put 
 out to sea. On the llth of the said month she got as far as the 
 Downs, where she was met by an English privateer, called the 
 Prince of Orange, who sent six of his men on board the Prussia;!
 
 APPENDIX. 336 
 
 ihip, and had the Prussian pilot brought on board him, with the 
 ship-papers and documents, in order to their being examined. On 
 the 12th of the said month, as she lay at an anchor, a great storm 
 arose from the W. S.W. which obliged the Prussian captain, with 
 the consent of his crew and of the six Englishmen who were then 
 on board his ships, to cut his cable in order to drive off to sea. 
 The ship got afterwards into Browershavcn inlet in Holland, on 
 the 15 of the said month of December, without any other damage 
 than the loss of part of her cable and of an anchor, and arrived 
 at Rotterdam the 21st of the said month. All this is proved by 
 the declaration of both the captain and his crew, made on the 4th 
 of January 1748, before Jacob Bremer, notary public in Rotter- 
 dam, and afterwards sworn to on the 6th of the said month be- 
 fore the commissioners of the chamber of maritime affairs. 
 
 After the ship was unloaded, the captain gave in to me his ac- 
 count for gross average, consisting of the following articles: 
 
 1. For the loss of his cable and anchor. 
 
 2. For the maintaining, during eight days, the six men who had 
 been put on board his ship by the English privateer. 
 
 3. For a passport I procured for him from the Prussian envoy 
 at the Hague, which cost 3 or 4 florins. 
 
 I paid him for my share in that gross average 704 florins, Hol- 
 land currency, over and above 105 florins which I gave captain 
 Grosse as a present, and 10 florins 10 stivers I gave as a present 
 to the crew of his ship : beside all this, it cost me 20 florins, or 
 thereabouts, in England, which Messrs. Simond (brothers) had 
 disbursed by my order for the Prussian pilot who remained on 
 board the privateer after the storm had parted them. 
 
 Those who understand the navigation and fitting out of ships 
 must allow, that the Prussian owners will find themselves more 
 than reimbursed for all their pretensions by means of the 839 flo- 
 rins 10 stivers, Holland currency, which I have paid them ; and 
 that they cannot, with any foundation, make any other demands. 
 
 All that I have alleged above, can be verified by authentic 
 Touchers (except the presents or gratuities to the captain and his 
 crew, amounting to 115 florins 10 stivers, for which I took no 
 receipt.) In witness whereof I have signed this present declara- 
 tion. Rotterdam, January 30, 1753. 
 
 PETER TRAPAUD. JUX.
 
 336 APPENDIX. 
 
 LIST OF ALL THE PRUSSIAN SHIPS TAKEN BY BRITISH AR- 
 MAMENTS AT SEA, DURING THE LAST WAR, AS WELL THOSE 
 DETAINED FOR EXAMINATION ONLY, AS THOSE JUDICIALLY 
 PROCEEDED UPON, TOGETHER WITH THE JUDGMENTS 
 GIVEN IN THE ADMIRALTY COURTS OF GREAT BR1 ! AIN 
 THEREUPON, TALLYING WITH HIS PRUSSIAN MAJESTY'S 
 LIST MARKED A. 
 
 Ships, which (if taken) were restored by the captors, upn ex- 
 amination, without cither party applying to a court of justice. 
 
 La Frederlque Amitic, Capitaine Sprenger La Catharine 
 
 Christine, Capit. Frederick Berend Le St. Jean,* Capit. 
 
 Jean Grosse. Le Jeune Tobie, Capit. Paul Otto. 
 
 * On the 3d of February, the duke of Newcastle received a letter from 
 Mr. VVolters, his majesty's agent at Rotterdam, enclosing the following 
 declaration : 
 
 " Dans 1'Exposition que sa majeste Prussienne a donnee au public des 
 vaisseaux de ses sujets pris par les Anglois dans la derniere Guerre, j'ai 
 remarque dans la liste A. No. 16 que le navire le St Jean, capitaine Jean 
 Grosse, y est notte comme ayant recu quelques dommages, au prejudice 
 des proprietaircs Prussiens. Comme le fail m'est connu, ayant etc seul 
 proprietaire de sa cargaison, je veux en cette qualite rendre temoignage 
 a la verite, pour servir oil il appartiendra. D'ailleurs, je ne puis corn- 
 prendre comment les sujets Prussiens osent deniatider un dedommage- 
 ment qu'ils ont deja plus que recu, comme je vais les en convaincre. 
 
 " Dans le mois de Xovembre 1747, je fis fretter a B irdeaux, et char- 
 ger a Libourne, le dit navire avec 158 3-4 tonneaux de vin blu'ic. Le rer- 
 de Dec. suivant ce navire mit en mer. Le 11 du dit mois, il se trouva a 
 la hauteur des Dunes ; la il fut rencontre par le corsaire Anglois, nomme 
 Le Prince d'Orange, qui envoya a bord du navire Prussienne, six liommes 
 de son equipage, et fit venir a son bord le pilote Prussien a%ec les p:piers 
 de mer, pour en fairc I'examen Le 12. du dit mois, etanl a I'anrre sous 
 les Cingles, il s'eleva une ftirieuse tempete de la p:trt du W. s. W. qui 
 obligea le capitaine Prussien, du consentement de son equipage, et des six 
 Anglois pour lors dans son bord, de couper le cable pour gagner la mer. 
 Ge navire entra ensuite dans le passage de Browershave en Hnllande, le 
 15e. du dit mois de Decembre, sans avoir eu d'autre dommage que la per- 
 te d'une partie dc son cable, et d'une ancre, et arriva ensuite a Uotterdam
 
 APPENDIX. 337 
 
 Ships and goods restored, vsith all costs and damages attending 
 the capture. 
 
 L'Anne Elizabeth, Capit. Daniel Schultz, costs and damages, 
 280 1/. 11s. Id. 
 
 le 21e. du susdit mois. Tout ceci est constate par la declaration du capi- 
 taine et de son equipage, passee, le 4 Janvier 1748, pardevant Jacob Bre- 
 mer, notaire public dans Rotterdam ; ensuite sermentee, le Ge. du dit mois 
 pardevant les commissaires de la chambre de la marine. 
 
 " Apres que le navire fut decharge, le capitaine me fit fournir son 
 compte d'Avarie grosse, dans lequel il portoit les articles suivans : 
 
 " 1. Pour la perte de son cable et de son ancre. 
 
 ' 2. Pour la nourriture de 8 jours a 6 hommes qui avoient etc mis par 
 le corsaire Anglois snr son bord. 
 
 ' 3. Pour un passeport que je lui fis donner a la Haye par 1'envoye de 
 Prusse, qui couta 3 a 4 florins. 
 
 " Je lui payai, pour ma portion, dans cette Avarie grosse, 704 florins, 
 argent courant d'Hollande, en outre 105 florins dont je fis present au capi- 
 taine Grosse, et lOfl. lOst. aussi de present aux matelots qui composoient 
 son equipage. Outre tout ceci, il m'en a coute 20 florins ou environ, en 
 Angleterre, pour autant que Messrs. Simond, freres, avoient debourse" par 
 mon ordre pour le pilote Prussien qui etoit reste a bord du cnrsaire, lorsque 
 la tempete les separa. 
 
 " Ceux qui se connoissent en navigation et en armament de riavire, ne 
 pourront disconvenir, que les proprietares Frussiens se trouvent, au moyen 
 de 839fl. lOst. courans d'Hollande, que je leur ai payes, plus que rein- 
 bourses de Unites leurs pretensions ; et s'ils peuvent, avec quelque fonde- 
 ment, en demander d'autres. 
 
 " Tout ce que j'avance ci-dessus peut se verifier par des pieces authenti- 
 ques (a la reserve des presents, ou gratifications, au capitaine ou a son 
 equipage, montant a 115fl. lOst. dent je n'ai pas retire de quittance;) en 
 vertu dequoi j'ai signe la presente declaration. Rotterdam, ce 30 Janvier 
 1753. PIERRE TRAPAUD, LE JEUNE. 
 
 Tbe above declaration was signed in my presence, and the original vou- 
 chers quoted in the same have been produced to me. Witness my hand 
 and seal. Rotterdam, January the 30th, 1753. 
 
 R. WOLTERS, (L. S.) 
 43
 
 338 APPENDIX. 
 
 Ships restored with freight, according to the bills of lading, 
 for such goods vslw:h were found to be the property of the 
 enemy, and condemned as prize. 
 
 L'Aigie d'Or, Capit. Onne Arends. La Doro(hee Sophie, Ca- 
 pit. Piere, Kcttelhuth. Les Deux Freres, Capit. Aug. Augus- 
 tinus. 
 
 Ships and goods restored, but without costs, from circumstances 
 arising from the case. 
 
 Le Petit David, Cap. Michael Bugdahl. 
 
 Ships and cargoes restored, paying costs. In these cases, it 
 either appeared, that the ship had not the usual evidence of 
 property, according to the custom of the sea; or from the 
 ship-papers, or examination of the crezc, there appeared just 
 reason to presume the cargo to belong to the enemy, and the 
 neuter claimant declined proving his property by strict legal 
 evidence, and obtained restitution on the faith of his oizn (tjji- 
 davit; and, in these cases, courts of admiralty have always 
 made the like decrees. 
 
 La Dame Juliene, Capit Martin Prest. .Le Frederick II. Roy 
 de Prusse, Capit. Chretien Schultz. Le Vaisseau au bon Vent. 
 Capit. Michel Juriansen. La Daageroud, Capit. Martin Sper- 
 \vien. Les Deux Freres, Capit. Jon Hallen. 
 
 Cargoes, or part of them, condemned as contraband, and not 
 now alleged, in list A. or 13. to have been Prussian property, 
 and therefore were certainly prize of rear. 
 
 Les Jumeaux, Capit. Kruth. Le Soleil D'Or, Capit. Jacob 
 Ridder. Le Frederick II. Roy de Prusse, Capit. Chretien 
 Si'hultz. Le Jeune Andre, Capit Henri Ikrckhorn. 
 
 Appeal from the Admiralty Decrees. 
 Le Petit David, Cap. Micheal Bugdahl.
 
 APPENDIX. 339 
 
 LIST OF ALL THE NEUTRAL SHIPS TAJCEN BY BRITISH SHIPS 
 DURING THE LAST WAR, IN WHOSE CARGOES THE SUBJECTS 
 OF PRUSSIA CLAIM TO HAVE BEEN INTERESTED J TOGETHER 
 WITH THE JUDGMENTS GIVEN BY HIS BRITANNIC MAJESTY'S 
 COURTS OF ADMIRALTY THEREUPON, TALLYING WITH HIS 
 PRUSSIAN MAJfc-STY'S LIST MARKED B. 
 
 La Cecile, from Cette to Altena, ship and cargo restored. 
 
 Le Nahring, from Rochelle to Bourdeaux, ditto. 
 
 Le Demoiselle Jeane, from Hambourg to Cadiz, ditto. 
 
 Le Carlshavener WeJfft, from Hambourg to Cadiz, ditto. 
 
 L'Anne Elizabeth, from Hambourg to Cadiz, ship restored, 
 and cargo part restored. 
 
 Le Gustave Prince Royal, from Hambourg to Cadiz, ditto. 
 
 Lo Jeune Benjamin, from Hambourg* to Cadiz, ditto. 
 
 Le Prince Frederick, from Hambourg to Bilboa and Bayonne, 
 ship and cargo restored. 
 
 Le Marie Joseph, from Hambourg to Cadiz, ditto. 
 
 L' Union, from Bourdeaux to Hambourg, ship restored, and 
 cargo part restored. 
 
 Le Neptune, from Nants to Hambourg, ship and cargo restored. 
 
 Le St Paul,* from Nants to Hambourg, ditto. 
 
 La Couronne, from Nants to Hambourg, ditto. 
 
 La Demoiselle Catherine, from Rochelle to Altena, ship re- 
 stored, and cargo part restored. 
 
 La Concorde, from Rochelle to Hambourg, ditto. 
 
 La Feaune, from Charante to Hambourg, ditto. 
 
 L'Amitie, from Rochelle to Ilambourg, ditto. * 
 
 Le Jeune Prince Chretien, from Marseilles to Ilambourg. 
 ditto. 
 
 La Dem. Marguerite, from Bourdeaux to Hambourg, ditto. 
 
 Le Roxier, from Bourdeaux to Hambourg, ditto. 
 
 La Marie Sophie, from Rochelle to Hambourg, ditto. 
 
 * On the 29th of January, affidavits were exhibited in the court of admi- 
 ralty, and sentence prayed on the part of the Prussian claimant, and the 
 goods were decreed to be restored.
 
 34 APPENDIX. 
 
 L' Anne Sophie, from Bourdeaux to Koningsberg. 
 
 Le Hop de Danzig, from Bourdeaux to Dantzick, ship restor- 
 ed, and cargo part restored. 
 
 Le Jeune Jeane, de Petersbourg, from Bourdeaux to Ham- 
 bo urg, ditto. 
 
 Le Gregor et de Breme, from Bourdeaux to Hambourg, ditto. 
 
 La Jeune Catherine, from Bourdeaux to Hambourg, ditto. 
 
 Les Six Soeurs, de Lubeck, from Bourdeaux to Lubeck, ditto. 
 
 La Ste. Anne } de Hambourg, from Bourdeaux to Hambourg, 
 ditto. 
 
 Le Jeune Eldert, de Hambourg, from Roan to Hambourg, 
 ditto. 
 
 Le Juste Henri, de Hambourg, from Bourdeaux to Ham. 
 bourg, ditto. 
 
 L' Elizabeth, from Hambourg to Bourdeaux, ditto. 
 
 La Demoiselle Claire, from Hambourg to Roan, ditto. 
 
 L'Adolph Frederic, from Marseilles to Hambourg, ditto. 
 
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 11 
 
 HOY 1*1991 
 
 AUG 
 INTERLIBRAR 
 
 9 
 LOANS 
 
 tovif 
 
 1990 
 
 UNIVERSITY of CALIFORNIA 
 
 AT 
 
 LOS ANGELES 
 LIBRARY
 
 
 J 
 
 L 006 023 655 1 
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 A 001 386 667