A DIGEST THE LAW OF MARITIME CAPTURES AND PRIZES. BY HENRY WHEATON, COUNSELLOR AT LAW AN1> ADVOCATE, NEW-YORK : IFtJBtlSHED BY n. M.'flEBMUT & D. D. AUDEV, SO. 1 CITr-HOTEt, BK«ADVrAT. Forbes & Co. Printers, 78 Gold-street. 1815. District of J\reyt-York, ss. Bje ir hejieiibered, that on the twentj'-first day of July, in the forti- -^ eth year of the independence of the United States of America, (t. s ) Henry Wheaton of said district, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words and figures following, to wit : " A Digest of the Law of Maritime Captures and Prizes.'* By Henry Wheaton, Counsellor at Law and Advocate. In conformity to the Act of the Congress of the United States, entitled " An Act for the encocragemcnt of Learning, by securing the copies of Maps, Charts, and Books to the authors and proprietors of such copies, during the time therein mentioned. And also to An Act, entitled " An Act supplementary to An Act, evjtitled An Act for the encouragement of learning, by securing the copies of maps. Charts, and books to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and clchisg historical and other prints. THERON RUDD, Clerk of th c district of New Yort. 2^- it PREFACE. The law of prize is the most important practical branch of the law of nations. The utility of a work detailing its principles cannot be question- ed ; and had the United States continued a belli- gerent power, it would have been indispensably necessary toMhe statesman, the lawyer, and the merchant. Nor is it conceived that its import- ance is materially diminished by the restoration of peace, since this country cannot, hereafter, when the flames of war are spread throughout the rest of fhe civilized w^orld, hope for an exemption from its calamities. But even should it be our unex- pected felicity to enjoy the blessings of peace, while other nations are involved in vvar, the rights and the duties of neutrality must always form an interesting subject of enquiry ; while the princi- ples of Jjublic law reflect a strong and useful light on many questions of private and municipal ^jurisprudence. Ample materials for such a work are to be found in the learned writers upon the law of na- tions, and in the adjudications of those courts which administer that law. If the former are not always reconcileable with each other, nor the lat- ter consistent with themselves, or capable of beine; 588628*' iv ^ PREFACE, harmonized into a system of perfect symmetry and "^^ order, the knowledge of both is not the less neces- sary; and this defect arises from^ the imperfect sanctions by which this species of law is guarded, > The object of our enquiry is not, What the law OUGHT TO BE ; but. What it practically is : ^ since it is the latter which furnishes, the rule of conduct for those who are governed by it. As public, unlike municipal law, is sanctioned not by the power of a single sovereign or state, but by a resort to force among independent sovereigns or states, it is necessarily imperfect in practice, how- ever just and beautiful in theory. The law of na- "*> lions is adapted to a state of war, and is intended to mitigate its violence. It is, however, frequent- ly compelled to yield to the very violence it was designed to restrain, and becomes the victim of in- novations made and enforced by the edicts of par- ticular states and the adjudications of their tribu- nals. JThe purity and simplicity of the primitive law of nations, which is nothing more than the law ^ of nature applied to the conduct of nations and states, has thus been corrupted. It is no longer that law of which Cicero speaks witli idlch elo- quent sublimity. Iluic Irgi nee ahrogarifas est, nee derogari ex hoc aliquid licet, nectota ahrogarl potest. Nee vero aid per scnatnm, aut per populmn ^ solvi hac lege possnmns. Ncque est querendus expla- natory aut inlerpres ejus -(dins. Ncc erit alia lex JRo- maS alia Alhcnis ; alia nunc, alia poslhac : sed ct omnes gcntcs, ct oinni tempore, una lex, et sempiferna, « s TREFACE. T tl immor talis conlinehit ; unusque erit communis qua- si magister eiimperaior omnium deus. We are therefore compelled to extract from a mass of contradictory decisions, usages, and con- ventions, those rules which are sanctioned by the justest principles and the most general practice.' This task is not less difficult in the law of prize than in any other branch oiiXw jus gentium. The author of the present work is not insensible of its imperfections, but may claim souie indulgence for liis errors on account of the novelty?, and difficulty of the undertaking. In a digest of laws, nothing should be sacrificed to the merit of originality. I hav^ therefore free- ly copied from the elementary writers and the re- ^ porters every thing which seemed material to ray design, and have interwoven such illustrative ob- servatioRs as were thought necessary. In the cus- tomary or unwritten law of nations, to borrow an analogous distinction from our municipal law, it is frequently of as much importance to give the very words of the legislator (for the elementary writer or the judge, who make law by their autho- ,v rity and precedents, must be so considered) as it . is to transcribe the articles of a treaty or an ordi- nance, which, by the same analogy, form the writ- ten or statute law of nations. And who would pre- sume to correct and amend the style of a Bynker- shoek, a Pothier, a Scott, or a Marshall ? If a fas- tidious, or even a good taste, Avould condemn a work constructed of such various material?, this . # Yl . rilEi-'AGE, ■'•■ 'i -, 'defect is at least palliated by thebeauty of uti- ' lity. The decisions of the present judge of the high court of admiralty in England are entitled to great respect and attention, and being the adjudications ^^^ court of the law of nations, are of binding au- thority in that law, except upon those questions in regard to which certain peculiar doctrines have been maintained by the British government. Whatever reason our country may have to com- plain of the ipjarious application of those doc- trines to us as a neutral nation, it must in candour be admitted that on every other head the deci- ^ sions of Sir William Scott merit the highest con- sideration, on account of their intrinsic value and the judicial eloquence by which they are adorned, I have therefore made a liberal, though cautious use of them, in the compilation of tliis digest. Had that great man followed the example of his illus- irious countryman. Sir James Mackintosh, in refu- singtobe.boundby the instructions and rescripts of bis government, where they infringed the law of na- tions and abridged the rights of neutrals, the au- thority of his adjudications would Ijave been enti- tled to still more respect with foreign nations and "with future ages. The decisions of the prize comis of other coun- tries have not been reported with the same regu- 'M larity and correctness as those of Great Britain. I have collected such of them as are to be found in the books accessible in this country, and have in- ♦ PHEFACE. "Vll serted Ibem in tlieir appropriate divisions of the work. The adjudicalions in prize causes whicji had taken place in the courts of the United Sts^teP previous to the late war with Great Britain, to- gether with the rich materials afforded by the de- cisions of the supreme court during that war, have also been incorporated. To these f have added several cases determined in the Circuit Courts by a learned judge, whose attainments in this branch of law, it may be said without injustice to others, are unrivalled in a tribunal whose decisions both on questions of municipal and public law do so ^ much honour to the jurisprudence of this coun- try. ■ \- ' In the multiplicity of elementary books with which the profession is inundated, it becomes im- portant that every distinct work should be cir- cumscribed within the narrowest possible limits, 1 have consequently aimed at conciseness so far as was consistent with my object. I have sk'Hch'- ed a rude outline which some abler hand must hereafter fill up and adorn. Qiiamvero ego in all- oriivii scntentiiSy ac scriptis dijudicandis mihi sumpst liber lot em ; eandem sibi in ms sumanf, omnes cos oro, atqiie ohiesior, quorum in manus ista vcniant. Non illi inomptius me mcnebunt erraiitem, quam ego jno^ ncntes sequar, Grotius de T. B. ac P. Prolegom. mjM ■71 t ■^■.'W/^ mi. % > v #* ■t*'- ANALYTICAL INDEX. CHAPTER I. Page Qf the commencement of war ; and qf captures made before the de- cl-iration of ivar, or by noncommissioned captors. . . 13 5 1. Declaration of war, how far necessary lb. 2. Reprisals ' . . .14 3. Eiemy's property, within his territory, on the high seas, or in the territory of the belligerent state, liable to capture. . lb. 4. Treaty exceptions 3t) 6. Public hostilities assimilated to a war 31 6. Seizure before the comnaenceraent of hostilities, or by non- commissioned captors. ... . . . . .32 7. Laiv of France, and England 33 8. Law of Franee. ...» 34 9. Retroactive effect of the declaration of war. , . . 35 10. Capture by tciiders attached to ships of war. . . • 36 li. By vessels coininissioncd against one power of effects belong- ing to anoL!ier. ........ 37 12. By a merciiaut vessel ia defending herself. . . . • . lb. 13. Law of the United States 38 Property wronflully taken before a declaration of war. . . 39 CHAPTER II. (y the authority to make captures, and what things are exempt from capture . 40 *) 1. Authority to make war Ib^ 2. Res hostiles. . lb. ?.. Things subject to capture 41 ■1. Title to captured property in whom rested. . .lb. 5. Public armed vessels. Private armed vessels. . . .lb. Security gis'en by the latter 42 6. Responsibility of owners and officers of private armed vessels for unlairful arts. . 43 i : ANALYTICAL INDEX. Page ) 7. Law 01 tlifj Luiteil States, prohibiting the acceptance of for- eign commissions 45 haw of France. Commissions from allies in the same war. . 47 8. Instructions to armed vessels. ...... lb. President's Instrnotions of the £8th August, 1812. . . 48 9. Instructions extending the law of nations to the prejudice of neutrals. ......... 50 W. Capture defined. 52 11. Capture, when consummated lb. 12. Seizure under an agreement with the master. Abandonment by the captors lb. 13. Taking by pirates 64 14. Capture in neutral territory. lb-. 15. Cartels. . 58 16. Vessels sailing under passport, safe-conduct, or license. . 59 17. Licenses to trade with the enemy 60 18. Fishing boats. lb, CHAPTER III. Of enemy^s propei-ty considered as an object of capture. . . 62 § 1. Capture of eneiny vessels ,sfid cargoes, and of enemy goods in jieutral vessels; lb. 2. Transfer of vessels lb. 3. British orders in council and French regulations. . . .lb. 4. Invalidity of these municipal ordinances 63 5. French ordinance, requiring certain proofs of transfer. . . 64 {'). Sai'" of vessels must be absolute and unconditional. . . lb. 7. Proofs of property 65 8. Rule as to the efl'ect oi' these proofs. .... 66 9. Neutral goods in enemy vessels 67 10. Freight to captors on neutral goods. . . •■ . . 70 11. Confiscation of neutral vesstis laden with enemy goods. . 71 12. Enemy goods in neutral vessels, whether liable to couHscation. 74 Conventional law of nations. . . . . . .lb. 13. Customary law of nations 78 14. Freight to the neutral carrier of enemy's property. , . 79 15. Neutral and other liens upon enemy's property. . . .80 10. Transfers of enemy's property m fronsjVw. ... 85 17. Contracts of purchase, executory and contingent. . . . 60 18. SpoliatioD of papers 92 ANALYTICAL INDEX. Ill Page. V i9. Visitation and search. ♦ .94 Penalty for rcsislancu to ^''' CHAPTER IV. The properly nfper.<;ons rcs'deiit, or having possessions ia the tn- ■ . ' 4,' emy's territory, considered as an object of capture . . . .,,101 § 1. Property of persons domiciled in the enemy's country. . lb. 2. Allegiance, permanent or teinporaiy. .... lb. Domicil and citizenship for coinnsercial purposes. . . 102 3. Commercial inhabitancy. ....... lb. Domicil, natural and acquired 103 4. Time, the grand ingredient ia constituting domicil. . . lb. 5. Natural domicil c;isily rsverts 10.'> G. Cases of domicil. Intention of returning, hovv' far available. 106 T. National character of Europeans in the v: ' '■ : : > d from the factory in ivliich they live. Turkey. . .149 Iliudostan . . . Ini) British residents in Portugal l.'?l n. House of trade in the enemy's co'jutry lb CHAPTER V. Of the liability to capture, (f property, sailii'.g vruhr the Jlag and pass, or license of the enemy. 15" § 1. Flag and pass, how afiecting the national diaracter. . Ih. 2. Acceptance from the enemy of a l?ceuse to trade, cause of confiscation. Case of the Julia. . » . . . I'l'J 3. Case of the Hiram. . IG.f 4. Case of the Aurora 163 T). Exemption from captuj-e by the enemy. Case of tlie LiTFs- pool Packet .170 CHAPTER VI. Of neutral properly, considered as a legal object of capture. . . IT.'- § 1. Neutral property sometim.es liable to capture. . . lb. 2. Contraband of war lb. Distinction of things useful fur war, things not so, and those ' of promiscuous use I7G Jin \ '^ «S. 3. Articles of promiscuous use destined id a port of naval equip- ment. Right of pre-cmptio!J. , i: ir AKAI-YflCAI/ INDEX. Page § 4. Skips built for war. . . . . . " . . 180 5. Confiscation of coiitrabanrl. ...... 181 6. Vehicle of conlraband, how far subject to confiscation. . lb. 7. Penalty of confiscatioo, whether extending to rrturn voyage. 183 $. Transportation of military pHrsoDs or despatches. . . 184 9. Neutral vessel carrying enemy's forces, liable to confiscation. lb. 10." Carrying despatches of the enemy. .... 186 11. Trade to blockadod ports 190 12. Right of blockade extended to total prohibition of neutral commerce lb. Brit'sh orders in council arid French decrees. . . . 191 13. Definition of blockade 193 14. Notice of blockade. ........ ib. 15. Acts of violation. 199 16. Penalty for breach fef blockade. 203 CHAPTER VI f. Of the property of subjects rf the belligerent state, or its allies, en- gaged in trade rcith the enemy, or of subjects taken in viola,' tioji of a mvnicipal law, considered as an object tf capture. 209 . § I. Intercourse in time of war unlawful Ib. 2. Maritime law of England as to trading with the enemy. . Ib. 3. Common law. ... 213 4. Law of the United States 214 5. Property taken in trade with the enemy, couderaued as prize . . 219 S. Attempts to evade the rule 220 7. Trade to the enemy's country through a neutral port. . Ib- 8. Trade by a partnership in a neutral country. . . . Ib. 9. Apparent exceptions to the rule 221 10. Trade in neutralized commodities. . . , . . Ib. 11. Implied license , . . Ib. 12. Other cases and authorities examined. .... 223 13. Trade with the enemy by an ally in the war. ... Ib. 14. Property engaged in violation of municipal law. . 225 15. Exception of Hcutrals 226 And enemy property. • •♦ 227 16. Slave trade Ib. ANALYTICAL INDEX. CHAPTER VIII. Page . 231 Ransoms lb- British law prohibiting lb. Of ransoms, recapture, and claims for salvage. Terms of the contract. . . , • . . . 232 Binds all other cruizers of the same power and its allies. . lb. Deviation from the route prescribed for the ransomed vessel. 233 6. Loss of the ransomed vessel lb. 7. Recapture on account of deviation. . . . , . 231 8. Capture of the ransom bill by the enemy. . . . 235 9. Payment of the ransom, how enforced 23G 10. Different species of recapture. 237 il. From a pirate lb. 12. From a captor commissioned, but not an enemy. . . 238 Salvage for neutral property, when payable. . . . 239 13. Recapture from au enemy. The Jus Pa stlhninii. . . 241 The law of reciprocity 242 14. Law of France • . . . 244 15. Of Spain, 245 16. Of Portugal 246 17. Of Denmark lb. 18. Of Sweden "lb. 19. Of Great Britain lb. 20. Of the United States 247 Difference between the law of Great Britain and the United States. Construction of the latter lb, 21. Sale by the enemy to a neutral at sea lb. 22. Recapture of merchant vessels under convoy by convoying ship .249 23. Salvage upon freight 250 Freight upon cargo to recaptured vessel 251 24. Rescue and derelict 252 25. Rescue lb. 26. Derelict. Donation by a belligerent to a neutral at sea. . 25,4 CHAPTER IX, Of the jurisdiction and practice of courts of prize, . . • 258 § 1. Captures adjudicated in the courts of the captor's country. lb. ^' 2. Exception of captures within a neutral jurisdiction^ ' . lb- ri aiTAlytical index. Page § 3. Of captures by armed vessel'; fliLcd out wilbin neutral terriy tory.' ... . . / . . . . 2r)S 4. Of restitution bj the neuti-a! state of the prdprrty of its own subjects brought vvitbin its jurisdiction lb. 5. In all other cases propeity continues in the captor when °® brought into neutral territory. ...... 259 6. Extent of beliigerent rights in neutral ports. . . . 260 7. Prizes carried into the port of an ally aned io the same , manner. . ; , lb. 11. Constitution of priz3 courts 2C6 267 . 272 lb. . 274 lb. . 278 280 . '286 12. In France. 43. In Great Britain. 14. In tlic United States. . . 15. Conclusiveness of their judgments. 16. Exception 17. Jurisdiction as to properly taken on laud. . 18. Prize proceedings. 19. Distribution of prize. 20. Joint capture. By public vessels 287 By private anued^vessels. By co-operation of land forces. 28c; 21. Rules of distribution. .i 291 22. Between private armed vessels joint cajitors. . . . 293 23. British regulations as to distribution to flag officers. . . 294 24. Construction of these regulations. . . , . . 295 25. Applied to the law of the United States 296 CHAPTER X. C)ftheeffecliofatrealij(^peace^a^questiotSiOfpri~e. . 299 § 1. Suspension of hostilities . lb. 2. T'caty of peace lb. .'}. Responsibility for captures in violation of . . . . 'M)0 4. Limitation of captures as to time and place. . . 301 5. Such limitation extends to recaptures. . . . 302 C. Effect of peace upon titles of possession. ■ ■''•<'' '. Eucmy's right suspended and revived. <'• # Au ^/Ijt ^*, ANALYTICAL INDEX. VII APPENDIX. 4 Page « «(«= ' ^°' '• Ij^^^ter from Sir William Scott and Sir J. Nicholl to ■ Mr. Jay. . . . . ... . .309 Report, &c. referred to iu the preceding letter. . 317 No. n. President's Instructions to private armed vessels. . , 341 Norm. Documents relating to the blockade of Martinique and Guadaloupe . 342 No. IV. Correspondence between Mr. Pinkney and Marquis Wellesley on blockades.* • ■ • • • • • 345 No. V. Pvescript relative to the Berlin decree. . . . 360 General Armstrong's letter to M. de Champagny. . . 361 No. VI. Rules of the District Court for the Soutbern District of New-York in prize causes. . . . , , 369 No. VII. Form of Prize Libel . . 378 * •i^ ,f *» V''-' .m: law OF MARITIME CAPTURES AND PRIZES^- CHAPTER L Of the commencement of war ; and of captures ma^e hefor/^ the declaration of xvar^ or by non-commissioned captors* ^Whether a declaration of war to the enemy is neces" sary to legalize hostilities, is a preliminary question of the first importance in the law of prize. It was formerly con- sidered essential, and practised. Such was the usage of the astient nations, which was observed in modern Europe un- til the seventeenth century. The present custom is to pub- lish the declaration, or a manifesto, explaining the motives for commencing hostilities, within the territory of the bel- ligerent state. This publication is necessary for the in- struction and direction of the subjects or citizens of the pation declaring war, in order to fix the date of the rights belonging to them from the moment of this declaration, and regarding certain effects which the law of nations attributes to a war in form. Without such a public declaration of war, it would be difficult to distinguish in a treaty of peace, those acts which are to be accounted lawful effects of the war, from tho$e which either nation mav consider sja 14 i-AW OF CHAP. I. wrongs, and for which they may claim reparation. (*) The only difference, therefore, between a modern declaration of war and that practised by the Romans under their Fecial law, is, that the former is published within the territory of the belligerent state, and communicated every where by means of the invention of the art of printing and the estab- lishment of posts, which rapidly diffuse the information, and supersede the necessity of a particular notice to the enemy by heralds as in antient times. i 2. But though by the modern customary law of nations, a formal declaration of war to the enemy is not considered necessary, nor generally practised j letters of marque and reprisal are issued as the first step which is generally taken at the commencement of a war, and which is considered as equivalent to a declaration of it. Reprisals are either general or special. They are gene- ral^ when a sovereign or state, who have, or think they have received an injury from another, issue orders to their military and naval officers, and deliver commissions to their subjects or citizens, to take the persons and property of the subjects of the other nation, wherever they may be found.(^) 3. From the momenta sovereign or state is at war with another nation they have a right, strictly speaking, to act as an enemy not only in respect to the persons and proper- ty of the enemy found in his territory or on the high seas, but also with respect to the enemy's subjects and their property which may happen to be found in the territory of the belligerent state at the breaking out of the war. They have a right then, to seize on the ships of the enemy found (») Vattel, L. S. c. A. § 56, Martens, L 8. c. 2. $ 4. Bimkershoch, Q. S. P. L. 1. c. 2. Ut bcllum Ic^itimum sit indictioncm belli 7ic>i zicfcri ni'C?- zarium. C*) Dti Ponceau*t JSi/nkenhoek, L. 1. c. 24. In JVotis. MARITIME CAPTURES AND PRIZES. 15 in their ports, and on all their other property.(<=) Even sacred things are not exempt by the law of nations from this general liability to capture ; and there is a remarkable observation of Cicero on this subject in his fourth oration against Verres, that, Fictory 7nade all the sacr-et> things oj the Syracusans profane. But by the modern law and usage of nations, the temples of religion, public edificer, devoted to civil purposes only, and the monuments of the arts and repositories of science, are exempted from the operations of war. Christianity, chivalry, colonization, commerce, and civilization in general, have successively combined to soften the extreme severity of these operations. The generality of the above mentioned rule still applies, however, to cases of maritime capture. Some late writers have attempted to extend this relaxation to maritime war- fare, upon the groiftid that jtrivate property is exempt from spoliation in land wars, and therefore ought not to be lia- ble to capture and confiscation by sea. But besides the usage of considering such property, when captured in cities taken by storm, as booty; it is well known that contribu- tions are levied upon territories occupied by a hostile army in lieu of a general confiscation of the property belonging to the inhabitants, and that the object of wars by land be- ing conquest, or the acquisition of territory to be exchangcl^ as an equivalent for the restoration of other territory lest, the regard of the victor for those who are to be, or have been, his subjects, will naturally restrain him from the ex- ercise of his extreme rights in this particular : whereas the object of maritime wats is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power, which object can only be attained by the cap- ture and confiscation of pri\'ate property. Nor is any no- tice of the existence of the war to the party necessary in (c) Grothii, de J. B. ac P L.3. c.21.§ 9 Puffendorf, L. 8. c. 6. § 19.20. Wolf, Jut, Gent. § 1184. 1198. Martens, L. S. c. 2 § 5, n>mlTrsI.j''f.; q. J, Pub. h. 1. c 2. 16 JLAW OF CHAP I. order to legalize the capture of his property ; for it is suf- ficient that actual hostilities existed at the time when the capture was made, and that those hostilities were authorised by the proper authority. If no general declaration of war to the enemy be essential, no particular notice to his sub- jects or citizens caTi be necessary, to render the capture of their property lawful. The declaration is every where operative from its date upon all the persons and property of the enemy. It operates everv where from its date to legalize captures precisely as a treaty of peace operates from its date (unless otherwise provided) to annul them. But in order to induce the confiscation of enemy*s proper- ty, found within the territory of the belligerent state at the declaration of war, some act of the government, other than the declaration itself is essential. Previous to the late war between the United States and Gieat Britain, a vessel, owned by citizens of the belligerent state, was chartered to a house of trade in the enemy's country, one of whom was also a citizen, for the purpose of carrying a cargo from Savannah to Plymouth. After the cargo was put on board, the vessel was stopped by an embargo. It was afterwards agreed between the master of ihc ship and the agent of the shipper, that she should proceed with her cargo to New-Bedford where her owner resided, and there remain without prejudice to the charter party. In pursuance of this agreement, the vessel pro- ceeded to New- Bedford, where she continued until after ihe declaration of war in 1812. In the month of October or November of that year, the ship was unloaded, and the cargo, except a part of it consisting of pine timber, was ianded. The pine timber was floated up a salt water creek, where, at low tide, the ends of the timber rested on the aiud, and where it was secured from floating out with the tide, by impediments fastened in the entrance of the creek. In November the cargo was sold by the agent of the own- ers, who was a citizen, to the claimant, also a citizen. A MARITIME CAPTURES AND PRIZES'. 17 libel was aftei-wards filed by the United States Attorney for the district against the cargo, as weli for the United States as for and in behalf of a noncommissioned captor and all other persons concerned. It did not appear that this seizure was made under any instructions from the President efthe United States, nor was there any evidence of its having his sanction, unless the libel being filed and pi'o- secuted by the law officer who represents the Government might imply that sanction. On the contrary, it was admit- ted that the seizure was made by an individual, and the li-^ bel filed at his instance, by the District Attorney, who act- ed from his own impression of what appertained to his du- ty. The propertv v/as claimed under the purchase made in the preceding November. Could the pine timber, even admitting the property not to be changed by the sale, be condem.ned as prize of war? The cargo having been legally acquired and put on board the vessel, having been detained by an embargo not intend- ed to act on foreign property ; the vessel having sailed be- fore the war from Savannah under a stipulation to reland the cargo in some other port of the belligerent state; the relanding having been made with respect to the residue of the cargo ; and the pine timber having been floated into shallow water where it was secured, and in the custody of the owner of the ship, a citizen, the court could not perceive any solid distinction (so far as respects confiscation) be- tween this property and other enemy's property found on land at the commencement of hostilities. It was there- fore considered as a question relating to such property generally, and to be governed by the same rule. Respecting the power of government no doubt was en- tertained. That war gives to the sovereign full right to take the persons and confiscate th^^ property of the enemy wherever found, was conceded. The mitigations of this rigid rule, which the humanity and wise policy of modern times has introduced into pr^ctice^ will more or less aifect IS LAW or CHAP I. the exercise of this light, but cannot impair the right it- self. That remains undiminished ; and whenever the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemna- tion could exist in the court. • The questions to be decided were, 1st, May enemy's property found on land at the com- mencement of hostilities be seized and condemned as a necessary consequence of the declaration of war ? 2ndly, Was there any legislative act which authorized such seizure and condemnation ? Since in this country, from the structure of the govern- ment, proceedings to condemn the property of an enemy found within the territory at the declaration of war, can be sustained only upon the principle that they are instituted in the execution of some existing law, we are led to ask. Is the declaration of war such a law ? Does that declara- tion, by its own operation, so vest the property of the ene- my in the government, as to support a proceeding for its seizure and confiscation ; or does it vest only a right, the assertion of which depends on the will of the sovereign power I The universal practice of forbearing to seize and confis- cate debts and credits; the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confistation. Between debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the same laws, reason draws no distinction, and although, in practice, vessels with their cargoes, found in port at the declaration of war, may have been seized, it was not be- lieved that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace in the course of trade. Such a proceeding is rare, and juaritime captures and prizes. 19 would be deemed a harsh exercise of the rights of war. But although the practice in this respect may not be uni- form, that circumstance does not essentially affect the ques* tion. The enquiry is, whether such property vests in the sovereign by the mere declaration of war, or remains sub- ject to a right of confiscation, the exercise of which de- pends on the national will : and the rule which applies to one case, so far as respects the operation of the declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of the sove- reign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and other proper- ty found within the country must be the same. What then is the operation ? Even Bynkershoek, who maintains the broad principle that in war every thing done against an enemy is lawful ; that he may be destroyed, though unarmed and defenceless r that fraud or even poison may be employed against him ; that a most unlimited right is acquired to his person and property ; admits that war does not transfer to the sovereign a debt due to his enemy ; and,therefore,if pay ment of such debt be not exacted,peace revives the former right of the crecfitor : because, says he, the occupation which is had by war consists more in fact than in law. He adds — Let it not, however, be supposed that it is only true of actions, that they are nc" condemned, ipsojure^ for other things also belonging to the . enemy may be concealed and escape condemnation. tI Vattelsays — The sovereign can neither detain the per- sons nor the property of those subjects of the enemy wlu> are within his dominions at the time of the declaration. It is true that this rule is, in terms, applied iiy Vattel to the property of those only who sre personally m itliin liii territory at the commencement of hostilities j but it applies equally to things in action and to things in possession ; nnd, U' war did, of itst^li", without anv i'uriher exercise .of the 20 ^A\v 01-' ciiAi* i, sovereign. wijl, vest the property of the enemy in the sove- reign, his presence could not exempt it from this operation of war. Nor can a reason be perceived for maintaining that the public faith is more entirely pledged for the secu- rity of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others. The modern rule then would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated ; and in almost every commercial treaty an ar- ticle is inserted stipulating for the right to withdraw such property. This rule appears to be totally incompatible with the idea that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on the jura belli^ that war gives the right to confiscate, but does not itself confiscate the property of the enemy ; and their rules go to the exercise of this right. The constitution of the United States was framed at a time when this rule, introduced by commerce, in favour of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a con- struction ought not lightly to be admitted which would give to a declaration of war an effect in this country, it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the government to apply to the enemy the rule that he applies to us. If we look to the constitution itself, we find this reason- ing much strengthened by the words of that instrument. That the d^ claration of war has only the effect of plac- ing the two nations in a state of hostility, of producing a ;natc of war, of giving those rights which war confers ; but not of operating by its own force any ol those results (such as a transfer of property) which are usually produced MARlTTMr CAPTURES AND PRIZES. 21 by ulterior measures of government, is fairly decluciblc from the enumeration of powers which accompanies that of declaring war. Congress shall have poxver — to declare rv'ar^ grant letters of ?fiarque and reprisal, and make rides concerning captures on land and ivater. It would be restraining this clause within narrower limits than the words themselves import, to say that the power to make rules concerning captures on land and water, is to be confined to captures which are extra-territorial. If it ex- tends to rules respecting enemy property found within the territory, then we perceive an express grant to Congress of the power in question, as an independent, substantive pow- er, not included in that of declaring war. The acts of Congress furnish many instances of legisla- tive opinion that the declaration of war does not, of itself, authorise proceedings against the persons of property of the enemy found, at the time, Avithin the territory. War gives an equal right over i)ersons and property % and if its declaration is not considered as prescribing a law respecting the person of an enem}' found in our country, neither does it prescribe a law for his property. The act_ concerning alien enemies, v/hich confers on the President very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war. The Act for the Safe Keeping and Accommodation of Prisoners of War, is of the same character. The Act Prohibiting Trade with the Encmv, contains the following clause : That the President be and" he hereby isi authorized to give, at any time within six months after the passage of this act, passports for the safe transportation of any ship or other property belonging to British sub- jects, and which is now within the limits of the United States. The phraseology of this law shows that the prop- erty of a British subject was not considered by the legisla- ture as being vested in the United States by the declaration 4 2-2 LAW OF CHAP Iv of waf ; and the authority which the act confers on the President, is manifestly considered as one which he did not previousl)' possess. Thef proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent state, is believed to be entirely free from doubt. Is there in the act of Con- gress of June, 1812, by which war is declared against Great Britain, any expression which would indicate such an intention ? This act, after placing the two nations in a state of war, au- thorizes the President to use the vvhole land and naval force of the United States to carry the war into effect, and to is- sue to private armed vessels of the United States commis- sions or letters of marque and general reprisal against the vessels, goods and effects of the government of the United Kingdom of Great Britain and Ireland, and the subjects thereof. That reprisals may be made on enemy property found within the United States at the declaration of war, if such be the will of the nation, had ,been admitted; but it was not admitted that, in the declaration of war, the nation had expressed its will to that effect. It cannot be necessary to employ argument in shewing that when the Attorney for the United States institutes proceedings at law for the confiscation of enemy |5roperty faund on land, or floating in a river in the care and custody of a citizen, he is not acting under authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel. The act concerning Letters of Marque Prizes, and Prize Goods, certainly contains nothing to authorize this seizure. There being no other act of Congress which bears upon the subject, it was considered as proved, that the legisla- ture had not confiscate d i^nemv property which was within the United Sta.tes at the declaration of war. BIARITIME CAPTURES AND PRIZES. S3 One view, however, has been taken of this subject which deserves to be further considered. It was urged, that, in executing the laws of war, the ex- ecutive may seize, and the courts condemn all property, which, according to the modern law of nations, is subject to confiscation, although it might require an act of the le- gislature to justify the condemnation of that property which, according to the modern usage, ought not to be con- jEiscated. The argument must assume for its basis the position that modern usage constitutes a rule which acts upon the thing itself by its own force, and not through the sovereign pow- er. This position was not allowed. This usage is a guide Avhich the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without ob- loquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to infi- nite modification. It is not an immutable rule of lavv, but depends on political considerations which may continually varv. Commercial nations in the situation of the United States have always a considerable quantity of property in the pos- session of their neighbours. When war breaks out, the question, what shall be done with the enemy propertv in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the con- sideration of a department which can modify it at wilFj not for the consideration of a department which can pur- sue only the law as it is written. It is proper for the con- sideration of the legislature, not of the executive or judi- ciary. It appears to the court that the power of confisca- ting enemy property is in the legislature, and that the h" a^ f-AW OP CHAP. U gislature had no,t declared its will to confiscate property which was within our territory at the declaration of war.^^) In the above case the inferior court of prize had con- demned the property, and two of the judges of the supreme • court dissented from the above decision, remarking, that it seemed to have been taken for granted that the opiuioa of the court below^ proceeded, in some degree, upon a sup- position that a declaration of war operates, per se^ an actual confiscation of enemy's property found within our territory. On the contrai-y, it was admitted that a declaration of wai* does not, of itself, import a confiscation of enemy's proper- ty, within or without the country, on the land or on the high seas. The title of the enemy is not by war divested, l)ut remains va. proprio vigore:^ yxaCiX z. hostile seizure and possession has impaired his title. But a declaration of war gives a right to confiscate enemy's property, and enables the power to whom the execution of the laws and the pro- secution of the war are confided, to rtiforce that right. If, indeed, there be a limit imposed as to the extent to which hostilities may be carried by the executive, the exe- cutive cannot lawfully transcend that limit ; but if no such limit exists, the war may be carried on according to the principles ot the modem law of uatiuus, aud enforced when, and where, and on what property the executive ^hooses. In no act whatsoever had Congress declared the confisca- tion of enemy's property. They had authorized the Pres- ident to grant letters of marque and general reprisal, which he might revoke and annul at his pleasure : and even as to captures actually made under such commissions, no abso- lute title by confiscation vested in the captors, until a sen- tence of condemnation. If, therefore, enemy's property had come into the ports of the United States after the war, and the President had declined to issue letters of marque and reprisal, there was no act of Congress which, in terms, ('«) Per MAnnnAii, C. .T. Srovm vs. the United iStates^ Supreme Court 0/ tho U.S. Fcbrua»7 Term, 18l4, M. S. IVIARITIME CAPTURES AMD PRIZITS. &5" <3eclared it confiscated and subjected it to condemnation. If, nevertheless, it was confiscable, the right of confiscatioa resulted not from the express provisions of any statute, but from the very state of war, which subjects the hostile pro- perty to the disposal of the government. But until the ti- • tie should have been divested by some overt act of the gov- ernment and some judicial sentence, the property would unquestionably remain in the enemy owner ; and if a peac^ had intervened, it would have been completely beyond the reach of subsequent condemnation. There was, then, no distinction recognized by any act of Congress, between en- emy's property which was within the ports of the United States at the c6mmencement of the war, and enemy's pro- perty found elsewhere. Neither were declared ipso facto, confiscated; and both were merely confiscable. The act of June 18th, 1812, the Prize act of June 26th, 1812, the act of July 6th, 1812, and the act of March 3d, 1813, were all the acts which conferred powers on the Pres- ident, or make provisions touching the management of the war. In no one of them was there the slightest limitation upon the executive powers growing out of a state ©f war; and they existed, therefore, in their full and perfect vigour. By the constitution the executive is charged with the faith- ful execution of the laws ; and the language of the act of June 18th, 1812, declaring war, authorized him to carry it into effect. In what manner, arid to what extent should he carry it into effect ? There was no act of tiit legislature de- fining the powers, objects, or mode of warfare : By what rules, then, must he have been governed i' The only ration- al answer is, by the law of nations as applied to a state of war. Whatever act is approved by that law, in hostilities among civilized nations, such act he might in his discre- tion, adopt and exercise ; for with him the sovereignty of the nation rests as to the execution of the laws. If any of such acts are disapproved by the legislature, it is in their power to narrow and linnit the jextent to which the rights 35 LAIV Ol' chap. I. of war shall be exercised ; but unt 1 such limit is assigned, the executive must have all the rights o'' modern warfare veated in him, to be e^eixised in his sound Jiscretion, or he can have none. Upon what principle can he have an im- plied authority to adopt one i^nd not another r The best manner of annoying the enemy must, from the nature of things, vary under different circumstances ; and the exe- cutive is responsible to the nation for the faithful discharge of his duty, undt-r all the changes of hostilities. But it was said that a declaration of war does not, of itself, import a right to confiscate enemy's property found within the country at the commencement of war. This proposition could not be admitted in the extent in which it is laid down. Nothing is more clear from authority than the right to seize hostile property afloat in ports at the commencement of war. It is the settled practice of na- tions, and the modern rule of Great Britain he rself applied to American property in the present war; applied, also, to property not merely on board of ships, but, as it appeared by an affidavit in this case, to spars floating along side of them. It >vas also said that a declaration of war does not carry with it the right to confiscate property found in the country at the commencement of war, because the consti- tution itself, in giving congress the power, to declare rvar^ grant letters of marque and reprisal^ and make rules con- cerning captures by Jand and xvater^ — has clearly evinced that the power to declare war did not, ex vi terininorumy include a right to capture property every where, and that the power- to make rules concerning captures on land and water, may well be considered as a substantive power as to captures of property xuitlmi the territory. But if the power to make rules respecting captures, &c. be a substan- tive })ower, it is equally applicable to all captures, wherev- er made, On land or on water. The terms of the grant im- port no limitation as to place. Upon the same construction the prpwer to grant letters of marque and reprisal is a sub- MARITIME CAPTURES AND rRIZE«;. 2T stant'ive power ; and a declaration of war could not, of it- self, authorize any seizure whatsoever of hostile property, unless this power was called into exercise. The power to declare war includes all the powers incident to war, and iiccessary to carry it into effect. If the constitution had been silent as to letters of marque and captures, it would not have narrowed the authority of congress. The author- ity to grant letters of marque and reprisal, and to regulate captures are ordinary and necessary incidents to the power of declaring war. It would be utterly ineffectual without them. The expression, therefore, of that which is implied in the very nature of the grant, cannot weaken the force of the grant itself. The words are merely explanatory, and introduced ex ahundanti cautela. — The above decision, seems to admit that the effect of hostilities is to confer all the rights which war confers ; and it seems tacitly to con- cede, that, by virtue of the declaration of war, the execu- tive would have a right to seize enemy's property M'hich should actually come within the territory during the war. Certainly no such power was given directly by any statute: and if the argument be correct, vhat the power to make cap- tures on land or water must be expressly called into exer- cise by the legislature, before the executive can, even after war, enforce a capture and condemnation, it will be very difficult to support the concession. Suppose an enemy's ship of war or merchant ship should have come within our ports, there was no statute declaring such ship actually confiscated. There was no express authority either for the navy or army to make a capture of her : and although the executive might authorize a private armed vessel so to do, yet it would depend altogether upon the will of the ves- sel's owner whether they would so do or not. Can it^be possible that the executive has not the power to authorize such a seizure ? And if he might authorize a seizure by the army or navy, why not by private individuals, if they will volunteer for the purpose .^— -The act declaring war 2S LAW OP , GHAP. I, authorized the executive to employ the land and naval force of the United States to carry it into effect. When and where should he carry it into effect ? Congress had not declared that any captures should be made on land ; and if this be a substantive power, not included in a decla- ration of war, how could the executive make captures on the land, when Congress had not expressed their will to this effect ? The power to employ the army and navy might well be exercised in preventing invasion, and the common defence, without necessarily including a right to capture, if the right of capture be not an incident of war : and upon what ground then could the executive plan and execute foreign expeditions and foreign captures ? Neither the power to seize and capture enemyjs property which was without the territory, at the commencement of the war, nor the power to seize that which was within the territory at the same period, were expressly given or deni- ed (except as to private armed vessels) and how could ei- ther be assumed except as an incident of war ? The act respecting alien enemies and prisoners of war may, in gen- eral be deemed mere regulations of war, limiting and di- recting the discretion of the executive ; and it cannot be doubted that Congress had a perfect right to prescribe such regulations. To regulate the exercise of the rights of war as to enemies does not, however, imnjy that such rights- have not an independent existence. Besides, it is clear that the act respecting alien enemies applies only to aliens resident within the country, and not to the property of Alliens who are not so resident. — When the legislative au- thority, to whom the right to declare war is confided,, de- clares war in its most unlimited manner, the executive au- thority, to whom the execution of the war is confided, is bound to carry it into effect. He has a discretion vested in him, as to the manner and extent ; but he cannot lawfully transcend the rules of warfare established among civilized nations. He cannot lawfully exercise powers or authorise MARITIME CAPTURES AND PRIZES. 29 • proceedings which the civilized world repudiate and dis- claim. The sovereignty, as to declaring war and directing its effects, rests with the legislature. The sovereignty, as to its execution, rests with the President. If the legisla- ture do not limit the nature of the war, all the regulations and rights of general war attach upon it. It was not there- fore contended that the modern usage of nations constitutes a rule, acting on enemy's property so as to produce confis- cation of itself, and not. through the sovereign power. On the contrary, it is considered, that enemy's property is in no case confiscated by the mere declaration of war j it is only liable to be confiscated, at the discretion of the sove- reign power, having the conduct and execution of the war. The modern usage of nations was resorted to merely as a limitation of this discretion, not as conferring the authority to exercise it. The sovereignty to execute it is supposed already to exist in the President by the very terms of the constitution I; and it is again asked, if this general power to confiscate enemy's property does not exist in the exe- cutive, to be exercised in his discretion, how could he have authority to seize and confiscate any enemy's property, coming into the country after the war, or found in the ene- my's territory ?(') Thus also where salvage had been decreed upon proper- ty which was the property of a friend at the time of its be- ing rescued, but war being subseqviently declared, and ex- isting at the time of adjudication, prevented the owner, who was entitled to the residue after pajing the amount of sal- vagej,from interposing a claim in the courts of the belligerent state. But as this property was found within the territory of that state at the declanuion of war, it was decided that it must stand on the same footing with other enemy's property similarly situated. Although property of that description is liable to be disposed of by the legislative power of the («) Per Stort, J. • 5 .% *-v oO SjAW OS CHAP. i> • country, yet, until some act is passed on the subject, it is still under the protection of the law, and may be claimed upon the termination of war, if not previously confis- cated. The court would therefore make such order re- spectitig it, as would preserve it, subject to the will of the court, to be disposed of as future circumstances should ren- der proper. (^) As to the first of the above cases it should be observed that there was no affidavit in the court below shewing the timber to be partly resting on land, but that it appeared to fee water borne. The decisions in both may well consist and stand with the principles hereinafter laid down as to seizures in port by non-commissioned captors ; for the only real question of doubt or difficulty in the cases above referred to was one of municipal law, — Whether the state hsid declared its will to confiscate ? Had the court deemed it within the authority of the judicial power under our municipal constitution, it might have applied the law of vindictive retaliation to these cases, it having been proved in the first, that American vessels and spars floating along side of them had been condemned in Great Britain during the then present war under like circumstances. Vide injra, §13. 4. So also nations have been induced for their mutual benefit, and influenced by the increasing civilization and refinement of the age, to temper the extreme rigor of this right of seizing and confiscating enemy's property found within the territory by conventional agreements. Thus by the treaties between the United States and France, Sweden, and Morocco, from six to nine months are allowed the merchants of those nations respectively, to withdraw themselves and their effects, in case bf war. And it is stipulated in the treaty of 1794 between the Unit- ed States and Great Britain, That in case of a rupture be- (') Per JonNsov, J. Tlie Jldveiiturc, Supreme Court of the United Slates, February Term, 1814# M. S. Vide infra, Chuptcr X. § 6. ^ ^ aiARITIME CAPTURES AND PHIZES. HI tween them, the merchants and others of each of the two nations residing in the dominions of the oth'jr, shall have the privilege of remaining and c©ntinuing their trade, so long as they behave peaceably, and commit no oftence a- gainst the laws ; and in case their conduct should render them suspected, and the respective government should think proper to order them to remove, the period of twelve months from th€ publication of the order, shall be allowed them for that purpose, to remove all their families, effects, and property ; but this favour shall not extend to those who act contrary to the established laws. Art. 26. The act of 5 Cong. c. 83, declares. That aliens, with whose nations we have any treaty, shall in case of war, be permitted to remain in the United States the full tim^ stipulated by treaty ; and where there is no such treat}', the President may ascertain and declare such reasonable time for their departure, as may be consistent with the public safety, and according to the dictates of humanity and national hospitality. 5. The war of 1756^h:^y'mg been commenced b}- Great Britain against France without a declaration or the Issuing of general letters of marqiie and reprisal, the question was agitated in the latter country between the insured who had stipulated to pay an increase of premium in case of xvar and the insurers who were to receive it, whether hostilities of this nature were to be considered as within the words of the policy. For the insured it was contended that such hostilities could not constitute a war, because by the law of nations no other war is known but that which is declared in a public and solemn manner by one.state against anoth- er : Hostes simt (juihua be Hum pub lice populns Romamui decrevit, vel ipsi populi Romano^ L. 24. JFf. de Capt, et Post. On the other hand it was argued, that being author- ized by the British government, they were to be consid- ered as true acts of hostility between nation and nation, wd to be assimilated to a war. In flict by the merporial 32 LAW or CHAP. I. sent to the court of London on the-2lst December, 1755, ihe French king demanded the prompt and complete resti- tution of the vessels and effects of his subjects which had been taken, at the same time announcing that in case of re- fusal he should consider such denial of justice as an actual declat^.atioii of war on the part of the court of London. The question was finally decided against the insured, and it was determined that the premium should be increased in the same manner as if the words hostUitie.s and reprisal had been used in the policy. (s) 6. As it may happen that seizures of the vessels and ef- fects of the enemy may be made before the commencement of hostilities, and by way of reprisals ; and as such seiz- ures may be made either before or subsequent to the com- mencement of hostilities, by non commissioned captors it becomes an important question to determine in whom ^'ests the proceeds of such seizures, should the injustice of the adverse power ultimately induce their confiscation. By the universal law and usage of nations the right to all cap- tures and seizures made from an enemy vests in the sover- eign or state. Tlie municipal law of every particular na- tion regulates the distribution of the proceeds thereof. As to captures made after the commencement of shostilities, and in virtue of instructions given to the public armed ves- sels of the state, and of letters of marque issued to private armed vessels, their proceeds are distributed with certain reservations, to the individual captors. In respect to seiz- ures made before the commencement of hostilities, and those made by non commissioned captors, they vest in the sovereign or state, except such porrions of them as may have been granted to others. And by the law of most of the maritime nations of Europe, certain of those portions have been granted to, and consequently vest in, the person (k) PotMcr, (TJlsaurance, No. 84» Vaiin, zur t'Ordonnance, L. 3. tit 0. tleslAssurances, Art. 3. :maritime captures and prizes, o3 sustaining the office ofvtAdmiral. Hence, in England these portions are termed Droits of AJmiraltij. But in cases of seizures by non-commissioned captors, it is usual to re- ward the takers with a liberal share of the propert)-, which is determined by the proper court upon reference to it.('\) 7. And by the antient law of France, those only who had commissions from the Admiral could lawfully capture for their own use ; so that if the master of a merchant vessel, who had no commission or letter of marque, was attacked at sea by an enemy's ship, and in defending himself, cap- tured the ship of the enemy, the prize did not vest in the captor, but belonged to the Admiral, to whom the rights of the sovereign had been granted: but it was customarv for the Admiral to allow the captor a liberrd portion of the prize as "a reward for his exertions ; with a reservation, however, that this act of bounty should not be construed into a right.(') So also, in England, when enemy's vessels come into port from distress of weather, or want of provisions, or from ignorance of war existing, and are seized in port, they* beloftg to the lord high admiral ; or as that office is now practically constituted, to the king in his office of admiral- ty. This is likewise the case with enemy's ships and goods met at sea, and seized*by any vessel not commis- sioned. All rights of prize belong originally to the crown, and the beneficial interest derived to others can proceed on- ly from the grant of the crown. It was thought expedient to assign a certain portion of those rights, to maintain the dignity of the lord high admiral, who now exists only in contemplation of law. This grant, whatever it conveys, carries with it a total and perpetual alienation of the rights of the crown. Captors can therefore have no interest in prizes taken under such circumstances ; a perpetual aliena- (h) 1 Robinson, 286. The Haase. lb. 303. The Amor Parentum. (') Pothier, Be PropriM, N«. 93. YcdiUi Sur I' Ordomance, L. 3: titi &• d(s Pri$es, Art. 1, 34 X.AW Of GlIAI'. I. tion of tiic crown's original right..,to them having been made \o the lord high admiral.C") 8. And by the law of France, enemy's vessels driven oij shore from distress of weather, or other causes, are con- demned to the crown. Such are the provisions of the or- dinance of the 12th of May, 1696, concerning- the adjudi- cation of vessels driven on shore by distress oftueather^ or otherwise. His majesty being informed that certain dis- putes have arisen concerning the adjudication of stranded vessels, either in respect to those which being of foreign built are unprovided with a bill of sale, or in respect to goods unaccompanied by a bill of lading, under the pretext that the regulation of the ITth February, 1694, appears to be confined to captured vessels, and that the article of the ordinance of August, 1681, which confiscates goods unac- companied by bills of lading is invested under the title oi prizes ; his majesty being desirous to 'provide a remedy herein, in of der that the said goods and vessels, which are really enemy's property, but often claimed by the subjects of neutral princes, may not in any case be withdrawn from the confiscation to which they are justly liable by the laws of war, and by the antient and modern ordinances ; his majesty hath ordained and doth hereby ordain that the ves- sels which are stranded up»n the coasts, or driven thither by distress of weather, or otherwise, shall be judged ac- cording to the ordinance of August, 1681, under the title of prizes, and according to the regulation of the 17th Feb- ruary, 1694 ; so that every vessel stranded, which is of en- emy built, or originally belonging to an enemy proprietol-, shall not be considered as neutral, but shall be wholly con- fiscated to his inajcstifs use, unless the sale was made in the pi'esence of some public magistrate before whom such transfers are usually made, and unless the bill of sale be found on board accompanied by a legal power given by the fk) 6 Robinson, 2S2, The Maria Francaiscf AIARITIME CAPTUKES AND PKlZt«S. Sif former owner in case the sale is made by his agent.* His majesty likewise ordains that the goods of the cargo of such stranded vessels, unaccompanied by bills of lading, shall be and remain entirely confiscated to his use ; it not being, however, his majesty's intention to include in the present ordinance stranded vessels, whose papers may have been lost by distress of weather and the calamity of shipwreck, in case the master or commander makes a de- claration thereof forthwith, and the faets justify the pre- sumption of its truth ; in which case his majesty ordains that the claimants shall have liberty to produce a certified copy of the bill of sale, and duplicates of the bills of la- ding. 9. And where Dutch property was seized in England be- fore a declaration of war against Holland, it was condemn- ed to the crown, upon the ground that the declaration had a retroactive effect, applying to all property previously de- tained, and rendering it liable to be considered as the prop- erty of enemies taken intime of war. The seizure was de- termined to be provisional and equivocal as to the effect, and liable to be varied by subsequent events. If the rela- tions of peace had been ultimately re-established, then the seizure, though made with the character of a hostile seiz- ure, would have proved, in the event a mere embargo, or temporary sequestration. The property would have been restored, as is usual at the conclusion of embargoes ,• ei process often resorted to in the practice of nations, for va- rious causes not immediately connected with any expecta- tion of hostility. Such would have been the retroactive effect of that course of circumstances. On the contrary if tlie transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be 720 embari^'o^^ it is no longer an tquivocal act subjt;ct to two interpretations ; there is a declaration of the animus by which it was done, thtst it Avas don° ho^Jih anlmo^ and is 3(5 LAW or cjiAi'. '. to be coiisKlererl ?.s a hostile measure ab initio. The prop- erty takvn is liable to be treated as the property of persons Uespassers ab initio^ and guilty of injuries which they have refused to redeem by any amicable alteration of their mfeasures. This is the necessary course, if no particular compact intervenes for the restitution of such property be- fore a formal declaration of hostilities. (') 10. Where the capture was made by a vessel sent out by the captain of a man of war, but not attached as a tender to the ship of war, it was condemned as a droit of admiralty, upon the ground of its being taken by a non-commissioned vessel. The only parties that can maintain an interest in prize are public ships of war and private armed ves- sels commissioned as letters of marque. Commanding OiHcers of those ships may have a right to put their men, arms, and stores on board another vessel ; but by so doing an officer cannot be said to put that other vessel into com- mission, and entitle it to the privilege of being reckoned amongst the description of vessels, to v/hich the interest in prize is given by law. If a capture is made by a tender at- tached by the interposition of public authority ; on every principle which a capture by a boat would entitle its ship, a capture made by a tender, specially employed in that cap- ture by tiie ship of war to which she belonged, might, per- haps, entitle that ship. But not so with a tender attached by the private act of the officer hiring and manning her himself. The character of a part of the navy is not to be impressed without the intervention of some public authori- ty.C") The same doctrine was held by the Lords Commls- s-ioners of Appeals in Prize Causes in England, on the claim of the Abergavenny ship of war to share in the c:i| tr.re oi Curacoa, in virtue of the presence and co-opera- (') » It iliiiLunn, '.'.3 3. 'l"lie llocilcs Lust. C' ; 5 }r/',nsu/i, -11, T!ic .Melomasne.— i) 13. Notwithstanding the above principles relative to prizes made by non-commissionsd captors appear to be well settled as a part of the law and practice of nations, yet they are apparently controverted by the learned Bynkershock io the single case of a capture made by a merchant vessel, attacked at sea by an enemy's ship, and who in defending herself captures the ship of the enemy. In this case, he labours to shew that the master and crew of the merchant vessel are alone entitled to the prize to the exclusion of the owners and freighters. (p) But it is evident that this must depend upon the municipal regulations of the belligerent nation. For the right to prize is originally inherent in the sovereign or state. No person can have any interest in it but what he takes as the gift or grant of the sovereign or state. The right of making war and peace is exclusively in them : the acquisitions of war belong to them : and the dis- posal of these acquisitions may be of the utmost importance for the purposes both of war and peace. This is generally received as a necessary principle of public jurisprudence by all writers on the subject, jBe//o parta cedunt Re'ipublicce, It is not to be supposed that this wise attribute of sove- reignty is conferred without reason ; it is given for the purpose assigned, that the power to whom it belongs to de- ("> 5 Robinson, lb. In JYvtis. (o) 2 BroTvn's c. iv. ^ Adm. Laiv, 526. Appendix. 4 Robinson, 7% The Abigail. (p) Q. /. P. L. 1. c. 20. 3B LAW OP CHAP. I. cide on peace or war, may use it in the most beneficial manner for the purposes of both. A general presumption arising from these considerations is, that government does not mean to divest itself of this universal attribute of sove- reignty, conferred for such purposes, unless it is so clearly and unequivocally expressed. (i; Vain is it to allege that the captors, in the case stated above, act under the natural law of self defence, paramount to all civil laws whatsoever. For this right conferred by the law of nature is merged in the social compact, or at least must be exercised in subor- dination to the regulations of civil society* Unless there- fore the municipal law of the belligerent state has otherwise ordained it, the right to prizes captured under these cir- cumstances must vest in the sovereign or state. In Great Britain, a statute provision divides the proceeds of the prize thus captured between the master and crew, and the owners of the merchant vessel, in the same manner as is practised in the case of private armed vessels, Stat. 22 & 25 Charles II. c. 2. And in case of recaptures by non-com- missioned vessels, the property retaken becomes a droit of admiralty J but it is always referred to the court of admi- ralty to fix the proportion of reward due to the salvors. ( ■^) 13. As the United States have not alienated their origi- nal right to prizes, except as to those made by public and private armed and commissioned vessels, it follows, that^ in this country, the right to priaes made before a declara- tion of war, or by non-commissioned captors, vests in the United States, If, therefore, property which has been sub- jected to an embargo or temporary sequestration, or which has been seized by non-commissioned captors, is finally condemned as enemy's property, it must be condemned to the United States, the captors having no legal interest in prizes made under such circumstances. And non-commis- (■i) 6 Itobimou, \72, The Elscbc. CO f Robimon, 178, The San Bernado. lb. 286, The Ilaosc- MARITIME CAPTURES AND PRIZES. 3& sioned captors are rewarded in this country not by the ex- ecutive authority, but by the legislature. Fide the seve- ral acts of Congress passed during the late war granting to individuals vessels, and other property captured by them without a letter of marque. It is evident that none of the preceding principles can be applicable to vessels and goods wrongfully taken and de- tained before a declaration of war. Such property cannot be confiscated after the declaration, but ought to be restor- ed to the enemy owners ; because had it not been for the wrong first done it would not have been in the possession of the belligerent state. Vide the famous Report of Sir George Lee, &c. on the Memorial of the Prussian Ministei!^ to Great Britain, of the 18th of January, 1753, by which it appears that French ships and effects, wrongfully taken before France became a party to the war which was ter- minated by the treaty of Aix La ChaptUe, were restored to the French owners by decree of the English courts of prize, jiagrante hello. Nothing can justify a departure from this course, unless indeed it be the conduct of the enemy ; for we are told by authority equally high with that of the au- thors of this Report, that it is the constant practice of Great Britain to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. (^'^ (^) Per Sii- W. Sgott, in tlie Santa Cruz, 1 Rob. fl4. 40 LAW OF CHAP. II, CHAPTER II. Of the aiUhoritij to make captures, and what thing's are e::- emptjrom capture. 1, The sovereign power of the state has, alone, authority to make war. But as the different rights which constitute this power, originally resident in the body of the nation, 3nay be separated or limited according to the national will, at is in the munieipal constitution of each particular state that we are to seek the power of making war.('') Thus in the United States the Congress are invested with this pow- er. Constitution, art. 1. § 8. 10. 2. Whatever belongs to the enemy state or sovereign, or to their citizens or subjects, may be termed things belong- ing to the enemy, res hnstiles.(^) A state taking up arms in a just cause has a double right against its enemy. 1st, Aright of putting itself in posses- sion of what belongs to it, and which the enemy witholds ; and to this must be added the expenses incurred to this end, the charges of the war, and the reparation of damages. For were the belligerent state obliged to bear these expen- ses and losses, it would not fully obtain what is its due, or what belongs to it. 2d, It has a right of weakening the enemy for the purpose of disabling him from supporting an unjust violence ; the right to take from him all means of resistance. Hence arise all the rights of war with regard to things belonging to the enemy. (•=) (0 Vatlel, L. 3. c. 1. § 4. Martens, L. 8. c. 2. § 1. (»') Vuttel,L. 3. c. 5. § 7S. ^c) lb. L. 3. c. 9. § 1. Martens, L. 8. c. 3. J 9. • IMAKITIMK CATTURES AXD PRIZES. 41 3. All things belonging to the enemy are therefore sui)- ject to capture. C) This, however, must be understood with certain exceptions, which will be hereafter explained. 4. All moveable things taken from the enemy belong to the sovereign or state making war. They may reserve the property to themselves, or grant it to the captors. The ti- tle to it is vested in them, and thence derived to the indivi- dual captors according to the municipal regulations of each particular state. (^) 5. Captures made by public armed vessels are m^^de in pursuance of the instructions given them by the sovereign or state. Those made by private armed vessels or mer- chantmen are in virtue of commissions or letters of marque granted to them. Subjects are not obliged to weigh scrupulously the Jus- tice of the war ; but in case of doubt are to rch' upon the judgment of the supreme power of the state. Nor can there be any doubt that they may with a safe conscievce serve their country by fitting out private armed vessels to cruise against the commerce of the enemy, unless the war be evidently unjust. Thtse adventurers have been some- times denominated free-hooters or pirates : but this is manifestly absurd, for what they do is done under the sanc- tion of public authority. (^) By the law of France private armed vesse^s ran only be fitted out by a commission irom the government, which cannot be obtained without giving security for t^^cir -• spon- sibility on account of unlawful conduct. The- .'moui.t of this security was fixed at seventy four thous^ird fran-. s by a decree of thf. 2d Prairial, 11th year, 22d May, 1813. (<») Bijnkershoek, Q. J Pub. L 1 c. 1. (e) ra«e/, L.3. c. 9. § 164 Azuni, Part % c. 4. art ■> J 1. Q-rrm. princeps sit, cvjus auspiciis belhim geritur, ulemqne et siimptusct OTtfr .fnt, prxda ipsi cedit — Heinnecius, De nav ob vet. iner. vcc. C( a.i- vj \o (') Vatte\ L. 3. c 15 § 229. JBynkerslwek, Q. J. t-ub. L. 1. c. 18. Azttni, Part 2. c. 5. art. 3. § 1. 2. 4:i LAW or chap. ii. This aniouiit is reduced to one half, if the vessel is manned by less than one hundred and fifty men. The owners, the commander, and two sureties are required to join in the stipidation for this purpose. In Great Britain letters of marque cannot issue to any- private armed vessel until a stipulation in the nature of bail is given before the judge of the high court of admiralty or his surrogate, in the sum of three thousand pounds ster- ling, if the ship carries above one hundred and fifty meni and if a less number, in the sum of fifteen hundred pounds sterling, with condition to render full satisfaction for any damage or injury done to British subjects or the subjects of foreign states, in amity with Great Britain.(») By the act of congress of 1812, concerning letters of marque, prizes, and prize goods, it is provided that before any commission of letters of marque and reprisal shall be issued, the ovrner or owners of the ship or vessel for which the same shall be requested, and the commander thereof for the time being, shall give bond to the United States, with at least two responsible sureties, not interested in such vessel, in the penal sum of five thousand dollars : or if such vessel be provided with more than one hundred and fifty men, then in the penal sum of ten thousand dollars ; with condition that the owners, officers, and crew, who shall be employed on board such commissioned vessels, shall and will observe the treaties and laws of the United States, and the instructions which shall be given them ac- cording to lav/ for the regulation of their conduct ; and v/ill satisfy all damages and injuries which shall be done or committed contrary to the tenor thereof by such vessel, and to deliver up the same when revoked by the President of the United States. So also by the act of congress of 1815, for the protection of the commerce of the United States, against the Algc- («) 2 liobinmi, Appcnilix, No. 8. P, 13- MARITIME CAPTUP.es AM) PRIZES. 4o rinecruizers, Sec. 3. it is provided, Thnt on the apinlcutioii of the owners of private armed vessels of the United States, the President of the United States may grant them special commissions in the form which he shall direct, un- der the seal of the United States ; and such private armed vessels, when so commissioned, shall have the like author- ity for subduing, seizing, taking and bringing into port any Algerine vessel, goods or effects, as the beforementioned public armed vessels may by law have ; and shall therein be subject to the instructions which may be given by the President of the United States for the regulation of tUeir conduct ; and their commissions shall be revocable at hia pleasure. Provided^ That before any commission shall be granted as aforesaid, the owner or owners of the vessel fpr which the same may be requested, and the commander thereof for the time being shall give bond to the United States, with at least two responsible sureties, not interested in such vessels, in the penal sum of seven thousand dollars,, or if such vessel be provided with more than one hundred and fifty men, in the penal sum of fourteen thousand dol- lars, with condition for observing the treaties and laws o- the United States, and the instructions which may be given as aforesaid, and also for satisfying all damages and inju- ries which shall be done contrary to the tenor thereof, by such commissioned vessel, and for delivering up the com- mission when revoked by the President qI the United States, 6. A question here arises whether the owners and offi- cers of a private armed vessel are liubie for illegal acts committed during the cruize beyond the amount of the se- curity thus given, and if so, whether they are thus liublr. to a greater extent than the value of the vessel, her tackle, apparel and arms. No doubt can be entertained as to the commander that h.e ought to be held liable for the imme- diate consequences of his own acts. And as to the ov,iv €ijb, it seems equally clear tlwat tiieir liabilitv "; r.ot Hr."''.' '" 44 LAW OF CHAP n. bv the amount of the penalty of the bond or stipulation they are coinpclkd to give ; but the only doubt that can arise is, whether this liability ought not to be restricted to the value of the vessel, her tackle, apparel, and arms. Po- thier decides that the owner may entirely discharge him- self from his resppnsibiiity beyond the amount of the pen- alty by abandoning the vessel to the injured party. (^') But there is some reason to believe that this decision is founded upon a deduction from the provision of the civil law in re- spect to the actions de pauptrie and noxalis ; the first of wiiich v.'as given against the owner of a quadruped who had doLie an injury to some person by kicking, biting, &c. which was called puuperiem facere. Inst. L. 4. tit. 9. Dig. L. 9. tit. 1. The second lay against the master of a slave for any injury done by him, Dig. L. 9. tit. 4. and in bodi these the owner or master was discharged by deliv- ering up the quadruped or ulavc. But no correspondent provision is to be found in our municipal law, the respon- sibiiitv of the owners of merchant vessels not being limited to the value of the vessels and freight, as in Great Britain (') and France. ('^) The modern law of France goes even be- yond this decision of Pothier, and provides that the own- ers of private armed vessels shall in no case be responsible for torts and depredations committed by their officers and crews upon the high seas beyond the amount nf the secu- ritv given bv them, unless they were access('ry to the com- niicting of the same. Code de Commerce ^ hxx.. 217. But it is evident that this limitation of the liabdity of the par- ties must depend upon the positive provisions of municipal law ; and that unless it be thereby expressly confined to the value of the vessel and her appurtenances, it must be indefinite in its extent, l.'i they are not personally bound CO Folhuir. dc I-'ropilctc, No. 92. (■) Sut. 7 Geo. 11. c. 15. O Coi/o' i/j Co;/»wtTcc, Art. 216. MARITIME CAPTURES AND RRIZpS, 46 to a further extent than the value of the vessel and her ap- purtenances, why is a specific sum required which may, in many instances, greatly exceed that value ? If the law con- templated that this value should fix the extent of their lia" bility, it would direct the ship to be valued, and order secu- rit to be taken in the precise amount of the valuation. The commander who captures> in consequence of an authority which he has received, is appointed for that special pur- pose, and those who appoint him are responsible for%.the execution of the trust. Thus the civil law gives the action exercitoria., Dig. L. 14. tit. 1, against the owner of a ves- sel for the act of the master, when the latter is acting in the course of his emplovment as such. If the owner be thus liable, it clearly follows, that he is so to the amount of his whole property, and that he is not discharged by deliver- ing up the Vessel. Therein our own municipal law agrees with the civil. The prize acts of 1812, provides. Sec. 6. That if the cap- ture be made without probable cause, or otherwise unrea- sonably, the courts may Order and decree damages and costs to the party injured, and for which the owners and cominanders of the vessels viaking such captures^ and also the vessels^ shall be liable ; and our own courts of prize have adjudged that the owners of a privateer are responsi- ble for the conduct of their agents, the officers and crew, to all the world ; and that the measure of such responsi- bility is the full value of the property injured or destroy- ed.(' J And all the owners are responsible in solidum ; nor can a part owner exempt himself from his general r-espon- sibility by compensation pro tanto, and a release from the claimant as to him.('") 7. By the laws of the United States it is enacted that, If any citizen shall, within the territory or jurisdiction of (0 3 Dallas, 333. Del Col. vs. Arnold, (■") 5 Robinson, The Karasan. 46 LAW OF CHAP H^ the United States, except and exercise a commission to serve a foreign prince or state in war, by land or sea, the person so offending shall be deemed guilty of a high mis- demeanor, and shall be fined not more than two thousand dollars, and shall be imprisoned not exceeding three years; And it is likewise provided, That if any person shall, with- in any of the ports, harbours, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knoAvingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, to cruize or commit hostilities upon the subjects, citizens, or property of another foreign prince or state, with whom the United States are at peace, or shall issue or deliver a comnRission within the territory or juris- diction of the United States, for any ship or vessel, to the intent that she may be employed as aforesaid, every such person, so offending, shall, upon conviction, be adjudged guilty of a high misdemeanor, and shall be fined and im- prisoned at the discretion of the court in which the convic- tion shall be had, so as the fine to be imposed shall in na case be more than five thousand dollars, and the term of imprisonment shall not exceed three years, and every such ship or vessel, with her tackle, apparel, and furniture, to- gether with all the materials, arms, ammunition, and stores, which may have been procured for the building and equip- ment thereof, shall be forfeited, one half to the use of any person who shall give information of the offence, and the other half to the use of the United Statcs.(") And by a subsequent act it is also provided. That if any citizen of the United States shall, without the limits, of the same, fit out or procure to be fitted out, or knowingly be concerned m the fitting out of a privateer for the purpose of cruizing (") 3 Laws U. S- 8P. MARITIME CAPTURES AND TRIZES. 4? against the subjects of a nation in amity with the United States, or shall take the command, or serve on board of such privateer, or purchase any interest in the same, he shall be adjudged guilty of a high misdemeanor, and be punished by a fine not exceeding ten thousand dollars, and imprisonment not exceeding ten years. ("; And by the law of France, its subjects were forbidden to take commissions from any foreign kings, princes, or states, for the purpose of arming ships of war, and cruising therewith on the high seas under the foreign flag, unless by permission of the government, under the penalty of being considered as pirates. (i') Similar prohibitions are contained in the municipal laws of most countries ; and it may be doubted whether cruising under commissions from two or more different powers be permitted by the law of nations. An opinion is expressed by D'Habreu, Tratado de las Presas^ Part 2. c. 1. ^ 7. that the taking commissions from two or more different princes allied in the same war may be justifiable. But this dis- tinction is rej^■cted by Valin, who urges against it the con- clusive objection that though the two princes or states may be allies, one or the other of them may be in amity with a power with whom the other is at war ; and that consequent- ly to indulge such a deviation from the general rule might compromit the rights of the sovereign and the peace of the country. And Sir Leoline Jenkins considers those who commit depredations under commissions from two or more sovereigns or states, as pirates in the same degree with those who cruize without any commission.(i) 8. The conduct of public vessels of war, or of private armed vessels commissioned as letters of marque, is regu- (o) 4 Laws U. S 3— Vide 3 Dallas, 133. Talbot vs. Janson. 2 7>«.'/af, 321, The United States vs. Guiiiet. (J') Ordonnance de la Jlfurine, L. 3. tit, 9. da Priees, art. ?, C*") Sir L. JenkirCs Works, 7U, 48 LAW OF CHAP. II. lated by instructions from the sovereign, or suprenie exe- cutive power of the state. Thus by the prize act of 1812, the President of the Uni- ted States is authorized to establish and order suitable in- structions for the better governing and directing the cpn- duct of vessels commissioned according to the act, their pfiicers and crews, copies of which shall be delivered, by the collector of the customs, to the commanders of the same when they shall give bond as required by the act. Under this authority the President issued on the 28th August, 1812, an instruction,, commanding private armed vessels not to interrupt any vessels belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandize, in consequence of the alleged repeal of the British orders in council. It was adjudged to be necessary that the instruction should either have been actually delivered to the privateer, or that she fthould have been in port after it was issued, in order to invalidate a capture made contrary to its letter and spi- rit.(0 So also where a capture was made by a private armed vessel having the instruction on board, a question was made whether the capture was lawful, and that depended upon the authority of the President to issue this instruc- tion, and upon its true impori, if rightly issued. The lan- guage of the provision in the prize act is very general, and it is entitled to a liberal construction both upon the mani- fest intent of the legislature, and the ground of public po- licy. It had been argued, that privateers acquire, by their com- missions, a general right of capture under the prize act, which it is not in the President's power to narrow or re- strain, while the commission is in foi'ce ; that therefore his C) Tlie Frances and the Mary, Supreme Court of tho U. S. February Term, 1814. M. H. AiAUiTfiyii: CAPTURES AND niizcy. 49 right to issue instructions must be constraicd as suborcllntite to tlie general authorit)^ derived from the comnnss'ion; and that, in this view, his instruction shoukl extend only to che -internal organization, discipline, and conduct of privuteers. But it is very clear that the President had, under the prize act, power to grant, annul, and revoke at his pleasure the commissions of privateers; and by the act .declaring war, he was authorized to issue the commissions in such form as he should deem fit. The right of capture is entirely derived from the law : It is not an absolute vested i'ight which cannot.be. taken away or modified by law : It is a limitcjd right, 'which is subject to all the restraints that the legislature imposes, and is to be exercised in the manner its wisdom prescribes. The commission, therefore, is to be taken in its general terms, with reference to the laws under which it emanates, and as containing within itself all the qualifications and restrictions which the acts, giving it existence, prescribe. In this view, the coinmis^ion is qua- lified and restrained by the power of the President to issue instructions. The privateer takes it subject to such power and contracts to act in obedience to all the instructions which the President may lawfully promulgate. Public policy, also, would confirm this construction. It has been the great object of every maiitimc nation to re- strain and regulate the conduct of its privateers : they arc watched with great anxiety and vigilance, because they may often involve the nation, by irregularities of conduct, in serious controversies, not only with public enemies, but also with neutrals and allies. If a power did not exist to restrain their operations in war, the public faich might be violated, cartels- and flag§ of truce might be disregarded, and endless embarrassments arise in the negotiations with fort-ign powers. Considerations of this weight and impor- tance are not lightly to be disregarded, and when the lan- guage of the act is so broad and comprehciisive, the court sta,ted they should noi feel at liberty to narrow or weaken iO Law oi chap. ir. its force by a construction not presented b}* the letter, or spirit, or policy of the clause ; and were therefore of the opinion that the instruction in question was within the au- thority delegated to the President by the prize act.(') 9. And though such instructions may bind the judges of the prize courts of the nation under whose authority they are issued, where those instructions relax the law of nations in favour of neutrals, yet if they attempt to extend that law to the prejudice of neutrals, they are not conclusive upon the judges, whose decisions must in that case be re- gulated by the paramount authority of the law of nations. It was upon these principles that Sir James Mackintosh determined in the case of the American ship Minerva in the Prize Court at Bombay, which ship had been Captured on a vo}^age supposed to be interdicted under the British doctrine which subjects to capture a neutral trade not open fn time of peace. The ship left Providence, Rhode Island, in August, 1 805 ; had touched at the Isle of France, from which place she sailed to Batavia, thence she went to Tegall and Manilla, and on her voyage from this last place back again to Batavia she was detained. Her cargo con- sisted chiefly of indigo and dollars. It appeared that she was under the direction of a supercargo on board, as to her employment in trade, both in respect of the cargoes and the intermediate ports to which she was to trade,' previously' to her return to Providence, or some other port in America, where her voyage was to end. For the captors, it was con- tended that she was trading between enemies colonies, and therefore acting in direct violation of the letter and spirit of his majesty's instructions of June, 1803, which com- niand the commanders of ships of war and privateers not to seize any neutral vessel which should be carrying on trade directly between the colonies of the enemy and the (') Ter Stoiit, .T. Tlic Thomas Gibbons, Supreme Court of the U, ?., rcbruary Term, 1814. M. S. MARITIME CAPTURES AND PRIZE?. 51 tifiutral country to which the vessel belonged. For the claimants it was insisted, that neither Manilla, nor Batu- via, nor the Isle of France were enemies colonies of such a nature, as to render the trading thereto by a neutral in time of war illegal ; inasmuch as the trade to those places was open in time of peace. The court had directed com- missions to be sent to Bengal and Madras, to ascertain tvhether the ports of Batavia and Manilla were, during the last peace, operi to any foreigners from the ports of India, Europe, or America; and if open, whether uiider any and what restrictions ; and also to enquire into the state of those ports in these respects before the war v.Iiich broke out between Great Britain and Spain in 1796. These com- missionai being in part returned, and it appearing that these ports were open to all foreigners during the last peace, without any restrictions except as to opium, and specie a* the port of Batavia, Sir James Mackintosh pronounced judgment of restitution. The captors, he said, were fully justified in detaining this vessel, because in so doing they were acting in obedience to the letter of the instructions of June, 1803. Batavia and Manilla v/ere certainly colonies of the enemy, and this vessel was certainly not trading di- i-ectly betU^een America and such colonies. But though the ofTicers in his majest^/'s service were bound to obev these instructions, he did not conceive himself, sitting as a judge of prize, in a court whose decisions were to be rcgr- lated by the law of nations, as bound and concluded b}' them. He believed indeed that he was the first and only judge who had ventured to pronounce such a doctrine. In every court, in every country, by all writers on the sCib- ject, and all administrations of the law, the instructions oi the sovereign were regarded as a law to the judge. But; he considered the law of nations as paramount to such in- structions ; and the king as having indeed a right to dis- pense with such law, but not a right to extend it. As far ^■herefore as any of his majesty's instructions were a rclaK- O-Z LAW 01 CHAP. II. ation of the law of nations in fiivour of neutrals, he should considKr himself bound by them ; but if he saw in such instructions an}- attempt to extend ih.e law to the prejudice of neutrals, he should not obey them, but ngulate his de- cisions according to the known and recognized law of na- tions. In the present case, after great deliberation, he felt hiinVelf bound to say,' that neither Batavia nor Manilla werti such colonies as^to^ender siny trading by netUral V nations, in time of war, illegal. It is not their being call- ed colonics that will render such a trading unlawful, not- withstanding the letter of the instructions of 1S03; some- thing fiirdicr is necessarv, and th:it is, that the trade to and with these colonies was prohibited to such neutrals in time* of peace. "lO. A iv.arit* me capture is the 'seizure of a vessel or goods on board the same, or both, belonging to a real or supj)Osed enemy, or from some other cause justifiable by the lau's ©f nations, under authority i-ora the belligerent state ; with the intent to divest the aerial owner of the property, and to carry it into port for adjudicati(Mi before some competent court. 11. The time of capture is to be dated not from the ac- tual taking possession, but from the striking of the colours, which last is to be deemed the real deditio : Unless indeed the enemy succeed in defeating that surrender, and this act of formal submission is thus discontinued. (') 12. And a seizure under an agreement with the neutral master to bring in his vessel was held to be a legal cap- ture. (") So also where it Avas objected to the legality of a capture that it was defeated by subsequent abandonment on the part of the captors, because one man only was put on board from the armed vessel with the consent of the captured, '<) 1 nobimoti,223. T]\cMch6ck:xh. (") (j Ilohimon 1.1. TIic Resolution. MARITIME CAPTURES AND PRIZES. 53 and the prize was thus permitted to proceed to the port of her original destination ; it was determined that the in- ribility of the prize master to secure the captured vessel, his inability to bring in the vessel without the aid of the crew belonging U) her, were, in reason, no proof of aban- donment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor may not be re- tained as well by a prize master alone, as by a considera- ble detachment from the crew of the capturing vessel. (^) So also where a merchantman, which had separated from her convoy during a storm, and had been brought toby an enemy's vessel of war, which came up and told the master to stay by her till the storm moderated, when she would send a boat on board, it was held to be a legal capture. The sending of a prize master on board is a very natural act of possession, but by no means essential to constitute a cap- ture. If the merchantman, asin this case, is obliged to lie to and obey the direction of the enemy's vessel, and await her further orders, there being no ability to resist and no prospect of escape, the capture must be considered as con- summated. (^) But the master or crew of a neutral vessel captured is not bound to assist in carrying the vessel into port for adjudi- cation, unless a compromise or agreement to that effect is made by them with the commander of the armed t^essel ma- king the capture. They owe no service to the captors, and are still to be considered answerable to the ov/ners for their conduct, so that they make no actual resistance. It is the duty as well as the interest of the captors to make the capture sure ; and if they neglect it from any anxiety .(") Per Marshall, C. J. The Alexander, Supreme Court of the U. gy, February Term, 1814 M. S. C') 3 Sobinsov.iOS. Th<3 Edward and Mary, ' 8 54 LAW ft«« CttAP It, to make othei* captures, or thinking the force already fur- nished sufficient, it is exclusively as their own peril.(^ j 13. It results from the above definition of legal capture that a taking by pirates has none of the effects of such a capture. It does not dives, the actual owner of the prop- erty, and cannot be followed by a sentence of condemnation in a competent court.(y) A piratis et latronibus capta do- minium non mutant^ is the maxim of the civilians, which has been adopted by modern writers on public law. But a taking by pirates must not be confounded with a capture by non commissioned captors. For, as we have before seen, a seizure of en-emy's vessels in port, before a declara- tion of war or the issuing of letters of marque and reprisals and of enemy vessels coming into port from distress of weather, want of provisions, or ignorance of war; captures made by private armed vessels having letters of marque against one enemy power of the property of another witfe whom war had broken out ; and a capture made by a mer- chant vessel, attacked at sea by an enemy's ship, who in defending herself takes the ship of the enemy, — are all law- ful captures, although the prizes are condemned not to the actual captors, but to the sovereign or state, unless oiher- erwise provided by the municipal law of the belligerent power. Though all things belonging to the enemy are, generally speaking, subject to capture ; yet there are certain excep- tions to this general rule. 14. Thus the rights of war can only be exercised in the territories of the belligerents, upon the high seas, or in a territory belonging to no one. Hence it follows that hosti- lities cannot be exercised within the territorial jurisdiction (") Jlcton, 37. The Pennsylvania. (v) Jllbericua GcntUis Dc. 3\xre. HcUi, L. 3. c. 4. Grotins, Dc J. K- a(* P. L. 3. c 9. § If l,occcnius, De J. M. L. 1. c 3. No. 4. Bijnkr.rshoah, 3.J.P-L. l.c 17. Axuniy Part. 2, c. 5, art. 3. $ 12, MARITIME CAPTURES AND PRIZES. 55 of a neutral power who is the common friend of the belli- gerents.(y) This jurisdiction extends to the ports, harbours, bays, and chambers formed by head lands of the neutral power. The usual addition allowed to this is a distance of three English miles, or a marine league, or as far as a (^) can- non shot will carry from the coasts or shore. And by the laws of the United States it is provided, that the dis- trict courts shall take cognizance of complaints, by whom- soever instituted, in cases of captures made within the wa- ters of the United States, or within a marine league ol the coasts or shores thereof. Captures made by armed vessels stationed in a river of" a neutral power, or in the mouth of a river, or in his har- bours, for the purpose of exercising the rights of war from that river or harbour, are likewise invalid.(*) So also where a belligerent ship, lying within neutral territory, made a capture, with her boats, out of the neutral territo- ry, the capture was held to be invalid. For though the hostile force employed was applied to the captured vessel iijing- out of the territory ; yet no such use of a neutral territory for the purposes of war is to be permitted. This prohibition is not to be extended to remote uses, such as procuring provisions and refreshments, and acts of that na- ture, which the law of nations universally tolerates ; but no proximate acts of war are in any manner to be allowed to originate on neutral grounds. That a ship should sta- (y) Grotius, De J. B. ac P. L 3. c- 4 § . Bijnkershoeh, Q. J. 1* L. 1. c 8. Vattel, L. 3. c. 7- § 132. Martens, L. 8. c 6. § 6. D'Habreu, Tratado sobre las Presas, Part 1, c.5. §14. Azuni^ Part 2, c 5. art. 1. § 16. lb. Part 2, c. 1. art, 6. § 4- C) 5 Robhhson, 15. The Vrow Anna Gatharlna. 7^.373. The Anna. Vattel,h. 1 c- 22. §289. Bi/nkerBhoe/c,q,. J. P. h. I.e. 8. /d De Moinni. Maris, c. 2. § 5. Martens, L. 4. c. 4. § 4. .^ziiri, Part 1. c. 2. art. 2. §. IS. Vide Bee's Adm. Reports, 204. Soult v. L'Aft'icaiuc. (=») 5 Hgbinwi) 373. The Ana^ bG JLAVV on CIIAl'. Ij. tio • herself on neutral territory, and send out her boats on hostile enterprizes, is an act of hostility much too imme- diate to be permitted : for supposing thnt even a direct /los' tile use should be required to bring it within the prohibi- tion of the law of nations, nobody will say, that the very act of sending cut boats to effect a capture, is not itself an act directly hostile — not complete indeed, but inchoate, and clothed with all the characters of hostility. If this could be defended, it might as well be said, that a ship lying in a neutral station, miglit fire shot on a vessel lying out of the neutral territory ; the injury in that case would not be consummated nor received on neutral ground; but no one vrould say that ruch an i\ct would not be a hostile act, im- mediately commenced within the neutral territory ; And what does it signify to the nature of the act considered for the present purpose, whether I send out a cannon shot which shall compel the submission of a vessel Ij'ing at two miles distance, or whether I send out a boat armed and manned to effect the very same tliing at the same distance ? It is m both instances the direct act of the vt;ssel lying in neu- tral ground ; the act of hostility actually begins in the lat- ter case with the launching and manning and arming the boat that is sent out on such an errand of force. But di- rect hostility appears not to be necessary ; for whatever has an immediate connexion with it is forbidden : you cannot, withouL leave, carrv prisoners or booty into a neutral territory, there to be detained, because such an act is an immediate continuation of iiostility. In the same manner an act of hostility is not to take its commencement on neu- tral 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 arc not to avail yourself of a station on neutral territory, making as it were a van- tage ground of the neutral country, a country which is to carry itself with perfect equality between both bellige" MAIllTiaiE CAi*TURES AND riHZF.5!. 57 rents, giving neither the one nor the other any advau- tagcC^) Although the immunity of neutral territory from the ex- ercise of any belligerent act Is generally admitted ; vet an exception to it has been attempted to be raised in the case of an enemy vessel met on the high seas, and pursued ; which it is said may, in the pursuit, be chased into the li- mits of a neutral jurisdiction. The only writer of eminent authority who has maintained this anomalous principle is Bynkershoek, He himself admits that he had never seen it mentioned in the writings of the publicists or among any of the European nations, the Dutch only excepted ; there- by leaving the inference open, that even if reasonable in it- self, it neither rested upon authority, nor was sanctioued by general usage. There is besides some reason to be- lieve that he meant to confine the doctrine within narr; ner limits than have been since sought to be givera to it. Be this as it may, it is sufficient to observe that the extreme caution with which he guards this license to belligerents is Avholly inconsistent vvith the exercise of it. For how is an enemy to be pursued in a hostile manner within the juris- diction of a friendly power without imminent danger of in- juring the subjects and property of the latter ? Dum fervet opus — in the heat and animation excited against a flying foe, there is too much reason to presume little regard will be paid to the consequences that may ensue to the neutral. When the fact of a capture within a neutral jurisdiction is established, the capture is done awav, and the property must be restored notwithstanding that it may actii..;ly be- long to an enemy. But it has been held that a suggestion of neutral territory cannot be sit up by an individual ■. laim- ant, but that it must proceed from the government, whose territory is asserted to have been violated. (*^) (t>) ,3 Rohimon, 162 The Twee Gebrocfiers. (0 5 Jtobimon, 15. The Vrow Anna Catharina. Z Bobinson, 163, la .ii-^ LAW OF en A p. If. ±5. The practice of exchanging prisoners taken in war has been gradually introduced in the place of the older practice of ransoming, which succeeded to the still more antient practice of making slaves of them, which again wa& Eubsiitutcd for that of putting them to death. It is a prac- tice of a nature highly deserving every degree of favoura- ble consideration, upon the same principles as are all other- commercia belli^ by which the violence of war mav be al- layed, as far as is consistent with its purposes ; and by which, something of a pacific intercourse may be kept up, which, in time, may lead to an adjustment of diflerences, and end ulti-mately in peace. The cartel-ships emploved in this service- are therefore exempt from capture ; and are protected in this ofRce both in carrying prisoners, and re- turning from that service. C^) But this service is so highly important to the interests oiF humanity, that it is peculiarly incumbent on all parties to take car€, that it should be con- ducted in such a manner as rot to become a subject of distrust and jealousy between the two belligerent nations. It is not a cjuestion of gain, but one on which depends the recovery of the liberty of individuals w'ho may happen to have become prisoners of war ; it is, therefore, a species of navigation which on every consideration of humanity and policy must be conducted with the most exact attention to the original purpose, and to the rules which have been built upon it, since, if such a mode of intercourse is broken off, it cannot but be followed by consequences extremely cala- mitous to individuals of both countries. It is a species of navigation, therefore, which more than any other requires to be narrowly watched. There is no way by which this JVliis. And it will be found in all the cases reported by Sir C Robinson, that tlic claim of territory was interposed by direction of the neutral go- vcrnincnl wliose territory was alleged to have been violated. ('1) 3 nohiitarn,, 139. The Dalfje. See also thc casE of Lu Gloiroj,5 Mobinnon, ll>2, iiud the Mary. ib. 2»0., Maritime captures a^jd phtzes. 5? purity of conduct can be maintained, but by considering the owner as answerable for the due execution of the sei"- vice on which his vessel is employed : It is the very last description of cases in which the responsibility ef the owner ought to be relaxed. Cartel-ships are subject to a double obligation to both countries, not to trade. To en- gage in trade may be disadvantageous to the enemy, or to their own country ; both countries 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 on that service can be permitted to take in any goods whatever. The penalty of confiscation is affixed to the abuse of the privileges of a cartel ship, and whether the vessel belong to the belligerent state or to the enemy it is liable to capture and condem- nation.^) 16» A vessel with the cargo laden on board sailing un- der a passport, safe-conduct, or license from the bellige- rent state, whether the property belong to the citizen or subjects of the belligerent state, or to the enemy, is exempt from capture by the armed vessels of the belligerent state. A passport or safe-conduct is granted to protect the per- sons and property of an enemy from hostilities within the places and times limited therein, 'l^hey may be granted for various purposes ; and it is the sovereign power of the state which is to judge of the expediency of granting them. But this authority may be delegated to, and exercised by its officers. Thus it is incidental to the commission with which an admiral or a general is invested that they should have the authority to issue these documents of pro- tection. (^) <<=) 4 Rohinsoii, 355. The Venus. 6 Rulnnson, 336. Tlie Caroliro C) VatteU L. 3. c. 17. § ''fi5. 1 lifaH'^form's Cnn^n»nfari>-. '^'S>. 60 LAW OF CHAP. II- And it is provided by the laws of the United States, that if any person shsll violate any safe-conduct, or pass- port, duly obtained and issued under the authority of the United States, the person so offending, on conviction, shall Ke imprisoned not exceeding three 3'ears, and fined at' the discretion of tlie court. 17. Of the same nature are licenses granted by the bel- ligtrent state to trade with its enemy. All commercial intercourse being suspendt-d by war, such tracie can only be legalized by license granted by the sovereign power of the state, which is alone competent to decide on all the conside- rations of commercial and political expediency, by which such an exception from the ordinary consequences of war must be controlled.!,^) And these licenses are by no meafis, as has been common!}^ supposed, an invention of the present times. For Valin, speaking of the frauds by which the com- merce and property of the enemy were screened from capture, not only on the high seas, but even in the ports of France — observes that before the Ordinance on which he was com- menting, no other means of counteracting these frauds had been discovered than that of delivering passports to the vessels of the enemy permitting them to trade with the ports of the kingdom upon the payment of a duty of a crown per ton. This was done by an ordinance of 1673, upon the ground that as the enemies of the king availed themselves of neutral vessels in order to carry on their trade with France, good policy required that by means of this tonnage duty the profit heretofore acquired by neu- trals should be appropriated to the kingdom. 18. And, finally, it has been usual in maritime wars to exc-mpt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighbour- ing countries, and from tenderness to a poor and industri- ous order of people. This custom, so honourable to the (') 4 Robinson. Vide M. S. The CosmoJioUtei MARITIME CAfTURES AlVD PUIZES. 61 humanity of civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually reproach each other with that breach of gond faith v/hich has finally abolished it.(^) ('■) 1 Iljbhisan, SO. Tlic Young Jacob and Johanna. Valin, Sur i'Or= donnance, I.. 5 tit. x- P.nAenL-jil-, Q. J. P. L. 1. c. 3. m fit LAW O^, CHAP. III. CHAPTER III. Of enemy* s property considered as an object of capture. 1. Subject to the exceptions mentioned in the forego- ing chapter, all things belonging to the enemy are liable to capture. And such captures may be made of enemy's vessels and his goods laden therein ; or of enemy's goods laden in neutral vessels. 2. By the general usage of maritime nations, transfers of ships and other vessels are made in writing. If there- fore the vessel captured has been transferred from the original proprietor, it seems reasonable to require the pro- duction of the bill of sale in order to determine the validi- ty of the capture. ('') Where it appears that the transfer was made from an enemy to a neutral during the war, va- rious rules have been adopted by the particular Ordinances of belligerent nations as to the effect of such transfers, and to determine under what circumstances they shall be deem- ed valid, or otherwise. 3. Thus by the British order in council of the 11th No- vember, 180r, it was provided. That the sale to a neutral of any vessel belonging to his majesty's enemies, shall not be deemed to be legal, nor in any manner to transfer the property, nor to alter the character of such vessel : and all such vessels now Ijclonging, or which shall hereafter belong to any enemy of his majesty, notwithstanding any sale, or pretended sale to a neutral, after a reasonable time shall liavc elapsed for receiving information of this his majesty's (^) i Ilobitmrn, 122. The AVclvaart. MARITIME CAPTURES AND PRIZED. 63 order at the place where such sale was effected, shall be captured and brought in, and shall be adjudged as lawful prize to the captors. And by the French Regulations of the 23d July, 1704, the 10th October, 1744, and the 26th July, 1778, it is pro- vided that no such transfer to a neutral shall be valid un- less made before the declaration of war. 4. But as these Ordinances make no part of the law of nations, so neither are they founded on the principles of justice.- For as ships are an article of commerce, to pro- hibit their sale to neutrals, is to pronounce an absolute in- terdiction of a branch of trade, which is perfectly innocent if carried on with good faith, and which ought not to be prohibited by a sweeping rule founded upon an undistin- guishing presumption of fraud, that may as well be applied to any other commercial transaction as to this. It is vain to allege, in vindication of such innovations upon the law of nations, the example of a similar regulation and practice on the part of the enemy, as is done in the above British order in council. For retaliation, in order to be just, must strike only the offending power : and the true mode of correcting the irregular practice of a nation is^ by pro- testing against it, and by inducing that coujitry to reform it : it is monstrous to suppose^ that because one country has been guilty of an irregularity, every other country is let loose from the laxv of nations ; and is at liberty to assume as much as it thinks ft-Q*) Nor have these Ordinances any binding force even upon the prize courts of the nation un- der whose authority they are issued ; for all captures must be judged by those tribunals according to the law of na- tions and treaties, and not according to the municipal law of the belligerent state.(') (^) 1 Robinson, 142. The Plad Oyer. (0 Report of Sir George Lee,&c, of the 18tl> January, 1753. FovRTB PitoposiTios^, Chap. 11. Note f. ^ , LAW OF ClIAF. III. 5. The rules v.'hich have been laid down by the Ordi- nances of belligerent nations requiring the production of tertain prescribed proofs to ascertain the bona fide nature of such transfers, and inferring the existence of enemy in- terests from the absence of such proofs, are more just and conformable to the law of nations. I'hus by the French regulations of the IJ'th February, 1694, the 12th May, 1696, and the 26th July, 1778,, revived by decree of the Consuls of the 29th Frimaire, 8th year of the Republic, it is provided, That no vessel of enemy built, or originally belonging to an enemy pi-oprietor, shall be considered as neutral, unless the sale was made in the presence of some public ofBcer, before whom such transfers are usually made, and unless the bill of sale is found on board, accompanied by a legal power given by the former owner, in case the sale is not made by himself, . 6. So also it has been held that such transfers made by an enemy to a neutral in time of war, must be an absolute and unconditional sale. This rule is •applied to guard against the frauds which might otherwise be practised, and by means of v/hich enemy interests might still be preserved and protected from capture. ('^) And if the vessel, osten- sibly transferred, still continues under the control and ma- nagement of her former owner, and in the same trade and navigation in which die was previously employed, these circumstances are deemed sufficient to make void the trans- fer, and to indicate the continued existence of enemy inte- rests rendering the property liable to capture. ('") This last rule seems nothing more than a just application of the principle of municipal law, by which a sale or other trans- fer is only valid where the actual delivery of the thing ac- C) 2 Robinson, i:i7. The Xoydt Gedacht. 4 lioblnmu lOD. Tlie Sechs Gcschwistern. (*) 1 Jtohinsbn, 1. The VJgilantia. 4 Jiobhiion, 31. The Jemmy. 3 Robimon, 41- The Jonge Amelia in the Portland. JilARITIME CAPTURES AND PRIZES. 65 companies the transfer ; whilst if it still continues in the possession of the original proprietor, it is subject to attach- ment for his debts, and if sold cannot be reclaimed by the first vendee.(Q Thus it is a maxim of the civil law, Tra- ditionibiis^ non nudis co7iventionibus, dominia transferunturj which seems to be peculiarly applicable to transfers of en- emy's property, which, if such transfers were permitted without an actual delivery, might easily be veiled with the neutral character and effectually guarded from capture. 7. If on the other hand bo transfer has been made, as the laws of most maritime countries require ships and vessels to be registered in a public registry, the certificate of registry is the proof naturally to be looked for. And as the same laws require that the master and a certain proportion of the crew of the vessel should be of the na- tion whose flag she bears, the national character of the vessel must be determined by those laws. Besides these, the following proofs of property in the vessel and cargo are usually required. Ist^ The Passport ot Sea Letter. This is a permission from the neutral state to the master of the vessel to pro- ceed on the intended voyage, and usually contains his name and residence, the name, description, and destination of the vessel, with such other matters as the local law and practice require. According to those treaties which de- termine the character of the goods by that of the vessel on board of which they are laden, and consequently that free ships shall make free goods, this is the only document or proof of property required. So also by the treaties between different maritime nations, and Turkey and the Barbary powers, it is stipulated that the production of a pass from the government whose flag the vessel bears shall (0 Poihier, De Pt'opri4tS, No. 2^5- 247. 3 Coke, R. 80. b. Twine's Case. QQ CAW or eWAP. 111. be conclusive evidence of the property, and shall exempt the vessel and cargo from further search and detention. 2d. The Muster Roll, or i?o/e d'' Equipa^e^ contains the names, ages, quality, and national character of every per- son of the ship's company. 3d. The charter party ; if the vessel has been let to hire. 4th. The bills of lading, by which the master acknow- ledges the receipt of the goods specified therein, and pro- mises to deliver them to the consignee or his order. Of these there are usually several duplicates ; of which, one is delivered to the master, one retained by the shipper of the goods, and one sent to the consignees. ^th. The invoices, which contain the particulars and prices of each parcel of the goods, with a statement of the charges thereon, which are usually transmitted from the shippers to the consignees. 6th. The log-book, or ship's journal, which contains an accurate account of the vessel's course, with a short history of the occurrences during the voyage. 8. As the whole of these papers may be fabricated, their presence does not necessarily imply a fair case ; neither does the absence of any of them furnish a conclusive ground of condemnation, as has been most unjustly provided by the Ordinances of certain belligerent powers. As they furnish presumptive evidence only of the property in the vessel and cargo belonging to those to whom it purports to belong ; so on the other hand their absence affords only presumptive evidence of the existence of enemy interests, which may be rebutted by other proof of a positive nature accounting for the want of them and supplying their place according to the circumstances of each particular case. Equally unjust and erroneous are the provisions of those Ordinances which prescribe what propoitlon of the vessel's crew shall be of the nation whose flag she bears in order to entitle her to the privileges of the national character; I MARITIME CAPTURES AND PRIZES. 67 since it is evident that this must be determined by the municipal law of her own country. It was upon these principles that the Council of Prizes at Paris determined in the case of the American ship Pi- gou, which had been condemned by the inferior prize court up.on the ground of the role d' Equipage not being found on board as required by several French ordinances. The commissary of the government, M. Portalis, in his Conclusions^ premised, That all questions of neutrality are what are termed in law questions regarding bona jides. He then proceeded to state that neutrality is to be proved ; and hence the several regulations in the ordinances and decrees of France which required the neutral character of vessels and their cargoes to be proved by certain enume- rated documents, among which is mentioned a role cP Equi- page in due form ; but that it would be a gross error to infer from thence that the want of, or a trifling irregular- ity in one of these papers, would in every case have the eflfect of condemning the property. Sometimes regular papers cover enemy's property, which other circumstances unmask. In other cases the stamps of neutrality break through omissions and irregularities in the forms, origin- ating in mei-e negligence, or grounded on motives free from fraud. .We must therefore decide not merely by strict forms, but by the principles of good faith ; we must say with the law that mere omissions and irregularities in the forms cannot prejudice the truth, if it can be made other- wise to appear, and si aliquid ex solemnibus deficmt^ cum cquitas poscii, subveniendwn est. In conformity with these reasonings the Council reversed the sentence of the inferior court and decreed restitution of the ship and cargo to the American claimant. 0. It is evident that goods the property of the enemy laden in enemy's vessels are subject to capture. But that the goods of a neutral laden on board the vessels of \\i\ enemy should be subject to capture and condemnation l> 63 LAW OF CHAP. III. jnanvfestly contrary to reason and justice. Bat unreason* able and unjust as this rule may be, it has been incorpor- ated into the prize laws of certain nations, and by them enforced at different periods. Thus by the French Ordinances of 1543 and 1584, the goods of a friend laden on board enemy's vessels are de- clared good prize. The contrary was provided by the Declaration of February, 1650; but by the Ordinance of August^ 1681, L. 3. tit. 9. des Prises, art. 7. the former rule was again established. Valin and Pothier are able to find no better arguments in support of this rule than that those who lade their goods on board enemy's vessels there- by favour the commerce and navigation of the enemy, and hy this act are considered in law as submit?ting thgmselves to abide the fate of the vessel ; and Valin triumphantly asks. How can it be that the goods of friends and allies, found in an enemy's ship, should not be liable to confisca- tion, whilst those even of subjects are liable to it ? To which Pothier himself furnishes the proper answer, That in respect to goods the property of the king's subjects, in lading them on board enemy's vessels, they contravene the law, which interdicts to them all commercial intercourse with the enemy, and they deserve to lose their goods for the violation of the law.(^) And the fallacy of the argu- ments by which this rule is attempted to be supported consists in assuming v/liat requires to be proved, that by the act of lading his goods on board an enemy's vessel'the neutral submits liimself to abide the fate of the vessel. For it cannot be pretended that the goods arc subject to capture and confiscation ex re, since their character of neu- tral property exempts thcrn from this liability. Nor can it be shewn that they arc thus liable ex de'dciu, unlosi it be shewn that the act of thus lading theni on board is aii Propri^t^, Ijfo. 96. MARITIME CAPTURES AND PRIZE3. 69 odence against the law of nations. It is therefore with reason that Bynkershoek concludes that this rule, establish- ed by the ordinances of certain belligerent powers and in- corporated in some treaties, cannot be defended upon sound principles : for why, he asks, should I not be allowed to make use of my friend's ship to carry my property, not- withstanding his being at war with you ? If treaties do not prohibit, I am at liberty to trade with your enemy; and if so, I may likewise enter into any kind of contract with him, buy, sell, let, hire, &c. Therefore, if I have engaged his vessel and his labour, to carry my goods across the seas, I have done that which was lawful on every prin- ciple. You, as his enemy, may take and confiscate his ship, but by what law will you also take and confiscate the goods that belong to me, who am your friend ? All that £ am bound to do, is, to prove that they are really mine- But what shall we say, continues he, if the owners of the goods knew and consented that they should be shipped on board the vessel of their friend, indeed, but of your ene- my ? I should think that this knowledge and consent do not authorize a confiscation. The matter depends upon this question onl}', whether the owners of the goods, in shipping them on board of an enemy's vessel have acted lawfully or unlawfully ? I have contended for the former position, because, as I may lawfully carry on any kind of trade with your enemy, I think that I may therefore enter into any kind of contract with him, and make use, for a valuable consideration, of his ship for my own utility. Take if you can, every thing which belongs to your ene- my, but restore to me what is my own, because I am your friend, and in shipping my goods, I have not intended to do you any injury. ('') And in conformity with these principles is the doctrine of the law of nations as laid down by the most eminent C^) Bu Ponceau'' s Bynkershoek, c. 13. p. 104; 10 70 tAW OP CHAP, III. authorities, from that venerable code of public and mari- time law the Conaolato del Mare, to the most modern writ- ers. (') 10, A question arises whether the captor of an enemy's ship be entitled to freight upon the goods of a neutral thus captured and restored according to the foregoing principle. And the Consolato del Mare^ c 273, has de- termined that the freight is to be paid to the captor by the neutral in the same manner as if the voyage had been terminated. But this determination is justly contested by Bynkershoek, upon the ground that the freight was not due to the ship unless the goods had been carried to their destined port, or the captor is ready to carry them thith- cr.(^) This doctrine is adhered to in practice ; freight being paid to captors only where the ship and cargo are carried to the port of their original destination for adju- dication, and the former condemned, whilst the latter is restored :(') and to captors carrying the goods not to the actual port of destination, but to the claimants' own coun- try ^ and to the ports to which they would have consigned them if not prevented by the regulations of the country to which they had actually consigned them.('") But where freight was demanded by the captors, upon the ground that the goods were sold advantageously for the neutral claimants in the "country of the captors, and at the particu- lar request of the claimants, it was refused ; because this ground of distinction was held not to be sufficient to take the case out of the general rule. In all cases, except those (') Consolato del Mare, c. 273. Grotms, dc J. B. ac P. I, 5. c. 6. §26 Ucinnecius. De nav. ob vect. mere. com. c. 9. § 9. I'attel, \j. 3. c. 7- § 116. Jiurlemafjui, Tome 3. Part 4. c. 4. § 1. Loccenius, lie. J. M. L. 3- c- 4 — Voet, In Pandect. L. 49. tit. 15. § 5. Ilubncr, Tome 1, c. 9. § 1. J^far. lent, L. 8. c. 6. § 10. C^) JBynkershoch, Q. J. P. L.l. c. 13. (') 4 Jiubinson, 278. The Fortuiia. ("•) 5 liobiimn, 67. The Diana. MARITIME CAPTURES AND PRIZEs'. 71 before mentioned, freight is held not to be due, although the ship may have performed a very large part of her in- tended vo)'age, and so large a portion, as to raise at first sight an appearance of hardship and injustice in the refu- sal of freight, and to suggest a doubt whether it might not be a better rule to allow a proportion of freight pro rata tteneris peracti. But such a rule would be found to be productive of much practical injustice, and would lead to endless litigation and uncertainty, in the discussion of the particular circumstances that would be relied on in every case. The possible advantage or disadvantage of an inter- ruption of the original voyage by capture, is but an acci- dental circumstance to which a court of prize will but slightly attend. It would introduce a labyrinth of minute considerations through which the court could not find its way.(") 11. The regulations and practice of certain nations, at different periods, have not only considered enemy's goods laden in neutral vessels as subject to capture, but have also confiscated the neutral vessels, on board of which they were laden. Thus by the French Ordinance of August, lQQ\^des Prises^ art. 7. all vessels taken v^ith enemy's goods laden on board are declared good prize, Tlie contrary rule had been adopted by preceding Ordinances, and was revived by the Regulation of the 21st October, 1744, by which it was declared, That in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his majesty's enemies, the goods or ef- fects shall be good prize, and the vessels shall be restored. Valin admits that this jurisprudence, which continued to prevail in the French courts of prize from 1681 to 1744, was peculiar to them and to the Spanish ; but that the usage of other nations was only to confiscate the goods of (") 6 Robinson, 269. The Vrow Anna CatliarinJi. 1 Edimvds, 56.- Th<* Fortuna. 4'^ LAV/ or CHAP. III. the enemy. C*) The Regulation of the 21st October, 1744, continued to be observed in the prize courts of France from its date until the French revolution ; when by a law of the 29th Nivose, 6th year of the Republic, it was pro- vided that, The neutral or enemy character of vessels shall be determined by that of the cargo ; consequently every vessel found at sea, laden in whole or in part with mer- chandize the product of England or her possessions, shall be pronounced good prize, to whomsoever the said merchandize may belong. This law was again repealed by that of the 23d Frimaire, Sth year of the Republic, and by the decree of the Consuls of the 29th of the same month. The following treaties and edicts of belligerent powers likewise involve the confiscation of neutral vessels together with their cargoes, whether the latter are the property of enemies or not. By the Treaty of the 22d August, 1689, between Great Britain and Holland, it was declared, That the contracting powers, having declared war against the Most Christian King, it behoves them to do as much damage as possible to the common enemy, in order to bring him to agree to such conditions as may re- store the repose of Christendom : and that, for this end, it was necessary to interrupt all trade and commerce with the subjects of the said king; and that, to effect this they had ordered their fleets to block up all the ports and havens of France. And in the 2d and Sd article, it is agreed, That they would take any vessel, whatever king or state it may belong to, that shall be found sailing into or out of the ports of France, and condemn both vessel and merchan- dize as lawful prize ; and that this resolution should be notified to all neutral states. By the British Order in Council of the 11th November, 1807, it is declared. That 6ill the ports and places of France and her allies, or of any i>thcr country at war with his majesty, and all other ports (") Valin, Sur TOfdonnance, L. 3. tit. 9. des Prise?, art. 7- MARITIME CAPTU11E.S AM) Pr.IZES. Yo and places in Europe, from which, although not at war with his majesty, the British flag is excluded, and all ports or places in the colonies belonging to his majesty's eneiviies, .shall, from henceforth, be subject to the same restrictions in point of trade and navigation, as if the same were actually blockaded by his majesty's naval forces, in the most strict and rigorous manner. And that all trade in articles which are of the produce and manufacture of the said countries or colonies, shall be deemed and considered to be unlaw- ful ; and that every vessel trading from or to the said coun- tries or colonies, shall be captured and condemned as prize to the captors. And by the French decree issued at Mi^ Ian on the 17th December, 1807, it is provided, That every vessel submitting to be searched by English cruizers, or paying duties to the English government, or sailing from the ports of England, and those of the English colonies, or countries occupied by English troops, shall be considered as good and lawful prize, and may be captured by our ships of war or privateers, and adjudged to the captors. It is evident that these edicts, however they may be attempted to be justified, are of a temporary nature only ; must cease with the extraordinary circumstances that gave birth to ihem ; and could make no permanent alteration in the law of prize. The above rule, by which neutral vessels are involved in the confiscation of enemy's goods laden on board, seems to have been derived from a misapplication of that provision of the civil law which ordains the confiscation of the ship as a penalty for an unlawful lading put on board. Doini- niis 7iavis, si illicite aliqiud in nave^ vel ipse^ v! vectores hnposuerint, navis quoque jisco vindicatur. Ff. De Public. Sc Vectig. L. 11. § 2. It is evident that this is a mere fis- cal regulation which cannot be applied to an act, such as that of carrying enemy's goods, which is perfectly lawful in the neutral, and therefore cannot induce the confiscation of the vehicle, which is his property. 7-1 I.AW OF CHAP. III. 12. Auothci-j and a more difficult question presents it- self, regarding enemy's goods laden in neutral vessels ; and this is, whether the goods themselves are lawfully subject to capture and condemnation ? The conventional law of maritime nations on this ques- tion has fluctuated ; but has most commonly decided that free ships should make free goods. The customary law and practise of those nations has varied less, and has generally determined that enemy's property on board the ships of a friend should be liable to capture and condemnation. Without going ba<;k beyond the middle of the seventeenth century, the times preceding which partake too little of the spirit of civilization and humanity to furnish precedents of conventional law for the present age, we may enumerate the treaties mentioned in the margin which sanction the principle thaty/ce ships make free goods.^^ (p) The treaty of 1646 between France and Holland. Of 1655 between France .and tlie Hanse Towns. Of the same year between France and England. Of 1656 between England and Sweden. Of 1659 between Frande and Spain. Of 1661 between Portugal and Holland. Of 1662, of 1678, and of 169r between France and Holland. Of 1662 and of 1742 between France and Denmark. *0f 1672 between France and Sweden. Of 1677 between PYance and England. Of 1667 and 1670 between Eng- land and Spain. Of 1667, of 1675, and of 1679 between Sweden and Holland. Of 1668 and of 1674 between HolLind .ind Engband. Of 1725 between the Emperoror of Germany and Spain. Of 1742 between Spain and Denmark. Of 1748 between Denmark and Naples. Of 1756 between Denmark and Genoa. Of 1752 between Naples and Holland. The trea- ties of navigation and commerce of Utrecht, 1713. The treaty of 1720 between Great IJritain and Sweden. The treaties of 1721 and 1739 be- tween Great Britain and Spain, confirming the treaties of Utrecht. The treaty of Aix la (jhiipellc, 1748, of Paris, 1763, of Versailles, 1783, and of commerce between Great Jlritain and I'rancc, 1786, all confirming the treaties of Utrecht. In the negotiations at Lisle in 1797, between Great T^ritain and France, it was proposed by the liritish plenipotaitiary to re- new tlicse treaties confirmatory of tliose of Utrecht; which proposition vas oI)jcctcd to by tlic Frcncli ))l(;nipo1tiitiarics for sevcr.al reasons for- eign to the present snhject: to wliich tlic IJritisli plenipotentiary, Lord ^lalmtsbury, replied, that thejc treaties v.ere bccooie the Jaw of nfitions. MARITIME CAPTURES AND PRIZES. ; .) The only treaties now existing, and observed by the par- ties to them, which adopt the principle th;it the character of the vessel shall determine that of the cargn, and that, and that infinite confusion would result from their not being- renewed. They were not, however, renewed by the treaty of Amiens of 1802, nor by that of Paris of 1814. Tiie principle that free sliips make free goods was also recog-nized by the treaty of 1778, between the United Slates and France; of 1782 between the United States and Holland; and of 1783> between the United States and Sweden. The same stipulation was con- tained in the treaty of 1785 between the United States and Prussia ; but this treaty having' expired, and a new one having- been concluded in 1799, the article embracing this stipulation was not renewed : but the following was substituted in its place- Article XII. Experience having proved that the principle adopted in the twelfth article of the treaty of 1785, according- to which, free ships make free goods, has not been suffi- ciently respected during the two last wars, and especially in that which still continues, the two contracting- parties propose, after the return of a general peace, to agree either separately betv/een themselves, or jointly with other powers alike interested, to concert with the great maritime powers of Europe, such arrangements and such permanent principles> as maj serve to consolidate tl)e liberty and safety of neutral navigation and commerce in future wars. And if in the interval eitiier of the contract- ing parties should be engaged in a war, to which, the other should remain neutral, the ships of war and privateers of the belligerent power shall conduct themselves towards the vessels of the neutral power, as favour- ably as the course of the war then existing may permit, observing the principles and rules of the law of nations generally acknowledged. In •1780, Russia published a declaration of what ate called tlie principles of the armed Tietttralitij, which were adopted by the treaties of the same year between Hussia and Sweden and Denmark. To this declaration Hol- land acceded in 1780 ; Prussia, and the Emperor of Germany in 1781 ; Portugal in 1782; and Naples in 1783. Among the belligerent powcr.s, France, Spain, and the United States acknowledged its principles ; and Holland having become subsequently involved in the war, the British go- vernment oflcred to make peace with her on the basis of the treaty of 1674 between Great Britain and the Republic : a treaty, by which tlie principles of the armed neutrality are established in their widest extent. Jtlr. Secretary F»x's letter to Ji-Iv Scmolin, the liussian niimster in London, 4th May, 1782- These principles were again recognized by the convention of 1800 between llie United St.ites and France, and were renewed by the second armed neutrality of 18U1 ; which wat> dissolved by the navjtl power of Great Brltulnjand the particular princir.le in question relinquislied by j\i LAW or CHAP. 111. consequently, y}vv' ships shall make free roods^ are the fol- lowing. By the I5ih article of the treaty of the 27t\'\ October, 1/^95, between the United States and Spain, it is stipulated that free ships shall give freedonfi to goods, and that every thing shall be deemed free and exempt which shall befoitrid on board the ships belonging to the subjects of either of the contracting parlies, although the v/hole lading, or anx- part thereof, should appertain to the enemies of either : Contnt- band goods baing always excepted. By the 23d article of the treaty of the 10th July, 1654, between the Republic of England ai.d the: king of Portu- gal, it is pro-.'ided, That all goods iaid merchandize of the said Republic or King, or of. their p:-^ 'e or subjects, found on board the ships of the enemies of either, shall be made prize, together vath the ships, and confiscated. But all the goods and merchandize of the enemies of either, on board the ships of either, or of their people or subjects, shall remain free and untouched. It has been decided in the English courts of prize that the former provisiorw of this article which subjects to con- demnation the goods of either of the high contracting par- ties found on board the ships of the enemy of either, could not be fairly applied to the case of property shipped before the contemplation of war, and before the vessel herself had acquired a hostile character. In this adjudication it was observed, that it did not follow, that, because Spanish pro- perty put on board a Portuguese ship, would be protected in the event of the occurrence of war between England and Riissla : enotTiy's property on board nctitral vessels beinjic liable to capture and confisci'-tion by the convention of tl>e 5lh June, 1801, between Great llritain and lliissjia. In 1807, in consequence of the treaty of Tilsit with IVance, a dcciaration was issued, by wJiich the principles of the armed neutrality were proclaimed anew, and the convention of 1801, annulled. In 1812 a treaty of alliance was signed between Great Britain and Rus- sia ; but no treaty of commerce and navigation iias been concluded be- tween the two powers since that of 1801. ilARITIME CAP'tURES AND PRIZES. tT* Spain, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking but of hostilities with Spain : that in one case the conduct of the parties would not have been diiFerent if the event of hostilities had been kno\^n. The cargo was entitled to the protection of the ship generally by the stipulation of the treaty even if shipped in open war j and a fortiori, if ship- ped under circumstances still more favourable to the neti- trality of the transaction. In the othei- cdse there might be reason to suppose that the treaty referred only to goods shipped on board an enemy's vessel, in an avowed hostile character ; and that the neutral merchant would have acte^ differently, if he had been apprized of the character of the vessel at the time when the goods were put on board.(i) (i) 6 lioUhsnn, 29. The Marianna. The treaty of 1783 between the Unlf» ed States and Sweden (which has expired) excepts from the terms of the article, importing confiscation of neutral property found on board ene^ •my's vessels, such goods and merchandizes as were put on board before the declaration of war, or even six months after the declaration. Article XVI. It is obvious that this privilege of the neutral flag of protecting enemy's property, whether conferred by treaty or by the ordinances of bel- ligerent powers, cannot extend to a fraudulent use of the flag to cover enemy's property in the ship as well as cargo. 6 Robinson, 358. The Citade de Lisbon. And when during the war of the American revolu- tion, the United States recognizing the principles of the armed neutrali- ty, exempted by an ordinance of Congress all neutral vessels from cap- ture, except such as were employed in carrying cbntraband goods, or soldiers, to the enemy ; it was held that this exemption did not extend to a vessel which had forfeited her privilege by grossly unneutral con- duct in taking a decided part with the enemy by combining with his subjects to wrest out of the hands of the United States and of France the advantages they had acquired over Great Britain by the rights of war in th? conquest of Dortiinica. By the capitulation of that island, all commercial intercourse was interdicted with Great Britain. In the case in question the vessel was purchased by neutrals in London, who sup- plied her with false and colourable papers, and assumed on themselves the ownership of the cargo for a voyage from London to Dominica. Had she been emplo3'ed in a fair commerce, such as was consistent with '*e riglits of neutoality, her cargo, though the property of an enenjy n 78 iA"W OF CHAP 111* A celebrated controversial writer has criticised the above expression conventional law of nations, 2ls used by those mo- dern champions of neutral rights, Hubner and Schlegel ; but it is evident that this criticism can only apply with force to its use in an unlimited extent. For, as between the nations stipulating, a treaty must be the law, 1st, So long as it subsists, 2d, So long as its provisions are to sub- sist by its terms. Such treaty must also be the law as be- tween the contracting parties, and all others to whom its provisions, relaxing the primitive rigour of the customary law of nations, are to be extended ; and it must be the law as between themselves, and to be observed by them towards all the rest of the world, if the provisions of the treaty be declaratory of the original and pre-existing law of nations. This last characteristic applies to the convention of 18Q1,' between Great Britain and Russia, which Lord Grenville in his speech delivered in the British House of Lords oh the 13th November, 1801, states, and conclusively proveSy to be a recognition of universal and pre-existing rights, which, as such, could not justly be refused by the contract- ing powers to any other independent state. 13. Considering the question in regard to the customary- law and practice of maritime nations, we shall find that en- emy's goods in neutral vessels were declared to be liable to capture by the Consolato del Mare , in the 273d chap- ter(') of which it is laid down, that. If the ship or vessel could not be prize ; because Congress had said by their ordinance, that the rig'hts of neutrality should extend protection to such effects and goods of an enemy. But, if the neutrality were violated, Congress had not said, that such a violated neutrality shall give such protection : Nor could they have said so, without confounding all the distinctions of right and wrong ; and Congress did not mean, by tlieir ordinance to ascertain in what cases the rights of neutrality sliould be forfeited, in exclusion of all other cases ; for the instances not mentioned are as flagrant as the cases particularized. 2 Banna, 34. Darby ct al v. The Erstern. (' ) Chap. 276, § 1004, of M. Boucher's French translation. MARITIME CAPTURES AND PRIZES. 79 which shall be taken, belong to a friend, and the merchan- dize which she carries belong to an enemy, the commander of the armed ship or vessel may force and constrain the master of the ship or vessel, which he has taken, to carry into some port the effects of his enemy which are on board. And in conformity with this rule are the authorities cited in the margin. (•) 14. Bynkershoek is of the opinion that freight is not pay- able to the neutral carrier of enemy's property by the cap- tor, because freight is not due, unless the goods have been carried to their port of destination.(*) But a different rule is laid down in the Consolato del Mare^ which is more rea- sonable in itself, and is supported by the whole current of authorities. A capture is considered as delivery ; and en- emy's goods are condemned ex re only, the carrier of thera not being guilty of any offence against the la\^ of nations. " This rule is adopted by the English prize courts, but with so many exceptions and limitations that its practical {«) Grotivs, De J. B. ac P. L. 3- c. 6, § 6. Heinecms, De nav. ob vect. vet. mere. com. c. 2» § 9. Voet, De Jure Militari, c, 5. Loccenius, De Jure Maritimo, L. 2. c. 4. Bynkershoek, Q. J. P. L. 1. c. 14. Vattel, L, 3. c. 7. § 115. A:uni, Part 2, c. 3. art. 2. B'Hubreu, Tratado sobre las Presas, c 9. No. 3. Se alama nave, o iiavilia^ o ultra fusta che entrera in corm, o ne uscir^f ci sard, si > iscontrerd con alcuna nave, o 7iavilio di mercanzia, fusee d'a- mici, e le mercajizie che lui porterd sarrano dHnimici, la Ammiraglio della nave, e navilio armato pud conHringere quel padrone della nave, o 7iaviUo che lui pigliato averd, che ltd con quella sua nave gli dcbba poviare quelle che de siioi inimici sard, in loco che non abbia pavra, che i inmici non ne li possono torre. Consolato del Mare. Italian Edit. Empero si la nav ho Jo leyn que pres sera es de enemichs ; e la mercaderia que ell aportara sera tambe de Enemichs, lo Almirall dela nav ho del leyn armat pot forcar y de^ strenyer aquell aytal senyor de equella nav ho de aquell dit leyn que ell pres havra que ell ab aquella sua nav li deja a portar go que de las enemichs sera : y encara que ell so te en sa nav ho en son leyn, tro que sia en loch da recabre. lb. Catalonian Edit. Barcelona, 1540. (') Q. J. P. L. 1. c. 14. SSt) LAW OF GHAP. III. efFecHs almost destroyed. (") And, 1st, It is refused to a neutral ship taken whilst engaged in the coasting trade of the enemy.(^) 2d, To a neutral ship engaged in the colo- nial trade of the enemy.(^^) 3d, Where there has been a spoliation of papers by the master.(^) 4th, Upon the car- riage of contraband.(> ) As the two first of these excepr tions are grounded upon a doctrine peculiar to the British courts of prize which subjects to capture a neutral trade not open in time of peace, and as this doctrine makes no part of the law of nations, and is not recognized in the practice of any other nation, it is evident that these excep- tions have no legal foundation. 15. If the property in the ship or her cargo appear by the papers found on board to be in the enemy, no liens in a neutral claimant, or in a subject or citizen of the belliger- ent state, updfi the same, by way of pledge for the payment of the purchase money or hypothecation, are sufficient to found a claim in a prize court, and to defeat the rights of the captors. Thus where the ship appeared to have been originally a neutral vessel sold to a Spanish merchant at Buenos Ayres, and seized on a voyage to England, documented as belong- ing to a Spanish merchant, and sailing under the flag and pass of Spain ; a claim was given on behalf of the former neutral proprietor, in virtue of a lien which he was said to have retained on the property for the purchase money ; but such an interest was deemed not sufficient to support a claim jn a court of prize. Captors are supposed to lay their hands on the gross tangible property, on which there may be ma- ny just claims outstanding, between other parties, which can (") 3 Robinson, 304. The Atlas. In Notis. (^) 1 Itobimon, 296. The Emanuel. (*) 2 Robinson, 186. The Immanuel. (») lb. 104. The Rising Sun. ^y) X Robinsont 28&. The Mercuriu§; MARITIME CAPTURES AND PUIZES. bi Iiave no operation as to them. If such a rule did not exist, it would be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most credible documents, declaring the proper- ty 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 knowl- edge. 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 upon the particular rules of jurisprudence, which prevail in different countries. To decide judicially on such claims, would require of the court a perfect knowledge of the law of covenant, and the application of that law in all countries, under all the diversities in which that law exists. From necessity, therefore, the court would be obliged to shut the door against such discussions, and to decide on the simple title of property with scarcely any exceptions. Then what is the proprietary character of this ship ? She is described ^s the property of a Spanish merchant. She is sailing un- der the Spanish flag, and is fully invested with the Spanish character not ostensibly only, but actually, and in the real intention and understanding of the parties. The objection that a part of the purchase money had not been paid can have but little weight, since it is a matter solely for the con- sideration of the person who sells, to judge what mode of payment he will accept. He may consent to take a bill of exchange, or ]ie may rely on the promisory note of the pur- chaser, which may not come in payment for a considerable time, or may never be paid. The court will not look to such contingencies. It will be sufficient that a legal trans- fer has been made, and that the mode of payment whatever it is has been accepted. As to the title of property in the goods, which were going as the funds out of which the pay- ment for the ship was to have been made. That they were going for the paynxent of a debt, will not alter the proper- S.i LAW 9F iCIIAP. I J I. ty ; there must be something more. Even if bills of lading are delivered, that circumstance will not be sufficient, un- less accompanied with anunderstanding, that he who holds the bill of lading is to bear the risk of the goods, as to the voyage, and as to the market to which they are consigned; otherwise, though the security may avail pro tanto^ it can- not be held to work any change in the property.(^) And also where a claim was interposed on behalf of a sub- ject of the belligerent state for the amount of a bottomry bond executed to him by the master of the ship, being an enemy's vessel, previous to hostilities, the claim was reject- ed. For the person advancing money on bonds of this nature, acquires by that act no property in the vessel ; he acquires the ju^ in rem^ but not t\itjus in re, until it has been converted and appropriated by the final process of a court of justice. The property of the vessel continues in the foimer proprietor, who has given a right of action against it, "but nothing more. If there is no change of prop- erty, there can be no change of national character. Those lending money on such security, take this security subject to all the chances incident to it, and amongst the rest, the chances of war. But it is said, that the captor takes pum mere ; and therefore that this obligation would devolve upon him. That he is held to take cutn onere is undoubt- edly true as -a rule which is to be understood to apply, where the onus is immediately and visibly incumbent upon it. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the 'owner of the ship ; because the owner of the ship has the cargo in his possession, subject to that demand by the gen- eral law, independent of all contract. By that law he is not bound to part with it but on payment of freight , he be- ing in possession can detain it by his own authority, and wants not the aid of any court for that purpose. These are C) 6 liobinson, 25, The Marianna, MARltlME CAPTURES AND PRIZES. S3 all characters of the jus in re — of an interest directly and visibly residing in the substance of the thing itself. But it is a proposition of a much wider extent, which affirms that a mere right of action is entitled to the same favourable consideration, in its transfer from the neutral to a captor. It is very obvious that claims of such a nature may be so framed, as that no powers belonging to the prize court can enable it to examine them with effect. They are private contracts passing between parties who may have an interest in colluding; the captor has no access whatever to the ori- ginal private understanding of the parties in forming such contracts ; and it is therefore unfit that he should be affect- ed by them. His rights of capture act upon the propert}', without regard to secret liens possessed by third parties. In like manner his rights operate on such liens, where the property itself is protected from capture. Indeed, it would be almost impossible for the captor to discover such liens in the possession of the enem)-, upon property belonging to a neutral; the consequence, therefore, of allov/ing, general- ly, the privilege here claimed v/ould be, that the captor would be subject to the disadvantage of having neutral liens set up to defeat his claims upon hostile property, whilst he could never entitle himself to any advantage, from hostile liens upon neutral property. ('') So where the claimant grounded his pretensions on aliei'^ created on the goods, in consequence of an advance mad*-- to the shippers, in consideration of the consignment by thn claimant's agent in the enemy's country ; and ob othe? goods, in virtue c>f a general balance of account due to the claimant as the factor of the shippers. To establish thlri fact, an order for further proof was asked for, and ih€ question was, whether, if proved, the claim could, in point of law, be sustained? The doctrine of liens seems to depend chiefly upon the rules of jurisprudence established in dif- (^) S Rahhism, Zl^, The Tohngn. 34 Law ot chaf. hi. ferent countries. There is no doubt that, agreeably to the cominon law, a factor has a lieu upon the goods of his principal in his possession;, for the balance of accounts due to him ; and so has a consignee for advances made by him to the consignor. The consignor or owner cannot main- tain an action against his factor, to Recover the property so placed in his possession, without' first paying or tendering what is thus due to the facton But this doctrine is un- known in prize courts, unless in very particular cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties. Such is the case of freight upon enemies' goods seized in the vessel of a friend, which is always decreed to the owner of the vessel. The possession of the property is actually in the owner of the ship, ■of which, by the general mercan- tile law of all nations, he cannot be deprived until the freight due for the carriage of it is paid. He has, in fact, a kind of property in the goods by force of this general law, which a prize court ought to respect and does respect. On the one hand, the captor by stepping into the shoes of the ene- my owner of the goods, is personally benefitted by the la- bour of a friend, and ought, in justice, to make him the proper compensation : — and on the other, the ship owner, by not having carried the goods to the place of their desti- nation, and this in consequence of an act of the captor, would be totally without remedy to recover his freight against the owner of the goods. But in cases of liens cre- ated by the mere private contract of individuals, depend- ing upon the diilcrent laws of different countries, the difli- rulties which an examination of such claims would impose upon the captors, and even upon the prize courts, in decid ing upon them, and the door which such a doctrine would open to collusion between the enemy owners of the proper- ty and neutral claimants, have excluded such cases from the consideration of these courts. The principal strength of the argument in favour of the claimant in this case seem- MARITIME CAPTURES AND miZES. 85 ccl to be rested upon the position, that the consignor could not have countermanded the consignment after delivery of the goods to the master of the vessel ; and hence it was inferred that the captor had no right to intercept the pas- sage of the property to the consignee. This doctrine would be well founded, if the goods had been sent to the claimant upon his account and risk, except in the case of insolvency. But where goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee ; and it is competent to the consignor, at any time before actual deliv very to the consignee, to countermand it, and thus to pre-- vent his lien from attaching. ('^) 16. The property in ships and their cargoes which Avas enemy's property at the commencement of the voyage can- not be transferred to a neutral in transkic so as to protect it from capture and condemnation. In the ordinary course of things in time of peace such a transfer might be made. When war intervenes, another rule is set up by courts of prize., which interferes with the ordinary practice. In a state of war, existing or immment, it is held that the pro- perty shall be deemed to continue as it Mas at the time of shipment until the actual deliv^eiy ; this aiises out of a 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 ship- ped in the enemy's country would be protected by transfers which it would be impossible to detect. A transfer may take place in transitUy where there is no actual war, nor any prospect of war, mixing itself with the transaction of the parties : But in time of war this is prohibited as a vi- cious contract; being a fraud on belligerent rights, not on- (b) Per Washington, J. The Francies, Supreme Court of the U. S. Fe- bruary Term, 1814. M. S. For a further ilhistration of the doctrine tliat the rights of war operate only on the res ipsa, and the onera attaciilng thereon in right of possession, see the case of the Hoffnung, 6 jRobmson, 383. 12 S(> XAW OF flJAl'. I J J. ly in the particular transaction, but in the great facility ivhich it would necessarily introduce, of evading those rights beyond the possibility of detection. It is a road that, in time of war, must be shut up ; for although honest men might be induced to travel it with very innocent inten- tions, the far greater proportion of those who passed, would use it only for sinister purposes, and with views of fraud on the rights of the belligerent. But would the contempla- tion of xvar have the same eifect in vitiating these contracts as actual war ? It cannot be said- that all* engagements in the proximity of war, into which the speculation of war might enter, as for instance, v.'ith regard to the price, would therefore be invalid. The contemplation of war is undoubt- edly to be taken in a more restricted sense. But if the con- templation of war leads immediately to the transfer, and becomes the foundation of a contract, that would not other- wise be entered into on the part of the seller ; and this is known to be so clone in the understanding of the purchaser, though on his part there may be other concurrent motives, such a contract cannot be held good, on the same principle that applies to invalidate a transfer in transitu in time of, actual war. The motive may indeed be difficult to be proved — but that will be the difficulty of particular cases : supposing the fact to be established, that is a sale under an admitted necessity, arising from a certain expectation of war ; that is a sale of goods not in the possession of the seller, and in a state where they could not, during war, be legally transferred, on accoimt of the frauds on belligerent rights ; — the same fraud is committed against the belliger- ent, not indeed as an actual belligerent, but as one who was, in the clear expectation of both the contracting parties, likely to become a belligerent, before the arrival of the pro- perty whicl\is made the subject of their agreement. The nature of both contracts is identically the same, being equally to protect the property from capture of Avar — not indeed in either case from capture at the present moment MARITIME CAPTURES AND PRIZES. 87 when the contract is made, but from the danger of captures when it was likely to occur. The object is the same ia both instances, to afford a guarantee against the same cris- is : In other words, both are done for the purpose of elu- ding a belligerent right either present -or expected. Both contracts are framed with the same animo fraudandi., and are justly subject to the same rule.(*^) Where goods were shipped to be sold on joint account of the shipper and consignees, or on account of the shipper only at the option of the consignee, and the goods were claimed by the consignee, the whole question as to the ex- clusive property of the shipper in the goods wita i-csttd by the captors upon the option given to the consignee to be jointly concerned or not in the shipment. The court stated that the question of law was, in whom the right of proper- ty was vested at the time of capture ? To effect a change of property as between seller and buyer, it is essential that there should be a contract of sale agreed to by both par- ties ; and if the thing agreed to be sold is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract, that it should be delivered to the purchaser or to his agent, which the master, to many purposes, is consi- dered to be. The only evidence of a contract, such as that set up by the claimant, appeared in his affidavit, stating, that before the declaration of war, he was in the enemy's country, and agreed with the shipper that the latter should ship goods on joint account, when the commercial inter- course between the two countries should be opened ; and that, in consequence of this agreement the shipment was made. Yet the delivery of the goods to the master of the vessel, was not for the use of the consignee, any more than it was for the use of the shipper solely ; and, consequently it amounted to nothing, so as to divest the property out of {^) 1 Robitison, 107. The Danckebaar Africaan, 4 Robinson^ 207. Th© Gavl Walter. 5 Robinson, 128, Tke Jan Frederick* V 8$ LAW OF CHAP. Ill the shipper, until the consignee should elect to take the goods on joint account, or to act as the agent of the ship- per. Until this election was made, the goods were at the risk of the shipper, which was conclusive as to the right of property.('^) But as this is merely a rule of evidence intended for the detection of fraud,, it is not applied to the case of goods transferred in transitu before the breaking out of hostili- ties, and not in contemplation of war being commenced. The rule arises out of a state of war, and cannot be applied to transactions originating in time of profound peace, which must be ji^dged according to the ordinary rules of com- mercc.f*) Nor is it applied to a consignment on cpdit made by an enemy shipper to a neutral consignee, where the consignor learning after the shipment, that the con- signee has become "a bankrupt or failed, stops the goods in transitu on their passage to the consignee. For by the mu- nicipal law the consignor having a right in this case thus to change the consignment, the law of war permits the delivery to be made to another neutral consignee by order of the enemy shipper. (f) But where the goods had been shipped by order and far 'the account and risk of neutral merchants, and after the ship had sailed, they signified that they would not accept the goods, and on this refusal, the enemy shipper wrote to another neutral merchant offering the goods to him on conditions of payment, which were accepted, and a claim was given for the second consignee, it was determined to be inadmis- sible. As the bills of lading were signed to the account and risk of the first consignees, and the goods sailed under that description, they were their goods, and the shipper had no right to stop them, but on the special contingency of an (•') Per Washing'ton J. The Venus, Supreme Court of the U. S. I'ebruary Term, 1814. M. S. {") 1 /tohinson, 336. The A'^rovv Margarelha; (') 6 Itol/iiison,^221. The Constantia. MARITIME CAPTURES AND PRIZES. BD ^apprehension of non-payment. On that event the law gives him a proprietary lien for his security, and the right of stopping the goods. In this case it was asserted, that the first consignees actually refused to pay for the goods, and therefore the event had emerged on which the right of the consignor to stop is founded. The shipper might have forced the goods on the first consignees under the or- der, and might have compelled them to accept and pay. But he did not exercise that right, he took the goods to himself again, in order to sell them to another person, and by that act the goods became again the property of the ship- per. Then comes the question which answers itself ; whe- ther the goods of an enemy can be transferred in trdinsitir. In time of peace, when the rights of third parties do not in- tervene, there may be po objection to the validity of a trans- fer of this kind. But in time of war, it would open a door to fraud, against which courts of justice could never be ef- fectually protected, and therefore it has been prohibited. (p) In another case goods were shipped* and the bill of la- ding was in the name of the consignees, and the invoice purported to be on their account and risk^ A letter from the shipper to the consignees, after describing the goods and the labour he had employed in the business, and sta- ting that they were sent partly in the Fanny and partly in the Frances, says, " I have exceeded in some articles an^l have sent you others not ordered r I leave it with your- selves to take the whole of the tv/o shipments, or none at all, just as you please. If you do not wish them, I will thank you to hand the invoices and letters over to Messrs. Fa;!- coner, Jackson Sc Co : I think twenty-four hours will allov/ you ample opportunity for you to make up your minds or: this point, and if yoii do not. hand them over within that time, I will of course consider that you take the whole !'"* It was argued for the consignees and claimants, that by the invoice and bill of lading, and the true consl ruction of the (-) 6 T^pbiimon, 329, The Twsnde ^'cniTor. 90 X.AVV' Ol CHAP. ilf. shipper'a letter, the property was vested in them, liable to he divested by their rejecting the consigrjment wiihin twca- ty-four hours after receiving the letters ; that the condi- tion annexed to the transfer, WTis siiUsequent^viot precedents * But the court could not concur in this reasoning. To vest the property in the claimants, a contract is necessary; and to form a contract, the consent of t\v. parties is indispensa- ble. Had the shipper in execution of the consignees' order, consigned to them unconditionally such goods as they had directed, the contract would have been complete, and the goods v/ould on being shipped haye become the property of the consignees. But the shipper had not done this : with the goods which were ordered he consigned other goods, expressly stipulating that the consignees should not take the goods they had ordered, unless they consented, to take the whole quantity put on board both vessels. This, then, was a nev/ proposition, on which the consignees were at liberty to exercise their discretion. They might accept, or reject it, and until accepted, the property must remain in the shipper. But the claimants prayed an order for further proof, and said that before the capture of the Frances, the Fanny had arrived, and they had consented to take both cargoes. This application was opposed by the captors upon the prin- ciple, that were the fact true as alleged by the claimants, belligerent property. cannot change its character in transitu. Reserving any opinion upon the law, if this fact should be proved, further proof was ordered, and upon the produc- tion of the further proof the property was condemned, ('') 17. And contracts of purchase effected on the part of the IjcUigerent, but left executory as to payment and contingent on a delivery at an ulterior port at the risk of the neutral merchant, are not allowed in time of war; the C-) Per Marshall, C. J. The Frances, Supreme Court of the U. S. February T..18M. MARITIME CAPTUKKS A>iD PHIZES'. Di goods sailing under such a contract, and taken in transitu^ are held to be the absolute property of the enemy. By the civil and common laws the nature of the contract of sale ren- ders the thing sold at the risk of the vendee until delivered, unless the contrary is expressly stipulated by the parties. f') It is the liberty of making this express stipulation which is taken away by this rule of the prize law, it being so liable to abuse for the purposes of fraud. When the contract is made in time of peace or without any contemplation of war, no such rule exists ; but where the form of .he contract is framed directly for the purpose of obviating the danger ap- prehended from approaching hostilities, it is a rule which unavoidably must take place. Where the goods are to be- come the property of the enemy on delivery, capture is considered as delivery : The captors by the rights of war stand in the p^ace of the enemy, and are en- titled to a condemnation of goods passing under such a contract, as of enemy's property. ('^) The ordinary state of commerce is, that goods ordered, and delivered to the ■master are considered as delivered to the consignee, whose agent the master is in this respect ; but that general contract of the law may be varied by special agreement, or by a particular prevailing practice, that presipposes an agreement amongst such a description of merch/u.ts. In time of profound peace when there is no fro&pcr.. of ap- proaching war, there would unquestionably be nothing il- legal in contracting, that the whole risk should fall on the consignor, till the goods came into possession of the con- signee. In time of peace they may divide this visk as they please. In time of war this cannot be permit! e\ for it would at once put an end to all captures at sea j the risk would in all cases belaid on the consignor where it suited the purpose of protection j on every contemplation of war, (>) Pothier^ Des Obligations, No- 7. De Vente, No. 307, 2 Johnson'» Reports, 13. ('') 3 Robinson, 299. The Atlas, 4 Robinson, 107. The Anna Catharina. 92 LAW OF CHAP. III. this contrivaive would be practised in all consignments from neutral ports to the enemy's country, to the manifest de- frauding of all rights of capture ; it is therefore considered to be an invalid contract in time of war ; or to express it more accurately, it is a contract, which, if made in war, has this effect ; that the captor has a right to seize the property and convert it to his own use ; for having all the rights that belong to his enemy, he is authorised to have his taking possession considered as equivalent to an actual delivery to his enemy ; and the shipper who put it on board in time of war must be presumed to know the rule, and to secure himself in his agreement with the consignee against the contingency of any loss to himself that can arise from cap- ture.(') 18- By the prize codes of several nations, the want of papers found on board the captured vessel, and the suppres- sion, concealment, or spoliation of papers, is considered as furnishing presumptive evidence of the existence of ene- my interests, and unless rebutted by contrary proof of a sat- isfactory nature, as affording a gi-ound of condemnation. Thus by the French ordinance of August, 1681, Des^ Prises, art. 6, all vessels on board of which no charter party, bills of lading, or invoices are to be found, are, together with their cargoes, declaimed good prize. And by the Ordinances of 1543, art. 43, and of 1584, art. 70, the throwing over- board of the charter party, or other papers concerning the lading of the vessel, is declared a sufficient cause of condemnation. Doubts having arisen as to the application of this rule of evidence, in cases where sufficient pa- pers were found remaining on board to furnish proof of the propx'ictary interest, the ordinance of the 5th September, 1708, was rendered ; by which it was provided. That every captured vessel, from which papers have been thrown over board, shall be good prize together with the cargo, upon (1)2 Robimon, 133. The Packet de Bilboa. MARITIME CAPTURES AND PRIZES* 98 proof of this single fact only, without its being necessary to examine into the nature of these papers, or by whom they were thrown overboard, nor whether sufficient papers were found remaining on board to furnish evidence that the vessel and the goods of her lading belonged to friends or allies. But this decision appearing too rigorous in prac- tice, Louis the Fourteenth, in a letter of the 2d February, 1710, addressed to the Admiral of France, directed the Council of Prizes to apply the terms of this Ordinance ac- cording to the peculiar circumstances and the subsidiary proofs in each case. Valin is of opinion that, though this letter escaped the attention of the framers of the Regula- tion of the 21st October, 1744, of which the 6th article is entirely conformable to the Ordinance of the 5th Septem- ber, 1708, yet it ought to be applied lo temper the rigour of this article according to circumstances. In the British courts of prize spoliation of papers is in all cases considered as a proof of malajides ; and where that appears, it is an universal rule to presume the worst against those who are convicted of it: it will always be supposed that such papers relate to the ship or cargo ; and that it was of material consequence to some interests, that they should be destroyed. (•") And where there has been such a spoliation, or a suppression of papers, farther proof is al- ways 6rdered.(°) But if the master, or other person con- cerned in the spoliation or suppression, be at the same time the owner of any part of the ship or cargo, it is considered as sufficient to effect the condemnation of his share ; and the misconduct of the master in this respect is visited upon the neutral owner of the ship by refusing freight upon the goods condemned.C**) (•n) 1 Robinson, 131. The Two Brothers; (">) 2 Robinson, 361. The Polly, C) 2 Robinson, 104. The Rising Sun*. 13 94 LAW OF CHAP. III. 19. The right of visitation and search is a right of belli- gerent powers consequent, not merely upon the right of capturing enemy's goods in neutral vessels, but upon that of capturing enemy's vessels and enemy's goods laden on board the same, contraband of war, and vessels committing *a breach of blockade, or of detaining vessels transporting military persons or despatches in the service of an enemy. Even if the rule th^ktfree ships make free goodsht adopted, the exercise of this right is essential in order to determine whether the ships themselves are neutral, and documented as such according to treaties and the law of nations. In- deed it seems that the practice of maritime captures could not exist without it. Accordingly the unanimous authority of the writers on public Mw establishes this right in the armed and commissioned vessels of belligerent states.(P) Various treaties and ordinances of belligerent states pre- scribe the mode in which the right of visitation and search is to be exercised so as to prevent disorder and illegal vio- lence. The earliest of these treaties is that of the Pyre- nees of the 17th November, 1659. By the 17th article of this celebrated treaty, it is provided that. To avoid all dis- order, the ships of the one power shall not approach those of the other nearer than within cannon-shot, and shall send their boat on board of the merchant vessel with two or three men only, to whom the master of the merchant ves- sel shall exhibit the passports by which shall be made to appear, not only the lading, but also the place of domicil or residence ; the name of the master and that of the ves- sel, in order by these means to ascertain whether she car- ries any contraband goods, and thai the character of the ship, as well as the quality of the master, may satisfactorily r {v) Brjnkcrslioek, (1.3. V.Ij. I.e. U. Vattel, \.. Z. C. 7-^iU. Mar- tens, L. 8. c. 6. § 14. (JaUiani, Dc Doveri dc Principi neutrali vtrso 1 Prjncipi guerrcgiaiUi, et de quesli verso i neutrali. 458. Lampredi, Del Commcrcio dc Popoli Neutrali in Tempo de Gcurra. 185. .7i/(w, r.iit 2, c. 3. art. 4. § 2. IMARITIME CAPTURES AND PRIZES. 9.^ appear. The same rules are adopted by the prize law's of different nations, but are very irregularly obsex-ved in prac- tice. The penalty affixed to a violent resistance to the exer- cise of this right by the universal law and usage of nations, is confiscation.(i) Thus by the French Ox-dinance of Au- gust, 1681, it is provided. That eVery vessel which refuses to lower its sails, after being thereunto summoned by our ships of war, or the private armed vessels of our subjects, may be compelled by force ; and in case of resistance and combat, shall be good prize. L. 3. tit. 9. art. 12. Des Prises. The same provision was contained in the Ordi- nance of 1584, art. 65 ; and is incoi-porated into the Spa- nish Ordinance of 1718. Notwithstanding the pi-actice of the British courts of prize is in conformity with this rule,('^) there is a singularly anomolous case adjudged in the English common law courts, in which the right of search is not only denied, but the lawfulness of x-esisting its exer- cise is maixitained. This was the case of an insurance in England on a ship belonging to subjects of Tuscany, then neutral between Great Britain and Spain, laden with neu- ti'al property, and captured by a Spanish cruizer and car- ried into a port of Spain, whex-e she was condemned. The fix'st ground of condemnation which appeared in the sen- tence was, that the ship had refused to be searched, and resisted with force, having fired on the Spanish cruizer, contrary to the above Ordinance. The ship was warrant- ed neutral ; and the payment of the loss resisted upon the ground of the forfeiture of her neutrality appearing by the (1) Vattel, L. 3. c. 7- § 114. .1:iini, Part 2, c. 3. art. 4. § 5. iZ diriUo del'te genti givstifica la forza contro di chiunqiie contrasta o appone impedir mento alVesercizio dell'ahrui diritto perfetto : dunqite a tal riguardo potrd perseguitarsi la nave neutrale e sottoporla alia confisca dichiarandola hunna preda, come ha giuatmnente stabilito il Gius' convenzionale delV Europa, chr. in qucsta parte spicga il Diritto primitivo e gencrale della natiira. lb. J 7, (0 1 Robinson^ 340. Tlwi MvUia. 06 LAW OF CHAP III. sentence of condemnation. Upon these facts, the court of King's Bench were of opinion that the insured were entit- led to recover, and gave judgment accordingly. As to the alleged cause of condemnation, the judges agreed that a ship, warranted neuti-al, must so conduct herself as not to forfeit her neutrality ; and that if by the wilful act of thp master, she do this, to the injur)- of the owners, it will amount to the offence of barratry : But in this ease, it was said, nothing of that kind was imputable to him. That a neutral ship is not bound to submit to search, searching be- ing an act of superior force, rather than the exercise of a right, which may always be resisted when the party is able ; and the searcher who acts at his peril, always pays costs, unless he finds something on board to justify him, like the case of custom-house officers : That this was con- firmed by the practice of the Admiralty, where costs are always given in cases of improper detention, wbich would not be done if neutral vessels were liable, at all events, to be stopped : That in the present, case there was nothing to justify the search, the cargo being neutral: That a ship is only bound to take notice of the laws of the countries from which, and to which, she sails ; but not the particular ordi- nances of other pov.^ers ; and that a detention, therefore, under the authority of particular ordinances which do not make a part of the law of nations, was a risk within the policy.e) Although the doctrine of this case, so far, at least, as relates to the determination of the question of municipal law arising in it, was afterwards reversed by the same court in tile case of Garrcls vs. Kensington., 8 T. R. 23 r yet as it has been cited by a celebrated writer pn public law as a conclusive authority against the right of search for mer- chandize, it may not be usth ss briefly to examine its rea- soning as affecting that right.;') (•-) Murnhall on Insurance, R. 1- c. 8- § 5. Saloucci VS. Johnson. (') Schlegel en JS'eutral Jiijhts. In Appendix. Maritime captures and prizes. ^7 And this reasoning will be found to be extremely incon- secuent. For thouj^h it is certainly true that the particular ordinances of belligerent powers have no binding force as a part of the law of nations, yet when they are only decla- ra ory of that law, and are conformable therewith, a con- demnation under their authority in a court of prize is not the less valid and' legal. And though it is equally true that the law and practice of the admiralty condemn in costs and damages the captor, who has abused the right of search, by detaining and carrying in for adjudication neu- tral vessels against which no reasonable cause of suspicion 'exists, yet no instance can be found of costs and damages awarded against a captor for stopping and searching a neu- tral vessel on the high seas j much less does it depend upon the event of such search, v/hether the captor shall be thus condemned in costs and damages. For, as Bynker- shoek has justly observed, it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely^ vvhich may be fraudulently assumed, but by the documents them- selves which are on board, whether she is really neutral. If then search be a lawful act, how can it be s lid that it may always be resisted when the party is able ? And how can it be said that the searcher acts at his peril, when the award of costs and damages against him does not depend upon the immediate event of the search, but upon that of the further detention and carrying in for adjudication ?(") (") When it is laid down that there is no rig'ht of searcli, becatise the cruizer searches at the hazard of costs and damages if he ^find notliing, it must equally occur that this very liabilily in costs and dumai,''ps is itself the firmest security of the right of search, by eng-ajcintj vlie nt-otral's sub- mission to the exercise of it under the remedy of an indemnifxut ioij. That the question of costs and damages should depend upon tlie resull of a search is perfectly intelligible, it being a question of after ronsiderai ion; but that it should depend upon the result of a search whether ihar search can in limine be lawfully resisted, is a contradiciion eqiis'lly in 'rrms and in meaning. The purpose of the resistance is to exclude the ktiowiedgie of fhe fact which the fact is to ascertain; and if the resistance is sue- 98' LAW OF CHAP. 111. The question therefore returns, resistance to search being an unlawful act, what is the penalty affixed to it by the law of nations. And wc have seen that this penalty is confis cation. But in order to induce the infliction of this penalty, it must be shewn that the merchant .vessel had reasonable grounds to be satisfied of the- existence of war, otherwise there is no such thing as neutral character, nor any foun- dation for the several duties, which the law of nations im- poses upon that character. In a case, therefore, where at the time of sailing no war was supposed to exist, in the knowledge or contemplation of the master, and he was con- sequently unconscious th^t he had any neutral duties to per- form, a resistance to visitation arid search v,ras held to be no ground of condemnation. (*') So neither will the forcible resistance of the enemy master affect neutral property laden on board his vessel. For an attempt on his part to res- cue his vessel from the possession of the captor is nothing more than the hostile act of a hostile person who has a perfect right to make such an attempt. If a neutral mas- ter attempts a rescue, or to withdraw himself from search, he violates a duty which is imposed upon him by the law of nations, to submit to search, and to be carried in for en- quiry and adjudication as to the property of the ship or cargo ; and if he violates this obligation by a recurrence to force, the consequence will undoubtedly reach the pro- perty of his owner ; and it would, perhaps, extend also to the whole property entrusted to his care, and thus fraudu- lently attempted to be withdrawn from the operation of the rights of war. With an enemy master the case is very dif- ferent : No duty is violated by such an act on his part — ccssfiil, (he fact will remain unknown on which the legality of the resist- ance is itself to depend. Crake's Jlnswev to Schlegel. (^) 5 Robinson, 33. The St. Juan J3aptista ct al. MARITIME CAPTURES ASTD PRIZES. in) lupuni auribus teneoy and if he can withdraw himself, he has a right so to tlo.(^^) The question how far a neutral has a right to lade his goods on board* an armed enemy vessel, and how far his property is involved in the consequences of resistance bv the enemy master, was agitated during the late war with Great Britain in a case celebrated on account of the imjxir- tance of its principles, and the eloquence and ability with which they were discussed. (^) The claimant, a native and resident of Buenos Ayres in South America, chartered a British armed vessel for a voyage from London to Buenos Ayres and back again to London, and put his goods on board. The vessel sailed under convoy of two British fri- gates, but parted from them before her capture. In the prosecution of' her v^age, and >yhile in sight of Madeira, where she meant to stop in the expectation of joining the convoy she had parted fronis she was captured by a private armed vessel of the United States, after having made re- sistance, in which the claimant did not participate. Under these circumstances, the district court condenuied the goods claimed, as prize of war j(>) a decree affirming the con- demnation, was entered pro Jo?-ma in the circuit court, and the^cause was carried by appeal to the supreme court. Three of the judges of that court were of the opinion, that a neutral had a right to ship goods of his property on board a belligerent armed merchant ship without forfeiting his neutral character, unless he actually concurred and par- ticipated'inthe vessel's resistance to^capture.(^) One judge (»■) S Jiohinson- The CaUiaviiia Elizabeth. J\'e il predatore jnio avere alcnn diritto d' inseguirc la preda, die iibii area cu^todila ,- menlre era la sola custodia quella, che poteva muntcncrlo in possesso ddla nave pvedata, ^■iusta i principi dei'la ragion comnmne. Azuni, Part 2, c. 4. art. 5. § 2. (>') The Nereid. Supreme Conrt of tlie U. S. February T. 181 J. (v) Per Vax Ness, J. District Court for the Southern District of N. Y. August 9th, 1814. (■) Per Marsuall, C. J. Wasui>-gto>- and Lni>GiTo\. .'. 100 LAW OF CHAP. 111. declined expressing anv opinion on that point, as unneces- sary ; because he thoiighi it suRicieut to say thac a mer- chant of Buenos Ayres, considerinj^ he situation of his country, the dangers of Carthagena cruizers, and the risks to which himself and his property would be subject in casp of capture, was warranted by considerJktions in no way con- nected with the war between the United States and Great; Britain, in availing himself of an* armed belligerent mer- chant ship as the only adequate means of carrying on his trade, and which, had been so prior to the declaration of war bv the United States <•(*) whilst the two other judges present dissented from the judgment of the court, reversing the condemnation decreed in the courts below, and restor- ing the property as claimed. C') But where the vessel was captureci, and possession taken by sending three persons on board her, who being unable to navigate her, the neutral master continued to direct her course according to the instructions of his owners, refusing to carry the vessel into the belligerent port for adjudication, and she was carried in by another cruizer ; it was deter- mined that this was not a case of rescue that would sub- ject the vessel to confiscation. The duty of navigating the captured vessel into port for adjudication is not imposed on the master and his crew. They owe no service to the cap- tors, and are still to be considered answerable to the owners for their conduct. It is the duty as well as the interest of the captors to make the capture sure ; if they neglect it from any anxiety to make other captures, or thinking the force alreddy furnished sufficient, it is exclusively at their own peril. (*') (") Per .Toiivsox, J. ('') Tcr Duval unci Stort, J. (" ) Jlcton, O.J. riic Pennsylvania. MARITIME CAPTURES AXD PRIZF.S. lOl CHAPTER IV. The property of persons resident^ or having possessions, or a house of trade in the encmfs territory ^ considered as an, object of capture, 1. The property of persons domiciled in the enemy's country, is. liable to capture and condemnation, although such persons may be citizens or subjects of the belligerent state, or of neutral powers. (') 2, The permanent character of an enemy arises from the party being under the allegiance of the power at war with the belligerent state. The allegiance being permanent, the character is permanent* But a neutral can be an enemy only with respect to what he is doing under a local or tem- porary allegiance to the power at war. When the alle- giance determines, the character determines. He can have no fixed character of 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 hos- tility that he was even for a time an enemy at all. But a person who resides under the allegiance and protection of a hostile cduntry for all commercial purposes is to be con- sidered to all civil purposes as much an enemy as if he were born there. (^) (^) Robinson, passim. 2 Dallas, 42. Federal Court of Appeals io Prize Causes, 1787. Vantylenger, Claimant. 1 Magens, 525. Sir Le- olyn Jenkins' letter, 17 September, 1666. (i>) 1 Bos. & Pul. 163. Sparenburgh vs. Bannatync.,3 Il>, 114. M'Con* nel vs- Hector. 14, 102 LAW OF CHAP. IV. Thus it has been determined in the courts of municipal law that a citizen residing in a foreign country might ac- quire the commercial privileges attached to his domicil, and thus be exempt from the operation of a law of his orig- inal country restraining commerce with another foreigtx country.(*^) So also it has been decided that a natural bom subject might become the citizen of a foreign country for the pur- poses of commerce, and be entitled to all the advantages of trade conceded by treaty between his native country and that foreign country; and that the circumstance of his re- turning for a temporary purpose does not deprive him of those advantages. (**) 3. As the person who has a commercial inhabitancy in the hostile country has the benefits of his situation so also he Jnust take its disadvantages, ^d comjjiodiim sent'it^scntire debet et onus, is the maxim of the civil law ; and as in the above cases, the party was held to acquire all the commer- cial privileges of a subject or citizen of a foreign power, it follows that he would be subjected to the correspondent disadvantages of his situation. All the citizens or subjects of the enemy who are such from a permanent cause, that is to say, settled in the coun- try, are liable to the law of reprisals, whether they be na- tives or foreigners ; but not so, if they are only travelling or sojourning for a little time.(') A residence in a foreign country, with an intention to make it a permanent place of abode is styled doynicil^ and is defined to be, a habitation fixed in any place with an intention of always staying there. C'^) \ Cranchf&5. Murray vs. The Charming Betsey. C) 8 T. U. Wilsoa vs. Marryat. (<■) GrotiuB de J. 11. ac P. 563. K is not the place of any man's nati- t>ity, but of his t/om/ct/.- not of his origination, hnt o^ \\\s habitation, that subjects him to reprize : The law cloth not consider so much where ho was born, as where he lives ; not so nuicli where lie came into tlie world, as where he improves the world. Molhy dc J. M. B. 1. c. 2. XVI. MARITIME CAPTURES AND PRIZES. 1D3 Consequently a person does not establish his domlcil in any- place, unless he makes known, either tacitly, or by an ex- press declaration, his intention to establish himself there. Nor does this declaration prevent him, in case he changes his intention, from removing his domicil elsewhere. The natural or original domicil is that which is given us by birth, where our father had his ; and we are held to retain • it, so long as we do not abandon it in order to choose another. The acquired domicil, adscititium^ is where we establish ourselves by our own voluntary act.(') 4. Questions of residence or domicil are of considerable difficulty, depending on a great variety of circumstances hardly capable of being defined by any general precise fules. The active spirit of commerce now abi-oad in the world still further increases this difficulty by increasing the variety of local situations, in which the same individual is to be found at no great distance of time ; and by that sort of extended circulation, by which the same transaction communicates with different countries, without enabling us to assign the exact legal effect of the local character of every particular portion of this divided transaction. Of the few principles that can be laid down generally, it may be held that time is the grand ingredient in constituting domicil. In most cases it is unavoidably conclusive. It is not unfrequently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some res- pect had to the time which such a purpose may or shall oc^ cupy ; for if the purpose be of such a nature as viay^proha- bhf^ or does actualhf detain the person for a great length of time, a general residence might grow upon the special pur- pose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. Against such a long residence, the plea of an original special pur» (0 VaUel,\.Uc.l%%2lZ. 104 jLAW- of OHAP- IV. pose could not be averred ; it must be inferred in such a case, that other purposes forced themselves upon him, and mixed themselves with his original design, and impressed upon him he character of the country where he originally resided. Suppose a man comes into a belligerent country at or before the beginning of a war; it is certainly reason- f able not to bind him too soon to an acquired character, and to allow him a fair time to disentangle himself; but if he continues to reside during a good part of the war, contri- buting by payment of taxes and other means, to the strength of that country, he could not plead his special purpose with any effect against the rights of hostility. If he could, there "would be no sufficient guard against the fraud and abuses of masked, pretended, original, and sole purposes of a long continued residence.- There is a time which will estop such a plea ; no rule can fix the time a priori, but such a time there must be. In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a larger space of time. This matter is to be taken in a compound ratio of the time and the occupation, with a great preponderance on the article of time : be the occu- pation what it may, it cannot happen, but with few excep- tions, that mere- length of time shall not constitute a do- inicil.(''') But on the other hand, mere length of time cannot of it- self be decisive, where the purpose is clearly proved to have been temporary, and still continues so, without any enlargement of views. Therefore where the party merely went out to collect the debts due to his house of trade, and there was no part of the evidence which pointed to a dis- tinct trade disconnected with those debts, and the whole transaction was in time of peace, the court thought that the (0 2 Robinson, 322. The Harmony. JMAIIITIME CAPTUllES AND PRIZES. lOo presumption from length of time was not so forcible. N^or would the circumstance that the shipment was made in the character of an enemy's subject, but before know- ledge of hostilities, affect him unfavourably. For a dis- tinction has been taken in the authorities between a time of peace and of war. Much greater laxity is allowed to mercantile transactions in peace than in war. Disguises and covers are allowable in the former which would not be tolerated in the latter. The court did not know that a single case had been decided in which the assuming a na- tional character in time of peace to avoid municipal duties or regulations, or to avoid the effects of impending war, had been held to bind the party where it had not been in fraud of the belligerent who made the capture. If the party had gone on after the war making shipments in the enemy character, the court had no doubt that he would have been affected with its penal consequences. But the question was, if the shipment made in the enemy character, without being engaged as a general merchant, and without the intention of evading any other but the municipal or belligerent rights of the enemy, should conclude the party as to his domicil ? The court could not say that, where the proof is otherwise satisfactory, this circumstance alone ought to draw after it that consequence. It thought that great indulgence was usually granted to neutrals and to citizens, as to transactions in time of peace and at the commencement of a war, and if they contravened no muni- cipal or national policy, it was not prepared to say that this indulgence is inconsistent with law. Fide Chap. V. § 1. CO 5. The native character and natural or original domicil easily reverts, and it requires fewer circumstances to con- stitute domicil, in the case of a native citizen or subject, ('•) Per Stoht J. The Ann Greene. Circuit Court of the U.S. for the Massachusetts district, October T. 1812. MS. 10a LAW OF CHAP. IV. than to impress tlie national character on one who is ori- ginally of another country. (') Thus by the French edicts of the 23d July, 1704, 21st October, 1/44, and 26th July, 1788, it is provided that the passports granted by neutral or allied powers, to the subjects of states at war with France, who have obtained letters of naturalization from or transferred their domicil to the territories of such powers, shall not be valid in case they shall return to the dominions of the states at war with France for the purpose of there continuing their trade. C') 6. Where the claimants were native British subjects, who came to the United States many years prior to the late war, and, after the regular period of residence, were admitted to the rights of naturalization. — Some time after this, but long prior to the declaration of war, they returned to Great Britain, settled themselves there, and engaged in the trade of that country, where they were found carrying on their commercial business at the time these shipments \rere made ; and at the time of the capture, one of the claimants was yet in the enemy's country, but had, since he heard of the capture, expressed his anxiety to return to the United States, but had been prevented from so doing by various causes set forth in his affidavit. Another actu- ally returned some time after the capture ; and a third was still in the enemy's country. Tliis claim was resisted upon an objection to the national character of the claimants. The great question involved in this case Was, whether the property of claimants who were settled in the enemy's country, and engaged in the commerce of that countrj-, ?;hipped before they had a knowledge of the war, but which was captured, after the declaration of war, by a criiizer of the belligerent state, ought to be condemned as lawful (') 5 Robinson, Q8. La Virginie. C) 1 Code den Prises, 92. 139. G03. MARITIME CAPTURES AND PRIZE^^. 107 prize. It was contended by the captors, tliat as the claim- ants had gained a domicil in the enemy's country, and con- tinued to enjoy it up to the time when war was declared, and when the capture was made, they must be considered as enemies, in reference to this property, and consequently, that it might legally be seized as prize of war, in like man- ner as if it had belonged to real enemy subjects. But if not so, it was then insisted, that these claimants having, after their naturalization, returned to the country of their birth, and there resettled themselves, they became redin- tegrated British subjects, and ought to be considered by the court in the same light as if they had never emigrated. On the other side it was argued, that citizens of the belli- gerent state settled in the country of the enemy, as these persons were, at the time war was declared, were entitled to a reasonable time to elect, after they knew of the war, to remain there, or to return home ; and that, until such election was bona fide made, the courts of this country were bound to consider them as citizens of it, and their proper- ty shipped before they had an opportunity to make this election, as being protected against capture by its cruizers. There being no dispute as to the facts upon which the domicil of these claimants was asserted, the questions of law to be considered were two — First, By what means, and to what extent, a national character may be impressed upou a person, different from that w'nich permanent allegiance gives him ? — and. Secondly, What are the legal consequen- ces to which this acquired character may expose him, in the event of a war taking place between the country of his residence and that of his birth, or in which he had been naturaUzed ? I. The writers upon the law of nations distinguish be- tween a temporary residence in d Joreign countr\', for a special purpose, and a residence accompanied with an in- tention to make it a permanent place of abode- V?r^:' Supra. ^3. JOS LAW OF CHAP IV. The doctrine of the prize courts, as well as of the courts of comrrson law in England, which, it was hinted in argument, had no authority of universal law to stand upon, is the same with what is stated by Carotins and Vat- tel, except that it is less general, and coiifines the conse- quences resulting from this acquired character to the pro- perty of those persons engaged in the corninercc of the coun- try where they reside. It is decided by those courts, that whilst an Englishman, or a ncuiral, resides in a hostile country, he is a svibject of that country, and is to be con- sidered (even by his own, or native countr\^, in the former case) as having a native character impressed upon him. In deciding whether a person has obtained the right of an acquired domicil, it is not to be expected that much, if any assistance should be derived from mere elementary writers on the law of nations. They can onlv lay down the general principles of law, and it becomes the duty of courts to establish rules for the proper application of those principles. The question, Whetheir the person to be af- fected by the right of domicil, had sufficiently made known his intention of fixing himself permanently in the foreign country, must depend upon all the circumstances of the case. If he had made no express declaration on the sub- ject, and his secret intention is to be discovered, his acts must be attended to, as affording the most satisfactory evidence of his intention. On this ground it is, that the courts of England have decided, that a person who re- moves to a foreign country, settles himself there, and en- gages in the trade of the country, furnishes by these acts, such evidence of an intention permanently to reside there, as to stamp him with the national character of the state where he resides. In questions on this subject, the chief point to be considered, is the animits 7nanendi ; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufllciently appears that the intention of removing was to make a permanent MARITIME CAPTURES AND PRIZES. 10.0 settlement, or for an indefinite time, the right of domicil is acquired by residence even of a few days. This is one of the rules of the British prize courts, and it appears to be perfectly reasonable. Another is, that a neutral or subject, found residing in a foreign country, is presumed to be there aniino manendi ; and if a state of war should bring his national character into question, it lies upon him to ex- plain the circumstances of his residence. (') As to some other rules of the prize courts of England, piarticularly those which fix a national character upon a person, on the ground of constructive residence, or the peculiar nature of his trade, the court was not called upon to give an opinion at that time ; because in this case, it was admitted that the claimants had acquired a right of domicil in Great Britain at the time of the breaking out of the war between that country and the United States. II. The next question is. What are the consequences to which this acquired domicil may legally expose the person entitled to it, in the event of a war taking place between the government under which he resides, and that to which he owes a permanent allegiance ? A neutral, in this situ- ation, if he should engage in open hostilities with the other belligerent, would be considered and treated as an enemy. A citizen of the other belligerent could not be so consider- etl, because he could not, by any act of hostility, render himself strictly speaking an enemy, contrary to his perma- nent allegiance. But although he cannot be considered an enemy in the strict sense of the word, yet he is deemed such, with reference to the seizure of so much of his pro- perty concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy although not crimi- nally so, unless he engages in acts of hostility against his native country^, or (probably) refuses, when required by (') 1 Jiobinson, 86. 1»2. The Bcrncn. 15 110 3-AT\- OF CHAP. IV. his country, to return. The same rule, as to property en- gaged in the commerce of the enem_y, applies to neutrals, and lor the same reason. Tlie converse of this rule in- evitably applies to the subject of a belligerent domiciled iii a neutral country ; he is deemed q neutral by both belli- gerents, wich reference to the trade which he carries on ivith ihe adverse belligerent, and with all the rest of the world. But this national character which a man acquires by re- sidence, may be thrown off at pleasure, by a return to his l^ative country, or even by turning his back on the country in which he resided, on his way to another. To use the language of Sir W. Scott, it is an adventitious character, gained by residence, and which ceases, by non-residence j it no longer adheres to the party from the moment he puts himself in motion, bona jide^to quit the country sine ammo a-evertendi. 2> Robinso7i^ 17. 12. The Indian Chief.— The reasonableness of this rule can hardly be disputed. Hav- ing once acquired a national character by residence in a fo- reign, country, he ought to be bound, by all the consequen- ces of it, until he has thrown it off, either by an actual re- turn to his native country, or to that where he v/as natural- ized, or by commencing his removal, bona fide ^ and with- out an intention of returning. If any thing short of actual removal be. admitted to work a change in the national cha- racter acquired by residence, it seems perfectly reasonable that the evidence of a bona fide intention to remove should Lc such as to leave no doubt of its sincerity. Mere decla- rations of such an intention ought never to be relied upon, v.hcn contradicted, or at least rendered doubtful, by a con- tinuance of that residence which impressed the character. They may have been made to deceive ; or, if sincerely jnade, they may never be executed. Even the party him- self ought not to be bound by them, because he may after- wards find reason to change his determination, and ought to be permitted to do so. iBtU when he accooipr^nics these Maritime captures and prizes. Ill declarations by acts which speak a latiguage not to be mis- taken, and can hardly fail to be consummated by actual re- tnoval, the strongest evidence is afforded which the nature of such a case caw furnish. And is it not improper that the courts of a belligerent nation should deny to any per- son the right to use a character so equivocal, as to put it in his power to claim whichever may best suit his purpose, when it is called in question ? If his property be taken trading with the enemy, shall he be called on to shield it from confiscation, by alleging that he had intended to re- move from the country of the enemy to his own, then neu- tral, and therefore, that, as a neutraU the trade was lawful ? If war exist between the country ofliis residence and his native country, and his property be seized by the former or by the latter, shall he be heard to say in the former case, that he was a domiciled subject of the country of the cap- tor, and in the latter that he was a native subject of the country of that captor also, because he had declared an inten- tion to resume his native character ; and thus to parry the belligerent rights of both ? It is to guard against such incon- sistencies, and against the frauds which such pretensions, if tolerated, would sanction, that the rule above mentioned has been adopted. Upon what sound princip e can a dis- tinction be framed between the case of a neutral, and the subject of one belligerent domiciled in the country of the other at the breaking out of the war ? The property of each, found engaged in the commerce of their adopted country, belonged to them, before the war, in their charac- ter of subjects of that country, so long as they continued to retain their domicil ; and when a state of war takes place between that countiy and any other, by which the two na- tions and all their subjects become enemies to e^ch other, it follows, that this property, which was once the property of a friend, belongs now, in reference to that property, to an enemy. 112 LAW OF CHAP. lY. This cjoctrine of the common law and prize courts of England is founded like that mentioned under the first head, upon international law, and it is believed to be strong- ly supported by reason and justice. And why, it may be confidently asked, should not the prop erty of enemy*s subjects be exposed to the law of reprisals and of war, so long as the owner retains his acquired domicile or, in the words of Grotius, continues a permanent residence in the country of the enemy ? They were before, and continue after the war, bound, by such residence, to the society of which they are members, subject to the laws of the state, and owing a qualified allegiance thereto ; — they are obliged to defend it, (with an exception in favour of such subject, in relation to his native country) in return for the protec- tion it affords them, and the privileges which the laws be- stow upon them as subjects. The property of such per- sons, equally with that of the native subjects in their totali- ty, is to be considered as the goods of the nation, in regard to other states. It belongs, in some sort, to the state, from the right which, the state has over the goods of its citizens, which make a part of the sum total of its riches, and aug- ment its power.('") In reprisals, continues the same au- thor, we seize on the property of the subject, just as we "would that of the sovereign ; every thing that belongs to the nation is subject to reprisals, wherever it can be seized with the exception of {^) a deposit entrusted to the public faith. Now if a permanent residence constitutes the per- son a subject of the country where he is settled, so long as he continues to reside there, and subjects his property to the law of reprisals, as a part of the property of the nation, jt would seem difficult to maintain that the same conse- quences would not follow in the case of an open and pub- ("') Vallel, L. 1. c. 14. $ 182- (") L. 2. c. 18. § 344- MARITIME CAPTURES AND PRIZES. 1 l.'> ilc war, whether lyetwcen the adopted and n.itive countries of persons so domiciled, or between the former and any other nation. If, then, nothing but an actual removal, or a honafde beginning to renvove, can change a national character, acquired by domicil, and if, at the time of the inception of the voyage, as well as at the time of capture, the property belonged to such domiciled person in his cha- racter of a subject, what is there that does, or ought to ex- cept it from capture by the privateers of his native country, if, at the time of capture, he continues to reside in the country of the adverse belligerent ? It was contended that a native or naturalized subject of one country who is sur- prised in the country where he was domiciled, by a decla- ration of war, ought to have time to make his election to continue there, or to remove to the country to which he owes a permanent allegiance ; and that, until such election be made, his property ought to be protected from capture by the cruizers of the latter. This doctrine Is believed to be as unfounded in reason and justice, as it clearly is in law. In the first place, it is founded upon a presumption, that the person will certainly remove, before it can possibly be known whether h^ may elect to do so or not. It is said that the presumption ought to be made, because upon re- ceiving-information of the war, it will be his duty to return home. This position is denied. It is his duty to comnii*: no acts of hostility against his native country, and to rcturu to her assistance when required to do so ; nor will any jus* nation, regarding the mild principles of the law ofnations. require him to take arms against his native country, or re- fuse permission to him to withdrav/ whenfever he wialu'^ to do so, unless under peculiar circumstances, which, bj* such removal at a critical period, might endangf^r the pub- lic safety. The conventional law of nations is in confor- mity with these principles. It Is not uncommon to stipu- late In treaties, that the subjects of each party shall be al- lowed to rea^ove with their propertv, or to remain unuu^- 114 Law op chap. iv. iested. Such a stipulation docs not coerce those subjects either to remove or to remain. They are left frc-e to choose for themselves ; and when they have made thtir election, they claiiai the right of enjoying it under the trea- ty — But until the election is made, their former character continue') unchanged. Until this election is made, if his property fovmd upon the. high seas, engaged in the com- merce of his adopted covmtry," should be permitted by the cruizers of the other belligerent, to pass free under a notion that he may elect to remove, upon notice of the war, and should arrive safe, what is to be done in case the owner of it should afterwards elect to remain where. he is ? For, if captured and brought immediately to adjudication, it must, upon this doctrine, be acquitted until the election to remain is made and known. In short, the point contended for would apply the doctrine of relation to cases, where the party claiming the benefit of i^t, may gain all, and can lose nothing. If he, after the capture, should find it his inter- est to remain where he is domiciled, his property embark- ed before his election was made, is safe. And if he finds it best to return, it is safe of course. It is safe whether he goes or stays. This doctrine producing such contradictory consequences, is not only unsupported by any authority but it would violate principles long and well established in the prize courts of England, and which ought not, with- out strong reasons which may render them inapplicable to this countrv, to be disregarded by the court. The rule there, is, that the character of property, during war, cannot be changed in transitu^ by any act of the party subsequent to the capturcr. The rule indeed goes further ; as to the correctness of which in its greatest extension, no opinion needed then be given ; but it might safely be affirmed, that the change cannot, and ought not to be effected by an elec- tion of the owner and shipper of it, made subsequent to the capture, ^md more especially, after a knowledge of the c'.ipture is obtained by the owner. Observe the conse- MAniTIME CAPTURES ATSD PRIZE.-. llo- quences which would result from it. The capture is made ivnd known. The owner is allowed to deliberate whether it is his interest to remain a subject of his adopted, or of his native country. If the capture be made by the former, then he elects to be a subject of that country; — if by the latter, then a subject of that. Can such a priyilegtd si- tuation be tdlerated by either belligerent ? Can any system of law be correct, which places an individual, who adheres to one belligerent, and, to the period of his election to re- move, contributes to increase her wealth, in so anomalous a situation as to be clothed with the privileges of a neutral, as to both belligerents ? This notion about 3. temporary state of neutrality impressed upon a sub- ject of one of the belligerents, and the consequent ex- emption of his property from capture by either, until he has had notice of the war and made his election, is altogeth- er a novel theory, and seemed, from the course of the argu- ment, to owe its origin to a supposed hardship to which the contrary doctrine exposes him. But if the reasoning em- ployed on the subject be correct, no such hardship can exist. For if, before the election is made, his property on the ocean is liable to' capture by the cruizers of his native and deserted country, it is not only free from capture by those of his adopted country, but is under its protection. The privilege rs supposed to be equal to the disadvantage, and is therefore just. The double privilege claimed seems too unreasonable to be granted. It wiH be observed that in the foregoing opinion respect- ing the nature and consequences of domicil, very few cases have been referred to. It was thought best not to inter- rupt the chain of argument, by stopping to examine cases ; but faithfully to present the essential principles to be ex- tracted from those which were cited at the bar, or which have otherwise come under the view of the court, and which applied to the subject, that the national character of the owner ^t the time of capture must decide his right lis LAW OF CHAP. IV. to claim, and that a subject is concluded by it, even in the court of his native country, without time being allowed him to elect to remove. (") The case first cited is somewhat stronger than the pre- sent in that, the state of hostility, alleged to have existed at the time of capture, was made out by considering the subsequent declaration of war as relating^ back to the time of seizure under the embargo, by which reference it was decided to be a hostile embargo, and of course tantamount to an actual state of war. But this case also proves, not only that the hostile character of the property at the time of capture establishes the legality of it, but that no future circumstance changing the hostile character of the claimant to that of a , friend or a subject, can entitle him to restitu- tion. Whether the claimant in this case was a neutral or a British subject, does not appear. But if the former, it would not, it was presumed, be contended ths^t he is, upon the principles of national law, less to be favoured in the courts of the belligerent, than a subject of that nation do-' miciled in the country of the adverse belligerent. Mr* IVIiiteliUVs case, however, referred to frequently in Robin- son's Reports, comes fully up to the present, because he was a British subject, who had settled but a few days in the hostile country, but before he knew or could have known of the declaration of war ; yet, as he went there with an intention to settle, this, connected with his resi- dence, short as it was, fixed his national character, and identified him with the enemy of the country he had so re- cently quitted. The want of notice, and of an opportunity to extricate himself from a situation to which he had so recently and so innocently exposed himself, could not pre- vail to protect his property against the belligei-ent rights of his owii country, and to save it from confiscation.(i') (W) 5 Jiobinson, 230. Bocdes Ltist, 1 Robinton, 115. llersteldcr, X07. Tlfankcbaar Afficaan. C) Ter Waahixotow, J. The "Vcnus. Supreme Court of the V. ?. TLbruary T. 1814. M. S. MARITIME CAPTURES AND PRIZES. 117 The opinion of the court in the above case was dissented from by two of the judges,(vvden was a British subject, and at that (■•') 3 liiiimon, ci. MARITIME CAPTURES AND PRIZES. 133 ^time resided in Guernsey. It is equally apparent, that, had his subsequent residence in an enemy country been for the sole purpose of withdrawing his property, the law was not understood to forbid restitution. The language of Sir William Scott certainly ascribes considerable influ- ence to the proclamation, but does not rest the rights of the claimant altogether on that fact. On the 17th of March 1800, an affidavit of Mr. Bowden, made the 6th of August 1799, was produced, in which he stated his residence in Holland previous to the invasion by the French — That he quitted Holland and landed in Eng- land, the 20th of January 1795, v/hence he proceeded to Guernsey, where he resided with his family — That, in the month of June 1796, he was under the absolute necessity of returning to Holland, for the purpose of recovering debts due, and effects belonging to the partnership, his partner remaining in Guernsey. . The affidavit then proceeded to state inany instances of his attachment to his own government, and concluded with averring that he was still under the necessity of remaining in Holland, for the purpose of recovering part of the s..id debts and effects, which would be impossible were he to leave the country ; but that it was his intention to return to his native country, so soon as his affairs would permit, where his mother and his relations resided. 'jThe court observed, that it appeared from the affidavit, that Mr. Bowden was at that time in Holland; and add- ed, " It would be a sti-ange act of injustice, if, while we are condemning the goods of persons of all nations resident in Holland, we were to restore the goods of native Bridsh subjects resident there. An Englishman residing and tra- ding in Holland, is just as much a Dutch mtrcliant as a Swede or a Dane would be." This case was decided in 1800; Mr. Bowden had return- ed to Holland in 1796, during the war, and had continued in the country of the enemy. It is not denied that lie con- Is' 134 LAW OF CHAP. IV. tinned his trade, and the fact that he did continue it, is fairly to be inferred, not only from his omitting to aver the contrary, but from the language of Sir William Scott, " an Englishman residing and trading in Holland," says that judge, " is just as much a Dutch merchant as a Swede or a Dane would be." 'Ihe case of Mr. Bowden then, is the case of a British subject who continued to reside and trade in the country of an enemy, four years after the commence- ment of hostilities. His property must have been con- demned on one of two principles. Either the judge must have considered his residence in Guernsey, from January 1795 to June If 96, as a temporary interruption of his per- manent residence in Holland, and not as a change of do- niicil, since he returned to that country, and continued in it as a trader, to the rendition of the tlnal sentence, or he imust have decided, that, although Mr. Bowden remained, and intended to remain, in fact, a Brijtish subject, yet the permanent national commercial character which he acquir- ed after this capture, retroacted on a trade which, at the time of capture, was entirely British, and subjected the property to confiscation. On whichsoever of these prin- ciples the case was decided, it is clear that the hostile character attached to the property of Mr. Bowden, in con- sequcnce of his residing and trading in the country of the enemy during the war. This case is materially variant from one in which the residence and trading took place during peace, and the capture was made before a change of residence could be conveniently effected. The y>)ia/2r/,(J) was also a case of considerable interest, which contains docliines entitled to attentive consideration. Duiing the war between Great Britain and Holland, which commenced in 1795, the ishmd of Demarara surren- dered to the British arms. By the treaty of Amiens, it was restored to the Dutch. Tiiat treaty contained an article, allowing the inhabitants, of whatever country they might , (.v) 5 JRubinson, 58, MARITIME CArTURE3 AND PRIZES. 135 be, a term of three years, to be ccmputcd from the notifi- cation of the treaty, for the purpose of disposing of their property acquired and possessed before or during the war, in which term they might have the free exerci::e of their religion, and enjoyment of their property. Previous to the declaration of wiir against Holland in 1803, the Diana and several other vessels loaded with co- lonial produce, were captured on a voyage from Demarara to Holland, immediately after the declaration of war ; and before the expiration of three years from the notification of the treaty of Amiens, Demarara again surrendered to Great Britain. Claims to the captured pi'operty were filed by original British subjects, inhabitants of Demarara, some of whom had settled in the colony while it was in posses- sion of Great Britain, others before that event. The cause came on after the island had again become a British co- lony. Sir William Scott decreed restitution to those British subjects who had settled in the colony while in British pos- session, but condemned the property of those who had set- tled there before that time. He held, that their settling in Demarara while belonging to Great Britain, afforded a pre- sumption of their intending to return, if the island should be transferred to a foreign power, which presumption, recogni- zed in the treaty, relieved those claimants from the necessity of proving such intention. He thought it highly reasonable that they should be admitted to their jus post liminii, and be held entitled to the protection of British subjects. But the property of those claimants who had settled be- fore it came to the possession of Great Britain, v/as con- demned. " Having settled without any faith in British possession, it cannot be supposed," he said, " that they would have relinquished their residence, because that pos- session had ceased. They had passed from one sovereign- ty to another with indifference ; and if they may be sup- posed to have looked again to a connexion with this coun- 136 LAV/ OF CHAP. ly. try, they must have viewed it as a circumstance that was in no degree likely to affect their intention of continuing there." " On the situation of persons settled there previous to the time of British possession," I feel myself, said the judge, " obliged to pronounce that they must be consider- ed in the same light as persons resident in Amsterdam. It must be understood, however, that if there were among these any who have been actually removing, and that fact is properly ascertained, their goods may be capable of res- titution. All that I mean to express is, that there must be evidence of an intention to remove^ on the part of those who settled prior to British possession, the presumption not being in their favour." I'his having been a hostile seizure, though made before the declaration of war, the property was held ecjually liable to condemnation as if captured, the instant of that decla- ration. So much of the case as relates to those claimants who had settled during British possession, proves that other cir- cumstances than an actilal getting into motion for the pur- pose of returning to his own country, may create a pre- tiUmpdon of intending to return ; and may put off that hos- tile commercial character which a British subject residing and trading in the country of an enemy, is admitted to ac- quire. The settlement having been made in a country Avhich, at the time, was in possession of Great Britain, though held only by the right of conquest, a tenure known to be extremely precarious, and rarely to continue longer than the war in which the acquisition is made, is sufficient to create this presumption. But the case does rot declare negatively, that no other circumstances would be sufiicient. He was aware that the part of the case which applies to claimants v/ho had settled previous to British possession, would at first view, appear to have a strong bearing on the MAHITIME CAPTURES AND PRIZE!?. 137 question before the court. The shipment was in lime of peace, and the seizure v/as made before the declaration of v/ar. The trade Avas one in v/hich a British subject, in time of peace, might lawi'ally engage. However strong his inteuiion might be to retuin to his native country in the event of war, he could not be expected to manifest that in- tention before the actual existence of v/ar. The rcconquebt of tlie island followed the declaration of war so speedily, as scarcely to leave time for putting the resolution to re- turn in execution, had one been formed. Taking these cir- cumstances into view, the condemnation would seem to be one of extreme severity. Yet even this case, admitting the decision to be perfectly correct? did not, when accurate- ly examined, go so far as to justify a condemnation under such circumstances as belonged to some of the cases at bar. The island having surrendered during war, such of its iahabitants as were originally Sritish subjects were not al- lowed to derive, from this reanuexation to the dominions of Great Britain, the advantages to which a voluntary return to their own country, of the same diite, would have entitled them. They were considered as if they had been " resi- dents of Amsterdam." . But Sir William Scott observes, that " if there are among these any who have been actually removing, and that fact is properly ascertained, their goods may be capable of res- titution." Aetualhj removing — when ? Not surely before the seizure ; for that was made in time of peace. Net before the declaration of war, when tlie original seizure was converted into a belligerent capture ; for until that de- claration was known, a person v/hosc intention to remain or return was dependant on peace or war, would not be tictually removing. On every principle of equity then, the time to which these expressions refer, must be the surren- der of Demarara, or a reasonable time after the declara- tion of war was knovva there. The one period or the 138 LAW OF GHAP. IV. Other would be subsequent to that event which was deemed equivalent to capture. It was not unworthy of remark, that Sir William Scotty adds explanatory words which qualify and control the words, "actually removing," and show the sense in which he used them. " All" says the judge, " that I mean to ex- press is, that there must be evidence of an intention to re- move, on the part of those who settled prior to British pos- session, the presumption not being in their favour." It would then, be rejecting a part, and a material part of the opinion, to say, that an intention to remove, clearly proved, though not accompanied by the fact of removal, would have been deemed insufficient to support the claim for restitution. Were there no other circumstances of real importance in this case, did it rest solely on the sentiments expressed by the judge, unconnected with those circumstances, he should certainly consider it as leaving open to the claimants before this court, the right of proving an intention to re- turn within a reasonable time after the declaration of war, by, other acts than an actual, removal. But there are other circumstances Vv'iiich he could not deem immaterial; and, as the opinions of a judge are al- ways to be taken with reference to the particular case in which they are delivered, he must consider these expres- sions in connexion with the whole case. The probability is, that the chiimants were not merely British merchants. Though the fact is not expressly sta- ted, there is some reason to believe that they had become proprietors of the soil, and were completely incorporated with the Dutch colonists. They are not denominated mer- chants. They are spoken of, through the case, not as re- sidents, but as settlers. " They had passed," said Sir Wil- i'am Scotty " from one sovereignty to another with indiffe- rence." This mode of expression appears to me to indi- cate a more permanent interest In the country, a more in- MARITIME C'Al"rUKt:S AM) PRIZE?. 133 timate connexion with it, than is acquired by a merchant removing to a foreign country, and residing there in time of peace, for the sole purpose of trade, and in another of the same class of caseSy it is said, that, previous to the last war, the principal plantations of the island were in posses- sion of British planters from the three British islands. The voyage, too, in making which the Diana was cap- tured, v/as a direct voyage between the colony and the mo- ther country. The trade was completely Dutch, and the property of any neutral, wherever residing, if captured in such a voyage during war, would be condemned. But it is still more material, that those who settled in Demarara before British possession, must have settled du- ring the war, which was terminated by the treaty of Ami- ens ; or, if they settled in time of peace, must have continued there while the colony was Dutch, and while Holland was at war with Great Britain. Whichever the facts might be, whether they had settled in an enemy coun- try during war, or had continued through the war a settle- ment made in time of peace, they had demonstrated that war made no change in their residence. In their cases then, it might be correctly said, " that war created no pre- sumption of an intention to return." — " That they passed from one sovereign to another with indifference." He could not consider claims under these circumstances as being in the same equity with claims made by persons who had removed into a foreign country in time of peace, ior the sole purpose of trade, and whose trade would be annihilated by war. The case of the Boedcs Lust ('^) differs from the Diana only in this — the claimants are not alleged to have been originally British subjects. Restitution was asked, because the property did not belong to an enemy at the time of Ghipment, not at the time of si-izure, nur at the time of ad- (') 5 Robinson, 207. 140 LAW OF CHAP. IV. judication. These grounds were all declared to be insuffi- cient. The original seizure was provisionally hostile ; and the declaration of war consummated the right to condemn the property to the crown, as enemy's property. The sub- sequent change in the character of" the claimants, who be- come British subjects by the surrender of Demarara, could not divest it. " Where property is taken in a state of hostility," said Sir WHliam Scotty " the universal prac- tice has been to hold it subject to condemnation, although the claimants may have become friends and subjects prior to adjudication." " With as little effect," he added " can it be contended that a postl'iminhnn can be attributed to these parties. Here is no return to the original character, on which only n jus postUminn can be raised. The origi- nal cha/r.cter at the time of seizure and immediately prior to the hostility which has intervened was Dutch. The present character, v/hich the events of war have produced, is that of British subjects ; and althovigh the British sub- ject might, under circumstances, acquire the y?Mj?J05i;/iwz«?? upon the resumption of his native character, it never can be considered that the same privilege accrues upon the acqui- sition of a character totally nev/ and foreign." This opinion is certainly not decisive; but it appears rather to favour than oppose the idea, that a merchant re- siding abroad, and taking measures to return on the break- ing out of war, may entitle hynsclf to the jus poctUminU^ with respect to property shipped before knowledge 'of the war. The President (') was captured on a voyage from tht? Cape of Good Hope to F.urope. Mr. Elmslie, the claim- ant was born a British subject, but claitncd as a citizen of the United States. He had removed to the Cape of Good Hope, during the preceding war, and still rcc^ided there. The property was condemned. In delivering his opinion, (•) 5 RQblnsc?;, 248. MARITIME CAPTURES AND PRIZES. 141 Sir WiUiam Scott observed. " It is said the claimant is entitled to the benefit of an intention of removing to Phi- ladelphia, in a few months. A mere intention to remove, has nfever been held sufficient without some overt act, being merely an intention residing secretly and undistinguishably in the breast of the party, and liable to be revoked every hour. The expressions of the letter in which this intention is said to be found, are, I observe, very weak and general of an intention merely mfutiiro. Were they even much stronger than they are, they would not be sufficient. Some- thing more than mere verbal declaration — some solid fact showing that the party is in the act of withdrawing, has always been held necessary in such cases." It is to be held in mind, that this opinion is delivered in the case of a person who had fixed his residence in an ene- my country, during war, and that he claimed to be the sub- ject of a neutral statCk For both these reasons, the war afforded no presumption of his intending to return either to his native or adopted country. I'o the vague expression of an intention to return at some future indefinite time, no influence can be ascribed. When the judge says that *' something more than mere verbal declaration, some solid fact showing that the party is in the act of withdrawing, has always been held necessary in such cases." — I do not understand him to say, the person must have put himself in personal motion to return ; must have commenced his voyage homeward, in order to be considered as in " the act of withdrawing ;" — Many other overt acts, as selling a commercial establishment ; stopping business ; making preparations to return, accompanied by declarations of the intent, and not opposed by other circumstances, may be considered a2 acts of withdrawing. • In the case of the Ocean (^) S\r WUUam Scott said, *' This claim relates to the situation of British subjects C") 5 Robinson, 9L 19 142 LAW OF CHAP IV settled in a foreign state, in time of amity, and taking early measures to withdraw themselves, on the breaking out of war, the affidavit of claim states, that this gentleman had been settled as a partner in a house of trade in Holland, but that he had made arrangements for the dissolution of the partnership, and was only prevented from removing person- ally, by the violent detention of all British subjects who happened to be within the territories of the enemy, at the breaking out of the war. It would, I think, under these circumstances, be going further than the principle of law requires, to conclude this person by his former occupation, and by his present constrained residence in France, so as not to admit him to have taken himself out of the effect of supervening hostilities, by the means which he had used for his removal." If other means for removal were taken, than arrange- ments for the dissolution of the partnership, they are not stated ; and it is fairly to be presumed, that these arrange- ments were the most prominent of them, since that fact is alone selected and particularly relied upon. In his state- ment of the case, the reporter says that the claimant had actually made his escape and returned to England, in July, 1803 ; (the trial was in January, 1804) but this must be a mistake, or is a fact not adverted to by the judge, since he says his opinion is, that the claimant is, at the time, *' a constrained resident of France." He should notice two other cases frequently cited, though he had seen no full report of either of them. The first is the case of Mr. Ci(rtisses.('^) This gentleman, who was a British subject, had gone to Surinam in 1766, and from thence to St. Eustatius where he remained till 1776. • He then went to Holland to settle his accounts, and with an intention, " as zvas said^'' of returning afterwards to England to take up his final residence. In December, (0 3 Robinson, 20. In Notls. MARITIME CAPTURES AND PRIZES. 143 i780, orders of reprisal were issued by England against Holland. On the first of January, 1781, Thf Snclle Zeijl- der was captured, and, on the 5th of March, and 10th of April, 1781, the vessel and cargo were condemned as Dutch property. On the 27th of April, 1781, Mr. Curtisses re- turned to England ; and on an appeal, the sentence of con- demnation was reversed by the Lords of Appeals, and res- titution decreed. Other claims of Mr. Curtisses were brought before the court of admiralty ; and, on a full disclosure of these cir- cumstances, restitution was decreed, before the decree of the Lords in the case of the Snclle Zeylder was pronounced. The principle of this decree is said to be, that Mr. Curtisses was in itinere^ and had put himself in motion, and was in pursuit of his original British character. He did not mean to find fault with this decision; but certainly it presents some strong points more unfavourable to the claimant than would be found in some of the cases before the court. Mr. Curt'isses had obtained a commer- cial domicil in the country of the enemy. At the time of the sailing, capture and condemnation of The Snelle ZeyU der^ he still resided in the country of the enemy. But^ it is said, he was in itinera^ he was in motion in pursuit of his original British character, what was this journey he is said to have been performing in pursuit of his original cha- racter ? He had passed from one part of the dominions of the United Provinces to another. He had moved his resi- dence from St. Eustatius to Holland, where he remained from the year 1776, till 1781 — a time of sufficient dura- tion for the acquisition of a domicil<, had he not previously acquired it. This change of residence, to make the most of it, is an act too equivocal in itself, to afford a strong pre- sumption that it was made for the purpose of returning to England. Had his stay in Holland even been short, a co- lonial merchant trading to the jnother country, may so fre- quently be carried there on the business of his trade, that 144 LAW or eiiAP. IT. the fact can afford hut weak evidence of an intention to discontinue that trade : but an interval of between four and five years elapsed betvyeen his arrival in Holland and his departure from that country, during which time he is not stated to have suspended his commercial pursuits or to have made any arrangements, such as transferring his pro- perty to England, or making an establishment there, which might indicate, by overt acts, the intention of returning to his native countrj". This journey to Holland connected with this long residence would seem to be made as a Dutch merchant for the purpose of establishing himself there, ra- ther than as preparatory to his return to England. But it was said that he intended to return to England. How was this intention shown ? If not by his journey to Holland and his long residence there, it was only shown by his be- ing employed in the settlement of his accounts while a mer- chant at St. Eustatius, a business in which he would of course engage, whatever his future objects might be. This equivocal act does not appear to have been explained, otherwise than by his own declarations; nor does it appear that these declarations were made previous to the capture. But could it be even admitted that the journey from St. Eustatius to Holland was made with a view of passing ul- timatel)' from Holland to England, yet the intention was not to be immediately executed. The time of carrying it into effect, was remote and uncertain, — subject to so many casualties, that, had not the war supervened, it might never have been carried into effect. But laving aside these circumst:mccs, the case proves on- ly that being in iiiucrc^ in pursuit of the native character, divests the enemy character acquired by residence and tra- ding ; it is not insinuated that this character can be divest- ed by other means. 'M.rtWJiitclitW.s case, though one of great severity, did not, he thought, overturn the princij)lc, he was endeavour- ing to sustain. Mr. W. went to St. Eustasia but a few days MARITIME CAFTURES AND PRIZE3. 14* before Admiral Rodney and the British forces made their appearance before that place. But it war, proved that he v/ent for the purpose of making a permanent setllcment there. No intention to return appears to have been alleged, the recency of his establishment seems to have been the point on which his claim rested. This case, in principle, bore on that before the court, so far only as it proves that war does not, under all circum- stances, necessarily furnish a presumption, that the fo- reigner residing in the enemy country, intends to return to his own. The circumstances of this case, so far as we un- derstand them, were opposed to the presumption, that war could effect Mr. Wlntchdl^s residence. War actually ex- isted at the time of his removal; and had that %ct been known to him, there would have been no hardsnip in his case. He would have voluntarily taken upon himself the enemy character, at the same time that he took upon him- self the Dutch character. There is reason to believe that the court considered him in equal fault with a person re- moving to a country known to be hostile. St. Eustatius was deeply engaged in the American trade, which, from the character of the contest, was, at that time, considered by England as cause of war-, and was the fact which drew on that island the vengeance of Britain. Mr. JVhitd/i il could have fixed himself there only for the purpose of prosecuting that trade. " He went," says Sir WilUam Scoft^ *' to a place which had rendered itself parcicubrl)' obnoxious bv its conduct in that war." This was certain!)^ a circumstance which could not be disregarded, in deciding on the proba- bility of his intending to remain in the country in the event of war. These were the cases which appeared to him to apply most strongly to the question before the court. No one of them decides, in terms, that the property of a British subject residing abroad in time of amity, which was ship- Dcd before a knowledge of war. and cnptured by a British 146 LAW OF CHAP. IT. cruiser, shall depend, conclusively on the residence of the claimant at the time of capture, or on his having, at that time, put himself in motion to change his residence. In no case, Which he had had an opportunity of inspecting, had he seen a dictum to this effect, the cases certainly required an intention, on the part of the subject residing and tra- ding abroad, to return to the subject's own country, and that this intention should be manifest by overt acts; but they did not, according to his understanding of them, pre- scribe any particular overt act, as being exclusively admis- sible ; nor did they render it indispensable that the overt act should, in all cases, precede the capture. If a British subject, residing abroad for commercial purposes, takes de- cided measures, on the breaking out of war, for returning to his native country, and especially if he should actually re- turn, his claim for the restitution of property shipped be- fore his knowledge of the war, would, he thought, be fa- vourably received in a British court of admiralty ; although his actual return, or the measures proving his intention to return, were subsequent to the capture. Thus understand- ing the English authorities, he did not consider them as op* posing the principle he had laid down. An American citizen, having merely a commercial do- micil in a foreign country is not, he thought, under the British authorities, concluded, by his residence and trading in time of peace, from averring and proving an intention to change his domicil on the breaking out of war, or from availinghimself of that proof in a court of admiralty. The intrinsic evidence arising from the change in his situation, produced by war, renders it extremely probable that, in this ncAV state of things, he must intend to return home, and will aid in the construction of any overt act by which such intention is manifested. Dissolution of partnership ; dis- continuance of trade in the enemy country ; a settlement of accounts^ and other arrangements obviously preparatory to a change of residence, were, in his opinion, such overt MARITIME CAPTURES AND PRIZES. 147 acts as might under circumstances showing them to be made in good faith, entitle the claimant to restitution. He did not perceive the mischief or inconvenience that could result from the establishment of this principle. Its operation is confined to property shipped before a know- ledge of the war. For if shipped afterwards, it is clearly- liable to condemnation, unless it be protected by the prin- ciple that it is merely a withdrawing of funds. Being con- fmed to shipments made before a knowledge of the war, the evidence of an intention to change or continue a resi- dence in the country of the enemy, must be speedily given. A continuance of trade after the war, unless perhaps under very special circumstances, and for the mere purpose of closing transactions already commenced, would fix the na- tional character and the domicil previously acquired. An immediate discontinuance of ti'ade and arrangements for re- moving followed by actual removal within a reasonable time, unless detained by causes which might sufficiently ac- count for not removing, would fix the intention to change the domicil and show that the intention to return had never been abandoned ; that the intention to remain always, had never been formed. It was a case, in which, if in any that can be imagined, justice required that the citizen, having entirely recovered his national character by his own act, and by an act which shows that he never intended to part with it finally, should, by a species of the juat post- ihninii^ be allowed to aver the existence of that character at the instant of capture. In the establishment of such a principle, he could perceive no danger. In its rejection, he thought he perceived much injustice. An individual whose residence abroad is certainly innocent and lav/ful, perhaps advantageous to his country, who never intended that residence to be permanent, or to continue in time of war, finds himself against his will, clothed with the charac- ter of an enemy, so conclusively that not even a return to his native countrv can rescue from that character ;>iid from 148 LAW OF CHAP. IV. confiscation, property shipped in the time of real or sup- posed peace. His sense of justice revolted from such a principle. In applying this opinion to the claimants before the court, he should be regulated by their conduct after a knowledge of the war. If they continue their residence and trade, afcer that knowledge ; at any rate, after knowing that the repeal of the orders in council was not immediately follow- ed by peace, their claim to restitution would be clearly un-' sustainable. If they took immediate measures for return- ing to this country, and had since actually returned, or had assigned sufficient reasons for not returning, their property, he thought, might be capable of restitution. Some of the claimants would come within one description, some withia the other. It v/ould, under the opinion given by the court, be equally tedious and useless to go through their cases. His reasoning has been applied entirely to the case of native Americans. This course has been pursued for two reasons. It presents the argument in what he thought its true light ; and the sentence of condemnation makes no discrimination between native and other citizens. The claimants were natives of that country with which we were at war, who have been naturalized in the United States. It was impossible to deny that many of the strong- est arguments, urged to prove the probability that war must determine .the native American citizen to abandon the country of the enemy and return home, are inapplicable, or apply but feebly to citizens of this description. Yet he thought it was not for the United States, in such a case as this, to discriminate between them. He would not pretend to say what distinctions may or may not exist between these two classes of citizens, in a contest of a dliTercnt de- hcriplion. But in a contest between the United States, and the naturalized citizen, in a claim set up by the United States to confiscate his property, the citizen might, he thought, protect himself by any defence yvhich would pro- MARITIME CAPTURES AND PRtZES. 14d ttect a native American. In the prosecution of such a claim, the United States were, if he might be excused for borrow^ ing from the common law a term peculiarly appropriate, estopped from saying that they have not placed this adopted son on a level with those bom in their family/**) y. Wherever even a mere factory is founded in the east- ern 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 nations applying peculiarly to those countries, and is different from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character of the country in which .they are resident ', and this distinction arises from the na- ture 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, from, the oldest times, an immiscible character has been kept up | foreigners are not admitted into the general body and mass of the society of the nation ; they continue strangers and sojourners as all their fathers were. — Doris a7nara suam noil intermiscuxt undcan ; not acquiring any national cha- racter under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their pre- sent character from that of the association or factory, under whose protection they live and carry on their trade. Thus with respect to establishments in Turkey, it was declared that a merchant carrying on trade at Smyrna un- der the protection of the Dutch consul at Smyrna, was to be considered a Dutchman, and his property was condtmn- ed as Dutch property. The same in China, and generally ( Per Marshall, C J. T!ie Venus. Supreme Court cf the U. S. Fe- bruary T. 1814. M. S. «0 150 LAW Oi* CHAP. IV throughout the East, persons admitted into a factory, are not known in their own peculiar national character ; and being not admitted to assume the character of the country, they are considered only in the character of that association or factory. But these, principles are considered not to apply to the territories occupied by the British in Hindostan ; because, though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists otherwise than as a phantom : It is not applied in any way for the re- gulation of their establishments. Great Britain exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty, and if the high, and empyrean sovereignty of the Mogul is sometimes brought dov/n from the clouds, as it were, for purposes of policy, it, by no means interferes with the actual authority which that country, and the East India company, a creature of that country, exercises there with full effect. The law of trea- son would apply, to Europeans living there, in full force. It is nothing to say that some particular parts of the Eng- lish civil code are not applicable to the religious or civil habits of the Mahomedan or Hindoo natives ; and that they are, on that account, alldwed to live under their own laws. This is no exception ; for with respect to internal regulations, there is in Great Britain, a particular sect, the Jews, that in matters of legitimacy, and on other important subjects, are governed by their own particular regulations, and not by all the municipal laws of that country, seme ot which are totally inapplicable to them. It is, besides, obser- vable, that the British acts of parliament and treaties have been by no means scrupulous in later times, in describing the country in question as the territory of Great Bri- OS li'jcinson, 12. The Indian Cliief. i MARITIME CAPTURES AND PRIZES. 151 In a case which occurred during the late war with Great Britain, it was con; ended by the American captors that the privileges granted to British subjects in the Portu- guese dominions by the treaty of 1810, between Great Bri- tain and Portugal, completely recognized the exclusive na- tional character of these subjects ; and the case was likened to those above cited in the eastern parts of the world. But it is now settled by the lords of appeal, that a British born subject resident in the English factoiy at Lisbon, so far possesses the Portuguese character as that his trade wivh the enemies of his native countr} is not illeg?l.(Q Upon the footing of authority, therefore, the*case for the captors was not made out. And upon principle it is as difficult to maintain — the 8th and 10th articles of the treaty secure no more than the free- dom of trade and the right to have all causes tried by a special tribunal, according to the laws and customs of Por- tugal. Still however, it is an incorporation of British resi- dents into the general commerce of the country. They are still subject to the general laws respecting revenues and taxes ; to the general duties of qualified allegiance, and to the general regulations of social and domestic, as well as commercial iatercourse. Far different is this from the case of eastern factories, where the laws of the factory govei-n the parties who claim protection under it, and no general amenability to the laws of the country, is either claimed or exercised. It was therefore decided that British residents in the dominions of Portugal take the character of their domicil, and as to dll third parties, are to be deemed Por- tuguese subjects. (^) 8. Where goods were shipped by a house of trade in the enemy's country to a house of trade in a neutral country., C) 4 Robinson, 255. Note. Tlie Danaos. (s) Per Stort, J. The St. Indiaiio. Circuit Court of the V. S, for the Massachusetts disti-ict, October T. 18U. M. S, 152 LATV OF « CHAP. IV. both consisting of the same partners, all native subjects of the enemy, two of whom were domiciled in the enemy's country, and one in the neutral country-r—the captors con- tended that the share of the latter was liable to condemna- tion, as being the property of a person connected in a house of trade in the enemy's country, and continuing that con- nexion after and during the war, the property having beea purchased and shipped oti the account and risk of the same house. In this case, the learned judge, by whom it was de;ter- mined, observed that in general the national character of a person is tq be d^'cided by that of his domicil : If that be neutral, he acquires the neutral character ; if otherwise, he is affected with the enemy character. But the property of a person may acquire a= hostile character, altogether inde- pendent of his own peculiar character, derived from resi- dence. In other words, the origin of the property, or the traffic in which it is engaged, may stamp it with a hostile character, although the owner may happen to be a neutral domiciled in a neutral country^ Thus the produce of an estate belonging to a neutral in an enemy's colony, is im- pressed with the character of the soil, notwithstanding a neutral residence. ('-) So, if a vessel purchased in the ene- my's country, is by constant and habitual occupation em- ployed in the trade of that country during the war, she is deemed a vessel of the country from which she is so navi- gating, whatever may be tl^p. cjomicil of the owner.(') PJe (^) 5 Robinson, 20. TUc Plianlx. (') Vide Siiprn, Clinp. Ill § 6 And analogojis, tlioug-li mere remotely, are tint cases oC property condemned for resistance to search, (Chap. III. § 19.) for breacli of hloekade, (Chap. VI. § 11.) as contraband of war, (i6" <5 y.) and for sailing H.ider the flag and pass or license of the enemy, (Ciiap. V.) So also tlic property of cifrzens or subjects of the belligerent state engaged in trade with tlie enemy, is confiscated upon the ground that ii l3 taken adhering to the enemy, and therefore the proprietor is, fro hat vicc^o he considered as an enemy. 1 Robinson, 196 The Nel)/, i]i nvtis to the Hoop. These arc all cases of an ad^piion of th.c enemy MARITIME CAPTURES A^V PRIZES. 153 therefore agreed that it was a doctrine supported by strong principles of equity and propriety, that there is a traffic which stamps a nraional character on the individual inde- pettdent of that character, which mere personal residence may give him. And he thought the case then before the court clearly within the range of the principle stated. Here was a house of trade composed entirely of British subjects established in the enemy's country, and habitually and continually c.;r- rying on its trade, with all the advantages and protection of British subjects. It was true one partner is domiciled in the neutral country — but for what purpose ? For ought that appeared, for purposes exclusively connected with the enemy establishnaeut. At all events the whole property embarked in its commercial enterprises centered in that house and received its exclusive managementand direction from it. Under such circumstances, the house was as purely hostile in its domicil (if he might use the expres- sion) and in its commerce, as it could be if all the partners resided in the enemy's territory. If the case, therefore, were new, he did not perceive how it could be extracted from the grasp of confiscation on account of its thorough character, rendering the property liable to capture and condemnation, without regard to the personal domicil of its owner. The princi])le upon which is foHnded the British rule of the war of 1756, is quite different, and proceeds upon the doctrine that a neutral has no right to carry on a trade in time of war, from which he was exqluded in tmie of peace. Even that rule, itself, in its or gin, was supported upon the sound and true principle of adoption, by means of special licenses or passes granted by the French (then at war with Great Britain) to tlie Dutch, (then neutral) permitting them to engage in the colonial trade of France. There is all the difference between this principle and the modern British doctrine, (invented during the war of the French revolution, to justif" a revival and undue extension of the rule of the war of 1756) that there is between the granting by the enemy of a special license to the subjects of the bel- gerent state to trade with a neutral country, (vide ivfra. Chap. V. § 5.) and a general exemption «f stjcb trade from capture by the enemy, {i'ids /*. §5,) 154 LAW OF CHAP. IV. incorporation into the •enemy character. But how stood the case upon the footing of authority ? It was agreed that no decision comes up to the point, and that the court was called upon by the captors to promulgate a novel doctrine. If, however, he was not greatly deceived, it would be found on an attentive examination, that there is a strong current of authority all setting one wa}'. From the cases of the Jacobus Johannes and the Osprey, an erroneous notion had been adopted that the domicil of the parties was that alone to which the court had a right to r,esort in prize causes. But in the case of Coopman, those cases wereput upon their true foundations, as cases merely at the com7ne7icement of a war in reference to persons Avho, during peace, had ha- bitually carried on trade ;n the enemy's country, though not resident there, and were therefore entitled to have time to withdraw from that commerce. But the Lords of Appeal in that case expressly laid it down, that if a person entered into a house of trade in the enemy's country in time of war, or continued that connexion during the war, he should not protect himself by mere residence in a neutral country.C') Now he Vv'as utterly at a loss to know how terms more ap- propriate could be employed to embrace the present case, which was that of a connexion in a house of trade in the enemy's country continued durhig the ivor. This doctrine held by the highest authority known in the English prize law has been repeatedly recognized and enforced by the same learned court. (') The very exception was taken in the cases of the Portland, &c.('") as to Mr. Ostermeyer, who, though domiciled at Blankanese (in a neutral coun- try) was alleged to be engaged in the trade of Ostend (in the enemy's country^ either as a partner or as a sole tra- der. In thofic cases the general principle was explicitly ('') 1 liolfinnun, 1. The Vig-ilantia, (') 2 Jf?o««sor:, C.V]. Thci Susa. i'^Yo liubincr:.:, 41. iTARITIME CAPTURES AND PRIZE?. 155 admitted, and one vessel, the Jonge Amelia, eventually condemned on that ground. It was a mistake of the learn- ed counsel for the claimant, that the court in those cases confined the further proof to the fact whether Mr. Oster- meyer was sole trader at Ostend ; it will appear on a care- ful examination that further proof was also required as to the alleged partnership, and particularly as to a let4^ in the Frau Louisa pointing to that partnership. In the Jonge Klassina, which was a very strong case of the applicaticn of the same doctrine, Sir William Scott avows it, and de- clares that, a man may have mercantile concerns in two countries, and if he acts as a merchant of both, he must be liable to be considered as a subject of both, with regard to the transactions originating respectively in those coun- tries. (") The case of the Herman, so far from impugning the principles, evidently proceeds upon the admission of it; and he thought it might be affirmed without rashness that net a single authoritative dictum exists Vvhich can shake its force. It had been attempted to distinguish those cases from that before the court, by alleging that none of them present the fact of a shipment made from a house in the enemy country to its connected house in the neutral coun- try. ^But it did not seem to him that this difference pre- sented any solid ground on which to rest a favourable dis- tinction. On the whole, he was of opinion that the shipment in this case being made by a house in the enemy's country for their own account, in a voyage originating in that country must be deemed enemy's property, and that the share of the partner residing .in the neutral country must follow the fate of the shares «f his co-partners. (°) (^') 5 Robinson S02. (<-■) Per Stort, J. The St. Indiano. Circuit Court for the.Massachu- setts dictric*, October T. 1(J14. M. S. 15G LAW OF CHAP. iVc The cnptors had farther contended in reference to othef claimants before the court, that the same principle applies in cases where a house in the enemy^s country ships goods to one of its partners domiciled in a neutral country, either in his single name, or to a neutral house there, of which he is also a partner ; and e converso where a partner of a neu- tral hf the cargo, that they ought not to be bound by the illegal a' ov/ner I^S LAW ^i CHAP. V, of the vessel. It is a sufficient answer to this argument to observe, that, in this case, it must be presumed that the li- cense was known to the owners of the cargo, if it was not the joint property of all. It is inconceivable that the owner of the vessel should expend about sixteen hundred dollars for the protection of a cargo in which it appeared that he was not largely concerned, without communicating such an advantage to his shippers, and even requiring some reimbursement, either by demanding higher freight, or compensation in some other way. But what is conclusive on this point was, that an order for further proof in rela- tion to this license was made,. and yet no affidavit or proof v/as offered by any of the owners, denying knowledge of these documents being on board. f'^) 4. The same principle was applied to the following case. The vessel and cargo in question were captured during the late war. From the documentary evidence and prepara- tory examinations it appeared, that the vessel sailed from Norfolk with a cargo of dry provisions, was consigned to the supercargo, obtained a clearance for St. Bartholomews, and was ostensibly bound thither. At the time of capture she was to the leeward of that island, and enemy licenses ■were found on board of a description similar to those in the last mentioned case. The court found it difficult to discriminate between this case and the preceding ones. — All had licenses of the, same character, and substantially for the same purpose^ except only that the object of the first vessel was to supply the allied armies in Portugal, and the original intention of the vessel in this case was to go to the enemy's West India islands. It is by no means clear that this intention was ever changed ; but admitting that, from an apprehension of seizure on her return to the (»<) Per WA.smroTON, J. Tlie Iliram. Supreme Court of the United 3tate8, FclJiruary Tejjm, 1814. M. S. MARITIME CAPTURES AXD PRIZEl=;. 169 ^belligerent state, after touching at an enemy's port, she in fact sailed on a voyage to St. Bartholomews, a neutral port, this could make no substantial difference in her fa- vour. The object in going there was tqually criminal, and subserved the views of the enemy nearly, if not quite, as well a§ if her cargo had been landed in an enemiy's inland. Of the real intent of the voyage there could remain no doubt ; for it abundantly appeared from the license itself, that the professed object of Admiral Sawyer, at least in granting it, was to obtain a supply of provisions for the enemy ; and the court would not easily lend its ear to a suggestion that, notwithstanding the vessel was found with. g,n enemy's protection on board of so obnoxious a charac- ter, yet her owners intended to deceive the enemy, either hy goi^g to a port not mentioned in it, or by disposing of her cargo in a way that would not have promoted his views. Without meaning to say that such conduct might, under no circumstances whatever, be explained, the court thought that there was no proof in this case to shew that it was not the intention of the claimants to carry into effect the original understanding between them and Mr. Alien. For though a destination to the neutral port be concedid, ;t is evident that Mr. Allen, who acted as British Consul, supposed the views of Admiral Sawyer might be answered as well in that way as any other ; nor is it clear, as was said at the bar, that the documents received from Mr. Al- len, and which varied more in form than in substance firm the Admiral's passport, would not have protected the ves- sel from enemy capture on a voyage to the neutral port. — The protection of the British Admiral extended to unarm- ed American vessels, laden with dry provisions, and bona Jide bound to British, Portuguese, or Spanish ports. The only modification or extension introduced by Mr. Allen, .was a permission to go to a Swedish island, eqiially neutral with Spain and Portugal, in the vicinity of the British pos- 170 LAW 0£ CHAP. r. sessions. Whether all or any of these papers would have saved the vessel from confiscation in an enemy's court of prize, the court was not bound to assert; it is sufficient, if that was the reasonable expectation of the parties, as it cer- tainly was ; and it is more than probable that such expec- tation would have been realized, considering the very im- portant advantages the enemy was to derive from them. — In case of capture, there can be no doubt that the claimants would have interposed those very papers, which were sup- posed to have emanated from unauthorized agents, as a shield against forfeiture ; and probably with success. Why then should they be permitted to allege, in a court of the belligerent state, that these documents ?¥Otild have been in- effectual for that purpose ? It was also insisted, that in this case no illicit Intercourse had taken place ; that the whole offence, if any, consisted in Intention; and that, if a capture had not intervened, there was still a locus penitenticc^ and no one could say that even the project of going to the neutral port might not have been abandoned. In this reasoning the court did not concur, but was of opinion, that the moment the vessel started on the voyage for the neutral port with the license in question, and a cargo of provisions, she rendered herself liable to capture by the public or private armed vessels of the belligerent state, who were not bound to lay by, and see how she would conduct herself during the voyage ; the consequence of which would be, that no right of capture would exist luitil all chance of making it was at an end.(') 5. Where the vessel in question had been exempted from condemnation on the return voyage by the enemy on account of her producing a certificate of having landed her outward (I) Pcr,Li*XK';sTov, J, The Aurora. Supreme Court of the Iniicc^. States, February Term, 1814. ]M. S. MAIITTIME CAPTURES AND PRIZES. 17 i cargo In Portugal, the captors contended that the vessel and return cargo were subject to condemnation, because the voy- age must have been performed under the protection of a Bri- tish license, and upon any other^supposition it was impossible to account for the exemption from British condemnation. But the learned judge by whom the case was determined, did not think that under the circumstances so pregnant n suspicion would arise of subserviency to enemy interests as the captors supposed. All knew that soon after the com - mdlicement of the war, with a view to facilitate the supply of the British armies in Portugal, licenses v/ere granted by the -British government to protect from capture, vessels with cargoes destined to those countries. It had been de- cided in the case of the Julia, that the acceptance and use of such license on the part of an American citizen, consti- tuted such an avowed adoption of the polic}- of the enemy as stamped the property engaged in the traffic with all the penal consequences of hostile character. (*") He looked back upon that decision without regret, and after much subsequent reflection could not doubt that it had a perfect foundation in the principles of public law. To the many authorities there stated, he might have added the pointed language of the court in the Jonge Pietre. That without the license of the government, no commitmcation direct, or indirect can be carried on with the enemy ;(") and the rule strongly Illustrative of the principle, which is acknowledged as early as the year books. Per Brian, J. 19. Edv. 4. 6 ;(") and has been sanctioned down to the present times, ('') that every contract and engagement made with the enemy pending war, is utterly void. But to return — It uas well ('") Supra, §2: (") 4 Rofnnson, 79. (o) CUcil ill HuoL Dij: L. 1. c. G. § 7t. '"1 1,1 rczetj June. Tl. 172 LAW OP CHAP'. V.' known that lon;^ before the decision of the above cas^, doubts had existed as t© the legality of such licenses, doubts which must soon have become knov/n to the ene- my ; and as the policy of maintaining the supply continued the same, it was not extraordin|iry that the British gpvern- ment should give every encouragement to sach shipments as its necessities required, by prohibiting its cruizers frorh, the Capture of vessels engaged in this trade. Under such circumstances, it was not incredible that a mere certificate of the landing of the outward cargo at Lisbon, signed by a person in whom it had confidence, a person (as the captors alleged) acting as a British commissary, should exempt the vessel and cargo froni capture on the return voyage. He did not assert that any such general exemption had been authorized by any orders of the British government, biit when the master and crew directly and positively denied any British license to have been used during the voyage, he could not feel himself at liberty to set aside their testimotiy upon mere suspicions, arising from facts which admitted of a fair interpretation in their favour. The evidence of ene- my connexion was drawn exclusively from the certificate of the landing of the cargo, which it was said operated vir- tually as a license. For himself he could not see any very noxious quality in that certificate. Suppose it was known at Lisbon (and the fact must undoubtedly have been be- lieved, or the present cargo would not have been shipped) that the British government would not molest American vessels returning with cargoes, if they could prove that they had landed outward cargoes of provisions at Lisbon, "would there be any thing illegal in taking such certificate from a respectable merchant sanctioned by the American consul ? lit did not perceive the illegality. If the certifi- cate were false in point of statement, he supposed that such an attempt tcjjdeceive tiie enemy's cruizers would not have been d:cmed" unjastifinble. Why should its truth render MARITIME CAPTURES AND PHIZES. 17-^ it more so ? The argument seemed to suppose that if the British government had by a general order exempted all American vessels from capture, bound to Lisbon with pro- visions, that the mere sailing on such a voyage would con- stitute an illegal subserviency to the interest of the ene- my ; and could not be distinguished from the case of sail- ing with a special British license. The same argument was used in the Julia for the opposite purpose, viz. to shew that both proceedings were legal and innocent ; and the answer given in that case, he was still disposed to consider as sufficient to establish the fallacy of the reasoning. The trade to Lisbon on neutral or domestic account, w^s a commerce authorized by the laws of the United States, and growing out of that amity which subsisted with the Portuguese government. Provisions might be lawfully exported and sold there, and if thereby the British inte- rests were aided, or the British policy enforced, it was a mere incidental effect which no more infected the trans- action with hostility, than the trade of a Portuguese mer- chant with the United States would constitute a violation of his neutrality, merely by adding to the revenue of this country. If the mere chance that a trade may assist the resources or aid the enterprizes of an enemy through indirect channels, were a sufficient proof of hostile attach- ment and interest, he knew not how in the present state of the world, any neutral commerce could exist. While therefore the trade was by the laws left open to citizens of the United States, it could not acquire an illegal cha- racter unless carried on expressly for British account, or shipped under British contracts, or destined for British use — or voluntarily incorporated into British service by licenses which give the immunit}' of Briiish navigation. In other words, v/here the trade is carried on bona fide on neutral or domestic account for general sale in a neu- tral market, the voyage is not' contaminated, although -23 174 LAW OF CHAP. V the enemy obtain his supplies from the general stock o{ that market.(*') (i) Per Stoht, J. Tlie Liverpool Packet. Circuit Court of tlie T" S. for Massachusetts district, 1813 M. S. Vide supra, Ch»pter IV. f. ^ n.Dtc u '''"■ I "m;\ritime captures and prizes. 175 CHAPTER VI. Of neutral property considered as a legal object of capture. 1. Not only is enemy's property, and that of persons resident or having possessions in the enemy's country, and property sailing under the flag and pass or license of the enemy, liable to capture ; but neutral property is also, un- der certain circumstances, a legal object of capture and con- demnation as prize of war. 3. It is the duty of neutrals to observe an exact impar- tiality between the belligerent parties, and to afford no as- sistance to either, to the prejudice of the other. Pacent utr'ique pact quod viedios deceat amicos^ optent bello se non 2nterpQnant.(f) Their commerce with the belligerent pow- ers is generally free and unrestrained by the war. But to this general freedom there are several exceptions. Among these is included the trade with the enemy ^Q'') in certain articles denominated contraband of war. The al* most unanimous authority of elementary writers, of the ordinances of belligerent powers, and of treaties, agrees to enumerate among these, all warlike instruments, or mate- rials by their own nature fit to be used in war. But beyond (•^ Liv. L. 35. c. 48. C') Dunqne la proibizione introdotta dal diritto convenzionale dell' Europa sul commercio dei generi detti di contrabbaiido di guen^a non pud cadere, che sul pveciso trasporto di essi ai paesi nemici, non mai perd sulla loro vendita iinparziale nel territorio, o porti dei pacifici e neutrali ; giaccki ivi, ne soJio^ 7ie poasono chiarmarsi fmrci di contrabbando- Azuni, Par't 2> c. 2" § 3- 1T& LAW OF GHAP. tl. this enumeration, there is some difficulty in reconciling the different authorities, which are extremely discordant, and at variance with reason and justice. Grotius, in consider- ing this subject, makes a distinction between those things that are useful for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and in peace. The first he agrees with all other %vriters in prohibiting neutrals from carrying to the enemy j as well as in permitting the second to be so carried; the third class he sometimes prohibits, and sometimes per- mits. (") Vattel makes somewhat of a similar distinction f though he includes timber and naval stores among those articles that are useful for the purposes of war, and always contraband ; whilst he considers provisions as such, only in certain circumstances, when there are hopes of reducing the enemy by famine.('^) But the learned and judicious Bynkershoek strenuously contends against admitting into the list of contraband articles, those things which are of promiscuous use. He considers the limitation of the right of intercepting them, to the case of necessity, and under the obligation of restitution or indemnification^, as insufficient to justify the exercise of the right itself. He concludes that the materials out of which contraband goods are formed, are not themselves contraband; because if all the materials are prohibited, out of which something may be made that is fit for war, the catalogue of contraband goods will be im- mense, since there is hardly any kind of material, out of which something, at least, fit for war, may not be fabricated. The interdiction of so many articles, would amount to a total interdiction of commerce, and might as well be so ex- pressed.('') Indeed, when we once go beyond the line of warlike instruments or materials, bij themselves fit to be (') fii'otius, Dc J. n. ac p. L. 3. c. 1. § 5. C) Vuttd, L. 3. c. 7. § 112. r-) ii. J. r. L. 1. 0. 10. MARITIME CAPTURES AND PRIZES. 177 used in war, we know not where to stop until wc come to the entire proscription of neutral trade. As to the dis- tinction by which provisions are forbidden to be carried to a blockaded or besieged place of the enemy, it is evident that this prohibition is not'on account of their contraband nature, but in consequence of the blockade or siege itself, which excludes all commercial intercourse whatsoever with the place. 3. As little foundation is there for the distinction raised by the British courts of prize, by which articles of pro- miscuous use are considered as contraband, when destined to a port of naval equipment ;(^) since the trade to such ports must be as free as any other, unless they are actually besieged or blockaded. Nor is the nature of the port ma- terial, as Sir William Scott has hims.elf observed, since na= val stores^ if they are to be considered as contraband, are so without referen(j:e to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of naval military equipment. The consequences of the sup- ply may be nearly the same in either case. If sent to a mercantile port, they may then be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment. (^) Another distinction which has been adopted by these courts, considers certain articles as contraband only so far as to give the belligerent power the right of taking them to his own use, paying the neutral a suitable indemnification ; and it is said the practice of pre-emption has been subsii- (1) 1 liobinson, 26. The Staadt EmbJen. lb. 22. Tlie Kndraugiit. 1h. 189. Tlie Jong-e Marg-aretlia 3 liobinson, 108. The Xepluniis. 4 Jlobinson, 68 The Edward 5 liobinson, 97 The Nostra Signora de IJegona. 6 Robinson, 92- 'JMie Frau Marg'arclha, lb. 93; 'riie Zelden Hust. lb. 125. I'he Hanger. (s) 5 Robinion,*}05. The Charlotte. 178 LAW OF CHAl'. VI. tuted, in certain cases, in the place of confiscation, by the modern law of nations. (**) But this practice appears to have been derived from the principle laid down by Gro- lius, which restrains the rigkt,of intercepting things of promiscuous use to the case or necessity, and under the obligation of restitution or indemnification. And unless it can be shown that by the ancient law of nations these ar- ticles were deemed contraband, this practice, so far from being regarded as a mitigation of the rights of war, can be considered in no other light than an unlawful innovation. Now as to bread corn and provisions, commeatun^ they arc not declared contraband by any writer of authority, ex- cept on certain occasions, when there are hopes of reducing the eneni}- by famine. And as to naval stores. Sir William Scott, laying down the doctrine of thtir liability to be seiz- ed as contraband in their own nature, when going to the cnemv's use, under the modern law of nations, observes, that formerly, when the hostilities of Europe were less na- val than they have since become, they wei^e of a disputable nature, and perhaps continued so at the time of making the treaty between England and Sweden in 1661, or at least at the time of making the treaty which is the basis of it, that of 1656. And V^lin, in his commentary, says, That in the war of 1700, pitch and tar were comprehended in the list of contraband, because the enemy treated them as such, except when found on board Swedish ships, these articles being of .he growth and produce of their country. In the treaty of commerce concluded with the King of Denmark, the 23d August, 1742, pitch and tar were also declared contraband, together with rosin, sail cloth, hemp and cord- age, masts and ship timber. Thus, as to this matter, there is n » fault to be found with the conduct of the English, except where it contravenes particular treaties; for in law CO : Rul>inson, 2.".7 Tlic Saruh Clifistina. Ih,2Z7. The Maria. Uubinson, iM. 'I'Lc Uaubct. MARITIME CAPTURES AND PRIZES. 1/9 these tilings ai'e now contraband, and liave hnn so since the beginning of the present century, ivhich rvtis not the casejormerly, as it appears by ancient treaties, and parti- cularly that of St. Germain concluded with England in 1677; the fourth article of which expressly provides, that the trade in all these articles shall remain free, as well as in every thing necessary to human nourishment; with the exception of places besieged or blockaded. Sur Pordon- nance^ L. 3. tit. 9. Des Prises^ art. 11. It is difficult to discover how the above revolution in the law of contraband mentioned by Valin took place, since he has informed us, that pitch and tar were declared such in consequence of the enemies of France having set the example. And not only he more ancient French ordinances, but that of 1681, upon which he was commenting, had declared munitions of war only to be contraband. The same declaration is also con- firmed by the i-egulation of 1744; and with the exceptions inenticg:ied in the third chapter of this work, relative to the total prohibition of neutral commerce \vith the enemy, has ever since continued to be the law of France. It is true that the stipulations of the above treaty between France and Denmark, were afterwards adopted in the convention of the 4th July, 1780, explanatory of the treaty of 1670, be- tween England and Denmark. But this was done in order to preserve the impartiality of Denmark in her neutral cha- racter, by conceding to England what she had already con- ceded to France, the other belligerent power. No infer- ence can therefore be drawn from it of any change during the last century, by which naval stores, which had formerly been deemed exempt from seizure, were declared contra- band of war. By the treaty of navigation and commerce of Utrecht between Great Britain and France, renewed and confirm- ed by the treaty of Aix la Chapelle in 1748, by the treaty of Paris in 1763, by the treaty of Versailles in 1783, and by the commercial treaty between Great Britain and France 180 LAW OF (iilAV. VI. of 1786, the list of contraband is confined to munitions of war; and naval stores, provisions, and all other goods which have not been worked into the forni of any instru- ment or furniture for warlike use, by land or by sea, are expressly excluded from this list. So also by all the trea- ties between Great Britain and Russia, down to that of 1801, munitions of war only are considered as contraband. This last treaty is the more important as a precedent, be- cause, as has been before shown, it is declaratory of the primitive and pre-existing law of nations, forming a per^ manent rule between the parties, not only to govern their conduct towards each other, but towards all the rest of the world ; and this is peculiarly the case with the third section of the third article, relative to contraband, which is lite- rally copied from the conventions of armed neutrality of 1780 and 1800.(^) By the eighteenth article of the Swe- dish ordinance of 1715, all goods applicable to the purposes of war, Cl^^^ peuvent Hre employees pour la guerfe) are declared contraband. And by the treaties of 1656, 1661, J664 and 1665, between Sweden and England, munitions of war only are declared contraband. We shall therefore seek in vain in the ordinances of belligerent powers, or in treaties, for any evidence of that change in the law of con- traband, which is supposed to have taken place during the last century. Indeed if any change took place in this re- spect during the course of that century, it may with truth be affirmed to have more accurately defined the list of con- traband, so as to confine it strictly to such articles as are of immediate use in war. 4. Upon the same principle which is applied to other munitions of war, ships built for war, and going to the ene- my's country for sale, are subject to condemnation as con- traband. But the application of this rule is restricted to cases, in which no doubt exists as to the character of the (') Yiik Supra, c. 3. § 13. V MARltlME CAPTtTRF.S AND PRIZES. ISl vessels, or the purpose for which they are intended to be 5old.O) 5. There is reason to believe, that the ancient law of prize did not s^abject contraband articles to confiscation, but only gave the captor » tight of appropriating them to his own use, paying the owner a reasonable compensation for the same. For the French ordinance of 1584, art. 69, permits the capture of neutral vessels laden with muni- tions of war, destined for the enemy, and the retention of the cargoes, according to a reasonable estimation to be made thereof bij the Admiral, or his Lieutenant. To this right of pre-emption, if it formerly existed, has succeeded the penalty of confiscation, which is applied to contraband gooda captured on their destination to the enemy. And as they are thus condemned ex delictit^ the carrier master is not! entitled to his freight upon them, as he is upon innocent articles which are condemned as enemy's property. For though the master has an implied lien upon the goods for his freight, and though they may be expressly bound for its payment, and it is a maxim of the civil law, that if the pledge is forfeited, the Jus pignoris is not thereby eort- sequently extinguished ; yet, as Bynkershoek has justly observed, what is condemned is to be considered as if it had perished by inevitable accident, whereby the Jus pig- noris is extinguished. (^) A question arises whether the vessel, on board of which the contraband articles are laden, and the other goods of her cargo are also subject to confiscation. This question is determined in the negative by the French Ordinance of August, 1681, L. 3. tit. 9. Des Prises, Art. 11, the Regu- lation of the 23d July, 1704, and of the 21st October, 1744. (k) 5 Robinson, 325. The Richmond. lb. Additional Notes, No I. (1) Q. J. P. L. 1. c. 10. 1 Robmson, 91. The Ringende Jacob. Ib.24,2. Thf Sarah Christina, lb. 288. The Mercurius. 4 Robinson, 200. ThjS Oster Risoer. 24 182 LAW OF CHAP tl' The regulation of the eSth July, 1778, provides that if three fourths in value of the cargo consists of contraband articles the remainder of the cargo and the vessel shall be included in the confiscation. The authority of other ordi- nances and treaties generally concurs in subjecting to con- fiscation the contraband articles. As to the vessel^ Byn- kershoek distinguishes whether she belongs to the master himself, or to others. But this circumstance does not ap- pear to afford any just foundation for a distinction, since by the municipal law the master is the agent of the owners in respect to- the management and employment of the ves- sel. Nor is his further distinction, whether the master knew that the contraband goods had been shipped on board or was ignorant of it, any better founded ; since, as Byn- kershoek has himself observed, according to the present usage the master is in the habit of signing bills of lading of the merchandize shipped on board his vessel, and as the revenue laws of all countries presume the master to be con- usant of what goods are laden on board his vessel. As to the goods^ he also makes the distinction whether all the goods belong to one and the same owner or to several. If to one and the same owner, he thinks the whole may be justly confiscated, as by the Roman law in revenue cases if any one carries at the same time lawful and unlawful mer- chandi:ie, and declares the one and conceals the other, both are confiscated on account of the fraud of the carrier, as the commentators on the title of the Digest De Publicanis ct Vectifralibus have collected from the text of that law it- self, and from the third law of the code De Nautico F(t- nore.Q") This last distinction is better founded, and is followed in practice both as to the vessel and the goods. Thus where the ship and the cargo do not belong to one and the same person, the carriage of contraband under the frau- (") Omnino diitinq-uai(lu7n puicin an licitx et illicitiC merces ad cnndemdo' ■minuin perliiicant, an nd dh;rrso3 ; si tld cundem oimtesrecte piiblicxibttntuv ,. ibcoHlincntiam delicti. Q- J, P. L. 1. c. 12. MARITIME CAPTURES AND PRIZES. I'Svi • dulent circumstances of false papers or false destination will work a condemnation of the ship as well as the cargo.(») The same effect is likewise produced by the carriage of contraband articles in a ship, the owner of which is bound, by the express obligation of the treaties subsisting between his own country and the belligerent state^ to refrain from carrying such anicles to the enemy. In such a case, the ship throws off her neutral character, and is liable to be treated at once as an enemy's vessel, and as a violator of the solemn compacts of the country to which she belongs. (") Excepting in these instances, the remainder of the cargo and the ship, unless they belong to the owner of the con- ti-aband articles, are not involved in the confiscation of the latter. But where the ship and the innocent articles of the cargo belong to the owner of the contraband they arc all involved in the same penalty.(P) 7. This penalty has lately been attempted to be extended to the return voyage by the British courts of prize in cases where contraband had been carried outward with false papers. But it is evident that this innovation is not found- ed upon principle ; for in order to sustain the penalty there must be a deiictum at the moment of seizure. To subject the property to confiscation whilst the offence no longer continues, would be to extend it indefmitely, not only to the return voyage, but to all future voyages of the same vessel, which could never be purified from the contagion communicated by the contraband articles. From the mo- ment of quitting port, indeed, the offence is complete, and it is not necessary to wait, till the goods are actually endea- vouring to enter tiie enemy's port ; but beyond that, if the (") 3 Robinson, 2\7 . The Franklin, 4- liobhisoii, 69. The Edwaru. 6 Robinson, 125. The Hanger. (") 3 Robinson, 29 5. The Ncutralltct- (p) 1 Rabinson,31. The StaadtEmbcIcn rb. 2S8. The Mercnriu^, 288 Jn Notis. ib, 330, The Jongc Tobias. ' 184 i-AAV Oi' CHAl'. VI^ gootls are not taken in delicto^ and in the actual prosecution of such a voyage, the penalty is not held to attach. ('i) 8. Of the same natiire with the carrying of contraband is fhe transportation of military persons or despatches in the service of the enemy. 9. A neutral vessel which is used as a transport for the enemy's forces is subject t« confiscation. Nor will the fact of her being impressed by duress and violence into that service exempt her from this penalty. The master cannot be permitted to aver that he was an involuntary agent in the matter. Were an act of force exercised by one belli- gerent power on a neutral ship or person, to be deemed a sufficient justification for any act done by him, contrary to the known duties of the neutral character, there v/ould be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands, must seek redress against that government which has imposed the restraint iipon him. And the for- feitux-e is not extinguished, until the vessel has receded from, and shaken off, her belligerent character. So long '4S she remains under the command and control of the en- emy, she continues liable to capture and condemnation. (■■) And wliere a neutral vcfesel was taken, v/ith a few goods of small bulk and little value, and a number of officers and mariners in the military service of the enemy on board, she was held subject to condemnation, notwithstanding her partial commercial character. There is no precise techni- cal definition of transport vessels, more than this, that they are vessels hired by the government to do such acts as shall be imposed upon them, in the military service of the country ; and it is by no means essential to the character of a transport, that she should be chartered in a particular (1) 3 liobinson, 167. The Imina. (') 4 Robinson, 256. Th« CaroliQa. ^l '■■ \ .,■,. i-lAHITIME CAPTURES AND miZES. iSrJ manner, or in any particular form of words, or by any par- ticular department of the government. The form is of no importance. The substance of the thing is, whether they are vessels hired by the agents of the government, for the purpose of conveying soldiers in the service of the state ? That is the substance ; and it signifies nothing, whether the men so conveyed, are to be put into action on an immedi- ate expedition or not. The m.cre shifting of drafts in de- tachments, is an ordinary employment of trcmsport vessels, and it is a distinction totally unimportant, whether this or that case mav be connected with the immediate active ser- \ ice of the enemy. In removing forces from distant set- tlements, there may be an intention of immediate action : but still the general importance of having troops conveyed to places where it is convenient that they should be collect- ed, either for present, or future use, is what constitutes the object and employment of transport vessels. Different Is the character and the case of a vessel carrying only a few individual invalid soldiers, or discharged sailors, taken on board by chance, and at their own charge. (®) What is the number of military persons that shall affect the vessel with confiscation, it may be difficult to define. In the above case there were many ; but number alone is an insignificant cir- cumstance in the considerations, on which the principle of law on this subject is built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore it is what the belligerent state has a stronger right to prevent and punish. Nor is it material whether the master be ignorant of the character of the service on which he is engaged, nor necessary that there should be C) 6 Robinson, 420. Tke Friendship, Collard. -ISG I/AW OF CHAf. VI, some proof of delinquency in him, or his owner, in order to support the penalty. It is sufficient if there has been an injury arising to the belligerent state from the employment in which the vessel is found. If imposition be practised, it operates as force ; and if redress is to be sought against any person, it must be against those, who have, by means cither of compulsion or deceit, exposed the property to danger] otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the knowledge and privity of the immediate ofFender.(^) 10. The fraudulent carrying the despatches of the enemy will also subject the neutral vessel in which they are trans- ported, to capture and confiscation. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be convej^ed. The carrying of two or three cargoes of military stores is necessarily an assist- ance of a limited nature ; but in the transmission of des- patches, may be conveyed the entire plan of a campaign, that may defeat all the projects of the other belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the Xllth, and might produce the most disastrous effects in a campaign ; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of evanescent quantity of which no account is taken ; and the practice has been accordingly^ that it is in considerable quantities only that the offence of contraband is contemplated. The case of despatches is very different j it is impossible to li- HiTt a letter to so small a size, as not to be capable of pro- ducing the most important consequences in the operations of the enemy : it is a service therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature* Thi (f) 6 Jiobinson, 430. X^c Orozembo. MAftitlME CAPTURES AND PRIZES- ISt <}ffence of fraudulently carrying despatches in the service of the enemy, being then greater than that of carrying contra- band under any circumstances, it becomes absolutely neces- sary, as well as just, to resort to some other" penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contra- band, where the vessel and cargo do not belong to one and the same person, would be ridiculous when applied to dcs- patches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which thty were carried must therefore be confiscated. (■^) But carrying the despatches of an ambassador or othcv public minister of the enemy, resident in a neutral country, is an exception to the reasoning on which the above gene- ral rule is founded. They are despatches from person.'.* who are, in a peculiar manner, the favourite objects of the protection of the law of nationsT residing in the neutral country for the purpose of preserving the relations of ami- ty between that state and theirown government. On this ground a very material distinction arises, with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the ene- my, and you are not at liberty to conclude, that any com- munication between them can partake, in any degree, oi the nature of hostility against you. The enemy may have his hostile projects to be attempted in the neutral state ; but your reliance is on the integrity of that state, that it will not favour nor participate in such designs, but as far as its own councils and actions are concerned, will oppose them. And if there should be private reason to suppose that this confidence in the good faith of the neutral state has a doubt- ful foundation, that is matter for the caution of the gov- ''iliment, to be counteracted by just measures of prevent ■-■ (0 6 Rob'm:on, 44(f The A'a';i"/..->. LAW cr ttlAP. f?. policy, but is no g;Tund on Av]jic!i a pivzc court can pro- jioancc ihat tlv.- n viral muster has violated his duty by bearing despatches, ■•.vhich, as far as he c:;n know, mav be presumed to be of an innocent nature, and in the mainte- nance of a pacific connexion. The limits assignm tbtlie operations of v;a-r against embassadors, by writers on pub- lie law, are, that the belligerent may exercise his riglit of "ivar against them, v/herever the character of hostility ex- ists : he may stop the ambassador of his enemy on nii passage ; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his I'epresentative character, he becomes a sort of uiidc/k-inan, entitled to peculiar privileges as set apart for the protection of the relations of amity and peace, in maintaining which all nations are, in some degree, inter- ested. If it be argued, that he retains his national char- acter unmixed, and that even his residence is considered as a residence in his own country ; it is answered, that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a pri- vilegc ; and cannot be urged to his disadvantage. Could it be said that he would on that principle, be subject to any of the rights of war in a neutral territory ? Certainly not; he is there for the purpose of carrying on the relations oi peace and amity, for the interest of his own country pri- inarilv, but, at the same time, for the furtherance and pro- tection of the interests, which the neutral country also has in the continuance of those relations. It is to be consid-' ered also, with regard to this question what may be due to the convenience of the neutral state; for its interests ma} rlequire that the intercourse of correspondence with the en- cmv's country should not be altogether interdicted. It might be thought to' amount almost to a declaration, thai an ambassador fiom th^ Aicmy shall not reside in tXv.: neutral state, if he is declared to be debarred from the on- MARITIME CAPTURES AND PRIZES. 189 ly means of communicating with his own. For to what useful purpose can he reside there, without the opportuni- ties of such a communication? It is too much to say that all the business of the two states shall be transacted by the minister of the neutral state, resident in the enemy's coun- try. The practice of nations has allowed to neutral states die privilege of receiving ministers from the belligerent powers, and the use and convenience'of an immediate ne- gociation with them. This exception may be liable to g;reat abuses, and so perhaps will any rule that can be laid down on this subject: — > ^^—Mllle adde catenas ; Effi/ffiet tameii Lee — Opportunities of conveying intelligence may always exist in some form or other. (^) And it is the general rule^ that the master is not at lib- erty to aver his ignorance of the nature of the papers taken on board, but that if he is made the victim of imposition practised on him by his private agent, or by the govern- ment of the enemy, he must seek for his redress against them. It is considered as a proof of fraud, if dispatches, being on board, are not produced voluntarily in the first in- stance. (^) But where the commencement of the voyage is in a neutral country, and it is to terminate at a neutral port, or at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite his vigilance, and therefore it may be proper to make some al- lowance for any imposition that may be practised upon him : and where the despatches come to the master among a va- riety of other letters from private persons where they are concealed in an envelope, addressed to a private person j and were taken on board in a neutral country — these are {") 6 Sobinson, 461. The Caroline. 1 iTJwar Js, 224. The Madisoft* C) 6 Robinson, 461. InJiotis. 25' iQd LAW OP CHAP. VI* circumstances which WQuld induce a court of prize to con- sider the case as excepted from the general rule.('') 11. Another exception to the general freedom of neu- tral commerce in time of war is to be found in the trade to blockaded ports. 12. The right of blockade has been, at various periods of history, abused by belligerent powers to the total prohi- bition of neutral commerce with the enemy, or for the pur- pose of obtaining a commercial monopoly for the private advantage of the state imposing the blockade. Thus by the Convention concluded at London on the 22d August, 1689, between England and Holland, the contracting parties state in the preamble. — That having declared war against the Most Christian king, it behooves them to do as much damage as possible to the common enemy, in order to bring him to agree to such conditions as may restore the repose of Chris- tendom : and that, for this end it was necessary to inter- rapt all trade and commerce with the subjects of the said king ; and that, to effect this, they had ordered their fleets to, block up all the ports and havens of France : and in the second and third articles of the same convention it is agreed, that they would take an^' vessel, whatever king or state it may belong to, that shall be found sailing into or out of the ports of France, and condemn both vessel and merchandize as legal prize ; and that this resolution should be notified to all neutral states. (y) And by the several conventions and treaties of the 2'5th March, 1793, between Great Britain and Russia; of the 25th May, 1793, be- tween Great Britain and Spain; of the 14th July, 1793, between Great Britain and Prussia ; and of the 30th Au- gust, 1793, between Great Britain and Austria, it was sti- pulated by the several contracting parties, that they would unite their efforts to prevent other powers, not implicated in (") 1 Edwards, 228. TIic Kapid. '^^) Jjord Liverpool's Discourse, 36. MARITIME CAPTURES AND PRIZES. 191 the war, from giving, on this occasion of common concern to every civilized state, any protection whatever, directly or indirectly, in consequence of their neutrality, to the commerce or property of the French, on the sea, or in the ports of France. So also by the declaration of the British government of the 16th May, 1806, the coasts, rivers and ports from the river Elbe to Brest inclusive, were declared in a state of blockade, excepting that the blockade should not extend to prevent neutral vessels, laden with goods not feeing the property of his Britannic Majesty's enemies, and not being contraband of war, from approaching the said coasts, and entering into and sailing from said rivers and ports, (saving the coast, rivers and ports from Ostend to the river Seine, already then in a state of strict and rigorous blockade, and which were to be c nsidered iis so continued) provided the said vessels so approaching and entering (save as aforesaid) should not have been laden at any port be- longing to or in the possession of his said Majesty's ene- mies ; and that the said vessels should not be destined to any port belonging to or in the possession of his said Ma- jesty's enemies, nor have previously broken the blockade. And by the British Order in Council of the 7th January, 1807", It was declared, that no vessel should be permitted to trade from one port to another, both which ports should belong to or be in the possession of France or her allies, or should be so far under her control as that British vessels might not freely trade thereat. And by the British Or- ders in Council of the 11th November, 1807, it was de- clared, that all ports and places of France and her allies, or of any other country at war with his Britannic Majesty^ and all other ports or places in Europe, from which, al- though not at war with his said Majesty, the British flag was excluded, and all ports or places in the colonies belong- ing to his said Majesty's enemies, should be subjected to the same restrictions in trade and navigation as if actually blockaded in the most strict and rigorous manner ; except- |92 LAW 0¥ CHAP. VI ing the direct trade between the countries not nicluded in tlie order and said colonies, and also excepting an}' vessel and cargo belonging to any country not at war with his said Majesty, clearing out under certain regulations, and pro- ceeding direct from some British port, or from Gibraltar or M dta, or from any port belonging to the allies of his said Majesty, to the port specified in her clearance, or coming from any port or place in Europe included in the order, and destined to some port or place in Europe belonging to his said Majesty, and which should be on her voyage direct thereto. And also by the French Decree, issued at Berlin on the 21st November, 1806, the British islands were de- clared in a state of blockade, and all commerce and corres- pondence with them were prohibited. And by the Decree issued at Milan, on the 17ih December, 1807, the same de- claration was renev/ed, and every vessel of whatsoever na- tion, or whatsoever the nature of its cargo might be, pro- ceeding from the ports of England, or her colonies, or the countries occupied by English troops, and going to England, or her colonies, or countries occupied by English troops, was declared good and lawful prize. But such blockades are wholly illegal and void. Nor can they be justified upon the principle of retaliation; for retaliation can only be exercised upon the party who has committed the injurj^, and not against a friendly and neu- tral power. Retorsio non esi 7iisi adversus ei/m^ qui ipse damni quid dcdit^ ac dcind<- patitur^ non vera adversus com- tnunem amicutn.(^) And as we have before observed, in the words of Sir William Scott, the true mode of correct- ing the irregular practice of a nation is by protesting against it, and by inducing that country to reform 'it; it is monstrous to suppose, that because one country has been guilty of an irregularity, every other country is let loose («) Bijnkershick, Q. J. P, U 1. 6e 3 Robinson, 173. The Neptunus. ('■) I Robimon, 332. The Betsey, Gooiibuj. {') 1 Robinson, 170, Tlic Neptunus. MARITIME CAPTURES AND PRIZE?. IQJ it : till that is done, the blockaded port is to be consi- dered as closed up ; and from the moment of quitting port to sail on such a destination, provided the coun- try in which the port is situated be sufficiently near the blockaded port to have constant information of the state of the blockade, the offence of violating the blockade is com- plete. It is 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 destination. The effect of such a notification to neutral governments, is to include all the individuals of that nation, after a sufficient time has elapsed to communicate the information to them. After that period, a neutral master cannot be heard to aver agaitist a notification of blockade, that he was ignorant of it. If he is really ignorant of it, it may be a subject of re- presentation to his own government, and may raise a claim of compensation from them, but it can be no plea in a prize court of the belligerent. (^) But the penal consequences of a notification given to one power, will not affect the sub- jects of another state from the same time, and in the same manner, as it would affect the subjects of those states to whom it was directly made. To say that it does not affect at any time, would be going too far ; because, if a notifica- tion is made to the principal neutral states, a time would come when it would affect the rest ; not proprio vigor e^ or by virtue of the direct act, but in the way of evidence. The knowledge of it would spread, and after the lapse of a reasonable time, must be considered as a reasonable ground of evidence. (') The fact of clearing out for a blockaded port, is in itself innocent, unless it be accompanied with knowledge of the blockade. The right to treat the vessel as an enemy is dc- ('<) 2 liobinsbn, 110. The Xeptunus. 0) 2 lii'binsoTi, 111. The Adclu'.dc /". .^'; ."? IQ'G LAW OF CHAP. i'T, clared by Vattel, b. 3. § 177. to be founded on the af tempt to enter,' and certainly this attempt must be made by a person knowing the fact. The law of nations does not ad- mit of the condemnation of the neutral vessel for the inten- tion to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, was in the above cases construed into an attenipt to enter that port, and was therefore adjudged a breach of blockade, from the departure of the vessel. It may be observed, that in these cases the fact of sailing is coupled with the inten- tion, and the condemnation is founded on an actual breach of blockade. (■") But in the case of the blockade of Mar- tinique and Guadaloupe, in 1804, the British government sent orders to its naval commanders and judges of the vice admiralty courts in the West Indies, not to consider any blockade of these islands as existing, unless in respect of particular ports which may be actually invested, and then not to capture vessels bound to such ports, unless they shall previously have been warned not to enter them.(") The import of these orders is, that a vessel cannot be placed in the situation of one having a notice of the blockade, until she is warned off. It gives her a right to enquire of the blockading squadron, if she has not previously received this warning from one capable of giving it, and consequent- ly, dispenses with her making that enquiry elsewhere. While this order was in force, a neutral vessel might law- fully sail for a blockaded port, knowing it to be blockaded, and being found sailing towards such port, would not con- stitute an attempt to break the blockade, until she should be warned ofr.(") The municipal laws of certain countries Jiave laid down very precise rules for determining questions of presump- ('") Fltzs'immons vs. Newport T113. Comp. 4 Crninfi, 199. (") Vide Appendix, No. 11 [. (°) Marine Ins* Comp. vs. Woods. 6 Crunch, 49. MARITIME CAPTURES AND PRIZES. 197 tive notice. Thus in cases of insurance made on property at a remote distance, lost or not lost, where the legality of the contract depends upon the supposition that no intelli- gence had been received of any accident, at the time when the insurance was made, they determine the question by a minute rate of travelling. Thus the Consolato del Mare reckons an hour as a league. So also the French Code de Commerce reckons an hour of time as equivalent to a league and a half of distance. Art. 336. But it considers this rate as prima facie evidence only, and does not exclude a resort to other proofs of the same fact. Our own munici- pal law determines this presumption by the particular cir- cumstances of each case, taking into consideration not merely the distance, but referring also to the accidents by which the intercourse is likely to be affected, and informa- tion conveyed with more or less rapidity. So also in the law of blockades, the question as to the length of time pro- per to be allowed for notice is determined upon equitable considerations. It is not to be taken merely on a calcula- tion of the distance ; but with reference also to the acci- dents by which the general intercourse, even after the al- lowance of distance, is liable to he retarded. (P) Where an enemy's port was declared in a state of block- ade by notification, and at the same time when notification was issued, news arrived that the blockading squadron had been driven off by the superior force of the enemy, the blockade was held to be null and defective, from the begin- ning, in the main circumstance that is required as essen- tially necessary to give it legal operation, and that it would be highly unjust to hold neutral vessels to the observance of a notification, so accompanied by a circumstance that defeated its effect. This case was, therefore, considered as altogether independent of the presumption arising from notifications in other instances ; the notification being de- • (p) 3 liobinson^ 281. The Adelaide, lb. §24. The Hurtige Hane, 26 WS LAW OP- eilAP. VI- feated, it must have been shewn that the actual blockade was again resumed, and the vessel would have been entit- led to a warning, if any such blockade had existed when she arrived off the port. The mere act of sailing for the port under the dubious state of the actual blockade at the time was deemed iasufficient to fix upon the vessel the pe- nalty of breaking the blockade. (-') In the above case, a question was raised, whether the no- tification which had issued was not still operative. But the court was of the opinion, that it could not be so consi- dered, arfd that a neutral power was not obliged, under such circumstances to presume the continuance of a block- ade, nor to act upon a supposition that the blockade would be resumed by any other competent force. It was argued that neutrals were bound to act on such presumptions, that when a blockading squadron is driven off by the supei-ior force of the enemy, they are bound to presume that it will return, and that there is no discontinuance of the blockade. To which it was answered, that when a squadron is thus driven off, a new course of events arises, which may tend to a very different disposition of the blockading force. In such a case, the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed; and therefore, if it is to be renewed, it must proceed de novo^ by the usual course, and without reference to the former state of facts, which had been thus effectually interrupted. O^ this principle it was that the former blockade was held in the above case to have become extinct. But in a subse- qtiejit case, where it was suggested that the blockading squadron had returned to its former station off the port, in order to renew the blockade, a question arose whether there had been that notoriety of the fact, arising from the opera- tion of time or from other circumstances, which must be taken to have brought the existence of the blockade to the ('0 6 Robinson s G2. Tbc Triheten. MARITIME CAPTURES AND PRIZES. l99 knowledge of the parties. Among other modes of resolv- ing this question, a prevailing consideration would have been the length of time, in proportion to the distance of the country from >vhich the vessel sailed. But as nothing more came out in evidence than that the squadron appeared off the port on a certain day, it was held that this would not restore a blockade which had been thus effectually raised, but that it should be renewed again, by notification, before foreign nations could be affected with an obligation of ob- serving it. The squadron might return off the port with very different and new intentions. It might arrive there as a fleet of observation merely, or for the purpose of a qualified blockade only. On the other hand, the comman- der might attempt to connect the two blockades together, but this is what could not be done,* and in order to revive the former blockade, the same form of communication must have been observed dc novo that is nt'cossary to establish an original blockade. (^) lo. Besides the knowledge of the party, some act of violation is essential to a breach of blockade, as either by going in or by coming out of the port with a cargo laden after the commencement of the blockade. T*) Thus by the edict of the States General of Holland, of 1630, relative to the blockade of the ports of Flanders, it was ordered, that the vessels and goods of neutrals which should be found going in or coming out of the said ports, or being so near thereto as to sr.cw beyond a doubt that they were endeavouring to run into them j or if fi'om the documents on board, it should appear that they vrere bound (0 6 Rol>iiiso7i, 112 Tlie Hoffaung*. ^Yhercvcr the question has arisen in our courts cf municipal law in eases of insurance cespecting the leg'al- ity of a blockade, it has been determined that a mere notification, with- out a blockade in fact, amounts to nothing'. ^ Caincs, 11. Williams v. Smith. Caihci' Cases in Error, T« Voss V. the United lusur^ncCiiUom- pany. (*) 1 Sobinson, 93. The Betsey. 200 LAW OF CHAP. VI. to the said ports, although they should be found at a dis- tance from them, should be confiscated ; unless they should, voluntarily, before coming in sight of or being chased by the Dutch ships of war, change their intention, while the thing was yet undone, and alter their course. Bynker- shoek, in commenting upon this part of the decree, sup- ports the reasonableness of the provision which subjects vessels to the penalty of confiscation found so near to the blockaded ports as to shexo beyond a doubt that they were endeavouring" to run into them^ upon the ground of legal presumption, with the exception of extreme and well prov- ed necessity only. Still more reasonable is the infliction of this penalty, where the intention expressly appears by the papers found on board. The third article of the same edict also subjects to confiscation such vessels and their cargoes as should come out of said ports, not having been ferced into them by stress of weather, although they should be captured at a distance from them, unless they had, after leaving the enemy's port, performed their voyage to a port of their own country, or to some other neutral or free port, in which case they should be exempt from condemnation ; but if in coming out of the said ports of Flanders they should be pursued by the Dutch ships of war, chased into another port, such as their own, or that of their destination, and found on the high sea coming out of such port, in that case they might be captured and condemned. Bynker- shoek considers this provision as distinguishing the case of a vessel having broken the blockade, and terminated her voyage by proceeding voluntarily to her destined port, and that of a vessel chased and compelled to take refuge, which latter might still be captured after leaving the port ih which she had taken refuge. And in conformity with these principles is the modern law and practice.(*) (•) 1 7ifoi(Viso?j, 154. The Columbia. 2 litbinstm, 12^. Tl;ie Welvaart Van rilUw; MARITIME CAPTURES AND PRIZES. 201 With respect to violating a blockade by coming out with a cargo, the time of shipment is very material, lor although it might be hard to refuse a neutral liberty to retire with a cargo already laden, and by that act already become neutral , property; yet, after the commencement of a blockade, a neutral cannot be allowed to interpose in any way to assist the exportation of the property of the enemy. After the commencement of a blockade, a neutral is no longer at li- berty to make any purchase in that port.(") A neutral ship departing, can only take away a cargo bonajide purchased and delivered before the commencement of the blockade ; if she afterwards take on board a cargo, it is a violation of the blockade. But where a ship was transferred from one neutral merchant to another in a blockaded port, and sailed out in ballast, she was determined not to have violated the blockade. (*) So where goods were sent into the block- aded port before the commencement of the blockade, but reshipped by order of the neutral proprietor, as found un- saleable, during the blockade, they were held entitled to restitution. For the same rule which permits neutrals to withdraw their vessels from a blockaded port, extends also, with equal justice, to merchandize sent in before the block- ade, and withdrawn bonajide by the neutral propfietor.('') Where a ship which had been purchased by a neutral of the enemy in a blockaded port, and sailed on a voyage to the neutral country, had been driven by stress of weather into a port of the belligereilt state, where she was seized, she was held liable to condemnation under the general rule. That the vessel had been purchased out of the proceeds of the cargo of another vessel, was considered as an unavail- able circumstance on a question of blockade. If the ship has bicn purchased in a blockaded port, that alone is the (0) lRobinim,9*. The Betsey. (v) 1 Jiobinson, ISO. The Vrouw Judith- C'') 4 Etiiman, 8?, The Potsdam, 'h ^6i LAAV OF CHAP. TI. illegal act, and It is perfectly immaterial out of what funds the purchase was effected. Another distinction taken was, that the vessel had terminated her voyage, and therefore that the penalty would no longer attach. But this was also overruled, because tlie port into which she had been driven was not represented as forming any part of her original destination. It was .therefore impossible to consider this accident as any discontinuance of the voyage, or as a de- feasance of the penalty which has been incurred. (^) And where the vessel was captured on a voyage to the blockaded port, in ballast, she having sailed for the purpose of bringing away goods which had become the property of merchants in the neutral country before the date of the blockade, she was held liable to condemnation. The rule of blockade permits an egress io ships innocently in the port before the restriction was imposed, and even with car- goes, if previously laden ; but in the case of ingress^ there is not the same reason for indulgence, tliere can be no sur- prize upon the parties, and therefore nothing short of a physical necessity is admitted as an adequate excuse for making the attempt of entry. Generally where a neutral ship is proceeding to a blockaded port, it must be sup- posed that she is going there for the purposes of trade. — If she goes in ballast, it cannot be with the intention "of being laid up for an indefinite time, in a foreign port, until the blockade is raised. It is a presumption 'which a court of prize, acting on reasonable principles, is bound to enter- tain and apply, that she has no other errand there than to keep ^^e that commeVcial intercourse with the interdict- ed poiT which it is the object of the blockade to prevent.(y) A maritime blockade is not violated by sending goods to the blockaded port, or by bringing them from the same, through the interior canal navigation or land carriage of («) 4'Ji(jbiii:on. In J^'utin. Tiic Juir.ow INIarla Shrartler. '>,/ () ii-Mmdu, Ql. The General Ilnmilton. MARITIME CAPTURES AND rr.TZr,^. 203 the countiy. A blockade may be of dilTerent descriptions. A mere maritime blockade, effected by a force operating pnly at sea, can have no operationOpon the interior com- munications of the port. The legal blockade can extend no farther than the actual blockade can be applied. If the place be not invested on the land side, its interior commu- nications with other ports cannot be cut off. If the block- ade be rendered imperfect by this rule of construction, it must be ascribed to the physical impossibility of the mea- sure, by whidi the extent of its legal pretension-s is una- voidably limited. (^) But goods shipped in a river, having been previously sept in lighters along the coast from the blockaded port, and under charter party with the ship pro- ceeding also from the blockaded port in ballast to take them on board, were held liable to confiscation. This case i3 very different from those above mentioned, because tliere the communication had been by inland navigation, which was in no manner, and in no part of it, subject to the blockade. (•') 6. The appropriate penalty for a breach of blockade is the confiscation of the vessel and cargo.('^) But where the owners of the cargo are not at the same time owners of the vessel, the confiscation cannot be extended to the cargo, unless its owners were, or might have been, conusant of the blockade, before they shipped their goods. Although the master is the agent of the owners of the vessel, and can bind him by his contracts or misconduct, he is not the agent of the owners of the cargo, unless expressly so consti- tuted by thein. In cases of insurance, and in revenue cases, where by the municipal law, the act of the master will affect the cargo, it is to be observed that the ground upon which they stand is wholly different. In the former it is in vii- {') 1 Edwards, S2: The Comet. (') o Robinson, 207. The Ocean. ^ Robinson,(^ci. The Slert. (") Btjnl€rshoek, 2.3. P. L. 1. c. 11. '204 N LAW OP GUAP. VI. tue of an express contract which governs the whole case ; and in revenue cases it proceeds from positive laws and the necessary strictness of all fiscal regulations.^^) And where goods are shipped in pursuance of orders from a distant country, if it appears that they were given after the time, when the notification of blockade could by a fair possibility be supposed to have been known to a person giving the or- ders, he would be bound directly by his own act; or, if the orders were sent previous to the notification, two questions might arise; 1st, whether sufficient time had intervened since the notification, to have given him an opportunity of counter-ordering the shipment ; for if so, he would be le- gally answerable for the consequences of his own negli- gence ; or, 3dly, if sufficient time had not intervened, whe- ther, though personally free from all imputation of offence, he might not be bound by that powerful general principle of the municipal law, which holds the employer responsible for the acts of his agent, and thus be held by those of the shipping merchant in the blockaded port. It would perhaps be holding the party too rigorously to the strict principle of the law, to say, that it is his duty to write even with a hope, and under the chance of countermanding the order zji tbne, because, in some cases, the party might naturally conceive from the time which had elapsed, that the order had been already executed, and that if he had written to countermand it, the letter would not be received till the shipment had been actually made. The abstract rule as to the principal being bound by the acts of his agent is un- doubtedly just ; but the agents of foreign merchants in the enemy*s country, and in a blockaded port, do not stand iu the same situation as other agents; they have not only a distinct, but even an opposite interest from that of their principals, to fulfil the commission at all risks as rapidly as C/) 1 RobiniQHy 80. The Mcrcurius. lb. 154. The Columbia. MARITIME CAFTtJRES AND PRIZES.. 205 possible, for their own private advantage, and for the pub= lie interest of their country, which at such a time must be under particuhu- pressure as to the exportation of its pro- duce-C^) If it be objected, that to exempt the cargo from respon- sibility for the acts of the master will open the door to fraud, in allowing neutrals to trade to blockaded ports with impunity, by throwing the blame upon the carrier mastery it is answered, that if such an artifice could be proved, it would establish the lyiens rea in the neutral merchaiit which would expose his property to confiscation, and it would at the same time be sufficient to cause the master to be consi- dered in the character of agent, as weli for the c?rgo as for the ship. Thus where a ship had been condemned for de- viating into a blockaded port. Under the fraudulent pre- tence of being in want of provisions, the cargo was like- wise included in the condemnation, the inference being that she was going in with an intention of disposing of the car- go. It would be impossible to maintain blocka:des which are directed more against the cargo, than against ships, if a court of prize did not draw the inference, that a ship going in fraudulently, is going in the service of the cargo, with the knowledge, and by the direction of the owner. If any in- convenience arise to the owners of the cargo, from this ne- cessary conclusion, the owners of the vessel or the master, are the persons to whom they must look for indemnifica- tion. («) And where also the Vessel had been condemned for a fraudulent deviation under the pretence of a mistake in navigation, it was inferred that the deviation had been resorted to in the service of the cargo. It was held that in other blockade cases, where excuses had been set up for want of water and provisions, or from other occa;sionSj andi (d) 3 liobinson, 172. The Neptunus. C) 1 Robinson, 85. The Mercuriuss 206 LAW OF CHAP. VI. these, excuses had been pronounced to be not real, a pre- sumption necessarily arose that it was for the delivery of the cargo that such a fraud had been attempted ; since there is scarcely any other adequate motive which can be sup- posed to induce a master to hazard the interests of his ves- sel ; the motives assigned being demonstrated to'be false. There is a presumption also in such cases, that this is done with the knowledge, and at the instigation, of the owner of the cargo; because although it is not an impossible thing that masters may be guilty of barratry, it is not a natural conduct, nor what is gratuitously to be supposed. The on- ly question, therefore, must be as to the effect of the pre- sumption arising from these inferences, whether it shall exclude all contrary averment, or whether it shall operate only as matter of evidence, in concurrence with other proof as to the guilt of the intention. It must undoubted- ly *^in J the owner; but the question is whether it shall do so presumptively i or conclusively ; and whether the par- ty shall be let in to prove a contrary intention. And al- though the fact may exist that a master should commit a barratry in a case of this kind, yet the owner cannot be ad- mitted to go into proof on this point, on account of the frau- dulent abuse to which such a liberty must inevitably lead, since it would be perfectly easy at • any time, to set up the pretence, and equally impossible on the other side, to de- tect it. For what would be the ordinary test ? Letters sent to correspondents elsewhere, and insurances — mea^ sures wholly in the power of the parties, and capable of be- ing made at their pleasure, a complete recipe for a safe traf- fic with a blockaded port. When this consc quence is duly weighed on one side, and when it is considered on the other, what few inducements a master can have to go to any other port than that, at which his charter parly binds him to deliver his cargo, and particularly to a blockaded port, less injustice will lie done by adopting this rule than by permitting the freighter to distinguish, by external and ' MARITIME CAPTURES AND PRIZES. 207 collateral evidence, the destination of his cargo from that of the master. The master is not the representative of the owner of the cargo to that extent, and in the same direct manner, in which he is held to be the representative of the owner of the ship. On that account, where facts shew the intention of the owner to be pure, the benefit of this distinction is given to the party ; for instance, where the voyage begins before the knowledge of the blockade, and where the master on being warned, appears to be actuated only by a personal obstinacy and perverseness, in pursu- .ing his course to his place of original destination. That is a case where the intention of the owner is admitted to be pure, where nothing s-tands against it in limine^ where there is no question of fact, whether he was consentient to the fraud; and where, if he was affected at all, it could only be by the application of the strict legal principle, that affects the principal by the conduct of his agent. But where the blockade was known to all, the parties at the time of shipment, and therefore the question is raised, whether the owner was not consentient at first, and whether the conduct of the master is not demonstrative ev- idence that he was so, the effect of all just presumption is against the owner; since there is scarcely any inducement to lead the master to commit such a fraud, contrary to the instructions and intentions of the owner of the cargo. Up- on these grounds the cargo in the above case v/as involved in the condemnation of the ship. (^) Where the blockade has been raised between the time of sailing and the capture, the penalty does not attach ; be- cause the blockade being gone, the necessity of applying the penalty to prevent future transgression no longer exists. The offence incurred by a breach of blockade generally re- mains during the voyage. But ttiat must be understood as subject to the condition, that the blockade itself con- V) 4: Eobinsony93. TaeAIexand«^ lF.'U-i''iU,'\9, The Exchange. ■\ ^8 LAW o* CHAP. VI. tanues. When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto. The del:ctum may have been completed at one period, but it is by subsequent events entirel}' dope away. (^ J (s) 6 Robinson^ 387. The Lisette i'^ii.BITIME CAPTv^JTES AND PHIZES- SJOO CHAPTER VII. Of the proper tij of subjects of the belli (rerent state, or its allies, engaged in trade with the enemy, or of subjects taken in violation of a municipal laic, considered as an object pf capture. 1. In a state of war between two nations, declared by the authority in whom the municipal constitution vests the power of making war, the two nations, and all their citi- zens or subjects, are enemies of each other. The conse- quence of this state of hostility is, that all intercourse and communication bet\yeen them is unlawful. This principle of public law forms a part of the munici- pal jurisprudence of every country. 2. Thus in England, there exists a general rule in the maritime jurisprudence of that country, by which all trad- ing with the public eneniy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of England ; it is laid down by Byn- kershoek as an universal principle of law — £x natiira belli commercia inter hostes cessare non est dubitandum, ^am- vis nidla specialis sit commercioriim prohibition ipso tamen jure belli commercia esse vetita^ ipsa hidictioties bellorum satis declarant^ &c. He proceeds to observe that the inte- rests of trade, and the necessity of obtaining certain com- modities, have sometimes so far overpowered this rule, that different species of traffic have been permitted, prout € re sua^ subditx)rumqiie suorum -esse censent principes. But it is in all cases the act and permission of the sove- reign. Wherever that is permitted, it is a suspension of 210 LAW OF . CHAP. VII« the state of war quo ad hoc. It is, as he expresses it, pro parte sic bcllum, pro parte pax inter subd'itos utr'msque priu' cipis.('^) It appears from these passages to have been the law of Holland; Valin states it to have been the law of France, whether the trade was attempted to be carried on in national (^) or in neutral vessels :('^) and it appears from the case* cited, to have been the law of Spain; and it may without rashness be affirmed to be a general principle of law in most of the countries of Europe. By the law and constitution of Great Britain, the sove- reign 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 per- mitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly ex- pedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of com- merce merely, and possibly on grounds of private advan- tage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances that maybe connected with such an intercourse, to determine when it shall be permitted, and under what regulations. No principle ought to be held more sacred than that, this intercourse cannot subsist on any othei- footing than that of the cnrect permission of the state. Who can be insensible to the consequences that might fol- low, if every person in time of war had a right to carry on a commercial 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 (h) q. j. p. l. 1. c. 3. (") The Tortuna, cited in the Hoop. ('^) Stir V Ordontumce, L. G, tit. 6. art 3. MARITIME CAPTURES AND PRIZES'. 211 public might be extreme ; and where is the inconvenience on the other side, that the merchant should be compelled in such a situation of the two countries, to carry on his trade between theAi, (if necessary) under the eye and control of the government charged with the care of the public safety ? Another principle of law, of a less poliiic nature, but equally general in its reception and direct in its application, forbids this sort of communication as fundamentally incon- sistent with the relation existing between the two coun- tries ; and that is, the 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 alien enemy carries with it a disability to sue, or to sustain, in the language of the ci- vilians a persona standi in Judicio, The peculiar law of England applies this principle with great rigour. The same principle is received in its courts of the law of nations ; they are so far British courts, that no man can sue therein who is a subject of the enemy, unless under particular cir- cumstances that pro hoc vice discharge him from the cha- racter of an enemy; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authori- ty that puts him in the king's peace pro hdc vice. But otherwise he is totally ex lex ; even in the case of racsoms which were contracts, but contracts arising ex jure belU^ and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill; but the payment was enforced by an action brought by the imprisoned hostage in the courts of his own coun- try, for the recovery of his freedom. A state in whitli contracts cannot be enforced, cannot be a state* of legal com- merce. If the parties who are to contract have no right to compel the performance of the contract, nor even to ap- pear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to •"ontract ? To such transactions it givus no sanction ; the}' Si'i LAW oi c;hap. vii. have no legal existence ; and che whole of such commerce is attempted without its protection and iigainsi its authori- ty. Bynkersho^k expresses himself with great force upon this argument in his first book, chapter 7, w-fiere he lay^i down that the legality of commerce, and the mutual use of courts of justice are inseparable : he says, that cases of commerce are undistinguishable from cases of any other species in this respect — Si hosii semcl ])ermittas actiones cxercere, cU^icUe est. clistinguere ex qua causa or'iantur^ nee potui animddvertere illam distinctlonem lotqitam usii fidssef servatam. Upon these and similar grounds it h^s been the estab- lished rule of the high court of admiralty in England, con- firmed by the judgment of the supreme court, that a trading with the enemy, except under a royal license, subjects the property to confiscation : — ^and the most eminent persons of the law sitting in the supreme court have uniformly sus- tained such judgments. Their decisions prove that the rule has been figidly en- forced :—where acts of parliament have on different occa- sions been made to relax the navigation law and other re- venue acts; where the government has authorised, under the sanction of an act of parliament, a homeward trade from the fenemy's possessions, but has not specifically pro- tected an outward trade to the same, though intimately con- nected with that homeward trade, and almost necessary to its existence; that it has been enforced, where strong claims, not merely of convenience, but of necessity excused it on the part of the individual ; that it has been enforced where cargoes have been laden before the war, but where the |)ariits have not used all possible diligence to counter- mand the voyage after the first notice of hostilities ; and 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 tliat the rule was founded on a strong uud universal principle, which states a,llied in war MARITIME CAPTURES AND PRIZES. 213 Iiad a right to notice djid apply mutually to each other's sub- jects.( on board a neutral vessel, goods which he had pur- chased of the enemy during hostilities, and it was adjudged that an insurance upon the cargo was illegal and void.(') Such are the general principles of the rule under which the public laW of Europe, and the municipal law of its dif- ferent states, have interdicted all commerce with an enemy. It is thus sanctioned by the double authority of public and of private jurisprudence, and is founded both upon the sound and salutary j^rinciple forbidding all intercourse vr'ith an enemy, unless by permission of the sovereign or state, and upon the doctrine that he Who is host'is^ — who has no per- sona standi in pidicio^ no means of enforcing contracts, can- not make contracts unless by such permission. 4. This rule has also been adopted and enforced in the courts of the United States. Thus where the claimant, a citizen of the United States^ had purchased a quantity of goods in the enemy'is country a long time before the declaration of the late war against Great Britain, and had deposited them on an island near to the boundary line between the two countries, upon the breaki'ig out of hostilities, liis agents had hired the vessel to proceed to the place of- deposit and bring away these goods ; on her return, she was captured, and with the car- go condemned as pi'ize of warj for trading with the ene- my. On the argument in this case it was contended for the claimant, that ihis was not a trading v^ithin the meaning of the cases cited to support the condemnation ; that, o» Q') I RMc\ JbridirmeiitA7o. (') 8 T. K, 549, rolls V, 13cU, in error. MARITIME CAPTURES AND PRIZES. S15 ihe breaking out of war, every crizen had a right, and it was the interest of the community to permit its citizens, to withdraw property lying in an enemy's country, and purchased before the war. But the court determined, that whatever relaxation of the strict rights of war, the more mitigated and mild practice of modern times might have established, there had been none on this subject. The vmi- vcrsal sense of nations had acknowledged the demoralizing effects which would result from 'he admission of individual intercourse between the states at war. The whole nation are embarked in one common bottom, and must be recon- ciled to one common fate. Every individual of the one nation must acknowledge every individual of the other na=" tion as his own enemy, because he is the enemy of his country. This being the duty of the citizen, what is the consequence of a breach of that duty ? — The law of prize is a part of the law of nations. By it, a hostile character is attached to trade, independent of the character of the trader v.'ho pursues or directs it. Condemnation to the captor is equally the fate of the property of the enemy and of pro- perty found engaged in an anti-neutral trade. But a citi- zen or ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks. This liability of the property of a citizen to con- demnation as prize of war, may likewise be accounted for on other considerations. Every thing that issues from a hostile country is^ prima facie, the property of the enemy | and it is incumbent upon the claimant to support the nega- tive of the proposition. But if the claimant be a citizen or an ally, at the same time that he makes out his interest he confesses the commission of an offence which, under a well known rule of the municipal law, deprives him of his right to prosecute his claim. Nor does this doctrine rest upon abstract reasoning only. It is supported by the practice of the most enlightened (perhaps we may say of all) commer= cial cations. And it afforded the court full confidence in 216, '* LAW OF CHAP. VII. their decision in this cascj that they found, upon recurring to the records of the court of appeals in prize causes, estab- lished during the war of the revolution, that in various cases it was reasoned upon as the acknowledged law of that court. Certain it is, that it was the law of England before the American revolution, and therefore forms a part of the admiralty and maritime jurisdiction conferred on the courts of the United States by their constitution. Whether the trading in this case was such as, in the eye of the prize law, subjects the property to capture and condemnation, depends on the legal force of the term. If by tradings in the luw of prize, were meant that signilication of the term, which consists in negotiation or contract, this case would ,certainly not come under the penalty of the rule. But the object, policy, and spirit of the rule is to cut off all commu- nication, or actual locomdtive intercourse between indivi- duals of the states at war. Negotiation or contract has therefore no necessary connexion with the offence. Inter- course^ inconsistent with actual hostility^ is the offence against which the operation of the mle is directed : And by substituting this term for that oi trading with the'enemy^ an answer is given to the argument, that this is not a trading within the meaning of the cases cited. Whether, on the breaking out of War, the citizen ,has a right to remove to his own countrj^ with his property, or not; the claimant, cer- tainly, had not a right to leave his own country for the pur- pose of bringing home his property from an enemy coun- try. As to th.e claim for the vessel, it was held to be founded upon no pretext whatever; for the undertaking was altogether voluntJiry and inexcusable-C^) So where hostilities had broken out, and the vessel in quer^tion, with a full knowledge of the war, and unpressed by any peculiar danger, changed her coui-se and sought an C*) Per .loHNsox, J, The Rapid. Supreme Court of the U, S, Tebru- ■^ty T. 1814. M. S. MARITIME CAPTURES AND PRIZES. 7^'^'^r 217 enemy's port, where she traded and took in a cargo, it was determined to be a cause of confiscation. If such an act could be justified, it were vain to prohibit trade with the enemy. The subsequent traffic in the enemy's country, by which her return cargo was obtairted, connected itself with the voluntary sailing for a hostile port : nor does the cir- cumstance that she was carried by force into one part of the enemy's dominions, when her actual destination was another, break the chain. The conduct of this ship was much less to be defended than that of the vessel last above eited.(') In another case, the vessel oivned by citizens of the Uni- ted States, sailed from thence before the war, with a cargo on freight, on a voyage to Liverpool and the north of Eu- rope, and thence back to the United States. She arrived in Liverpool, there discharged her cargo, and took in an- other at Hull, and sailed for St. Petersburg under a Bri- tish license, granted the 8th of June, 1812, authorizing the export of mahogany to Russia, and the importation of a re- turn cargo to England. On her arrival at St. Petersburg, she received news of the war, and sailed to London with a Russian cargo consigned to British merchants, v.uuered m Sweden, and in the spring of 1813 sailed under convoy in structions of a British man of war for England, where she arrived and delivered her cargo ; sailed for the United States in ballast under a British license, and was captured near Boston light house. After the decisions above cited, it was not to be contended that the sailing with a cargo, on freight, from Russia- to the enemy's country, after a full knowledge of the war, did not amount to such a trading with the enem}^, as to subject both vessel and cargo to con- demnation as prize of war, had they been captured whilst proceeding on that vo}age. The alleged necessity of un- (J) Per MAnsHALL, C; J. The Aksnnder. Supreme Court of llie U. S. February T. 1814. M, S. IBIS -^ LAW OF CHAP. VII. dertaking that vnynge to enable the master out of the frtight to discharge his expenses at St. Petersburg, coun- tenanced as the master declared by the opinion of the mi- nister of the United States there — that by. undertaking such a vo3age he would violate no municipal law ; although those considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it vas competent for the court to admit as the basis of its de- cision. The counsel for the claimant, seemed to be aware of the insufficiency of this ground, and applied their strength to shew tbat the vessel was not taken i7i delicto, having finished the offt-nsive voyage, in which she was engaged, in the enemy's country, and being captured on her return home, and in ballast. It was not denied hat if she had been taken in the same voyage in which the offence was committed, though after it was committed, she would be considered as still i?i delicto, and subject to confiscation ; but it was contended that her voyage terminated at the en- emy's port, and that she v/as, on her return, on a new voy- age. But even admit that the outward and homeward voyage could be separated, so as to render them two dis- tinct voyages, still it could not be denied that the termim of the homeward voyage were .St. Petersburg and the Uni- ted States. The continuity of such a voyage cannot be broken by a voluntary deviation of the master for the pjur- pose of carrying on an intermediate trade. That the going from the neutral to the enemy's country was not undertaken as a new voya'ge was admitted by the claimants, who alle- ged that it was undertaken as subsidiary to the voyage home. It was, in bhort, a voyage from the neutral country by the ivav of the enemy country ; and, consequently, the vessel, during anj' part of that voyage, if seized for any conduct ; ubjeciing her to confiscation as prize of war, was seized m ddictO,{'") ('^) Vcv WAsnisfQTON, J The Joseph. Supreme Court of the U. !^ Tehruarv T. 1814. M. S. ( JJIARITIME CAPTURES AND PRIZES. SlQ* Where goods were purchased sometime before the lute war by the claimant's agent in Great Britain on his sole account, but not shipped for the United States until the month of May, 1813 ; they were pronounced liable to con- demnation. The court expressed no opinion as to the right of a citizen of the belligerent stute, on the breaking out of hostilities, to withdraw his property, purchased bc^- fore the war, from the enemy^s country. Admitting such right to exist, it is necessary that it should be exercised vvidi due diligence and within a reasonable time after a know- ledge of hostilities. To admit a citizen to withdraw pro- perty from an enemy country a long time after the war, under the pretext of its having been purchased before the "war, would lead to the most injurious consequences, and hold out temptations to ojvery species of fraudulent and il- legal traffic with the enemy. To such an unlimited extent the right cannot exist. This shipment was not made until more than eleven montlis had elapsed after war was decla- red ; and the court were of opinion that it was then too late for the party to make the shipment, so as to exempt hira from the peiialty attached to an illegal traffic with the ene- iny.(") 5. The same -course of decisions which has established 'that property of a subject or citizen taken trading with the enemy, is forfeited, has decided also that it is forfeited as prize. The ground of the forfeiture is, that it is taken ad- bfring to the enemy, and"' therefore the proprietor is pro hac vice to be considertd as an enemy, and his propertv must be condemned to the captors.(") But in a case of this description, a claim was interposed by the United States claiming a priority of right over the captors to the proper- ty in question, upon the ground of an antecedent forfeiture (") Per SroixT, J. The St. Lawrence. Supreme Caurt oi" the U. S, February T. 1815 M. S. fo) 1 liobiimnt ?19. The Jfelly, Iv. A'jtis to the Hoop. to the United States by a violation of'the non-intercourse act of March 1, 1809; the goods having been put on ?)oard Avith an intent to import the same into the United States. It was however held that this claim ought not to prevail, and that the municipal forfeiture under the act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly within the purview of mere municipal laws of trade, but is confiscable under the Jus g'cnthi?7i.Q'^ 6. We have seen what is the rule of public end munici- pal la^v^n this subject, and what are the sanctions by which 3t is guarded. Various attempts have been made to evade its operation, and to escape its penalties, but its inflexible rigour has defeated ail these attempts. 7. Thus where goods were shipped by subjects of the belligerent state to a neutral port, with an ulterior purpose of sending them on tp the enemy's countty,, the goods were condemned as taketi in a course of commerce rendering them liable to confiscation. Without the license of gov- crnment, no communication, direct, or indirect, can be car- ried on with the enemy. The interposition of a prior port makes no difference ; o// trade with ihe enemy is illegal; and the circumstance that the goods are to go first to a neu- tral port, will not make it lawful. The trade is still liable* to the same abuse, and to the same political danger, what- ever that may h(i,(}) 8. So wliere the trade v/ith the enemy was by a house of trade, orte of the partners in which resided in the belli- gerent state, and the oth>.*r in a neutral country, the- sh ire of the former was condemned. And it has been decided that even an inactive or dormant partner cannot receive 0) Per Stout, J. Tiic bally. Supreme Court of the U. S. February T. 1814. M. S. . (".) 4i JRohimoii,TO. 'I'hc Jong'e Pictor. T/i/e also , 3 7?oWnson, 2?. Tjje Jiidiun ChivT. 1^. Maritime CAt-tuREs and prizes.' 2-21 restitution in a transaction, in which he could not be law- fully engaged as a sole trader. (■■) 9. All the apparent exceptions which have been suppo- sed to exist to the rule of law we are considering, far from weakening its force, do but confirm and strengthen it. 10. For example, if a belligerent subject employs a neu- tral to purchase for him in the country of the enemv, the neutral is, in such case, but the mere agent : The goods then must be considered to pass immediately from the enemy to the subject; and such a transaction would be il- legal. But if a neutral merchant has a ship or goods lying in a port of the enemy, he is at liberty to dispose of them even to a subject of the belligerent state, as freely as if they were on the seas. The locality of the thing will not affect the legality of the sale.(») The trading here stated is with a neutral in commodities, which though locally sit- uated in the enemy's country, have become incorporated into the stock of neutral trade. It is not the place where the thing is, which decides its neutral or hostile nature, but the national character of the person to whom it belongs. (*) Here is no communication, nor contract with the enemy; nothing forbidden by the policy of cutting off such com- munication, and by the impossibility of maintaining an ac° tion on such contract. 11. So also in the case of a shipment on the part of a person having been resident in Spain, the enemy's country, as consul of Great Britain, the belligerent state, who pur- chased the articles in question, for the supply of the British (r) 6 Rohinson, 127- The Franklin. (') 4 Jiobinson,2S4:. The Satnuel, in nofi's to the Countess of Lauder- dale. (') Vattel, L. 3. c. 5. § 75. Puisqiie ce n'est point le lieu ou vne choxe st trouve, qui decide de la nature de eette chose Id, mats l') 13. Not only is a trade v/ith the enemy on the part of the citizens or subjects of the belligerent state, prohibited and punished with confiscation in the courts of their own (") 5 Robinson,2Sl. TlieAbby. (^) Chimfs La-M of JVations, ir. 21. 2 Rul/Iuson, 133, Vide Supra. C m. § 17. (y) 5 Salmon, 91, Jn nolle. 5?24 LAW or viiw, VII. sovereign, but during a conjoint ^var, no subjext of a co- belligerent can trade with the common enemy without be- ing liable to a forfeiture of his property engaged in such trade, in the prize courts of the ally.(^) This rule is a co- roihiry of the other, and is founded upon the principle, that such trade is forbidden to the subject of the co-belligerent by the municipal law of his own country, by the universal law of nations, and by the express or implied terms of the treaty of alliance subsisting between the allied powers. And as the former rule can be relaxed only by the permis- sion of the sovereign power of the state, so this can only be relaxed by the analagous permission of the allied na- tions, according to their mutual agreement, A declaration of war naturally carries with it an interdiction of all com^. mercial intercourse ; it leaves the belligerent 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 that there should be a special iaterdiction of commerce to produce this effect. At the same time it has happened since the world has grown more commercial, that a practice has crept in of admitting particular relaxa- tions; and if one state only is at war, no injury is com- mitted 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 natiens are pursuing a common cause against a common en- emy. 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 ene- my, the conticquence will be that it will supply that aid and comfort to the enemy, especially if it is an enemy depend- ing very materially on the resources of foreign commerce, (') JBynkershoek, Q. J. P. L. 10. 1 Robinson^ 210. The Enigheid, citCi! ia the Hoop. 4 Rubmon, 251. The Nayad?. MARITIME UAPTUilES AND I'UIZL;. "I-Zo 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 inter- fere with the common operations, or that it has the allow- ance of the confederate state. (*) 14. The property of a citizen or subject of a belligerent state, tak?^n in a trade prohibited by the municipal law of his own country, is liable to confiscation in the prize courts of that country. It is a good moral and legal principle, that a man must come into a court of justice with clean hands, and that the law will not lend its aid to a person setting up a violation of law, on the face of his claim. It is a sound maxim, to which the courts of municipal law have always attended; and whether the penalty is great or small, or whether there be no penalty at all, yet, if the act is reprobated, a man will not be allowed to claim a right founded on it : But cases had not occurred in which the court of admiralty had met uvith occasion to apply such a principle, except in cases of property taken in a trade with the enemy ; but in such cases the exception is not to be considered as arising from municipal law, but from the principle of allegiance, which is a general principle of the law of nations. It was in the case of the Eliza Worsely,(^) that it was first decided that the court of admiralty was bound to take notice of an ille- gal practice evidently appearing in the conduct of a sub- ject of the belligerent state, whose property had found its way into the hands of a captor of his own country, if the transaction in which that property had been employed, wa,s i^) 6 Sobinson, 403. TheNeptunus. C) Lords, July 13, 1?98. ^2b I.AW OF CHAP. VII. a transaction contrary to the law of his own country :('^) And in the case of the Etrusco, it was decided, after lohg ijeliberation, that property condemned in consequence of the inadmissibility of such a claim, was to be condemned, not to the individual captor, but to the king.(^) 15. Such has been the course of decisions on this mat- ter in the British courts of prize. But the same courts have determined that the principle did not extent to bar, a neutral proprietor on account of his property having been taken in the act of violating the British navigation laws. The cases that have been mentioned were not cases in "which the courts that decided them took on themselves to exercise the jurisdiction of the revenue court, or to in- flict the penalties growing out of that species of law» What they did was only to reject the claim of British sub- jects in a prize court, in a transaction which evidently showed those individuals to be acting in violation of the laws of their country, which they were bound to observe* But there is no instance in which the same principle has been applied to foreigners. It was asked, if you apply such a principle to British subjects, why not to foreigners? Some distinctions are obvious. In the first place, it is to be recollected that the prize court is a court of the law of na- tions, though sitting under the authority of the king of Great Britain. It belongs to other nations as well as to its own; and what foreigners have a right to demand from it is the administration of the law of nations, simply, and ex- clusively of the introduction of principles borrowed from the municipal jurisprudence. In the case of a British sub- ject it is diiferent. To him it is a British tribunal, as well as a court of the law of nations ; and if he has been tramp- ling on the known laws of his country, it is no injustice to say, that a person coming into any of the courts of his own (') 2 Iio!iinso7i,77- The Walsingham Packet. (■' ) 4 Jiol/inson, 2iO, Tlig Cwolins^. Jn J\'^tii. MARITILIE CAPTURES AND TRIZE?. 22T country, to which he is naturally amenable, in such a transaction, can receive no protection from them. This cUfTerence of situation affords a sound and material distinc?, tion. As to foreign nations and their subjects, the brcacn of prohibitions of trade are merely mala prolubita; it is an offence against the peculiar law of the country, which they may justly demand to have tried more directly under that system of law to which it properly belongs. With respect to a subject, the violation of the laws of his own country, carries \(ath it also the malum in se ; and therefore it is no injustice to him, that his claim should be subject to rules, which the prize court might not think itself at liberty to apply to the subjects of foreign states. ('^) So also enemy property, being liable to condemnation Jure belliy cannot be confiscated for a breach of municipal law.(0 16. The trade in slaves has given rise to a peculiar case, which does not aiTange itself under the rule, that the pro- («) 6 Robinson, S41. The Recovery. C^) Vide ante, § 5. The Sally. This principle of tlie inadmlssibilit}' of a claim in the prize court, in violation of municipal law was applied by the supreme court to a case arising under the Registry Act of the 61st December, 1792, wliich prorides, § 4- That in order to the registry of any ship or vessel, an oath shall be taken atnl subscribed by the owner, or by one of the owners ^hereof, tleclarlng, if there be another owner or owners, that there is or are such other owi^r or owners, specifying his, Zier, or their place of abode. And that in case any of the matters of fact In the said oath alleged, which shall be within the knowledge of fr se^ which binds the commanders of other cruizers, to respect tlie safe-conduct thus given ; but it is the authority of the belligerent state, vmdcr the express or implied sanction of which this safe-conduct is given. For as the state cannot possibly execute every thing by its supreme magistrate, it (") CiVcro, Dc OfRciis, l- 1. c. 13. Grotms, De J. B. ac P. L. C; 23. § . Fnjfcndorf, J>. 3. c. 6. § 11. Loccenins, De Jure Maritimo, \j. o. tit. 3 No. 6. Burlimaqui, Part 4, c. 4. Valtel, L. 3. Cv 16. § i,2o' i") 2 UuUns, 15. ^filler ct -ji. v. tiic Itfsolutiou; MARITIME CAPTUKES AMD PRIZES. 233 is necessary that it should communicate a part of its power to its military and naval officers. Without a special man- date from the sovereign or state, these officers are consi- dered as invested with all the necessary powers for thej-j( proper exercise of their functions. As this is the case with the commanders of public armed vessels, so also is it with those of private armed vessels. They are authorised by the state, whose commission they bear, not only to cap- ture the ships and goods of the enemy, but also to ransom them when they judge it more advantageous. As it is on the part of the state and in the name of the state that they capture the enemy's ships and goods, so also it is on the part of the state, and in some sort, in the name of the state, that they ransom them. This contract, and the safe-con- duct which is granted in conformity to it, ought therefore ' to be considered as sanctioned by the authority of the state, to which all cruizers bearing its commission are bound to defer. So also by the implied obligation of the treaties of alliance, the cruizers of the allies of the captor's country are also bound to respect the safe-conduct which he thus grants according to its terms and conditions. (*^) 5. This safe conduct is of no avail unless the vessel is found within the course prescribed and the time limited by the contract. Thus by the French Ordinance of 1706, art. 8, it is permitted to the French cruizers to re-capture any ransomed vessel which thpy may find deviating from the course and time prescribed by the terms of the ransom- bill, and to bring the same into the ports of the kingdom, for condemnation. If, nevertheless, the ransom vessel ap- peared to have been driven out of her course by storms, and was about to resume it, it would seem to be equitable to allow her the benefit of the safe conduct. 6. If the ransomed vessel is lost by the perils of the seas before her arrival, the obligation to pay the sum stipu- (**) I'otlti^erf De Propriite, No. 134, 135. '234 LAAV OF CHAr. VIII. lated for her raiiGom is not thereby extinguished. The captor has indeed guaranteed the master of the captured vessel against being interrupted in his course, or re-taken by other cruizers of his nation, or its allies, but he has not insured him against losses by the perils of the seas. If, however, it is expressly agreed by the terms of the jan- som-bill, that the loss of the vessel, during her voyage, by the perils of the seas, should discharge the master from the payment of the stipulated sum, this contract ought to be observed in practice. But the frauds to which this clause may expose the captor, render it necessary that it should lie rigorously restrained to the case of a total loss on the high seas, instead of extending it to shipwreck or strand- ing, which would afford the master a temptation to cast away his vessel, in order to save the most valuable part pf the cargo, and thus avoid the payment of the ransom money. (•) 7". When the ransomed vessel, having deviated from the prescribed course, and exceeded the limited time, is re-ta- Icen by another cruizer of the same nation, a question arises whether the debtors of the ransom are in this case discharged from their obligation ? For the negative, it may be said, that if the proprietors of the ransomed vessel and goods are not discharged from the payment of the ransom by the loss of the vessel and goods through the perils of the seas, which is a case of inevitable accident, still less ought they to be discharged from this obliga- tion, where the loss is occasioned by the fault of their agent, the master, who by contravening the contract of xansom has voluntarily exposed himself to be captured by another cruizer. Notwithstanding these reasons, the prac- tice is well settled that when a vessel, after having been ransomed, has been retaken on account of a deviation from OPothier. nc Propri^tc, No. 138. F^to, Sur I'Ordonnance, L. 3. tit. ». DCS Prises, art. 19. MARITIME CAPTURES AND PRIZES. -23^ the terms of the ransom, the debtors of the ransom arc discharged from their obligation, which is merged in the prize, and the amount is deducted from the net proceeds thereof, and paid to the first captor, whilst the residue is paid to the second captor. The reason upon which this practice is founded is, that it is in the name and by the au- thority of the state, that the first captor ransoms the vessel; it is in the name and by the authority of the state that the second captor retakes her, the state having assign- ed its title both to the ransom and the prize to them : equi- ty and good faith will not then permit that the state, or one and the same person, should take both the vessel and the ransom of the vessel ; the amount of the ransom ought therefore to be deducted from the value of the vessel. C^) 8. When the captor, after having ransomed a vessel be- longing to the enemy, is himself taken by the enemy, to- gether with the ransom-bill of which he is the bearer, this ransom-bill becomes a part of the capture made by the en- emy, and the persons of the enemy nation, who^^^re debt- ors of the ransom, are thereby discharged from their obli- gation. This debt, once extinguished, cannot be again revived, even if the vessel which has ransomed that of the enemy, and is afterwards taken by the enemy, is subsequent- ly re-taken from the enemy.(K) When a captured vessel is ransomed, the papers are not to be taken possession of by the captor, but to be Ictt on board, and one or more hostages are to be taken as se- curity for the faithful performance of the contract ou the part of the captured. The death of this hostage does not discharge the contract; for the party trusts to him as a col- lateral security only, and by losing it does not also lose his (') Pothier, De Propriclc, Xo. 139. Valin, Sur I'Ordonnance, L. 3. tit, 9. Des Prises, art. 19. (y) JPof/'/er, De Propri^;^, No, 140. "2^ LAW QT CHAP. Vllf, original seciirlt)", unless there is an express agreement t-r* that effect. (•') 9. It has been determined in the English courts of com- mon law, that an alien enemy cannot, by the municipal laws of England, sue for the recovery of a right claimed to be acquired by him in actual war?(') and Sir William Scott states, that even in the case of ransoms, which are con- tracts, but contracts arising ex jure belli^ and tolerated as such, the enemy was not permitted to sue in hir^ own proper person for the payment of the ransom bill, even before British subjects were prohibited by the above- mentioned statvite from entering into this contract; but the payment was enforced by an action brought by the impri- soned hostage in the courts of his own country,- for the recovery of his freedom. C^) But it seems difficult, ex- cept for mere technical objections, to say why a suit should not be brought directly upon the ransom-bill itself, by the alien enemy, who is the holder of it, if it be a lawful con- tract. T",e express terms of the contract, as they are usu- ally inserted in ransom-bills, bind the master of the ran- somed vessd, as well in his own name, as in that of the owners of the vessel and cargo, to the payment of the stip- ulated sum. He is the agent of these owners, lawfully au- thorised to enter into such contracts as are for their benefit, and conducive to the preservation of the vessel and mer- chandize entrusted to his care. His signature therefore binds them as debtors of the ransom, and to reimburse the expenses of supporting the hostage, who has been given as a surety, in the enemy's countrj'.C) (*■) Valin, Traltc dcs Prises, c. II. Xo. 1 et r). Burrow's Reports, l/'34'. "R'lcord vs. Beltenham. (') Loutfliii' Rel)orts, 627- I'orrau vs. ITartby. (') 1 Jiohinson, 201. The TIoop. f) Pnthkr, We Prop:iO^, No. 136, \Z7. MARITIME CAPTURES AND PRIZES. 237 10. A recapture may be made either from a pirate ; a captor, clothed with a lawful commission, but not an ene- my ; or lastly, from an enemy. 11. In the first case, there can be no doubt the property ought to be restored to the owner; for as pirates have no lawful right to make captures, the property has not been dives'.ed from him. He has only been deprived of its possession, to which he has been restored by the recapture. For the service rendered to the owner, the retaker is enti- tled to a remuneration in the nature of salvage. (■^) Thus by the French Ordinance of 1681, Liv. 3. tit. 9. ties Pmes, art. 10, it is provided that, the ships and effects of the subjects or allies of France, retaken from pirates, and claimed within a year and a day after being reported at the admiralty, shall be restored to the owners, upon pa}menu of one third of the value of the vessel and goods, as sal- vage. And the same is the law of Great-Britain; but the usage of Holland, and of certain other countries, was formerly otherwise, giving the whole of the property to the Iretakers, as does that of Spain, if the property has been in possession of the pirates twenty-four hours. Valin, in his Commentary upon the above article of the French ordinance, is of the opinion that if the recapture be made by a foreigner who is a subject of a state, the law of which gives to the recaptors the whole of the property, St could not he res'.ored to the former owner; and he cites in support of this opinion a decree of the parliament: of Bordeaux, of the 8th March, 1635, in favour of a sub- ject of Holland, who had retaken a French vessel from pi- (m) Grotius, De J B ac P L. 3. c. 9. § 17. Lrjcccnius, Be Jure Mar. L, 2. c. 3. No. 4. Bi/nhershoek, Q. J. P. L. 1. c. 17. 2Bro~Mn's Civ.^J Adm. Lcno, c 11. p. 461- Ea que piratoe nobis eri^merimty non ofjus ha~ ietit postliminio ,• qxiia jus gentium iiUs non conceilit, ut J;.'s dominii mutari possiiH, Ff. dc cant, ct postl. revars. Abbott o:iShrppi:r^ — Story's edition 12. 51 23S LATV Otf OHAP. VIII rates. (") To this opinion Pothier objects, that the laws of Holland having no power over Frenchmi;n and their pro- perty within the territory of France, the French subject could not thereby be deprived of the property in his vessel, which was not divested by the piratical capture, and that it ought consequently to be restored to him upon payment of the salvage prescribed by the ordinance. f") Under the term allies, in this article, are included neu- trals ; and Valin is also of opinion that the property of the subjects of friendly powers retaken from pirates by French captors ought not to be restored to them upon pay- ment of salvage, if the law of th( ir own country gives it wholly to the retakers, otherwise there would be a defect of reciprocity, vvhich would offend aguinst th it impartial jus- tice which is due from one state to another.(i') But a capture by the Barbary powers is not a piratical seizure, which will have the effect of invalidating the con- version of property under it. They were formerly consi- dered as pirates, but have since acquired the rights of lega- tion and of war in form. Consequently recaptures from these states are to be judged by the same rule as those from any other public enemies. ^i) - 12. If the properly be re-aken from a captor clothed with a lawful commission, but not an enemy, there would still be as little doubt that it must be r£stored to the origi- nal owner. For the act of taking being in itself a wrong* ful act could not change the property which must still re- main in him. If the neutral vessel thus recaptured were laden with contraband goods destined to an enemy of the fust captor, (») Valin, Siir rOrdonnancc, L. 3. tit 9. Des Prises, :ut. 10. (") I'othier, Dc ProprK-l^, No. 101. Jp) V'^liii, Sur rOrdoniianco, L 3. tit. 9. dcs Prises, art. 10 ^1) 4 liobinson, 3. ThcHc-k'a. MARITIME CAPTtJRES AND PRIZES. 230 it may be doubted vvhc ther they should be restored, inas- much as they were liable to be confiscated to the first, cap- tor. But a Dutch ship taken under these circuitx-itanccs was restored by the French council ol prizes, in 1759; and the decision seems lo be conformable to principle. Sal- vage ought, however, in this distance, to be given to the re- captors, as it is tothe.r exeriions that the property is in- debted for its escapf from conderiination.(') But, in general, no salvage is due for the recapture of Heutral vessels and cffi..cts, upon the' principle that the libe- ration of a bona fide neutral from the hands of the enemy is no beneficial service to him, inasmuch as the same enemy" would be compelled by the tribunal of his o\vn country to make restitution of the property with costs and damages, for the unjust seizure and detention. Such is the rule laid down in the French prize code.(') To this general rule, however, an important exception has been made, founded on the principle mentioned in the Code dcs Prises in case the vessel and cargo are liable to be confiscated by the enemy. In that case, it is immateri- al whether the property be justly liable to be thus confisca- ted according to the law of nations, since thjtt can make no difference in the meritorious nature of the service ren- dered to the original owner by the recaptor. For the groui>d upon which salvage is refused by the general rule is that the prize courts of the captor's country will duly respect the obligations of the law of nations ; a presump- tion, which in the wars of civilized states, each belligerent is bound to entertain in their respective dealings with neu- trals. But if in point of fact those obligations are not duly (f) J\I(irtens on Privateers, § 52. (*) Sa JMajest^ a juge pendent la derr.iere gnerre, que la reprise ihi tia-. t'ire ncutre faite par nn corsaire Francais florsqiie le navire n etailpai charg6 demarchandises prohibSes, ni dans le cas d'etre con^sqn^ parCenne,' ■t;:ij etait rv.dle, Code cUs Prisss, an 1784; tern, ^. 24© LAW ei- CHAP. VIII. respected by those tribunals, and in consequence neutral pro- perty is unjustly subjected to confiscation in them, a substan- tial benefit is conferred upon the original owner in rescuing his property from this peril, which ought to be remu- nerated by the payment ot salvage. It was upon this prin- ciple that the prize courts of England and of the United States, during the v/ar which was terminated by the peace of Amiens, pronounced salvage to be due upon neutral property retaken from French cruisers. During the revo- lution in France, great irregularity and confusion had ari- sen in the prize code, and had crept into the tribunals of that^country, by which the property of neutrals was render- ed liable to be condemned upon grounds both unjust and unknown to the law of nations. The recapture of neutral property which might have been exposed to confiscation by 'Tieans of this irregularity and confusion was therefore con- sidered by the English and A iierlcan courts of prize, as a meritorious service, and remunerated by the payment of salvage. C^) The issuingof the French decreee at Berlin, ou the 21sL November, 1806, occasioned the exception to be re- vived in the practice of the British prize couri:s, who again adjudged salvage to be paid for there-capture of neutral pro- perty which v/as liable to condemnation under that decree. (") It is true that that the decree had remained inoperative up- on American property until the condemnation of the car- go of the Ilorrzon by the council of prizes, in October, 1807, and therefore it may be thought, perhaps, in strict- ness, the English court of admiralty ought not to have de- creed salvage in the case of the San.^om^ more especially as the convention of the thirtieth September, 1800, between <"•) 2 Robinson, 299. T!ie War 0;iskan. 1 Cranch, 1, Talbot vs. Seaman, A, Jiohimon^ 156. 1 lie F.lconnra Calharina. 5 Robinson, 54:. The Car- lotta. 6 Robinn'in, lOi. The Huntress. («) 6 Robinnon, 410. The Sanson^. I Edivards, 254, The Actcon Vide Appendix, N) A question drose irt France upon the construction of this article undir the following circumstances. A French pri- vate armed vessel, during war with England, had taken an English merchantman and kept possession for three days, at the ei.d of which time both vessels were taken by 'the C) Azuvi, Part 2. c 4 § 11. (y) VaJin, Siir I'Ordonnance, L. 3. tit. 9. Deis Pr'ses, srt 3. Poihi-r, Dc rropriiJ-Cj No 97. 1 Cade lies Prises, 9. MARITIME CAPTURES AND PRIZES. 246 English, and after being in their possession sixteen hours were re-taken by another French private armed vessel. There was no doubt raised as to the French private armedi vessel which had been re-captured that she must be resto- red upon payment of one third of the value for salvage. The question was respecting the English merchantman, which the first captor maintained ought to be restored to him as well as his own vessel. The grounds upon which he sup- ported his claim, were that he had acquired the domain of property in this prize, it having remained in his possession for three days, and that he must be considered as preserv- ing it, notwithstanding the recapture by the enemy, who had maintained his possession only sixteen hours. On the other hand the French recaptor contended that although the English prize belonged to the first captor whilst it remain- ed in his possession, it was no longer his when retaken from the enemy ; that although he preserved the right of proper- ty in his own vessel, because it had not remained in the hands of the enemy more than twenty-four hours, it did not therefore follow that the same rule was to be applied to the English prize, for it is of the nature of domain of pro- perty which we acquire in things taken from the enemy that we preserve it no longer than those things are in our possession, and lose it the moment we are divested, and they again frill into the enemy's hands, in the same manner as we retain the property of savage animals only so long as they are in our possession, and lose it the moment we part with the possession, and they have returned to their natural state of liberty. Upon these grounds the council of State decided in his favour, and by a decree of the fifth November, 1748, condemned the English prize to his use.(*) 15. The laws of Spain upon this subject are the same with (0 Valin, Sur I'Ordonnance, L. 3. tit. 9. Dcs Prises, art. 3. Ptthier, De Propri^tc, No. 98. «2 446 XAW OF CHAP. Vlll. those of France, except in the single case of recapture from pirates mentioned above. 16. By the Portuguese Ordinance of May, 1797, the rate of salvage on recaptures was established for ships of war at one eighth, and one fifth for privateers. 17. By the laws of Denmark, if a Danish ship be recap- tured, before she has been in possession of the enemy for twenty-four hours, the property is equally divided between the original owner and the re-captors ; if after being in pos- session of the enemy twenty four hours, is then condemn- ed to the recaptors. "'■' 18. By the Swedish Ordinance of 1667, it is declared, that in case a Swedish vessel taken by the enemy, shall be recaptured, the recaptor shall be entitled to a salvage of two thirds the value, and the rernaining third shall be res- tored to the owner without regard to the length of time the property may have been in the enemy's possession. 19. By the British statutes of the thirty-third George III. c. 66, forty third George III. c. 160, and forty fifth George III. c. 72, it is enacted, that any vessel, and goods laden therein, taken as prize, which shall appear to have belonged to British subjects, or to the British dominions, and which shall be retaken, shall be restored to the former owners, upon payment for salvage of one eighth part, if re- taken by any of his majesty's ships, and if retaken by any privateer, or other vessel or boat, of one sixth part of the value. And if the same shall have been retaken by the joint operation or means of one or more of his majesty's, and one or more private ship or ships, then the proper court shall or- der such salvage to' be paid as shall be deemed reasonable. But if the vessel so retaken shall appear to have been set forth as a vessel of war by the enemy, then the same shall not be restored to the former owners, but shall be adjudged lawful prize for the use of the captors. And if the recaptured vessel had not been carried into an enemy's port, it shall be Jawful, with the consent of the recaptors, for her to prose- MARITIME CAPTtJRES AND PRIZES. 24? Cute her voyage, and . the recaptors need not proceed to Adjudication until six months after, or the return of the vessel to the port from whence she sailed : if the vessel does f ot return to such pott directly, or the recaptors have had no opportunity to proceed to adjudication within the time limited on account of the absence of the vessel, the proper court shall decree restitution to the former owners, at the instance of the recaptors, on payment of salvage, and upon reasonable evidence. 20. By the act of the third March, 1800, the Congress of the United States have provided, Sec. 1. That when any vessel, other than a vessel of war or privateer, or goods, which shall be taken as prize, shall appear to have before belonged to any person resident within or un= der the protection of the United States; and to have been taken by their enemy^ the same not having been condemned as prize before the recapture thereof, the same shall be re- stored to the former owner, upon payment for salvage, if retaken by a public Vessel of the United States, of one eighth part, and if by a private vessel, one sixth part, of the value of the vessel or goods so to be restored, excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and alrfied as a vessel of war, before the retaking thereof, the former owner, shall be adjudged to pay for salvage one moiety of the value of the same. Sec. 2. That when any vessel -or goods, which shall be taken as prize, shall appear to have before belonged to the United States, and to have been taken by their enemy, the Same not hav- ing been condemned as prize before the recapture thereof, shall be restored to the United States. And for salvage, there shall be paid from the treasury, of an unarmed ves- sel or any goods therein, one sixth part of the value, when ihade by a private vessel, and one twelfth part when made I)y a public armed vessel of the United States ; and for the recapture of a public armed vessel, or any goods therein;, 548 LAW OP CHAP. Vlll. one moiety of the value when made by a private armed vessel, and one fourth part when made by a public armed vessel of the United States. It will be perceived that there is a material difference between the British and American laws on this subject ; the British continuing the jus postliminiiy as between the original owners and recaptors, forever, unless the vessel retaken appears to have been set forth by the enemy as a ship of war,— whilst the United States'^law continues the juspostlimmii until the property is divested by a sentence of condemnation in a court of competent jurisdiction, and no longer. (») Under the first section of the above law of the United States, it has been adjudged that the salvage for recapture of goods, being American property on board an American armed ship, which was fitted out for war, and made resis- tance, was only one eighth part, if retaken by a public ves- sel, and if by a private vessel, one sixth part of the value, although the salvage for the ship was one moiety. The words of the statute were construed as expressing this dis- tinction. C*) e 1 . Where a vessel of the belligerent state had been cap- tured, and afterwards sold by the enemy to a neutral at sea, who purchased for the purpose of restoring her to the ori- ginal owner, salvage was held t© be due. If the neutral had purchased the vessel upon his own account, it would have been an illegal transaction ; as he coi^ld derive no ti- tle from the captors without a previous sentence of con- demnation. But being a transaction by which, under the form and colour of a sale, he was to recover the proper- ty for the owners, he had rendered them a very meritorious (') 4 Cvancli, 293. Iliilson vs Gucsticr. And such was the principle adopted in the Knghsh tribunals before it was changed by their statutes- 2. Burroiv, 6vhole freight, subject to a deduction for salvage. In this case the master was taken out on the first capture, and ow- ing to that circumstance, no claim was immediately given lor the cargo. The case of the cargo was therefore litiga- ted — and was the court to say that the ship was to stay ahd wait the result of the proceedings, when she herself had (') 5 Robinson, 315. Tlie Wight. Hft MARITIME CAPTURES AND PRIZES. 251 been restored, whilst the cargo was contested, and might be condemned, and whilst it was by no means clear, that anv cargo would remain to be carried on ? This would be an unreasonable expectation. The court did not say that a party is to act in a hasty manner, and to run away imme- diately on the restitution of his ship. Something is to be conceded in the 'way of accommodation j a reasonable time is to be allowed, and if it is not allowed, a proportion of the freight may be deducted. So also where a ship was re-taken, brought in, and immediately restored, with some part of the cargo claimed for the owner of the ship; the re- mainder of the cargQ was sometime afterwards claimed and restored upon the original evidence : The cargo had been unloaded, but the ship was not gone away at the time of the restitution, and a demand was made upon the mas- ter to take the cargo on board again, and proceed on his original voyage ; but he refused, and went away with the ship J and the owners of the cargo were obliged to find an- other conveyance for their goods. The question as to the freight was brought before the prize coutt, and it was ob- jected, that it was not due, as the ship had not performed her part of the contract ; but the court decreed the whole freight to be a charge on the cargo. (^) But where a ship was captured on her outward voyage, re-captured, and brought b^ck to the port or ^uasi port of her departure, freight pro rata itmeris was held not to be due.(s) And in giying salvage on freight the prize court makes no separa- tion as to minute portions of the voyage. When the voy- age has commenced, and the freight is in the course of be- ing earned, the whole freight is included in the valuation of the property on which salvage is given. ('') (f) 3 Robinson, 101. The Race Horse. The Hamilton, in notis. (8) lb. 180. The Hiram. (") 6 Sobipion, 88. The Dorothy Foster: 252 LAW OF CHAP. VIII^ 24. But besides the case of recapture which we have hitherto considered, a vessel and goods may be recovered from the enemy's possession by the insurrection of prison- ers, on board ; or by being forced by stress of weather, or by other accidcntcoming into port, or falling into the hands of the subjects of the belligerent state or of friendly pow- ers. These circumstances form the cases of rescue from the enemy, and the finding of property derelict which has been in his possession. 25. In the case of rescue we must distinguish whether it be of property belonging to the citizens or subjects of the belligerent state by other citizens or subjects of the same ; of foreign property by foreigners ; of foreign property by the citizens ot subjects of the bfelligerent state ; or, lastly, of their property by foreigners. In all these instances the property is restored upon salvage : and in the first men- tioned the rule adopted in giving salvage is that of recap- ture ; but the right of a tribunal of the belligerent state to entertain a demand for salvage upon foreign proper- ty rescued hy foreigners has been questioned. It has been intimated by a high authority that salvage being a question of the jus gentium, and materially different from the question of a mariner's contract, which is a creature of the particular institutions of each country, to be applied, and construed, and explained by its own particular rules, there could be no reason why foreign seamen rescuing foreign property might not maintain an action i7i rem be- fore a court of the law of nations, sitting in the country into which the property was brought. In the last mention- ed instances, the claim is general upon the general ground of quantum meruit^ to be governed by a sound discretion acting on general principles, and no reason can be seen why one country should be afraid to trust to the equity of the courts of another on such a question so to be determined. If it be said that different countries may have different pro- portions of salvagej and therefore, an inconvenience may MARITIME CAPTURES AND PRIZES. 253 arise from such interference : it is answered that there ex- ists no rule on this matter, beyond that which subjects it to a sound discretion, distributing the reward according to the value of the services that have been performed. There is no peculiar rule prescribed in the British and American laws, and none in the codes of other nations ap- plying to the cases of foreign property rescued. This consideration, thei-efore forms no solid objection against the exercise of the jurisdiction, and there is great reason for it, because it is the only way of enforcing the best secu- rity—that of the lien on the property itself. (') The French Ordinance of 1681 prescribes that, if the vessel not having been recaptured, is abandoned by the enemy, or by storms or other accidents returns into the possession of subjects of France, before being carried into an enemy's port, she shall be restored to the former owner, if claimed within a year and a day, although the possession of the enemy may have coatinued niiere than: twenty-four hours-^L. 3. tit. 9. art. 9. Des Prises. Upon the construction of this article, Valin is of the opinion that it should be likened to the case of a shipwreck, and that the salvor is entitled to one third of the value ft»c salvage as provided in the twenty-seventh article of the same ordinance Tit. des Naufrages, To which Azuni ob- jects that the ninth article being silent upon the subject o£ the payment of salvage, this omission cannot be supplied by a reference to the twenty-seventh, which relates wholly to goods lost by shipwreck, found derelict on the sea, or drawn up from its bottom. He who restores to the ori- ginal owner a vessel found abandoned on the high seas, has rendered a less meritorious service than he who ex- poses his life and property to rescue a captured vessel Ironi the hands of an enemy. The reward in the first ,(>) 1, Robinson, 2ri. The Two Friends. *^ 33 254 LAW OV CHAP. Vlll. case, ought, therefore tobe les§ than in the second, though proportioned to the nature and extent of the service per- formed, yet always less than a third of the value of the ar- ticles recovered. (^) 26. In the case of property found derelict which has been in the enemy's possession, as well as in that of a rescue from him, our municipal law has prescribed no positive rule as to the amount of salvage to be paid. In such a case therefore the amount is not limited by the act of Con- gress, but may be enlarged or diminished, in the discretion of the court, according to the particular merit of the ser- ^yice rendered.(') Where an enemy vessel was taken by the other belliger- ent, and abandoned on the high seas, and afterwards fell Into the hands of a neutral, who brought her into a port of his own country, it was determined in the prize court of that country that immpdtately on the capture the captors acquired such a right as no neutral nation could justly im- pugn or destroy ; and that consequently the abandonment did not revive the right of property in the original propri- etor. The prize was therefore restored to the captor upon the payment of salvage to the neutral salvor. T*") So where Great Britain and France were at open war, and two French frigates captured the ship in question, and after taking out part of the cargo made a present of her to the libellants in the cause, citizens of the United States then neutral (whose vessel the frigates had before taken and burnt) by whom she was navigated into a port of their own country, and pending the suit instituted by them, war was declared between the United States and Great Britain, a (i<) Valin, Sur rOrdonnance, L. 3. tit. 9. art. 9. Des Prises. Azuni, part 2. c. 4. § 8. (1) PcU'r^s .1dm. Bccisiona, 84. Clayton et al. vs. the Harmony. 1 Iioliinson,270. Tlic Two Friends. Edwards 79. The Lord Kelson. ("') 3 Dallas, 188. IVI'Donaough vs. Dannery and the ship Mary Ford. MARITIME CAPTURES AND PRIZES. 255 question arose whether, this was a case of salvage. The fact of the gift was established by a writing under the hand of the commander of the squadron of frigates, in these words, ye donne au capitaine, &c. in the language of an unqualified donation inter vivos. In this case, the mosv natural mode of acquiring a definite idea of the rights oi the parties in the subject matter, would be, to follow it through the successive changes of circumstances by which the nature and extent of those rights were affected. The capture, — the donation, — the arrival in the neutral coun- try ,j— and the subsequent state of war. As between belli- gerents, the capture undoubtedly produces a complete di- vesture of property. Nothing remains to the original pro- prietor but a mere scintilla Juris the spes reciLperandi* The modern and enlightened practice of nations has sub- jected all such captures to the scrutiny of judicial tribunals, as the only practical means of furnishing docunientary evi- dence to accompany vessels that have been captured, for the purpose of proving that the seizure was the act of so- vereign authority, and not of mere individual outrage. In the case of a purchase made by a neutral. Great Britain de- mands the production of such documentary evidence issu- ing from a court of competent authority, or will dispossess the purchaser of a ship originally British. (") Upon the donation, therefore, whatever right, might, in the abstract, have existed in the captor, the donee could acquire no more than what was consistent with his neutral character to take. He could be in no better situation than a prize master na- vigating the prize, in pursuance of orders from his com- mander. The vessel remained liable to British recapture on the whole voyage : and, on her arrival in a neutral territory, the donee sunk into a mere bailee for the British claimant, with those rights over the thing in possession {^) Robinson, 114, Tlie Flad Oyer ^56 llAW OF CHAP. VIII. which the mutilcipal law (civil and cQinmon) gives for care and labour bestowed upon it. The question then recurs, was this a case of salvage ? On the negative of the proposition it was contended, — that it was a case of forfeiture under the municipal law, and therefore not a case of salvage as against the United States ; that it was an unneutral act to assist the French belligerent in bringing the vessel infra prcesidia^ or into any situation, where the rights of recapture would cease, and therefore not a case of salvage as against the British claimant. But the court entertained an opinion unfavourable to both those objections. This could not have been a case Avithin the view of the legislature, when passing the non-importation act of March, 1809. The ship was the plank on which the shipwrecked mariners reached the shore ; and although it might be urged that bringing in the cargo was not necessarily con- nected with their own return to their country, yet, upon re- flection, it will be found, that this also can be excused upon fair principles. It was their duty to adhere strictly to their neutral character ; but to have cast into the sea, the cargo, the property of a belligerent, would have been to do him an injury by taking away that chance of recovery, subject to which, they took it into their possession. Besides, bring- ing it into the United States did not necessarily presup- pose a violation of the non-importation laws. If it came within the description of property, cast, casually on our shores, as the court were of opinion it did, legal provision existed for disposing of it in such a manner as woidd com- port with the policy of those laws. At last, they could but deliver it up to the hands of the government, to be re-ship- ped by the British claimant, or otherwise appropriated un- der the sanction of judicial process. And such was the course that they pursued. Far from attempting any violation of the laws of the country, upon their arrival, they deliver- ed it up to the custody of the laws, and left it to be dispo- MARITIME CAPTUKES AND ViiLZhS. 257 sed of under judicial authority. The case had no feature of illegal importation, and could not possibly have imputed to it the violation of municipal la\v« As to the question arising on the interest of the British claimant, it would, at that time (war having supervened) be a sufficient answer, that they who had no rights in the court, could not urge a violation of their rights against the libellants. But there was still a much more satisfactory answer. To have attempted to carry the vessel infra pra- tfidia of the enemy, would, unless it could have been excu- sed on the ground of necessity, have been an unneutral act. But where every exertion is made to bring it into a place of safety, in which the original right of the captured would be revived and might be asserted, instead of aiding his enemy, it is doing an act, exclusively resulting to the benefit of the British claimant. It being determined to be a case of salvage, the next question was, as to the amount to be allowed. On this sub- ject, there is no precise rule ; nor is it, in its nature, redu- cible to rule — For it must, in every case, depend upon pe- culiar circumstances such as peril incurred, labour sustain- ed, value saved, &c. all of which must be estimated and weighed by the court that awards the salvage. When a proportion of the thing saved has been awarded, a half has been the maximum, and an eighth the 77iinimum ; below that, it is usual to adjudge a compensation iji numero. In some cases, indeed, more than a half may have been award- ed ; but they will be found to be cases of very extraordi- nary merit, or on articles of very small amount. In this case the proceeds of the sale of the cargo amounted to near six thousand dollars, and the court were of opinion that one half of that sum would be an adequate compensation. (°) («) Per JoHusoK. J; The Adventure, Supreme (Joxirt of tlie U. S. Fe» bruary T. 1814. M. S. Fide Supra, C. I, § 5. 2j8 law of chap. IX. CHAPTER IX. Of the jurisdiction and practice of Courts of Prize. 1. The validity of maritime captures is, with certain ex- ceptions, determined in courts of prize established in the country of the captor, and judging by the law of nations. ' 2. Among these exceptions is included the case of a neutral power, the prize courts of which have the exclusive authority of determining the validity of captures made by the cruisers of the belligerents within its territorial juris- diction. Thus by the laws of the United States the district courts are authorized to take cognizance of complaints, by whom- soever instituted, in case of captures made within the wa- ters of the United States, or within a maiine league of the coasts or shores thereof. (*) 3. And a neutral state will restore the property of pow- ers in amity with it, or of their subjects or citizens, taken by armed vessels fitted out within the dominions of the neutral state in violation of its neutrality, and which pro- perty is brought into its ports. (^) 4. So also, when captured property is brought into a neutral portj the neutral sovereign or state will restore the property of its own subjects or citizens, if the same has been illegally taken from them.(*=) (*) Vide supra. Chapter II. § 14. (") Vide supra, Chapter II. § 7. (c) Peters' Admiralltj Decisions, S30, ITollingsWortb fit al- VS. th^gCt- licy, 3 Dailat, 6. Glass et al. vs. the Betsey. MARITIME CAPTURES AND PRIZES. 269 Thus by the French ordinance of 1681, Liv. .'?, tit, 9, Des Prises^ art. 15, it is provided that, If on board the pri- zes brought into our ports by ships of war under the com- mission of a foreign prince or state, there be found goods belonging to our subjects or allies, those of our subjects shall be restored to them, and the others shall not be stored, nor purchased by any person, under any pretext whatsoever. The same provision is contained in the 16th article of the Spanish ordinance of 1718. And by the preceding article of the French ordinance above referred to, prizes taken by ships of war under a foreign commission, are forbidden from remaining more than twenty-four hours in the ports of France, unless they are detained by tempests, or unless the prize xuas taken from the enemies of France. In his com- mentary upon these articles, Valin expresses an opinion that it is immaterial whether the prize be taken by the cruisers of an ally or confederate of France, or from a common enemy by a co-belligerent with whom there is no subsisting treaty of alliance ; for in either case the goods of the prize may be stored, aird purchased with safety by any person. 5. But subject to these exceptions, the right of property acquired by capture continues in the captors who have brought their prize into a neutral port, or within the ter- ritorial jurisdiction of a neutral power. For, though the civil right of property in the prize may not be vested in the captor until a sentence of condemnation, yet the jjiili- iary right of property which is evidenced by possession is completely vested in him by the capture. By what right then shall the neutral sovereign who is the friend of the captor, take from him those things which belong to him, jure belli ^ and give them up to another, though he be equally his friend ? He cannot do it by his courts of jus- tice, for he cannot lawfully judge between the captor and his enemy, without the consent of both. But the neutral 5s !>ound to see ri^ht wlicrcvcr he sees possession ', he is U60 V.AW OF CHAP. IX. bound to take tht fact for the lazv. If, tlicrefore, a vessej, after capture, should cscajje, or be brought into a neutral territory by others than the captor, his agents, or those v/ho otherwise lawfully claim under him, as there is in* * . " . ... longer any legal evidence of the military right, no fact which is to ht taken for laxi\ the civil right of the former owner revives, and the property returns to him by the law oi postliminium. It is however to be understood that in case the property has been regulaily condemned in the proper court, such a condemnation converts the military into a civil right, and precludes the operation of the law o^ postliminium in favour of the original owner.(^) 6. It is the opinion of many writers of authority, that the belligerents have not only a right of asylum in neutral ports, but that they have a right to sell in those ports their prizes, and to recover and appropriate to themselves the proceeds of the same. But unless it is permitted by the municipal law of the neutral country impartially to all the belligerents, or exclusively allowed to one or more by spe- cial treaty, there seems to be nothing in the principles of public law which can prevent the neutral from withholding it entirely. Thus by the French law, as we have seen be- fore, the sale of prizes taken from powers in amity with France, and brought into her ports, is expressly forbid- den; and Valin remarks upon this prohibition that it is founded upon the laws of neutrality. Vide Bee's Adm. Reports, 263. Consul of Spain, vs. consul of Great Britain. 7. Another exception to this general rule, that the validity of maritime captures is determined in courts of prize esta- blished In the cowitry of the captor^ is to be found in the case of prizes carried into a i)ortof an ally in the war, or of a co-bel- ligerent, and adjudicated upon by a consular tribunal of the captor's nation established in the country of the ally or co-bcUigertnt. Tlie exercise of such a jurisdiction on the part of the consul of a foreign, though fiendhj power, is ('•') /;(/ I'uncraui liijnlnnih'ich, Q. J. P. I- 1. C, IJ. MAKITIME CAPTURES AND PRIZES. 261 unquestionably unlawful, unless it be expressly permitted by treaty. But if the ally or co-belligerent chuse to waive his strict rights of sovereignty for this purpose, other par- ties cannot complain of it, since he thereby violates no duty, as a neutral would do in a like case. C^) 8. Subject to these exceptions the validity of maritime captures is always determincdin courts of prize establish- ed in the country of the captor ; and that whether the pro- perty is carried into his own port or a pdrt of an ally or co-belligerent, or whether it be carried into a neutral port^ 9. And respecting the first case there can be no doubt. In the second case (where the property is carried into the port of an ally, or co-belligerent) there is nothing to prevent the government of the country from permitting the exercise of that last, and crowning act of hostility, the condemnation of the property of one belligerent to the other ; there is a com- mon intei'est between the two governments, and both may be presumed to authorize any measures conducing to give effect to their arms, and to consider each others' ports as mutually subservient. Such an adjudication is therefore sufficient in regard to property taken in the course of the operations of a common war. {^) 10. But where the property is carried into a neiitralporty it may appear more doubtful whether the validity of the 'capture can be determined even by a court of prize estab- lished in the captor's country. It may be said, that on principle, the security and consummation of the capture is as complete in a neuti'al port, as in the port of the belliger- ent himself. On the mere principle of security, it may per- haps, be so; but it is to be remeitibered, that this is a matter not to be governed by abstract principles alone : The use and practice of nations have intervened, and shifted the matter irom its foundations of that species : The expression i.e) 2 Robinso7i, 210. In J\'otis. 3 liobinson, 333. The Cosmopolite, :0 3 ^&^i«w> 209. The Christopher. 34 262 LAW oj? CHAP, ix'' "vvhich Giol'ius uses on these occdisions placuk gentibus^ is perfectly correct, intimating, that there is a use and prac- tice of uatibrls to which we are now expected to conform. Without entering into a discussion of the various opinions that have been thrown out on this subject, the better opin- ion and practice may be stated to have been, that a prize iihould be brought infra prccsidia of the capturing country, where, by being so brought, it may be considered as in- corporated into the mass of national stock. The greatest exceptions that have been allowed, has not carried the rule beyond the ports or places of security, belonging to some friend or ally in the war, who has a common interest in dc' fending the acquisitions of the belligerent, made from the common enemy of -both. In latter times, an additional formality has been required, that of a sentence of condem- nation in a competent court, decreeing the capture to have been rightly made jure belli ; it not being thought fit, in civilized society, that property of this sort should be con- Verted without the sentence of a competent court, pro- nouncing it to have been seized as the property of an efiemy, and to be now become jure belli the property of the captor. The purposes of justice require, that such ex- ercises of war should be placed under public inspection ; and therefore the mere ckdiictio inj'ra pra'sidia has not been deemed sufilcient. From the moment that a sentence of condemnation becomes necessary, it imposes an additional obligution for bringing the property, on which it is to pass, into the country of the captor ; for a legal senteiice must be the result of legal proceedings, in a legitimate court, armed with competent authority upon the subject matter, :uid upon th'.' parties concerned — -a court which has the me^ws of pursuing the' proper enquiry, and enforcing its tlc.cis'ipns. These are principles of universal jurisprudence applicable to all courts, and more especially to those which by their constitution, in all countries, must act in rem, upon the corpwi or substj\ncc of the thing acquired, and upon MARITIME CAPTUniiS AND rillZKS, 2GJ. the parties, one of whom is not subject to other rights than those of war, and Is amenable to no jurisdiction, but such as belongs to those who possess the rights of war against him- Upon principle, therefore, it is not to be asserted, that a ship brought Into a neutral port, is witli efiect proceeded against in the belligerent Country. The res ipsa^ the ccr- pus^ is not within the possession of the court ; and posses- sion, in such cases, founds the jurisdiction, Wliat is tlie authority over the parties? Over the captors it is com- plete, on account of their personal relation to the belligerent country. The neutral government may be balled upon, in the usual mode of requisition known to the law and prac- tice of nations, to enforce upon the captors the orders and decrees of the state to which they belong. But how v.ill it be maintainable over the other parties, v/ho are not suli- jects either of the neutral or belligerent state, and are, in respect to the point in issue, only subject tq the jurisdic- tion of war ? The belligerent state itself has not the mean; of exercising the rights of \yar over them directly : — can it call on the neutral state by requisition so to do? Mor.jt clearly not. The neutral state has nothing to do with the rights of force, possessed by the one belligerent against the other; it has nothing to do with the enforcement or con- summation of such rights ; it owes to^both parties the sim- ple rights of hospitality, and even these are very limited in the practice of most civilized, states. By llic regulations of France, foreign si lijis are forbidtlcn to enter with prizes into the ports of France, except in cases of distress, and then they are permitted to slay nn longar'than this necessi- ty exists. Valin observes on this .Article, that such a rule is exactly confoinnable to the laws of neutrality ; and. Hub- ner admits that a wise hospitaUts^ will not he exercised be- yond this. At any rate the neutral state can have no com- pulsory jurisdiction, to exercise upon either party, upon questions of w,ar depending between them ; nor can any such jurisdiction be conveyc;! • ' ./ the autliority' qf ohe 204 LAAV OF LIIAP. IX of them. Its own duties of neutrality prevent the accept- ance of any belligerent rights ; it cannot be called upon by requisition to give any facility or convenience to the one party, to the prejudice of the other, much less to apply liiodes of compulsion to the one, to serve the hostile purpo- ses of the other. In the administration of a jurisdiction of this kind, the enemy who is vanqvuished, is not only a ne- cessaiy party, but likewise a necessary witness, according to the proceedings of all countries. Prisoners are necessa- ry witnesses to be examined. How are they liable to be compelled to undergo such examination ? No force can be applied in the way of strict or continual imprisonment to compel their answers to interrogatories. Their refusal would carry no consequence of legal contumacy with it; for legal contumacy can only exist, where a legal jurisdic- tion has demanded a submission. From these considera- tions it should seem to result, that in the case of a ship ly- ing in a neutral country, there is not only a want of origin- al jurisdiction in the belligerent country, Irom the want of possession ; but that there is likewise a substantial defect of. that authority, which is required for the attainment of justice, and which is essentially necessary to give effect to the ceremony of condemnation. (&) But the conclusiveness of these reasonings has been con- tested, and the practice of nations sanctions the condemna- tion of property brought into neutral ports-, by courts of prize established in the country of the captor. I'he regu- larity of such a proceeding has therefore been maintainedj in the British prize courts,('') and in those of the United States.(') And by the French Ordinance of the eleventh March, 1705, renewed by the regulation of the eighth. November, 1779, the cruisers of France 'were permitted to (") 4 Robin.-,on, 43- The Ileiirick and Maria. ('') Jb. 6 Jiobinson, 139. Jn jXotis. (0 4 Cranch, 241. Rose vs. Ilimcly. lb- 293- Hudson at al- Vs. Guestier, MAlllTIIvIE CAPTUHKS AKD rillZES'. 2(55 can} their prizes into foreign ports, mid there to dispose of them, iii~.der the superintendence of the French consuls, v/ho were directed to send home the documentary and oth- er evidence uecessiuy for their adjudication. ('*) For the sovereign, whose officer has in his name captured a vessel as prize of war, remains in possession of thai vessel, und has full power over her, so long as she is in a situation v.here that possession cannot be rightfully divested. The fact whether she is an enemy vessel or not, ought however, to be judicially enquired intp and decided, and therefore the property in a neutral, captured as., an enemy, is never changed until condemnation is passed ; and the practice of nations requires that the vessel shall be in a place of safety before such sentence can be rendered. In the port of a neutral she is in a place of safety, and the possession of the captor cannot be lawfully divested, because the neutral sovereign, by himself or by his courts, cannot take cognizance of the question of prize or no prize. A vessel captured as prize of war is, then, while lying in the port of a neutral, still in the possession of the sovereign of the captor, and that possession cannot be rightfully divested. Nor is the objection, that his courts can take no jurisdiction of a vessel under such circumstan- ces, because they cannot enforce a sentence of restitutiou, well founded ; since the possession of the captair is in prin- ciple the possession of his sovereign ; he is commissioned to seize in the name of the sovereign, and Is as much an officer appointed for that purpose, as one who in the body of a county serves a civil process. He is under the con- trol and direction of the sovereign, and must be consi- dered as ready to obey his commands legally communica- ted through his courts. It is true that in point of fact truizers are often commanded by men who do not feel a due respect for the laws, and who are not of sufficient res- (") 1 Cede da Prises, 557, 266 rAw or chap. ix. ponsibility to compensate the injuries their Improper con- duct may occasion ; but in principle they must be consi- dered as officers commissioned by their sovereign to make a seizure in the particular case, and to be ready to obey his legitimate mandate directing a restitution. The pro- perty, therefore, may be restored in a neutral port, and ivhether it may or may not be sold in the neutral port, the condemnation may change the property, if such condem- nation be valid. The difficulty of executing the sentence does not, then, seem to afford any conclusive argument against the jurisdiction of the court of the captor over pro- perty in possession of the captor, but lying in a neutral port.(i) 11. These courts of prize arc established in every coun- try, according' to the municipal constitution of each, and there is in all a superior court of review, consisting of the most considerable persons, to which the parties, who think themselves aggrieved, may appeal ; and all these courts, whether supreme or inferior, judge by the same rule, which is the law of nations. And it is the duty of those tribunals, though they are established in the belligerent country, to administer with indifference that justice which the law of nations holds out, without distinction, to inde- pendent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is indeed, locally there, in the belligerent country, according to the known law and practice of nations : but the law itself has no locality. It is the duty of the person, who sits there, to determine the questions that arise exactly as he would determine the same questions if sitting in the neutral coun- try whose rights are to be adjudicated upon.('") (') Crunch 4, 295. Hudson ct al. vs. Gaestier. Vide 1 Johnson, 471, "Wheelwright v. Dcpoystcr, Contra. In that case it was determined that prize courts cannot, adjudicate on a prize lying in a foreign neutral port- er out of the jurisdiction of the captor or jiis ;dly. f™) 1 Robinson, 340. The Maria. MAUITIME CAPTURES AND PRIZES. 267 12. Thus in France, in the year 1659, the power of de- ciding prize-causes wa:^ vested in a council of prizes, com- posed of counsellors of state and masters of requests, and presided over by, the admiral. From the decisions of this tribunal an appeal lay to the king in council. During the revolution, great confusion prevailed in the administration of prize law, until the re-establishment of the council of prizes by a decree ofthe eighth March, 1800, which is now composed of a counsellor of state, as president, and of eight other members, this court, which sits at Paris, deter- mines all litigated prize causes, upon simple memoirs presented by the parties or their advocates. The delay in bringing a cause to a hearing cannot exceed three months, where the prize has been brought into the ports of the Mediterranean, and two months, if brought into any other of the ports of France ; these periods being reckoned from the day on which the papers in the cause are lodged in the secretary's ofEce. An appeal lies from the decisions of this court to the council of state. (^) At the first session of the council of prizes, M. Por- talis, the commissary representing the French governr ment before it, delivered the following address, which for the soundness of its principles and the eloquence of its style merits to be recorded. " A wise government, which feels the necessity of jus- tice, and is firmly resolved to exercise it, has called us to fulfil, before you, citizens, the delicate and sublime func- tions of conscience. It has constituted us, as it were, the ministers of a sacred alliance between policy and morality. »' The principles of morality are obligatory as well up- on nations, as upon individuals : they form the common law of the vmiverse. But between different nations this law is deficient in those sanctions by which its observance must be secured ; for they are, in relation to each other. 2*53 LAW OF tllAP. IXi in a state of nature, in that state^.where every individaal is the sovei-eign arbiter of his own actions, and the sLipremei judge in his own cause. Hence hostilities, reprisals, auc^ fre- quent wars which shake empires and ravage the world. " A citizen, besides the care of his own particular interest^ is bound to labour for the public good of his country.. A state, besides the cars of its own interior gov- ernment, is charged with the duty of contributing to the happiness of the huHoan race. JJo^in pcace^tlie-grtatcat possible gcod ; in xuar^t/ie least possible evil: this is the law qf nations. 'I'he principles of this lav/ are simple : but in.' barbarous and ignorant times they were trampled under foot by men abandoned to the influence of blind and unregulated passions. In these latter times,, those passions have been softened by civilization ; but t^ie multitude and contrariety of different interests, which the ideas of money, of commerce, of national wealth, and of the balance of power, have introduced, have become new causes of emu- lation, of ambition, of jealousy and of enmity. The sci- ence of government not being perfected in proportion to the conflicting interests which we have to conciliate, and the difficulties Vi'hich we have to vanquish, it happens, that notwithstanding tire knowledge we have acquired, we as yet enjoy but partially tlie advantages which that know- ledge seems calculated to secure us. • . " The laAV of war is founded upon the principle that one naticn, for its own preservation or in self defence, will, can, or ought, to do violence to another. It is a relation of things, and not of persons, which constitutes Avar : it is the velution of state to state, and not of individual to individ- ual. J3«twecn two or more belligerent nations, the indi- viduals of which they are composed, are enemies by acci- dent only: they are not such as men, nor even as citizens, they aresacli only as soldiers. "Let us dojiistlcc to our philosophy, Mdilch according to 't?. f' ip'lamentiil truths, ha,s repeatedJy called upon the gov MARITIME CAPTURES AND PRIZES. 26'9 prnments of Europe, to stipulate for the liberty and secu- rity of commerce, and for the safety of the productions of the arts and private property, in time of war ; but policy, \vhich is not political right, has hitherto resisted the con- clusions of philosophy. It must at the same time be ac- knowledged that a theory, which is apparently the most perfect, is not always adapted to practice. The maxim of the wise man should be, not to aspire after that absolute good, which the nature of things and of man renders inac- cessible, but to seek for that relative good which is within our reach, which is indicated by experience, and which flows from rational principles adapted to the wants of soci- ety. In the new position in which the invention of the mariners compass and the discovery of America have placed the world, our commercial relations have become the principal source of wars. It is for the interests of com- merce, well or ill understood, that the earth is deluged in blood. " A great revolution must therefore be effected in hu- man affairs and opinions, before we can hope for one in policy. "It may, in other respects, be thought that the inter- ruption of commerce between belligerent nations, produces the good effect of connecting, in each government, the dan- gers of the citizen with the dangers of the country ; commu- nicates to the public interest all the force and energy of private interest ; discourages by anticipating that waste of resources which the desire of conquest and vain glory must occasion ; checks projects of aggrandizement by the cer- tain evils which must follow them ; places in opposition the inquietudeof the citizen who suffers with the extrava- gance of the magistrate who governs ; and, finally, renders governments more careful in commencing wars and more Avilling to terminate them. *' But whatever may be our opinion of the question, whether commerce should be prohibited, or should rem*\in 35 370 iAW Oi' CHAP. IX. free between the belligerent powers, there can be no doubt that neutral, nations, since they take no part in the war, should continue to enjoy all the advantages of peace. *' In order to diminish the calamities of one of the most terrible scourges which can afflict humanity, the antients establislicd and consecrated free cities, which served as the asylums of commerce, and in which, in the midst of the most bloody hostilities, industry found a safe retreat. Since civilization has, if I may so speak, added new na- tidns to the human race, there are always among the nu- merous nations that cover the globe, some who are interest- ed by their situation, to preserve a neutral character ; and this neutrality, wh^ch is in time of war, the sole ligament of social relations and useful intercourse among men, should be religiously respected as a real public good. The belligerent powers are, undoubtedly, authorized to watch over and guard against the frauds of a feigned neutrality^ If a known enemy be always manifest, the neutr^ may conceal a real enemy irndcr the robe of a friend ; .fte is then struck by the law of war, and he deserves to be. But let us be careful, in applying this severe law, to re- tjpect treaties, the usages consecrated by the uniform prac- tice of nations, and the principles which guarantee the sovereignty and independence of states. Policy may have its plans and its mysteries ; but reason ought to preserve her influence and dignity. When the arbitrary principles of fear and necessity govern the public councils, all is lost f every, species of violence desolates the earth, and blood flows in torrents. By inspiring terror, we may momenta- rily increase our forces ; but it is by inspiring confidence that we preserve them forever. " I felicitate myself, in procl-aiming these principles, to be more particularly, by my functions at your bar, the de- positary and interpreter of the intentions of government, and to be aWe to join my feeble voice to that of the clo- «j[uent and cnlightcuc^ mii^istcr who has already pointed MARITIME CAl'TUllE?.' AXD PRIZES. 3<1 but in SO able a manner the standard of our duties and the course of our labours. We have great interests to weigh, and, perhaps, great errors to repair ; but your knowledge and your zeal will preserve you above reproach. It is no part of our duty to adhere servilely to litigious forms, or to yield to disgusting subtleties. The French captors who will come before you are the representatives of the gov- ernment; for the privilege of cruising is only a grant un- der the law of war from the sovereign to the indrviduals who devote themselves to these perilous enterprises. Qn the other hand, the foreigners whose fortunes will be af- fected*by j'our decisions, cannot separate their cause from that of the nations of whom they form a part. It would, therefore, as the Roman orator formci-ly observed, l)e ri- diculous to pretend to decide the rights of nations and the world by the same petty standard which we apply to the disputes of individuals concerning the minutest article of property. War is a necessary, lawful, and lamentable ri^ht, which always leaves an immense debt to be paid to humanity. But let justice and peace embrace each other, and already the greater part of the calamities of war are repaired. " The hero of France, now become the first magistrate of the Republic, has just placed his victories and his name above the reach of envy, by making proposals of pejice to the belligerent nations, and professing justice to all. Let us associate ourselves to the great and salutary conceptions of his mind. Equity is the virtue of empires. Modera- tion is the wisdom of great nations, as well as of great r.icn. Let us be mindful that if vvar destroys the people, a false policy impedes their prosperity, and may even pre- vent their multiplication. We have astonished and sha- ken Europe by the fame and strength of our arms : it is time to revive her confidence by our nrincinles. i'.nd to console her bv our virtues." t 272 LAW OF CHAP. IX. Happy V'ould it have been for the world h:id these prin* ciples continued to animate France and the o^her belliger- ent powers ! We should not have then seen issued those edicts, b}'- which the law of nations was trampled upon, and neutrals compelled to become belligerents in order to protect theit rights, whilst the calamities of war were exr tended to every quarter of the globe. 13. The courts of prize in the British empire are the High Court of Admiralty in England, and the Vice Ad- miralty courts in the colonies, from which appeals lay to the Lords Commissioners of Appeal in prize causes, con- sisting of the privy counsellors and the judges ofthelcourts of Westminster hall. 14. The .courts of prize v/hich were established in the United States, during the war of the revolution were as follows. On the 25th of November, 1775, Congress re- solved that it should be recommended to the several legis- latures in the United Colonies to erect coui-ts of justice, or to give jurisdiction to the courts then in being, foi^f die purpose of determining concerning the captures of British property which had been authorised, and to provide that all trials in such case be had by a jury, under such qualifi- cations, as to the respective legislatures should seem expe- dient ; ^nd that an appeal should be allowed to Congress, or to such persons as they should appoint for the trial of appeals. On the 30th January, 1 777 ^ Congress resolved, that a standing committee, to consist of five members, be appointed to hear and determine upon such appeals. By the articles of confederation dated the 9th of July, 1778, and ratified by all the States on the 1st March, ]781, the United States were vested with the sole and exclusive power of establishing courts for receiving and determine ing finally appeals in all cases of captures. Such a court was established by the style of the Court of Appeals in. Caaes of Capture, and on the 24th of May, 1 780, the cog- nizance of appeals Uien pending before Congrcs, or the MARITIME CAPTURES AND PRIZES. 273 commissioners of appeals consisting of members of Congress, was refefe-ed to the courtof appeals thus established. The records and proceedings of this court are deposited in the office of the clerk of the supreme court of the United States. The cognizance of all causes of admiralty and maritime jurisdiction is now vested in the district courts, ("*) from which an appeal lies to the circuit court where the subject .matter in controversy is of the value of five hundred dol- lars, and from thence to the supreme court where it is of the value of two thousand dollars. By the prize act of June 26th 1812, which subsisted fluring the late war with Great Britain, it was provided. Sec. 6, that in the case of all captured vessels, goods and effects, which shall be brought within the jurisdiction of the United States, the district court of the United States shall have exclusive original cognizance thereof, as in civil causes of admiralty and maritime jurisdiction ; and the s^id courts, or the courts being the courts of tl^e United States, into which such causes shall be removed, and in tvhich they sliall be finally decided, shall and may decree restitution, in whole or in part, when the capture shall have been made without just cause. And if made without probable cause, or otherwise unreasonably, may order and decree damages and costs to the party injured and for which the owners and commanders of the vessels, making such captures, and also the vessels, shall be liable. But these provisions seem to have been superfluous : For by the constitution, the judiciary power is extended to all cases of admiralty and maritime jurisdiction j the law had already vested the jurisdiction of such cases in the district courts ; and it is clear that prize causes are inclu- ded in this general term ; whilst courts of prize from their very nature and constitution are cloathed with the above mentioned powers of decreeing re^tution and awarding (Costs and damages. {«) 3 Dallasf 6. Glass et al. vs. The Betsey et-sl. 274 hxvf or CH\p. IX. 15. The judgments or sentences of the courts of prize, thus having authority to determine the validity of mari- time captures, are conclusive as to the title of property in the thing which is the subject matter of adjudication in such courts. A legal condemnation^ is therefore an essential muniment of the tide of a neutral purchaser of captured property, without which he is liable to be evicted, (p) 16. Where a vessel had been captured contrary to the letter of the President's instructions of the 28th August, 1812, commanding &c. not to interrupt any vessels be- longing to citizens of the United States coming from Bri- tish ports to the U. S. laden with British merchandize in consequence of the alleged repeal of the British order in council — ^The ship was condemned in the court below for want of a claim : This sentence was relied on by the captors as establishing the fact, and consequently as de- priving the car^^o of the benefit of exemption from capture as not being in a vessel bekng'ing to citiz€7is of the United States. The conclusive effect which the captors would have gi- ven to this sentence was founded in part on reasoning which is technical, and in part on the operation which the fact itself ought to have on the human mind in producing a conviction that the claim was not filed because it could not be sustained. A sentence of a court of admiralty is said not only to bind the subject matter on which it is pronounced, but to prove conclusively the facts which it asserts. This prin- ciple has been maintained in the courts of municipal law in England, particularly as applying to cases of insurance, (r) 1 Rohimon, 102. lb- 135. The Flad Oyen. 5 Jiohinsov, 294, Nostra de Conccicas. 2 Burroiv, 694. Goss v. Withers. 2 Dallas, 1. 5. Miller et al. v. the Resol^ion. 3 Da^Zas, 86, Penhallow et al. v. Do- anc'a Adm. In thi.s last case it was dcte:*niincd tliat the district court has jurisdiction to ca»ry into execution a decree of the late congres- sional Court of Comii(#sioncrs of Appeal in prize causes. Vi^^^ 4 No- iintoUi 360. The ricimcnto. MARITIME CAPTURES AND PRIZES. 27'» and has been adopted by the Supreme Court of the United States. (1) Its application to this case was considered. The ship was riot condemned by the sentence of a fo- reign court of admiralty, ill a case prior to and distinct from that in which the cargo was libelled. She was com- prehended in the same libel with the cargo. The whole subject formed but one cause, and the whole came on to- gether for adjudication before the same judge. By the rules of the court the condemnation of the ship was inevi- table, not because in fact she was enemy's property, but because the fact was charged, and was not repelled by the owner, he having failed to appear and to put in his claim. The judge could not close his eyes on this circumstance; nor could he, in common justice, subject th« cargo, which was claimed according to the course of the court, to the liabilities incurred by being carried in a hostile bottom. In the same cause, a fact not controverted by one party (who does not appear), and therefore as to him taken for *^' Confessed, ought not, on that implied admission, to be brought to bear upon another who does appear, does con- trovert, and does disprove it. The owners of the cargo had no control over the owners of the vessel. The for- mer could not force the latter to file a claim, nor could the latter file a claim for the former. The evidence that the ship was the property of a citizen of the United States could not be lodked into so far as respected the rights or her owner, because he was in contumacy ; but the owner of the cargo was not in contumacy. He was not culpable on account of, .and therefore ought not to suffer for, the contumacy of the ship owner. That contumacy in reason and in justice ought not to have prevented the court below from looking hito the testimony concerning proprietary interest in the ship, so far as the rights of Other claimants depended upon that interest. If we rea- son from analogy, we find no princid^ adopted by the (i) Croudson and others, vs. Leonard. Cranch^s Hep 27 (> J. A vv (U' CHAP. IK* municipal courts o[ lavv or^^quity v.hich, in its application to courts of admiralty, would seem to subject one .claim- ant to injury from the contumacy of another. A judg- ment against one defendant for want of a p^f a, or a de- cree against one defendant for want of an answer, does not prevent any other defendant from contesting, so far as res- pect| J^mself, the very fact which is admitted by the ab- sent party. No reason exists why a different rule should prevail in a court of admiralty. If the court below was not precluded by the non-claim ol' the owner of the ship from examining the fact of owne;- ship, so far as that fact could affect the cargo^ it would not be contended that an appelate court might not likewise exa mine it. This case is to be distinguished from those which have been decided on policies of insurance, not only by the cir- cumstance that the cause respecting the ship and the cargo came on at the same time, before the same court, but by oiher differences in reason and in law which appear to be essential. The decisions of a court of exclusive jurisdiction are necessarily conclusive on all other courts, because the sub- ject matter is not examinable in them. With respect to it- self, no reasOfl js perceived for yielding to them a fuHhcr conclusiverie'ss than is allowed in the judgments and de- crees of the municipal courts of common law and equity. They biiKl the subject matter as between parties and privies.. The whole world, it is said, are parties la a prize cause, riud therefore the whole world is bound by the decision. The reason on which this dictum ^v^wds will determine the extent of its application. Every person may make liimseltaparty, and appeal from the sentence. But notice of the controversy is necessary in order to become a party, and itris a i)rincipl>|^of natural justice, and of universal ob- ligation, that before the rights of an individual be bound by MARITIME CAPTURES AND PRIZES. 27'/' n judicial sentence, he shall have notice, either actual oi; implied, of the proceedings against him. Where these proceedings are against the person, notice is served person- ally, or by publication ; there they are i7i rem^ notice is served upon the thing itself. This is necessarily notice to all those who have any interest in the thing, and is reason- able because it is necessary, and because it is the part of com- mon prudence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it. Every person there lore who could assert any title to the vessel, had constructive notice of her seizure, and may be fairly considered as a party to the libel. But those who had no interest in the vessel which could be as- serted in the court of admiralty, had no notice of her seiz- ure, and, can on no principle of justice or reason, be consi- dered as parties in the cause, so far as respects the vesseL When such a person is brought before a court in which the- fact is examinable, no sufficient reason is perceived for pre- cluding him from re-examining it. The judgment of a court of common law or the decree of a court of equity would, under such circumstances, be re-examinable in £^ court of common law, or a court of equity ; and no reasorl is discerned why the sentence of a court of prize, under th^ same circumstances, should not be re-examinable in a court of prize. '-f Tiiis reasoning is not at variance with the decision that the sentence of a foreign court of admiralty condemning a vessel or cargo as enemy's property, is conclusive in an ac- tion against the underwriters or a policy in which the pro** pert/ is warranted neutral. It is not at variance with that decision, because the question of prize is one of which courts of municipal law have no direct cognizance, and because the owners of the ship and cargo were parties to the libel against them. In he case above cited, the reasons assigned for the conclu- siveness of a foreign sentence were—the propriety of lec.v- 36 278 LAW OF CTIAP. IX. ing the cognizance of prize questions exclusively to courts of prize jurisdiction ; the very great inconveniencs^ amounting nearly to an impossibility, of fully investigating such cases in courts of common law ; and the impropriety of revising the decisions of the maritime courts of other nations whose jurisdiction is coordinate throughout the world. All the %vorld are parties in an admiralty cause. The proceedings are in rem ; but any person having any interest in the pro- perty may interpose a claim and may prosecute an appeal from the sentence. The insured is emphatically a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation by proving if he can the neutrality of the property. The master is his immediate agent, and is also bound to act for the benefit of all concern- ed, so that in this respect he also represents the in6iu*er. These reasons, though they undoubtedly support the de- cision founded on them, are inapplicable to the solution of this question. The very foundation of the opinion that the Insured is bound by the sentence of condemnation is, that he was in law a party to the suit, and had a full opportu- . nity to assert his rights. This decision cannot be applica- ble to one in which the person to be affected by it was nor and could not be a party to it.(') ir. And the jurisdiction of these courts extends as well to goods taken on land by a naval force, or in consequence of the operations of a naval force, as to property cap- tured on the water. As to plunder or booty in a mere continental land war, without the presence or interven- tion of anv ships, it never has given rise to any legal question. It is often given to the soldiers upon the spot, cvr wrongfully taken by them, contrary to military discipline. If there is any dispute, it is regulated by the commander in .chief. But if the jurisdiction of prize courts did not ex- (') I'cr MAllliJ/.f r. r J 'Hic IMnn . Supreme Court of tjic U. S. Fc- brtiary T. 1815. M. «, MARITIME CAPTURES AND PRIZES. 279 tend to a capture on shore, by a naval force, or in conse- quence of the operations of a naval force, the inconvenience would be great, to the captors; to the claimants; and to the state. Tiic captors are in a mis-etable condition in- deed. The prize cannot be condemned, nor shared. Every officer and seaman may be liable to actions without number. The taking cannot be disputed. To disprove the proper- ty, they can only have witnesses from abroad, who cannot be compelled to come ; and in every action where the plain- tiff recovers to the smallest value, the captor must pay the costs. Colourable claimants might easily ruin the captors through their want of the means of defence. It would be equally mischievous to fair claimants. They could not have their property restored instantly, upon their own pa- pers, books, and affidavits. They naust make formal proof, and the owners or crew of a privateer might be all the while spending the effects. But to the state, the conse- quences wouid be still more mischievous. By the law of nations every nation is answerable to the other for all in- juries done by sea or land, or in fresh waters, or in port. Mutual convenience, eternal principles of justice, the wisest regulations of policy, and the consent of nations, have es- tablished a system of procedure, a code of law, and courts for the trial of prize. Every country sues in these courts of the others, which are all governed by one and the same law, equally known to each. The claimant is not obliged to sue the captors for damages, and undergo all the delay and vexation to which he will be liable, if he sues by a form of litigation, of which he is totally ignorant, and subjects his property to the rules and authority of a municipal law by which he is not bound. In short, every reason which cre- ated prize courts as to things taken jwre be/Ii upon the high seas, holds equally when they are thus taken at Iand.(*) (s) Douglas, 591 Lindo v. Ilodney et al. It has been held that the- jui'igdiction of the prize «oiirt extend? eve. ^^ri^e £;ood» although land- 'iSO LAW OF CHAP. IX, But in tl'ic commissions which were issued to private armed vessels during the late war with Great Britain, they were authorised, to subdue, seize, and take any armed or unarmed British vessel public or private, which shall be found within the jurisdictional limits of the United States, or elsev/here on the high seas, or within the waters of the British dominions ;— thus excluding them from making captures on land. Independent of such a municipal proT hibition, there is nothing to limit the right of capture, or the jurisdiction of courts of prize, to property found on the high seas pr water borne. 18. When a capture is made, and the vessel or other thing captured is brought into port, it is the duty of the captors to deliver up to the proper officer all the papers and documents found on board, and to bring in for examina- tion, touching the capture, the master, and one or more of the principal persons belonging to the captured vessel. At the time when the papers found on board are delivered up, an affidavit is to be made that they are delivered as taken, without fraud;, addition, subduction, or embezzlement. It ss also the duty of the captors to proceed to the adjudica- ■iioi\ of the property before tlie lawful court ; and if they omit, ov unreasonably delay, thus to proceed, any person claiming an interest in the captured property may obtain a snonition against them, citing them to proceed to adjudica- tion ; which, if they do not do, or shew cause why the pro- perty should be condemned, it will be restored to the claim- ants proving an interest therein. And this process is often resorted to v/here the property is lost or destroyed, through the fault or negligence of the captors, in order to obtain a compensation in damages for the unjust seizure and det^i- cfl, after capture ; hut not to tlilpgs kncled before capture. 1 Jiobiri- zon, 27h The Two Friends. This is however to be understood of a J.'indiri;^ within the territorial limits of tlie court's jurisdiction; because 'A fias cognizance of captures made on land, within the enemy's territory, ■;:■' iXis. tC£i-itory ^f c^t^e^" pcrmiUing the exercise U'f hostilil-ie.^v t: MAiliTijIE CAPTUllKo AND PRIZES. 281 tion. A libel is to be exhibited by the captors against the captured property, containing proper allegations, the ex:i- minalions in preparatorio of the captured persons are to be taken upon the standing interrogatories, and a monition is to be issued against all persons in general, having, or pretend- ing to have an interest, &c. citing them to shew cause why the property should not be condemned. A claim must be supported upon oath at least as to belief; and briefly states to whom the ship and goods claimed belong, and that the en- emy has no right or interest in tliem. The testimony upon which restitution or condemnation is to be decreed, must in the first instance, proceed from the documentary evi- dence and the examinations in preparatorio ; and if no claim is put in, they are, of course, conclusive. (^) The documentary evidence consists of the papers found on- board the captured vessel, or invoked into the cause from some other cause. The general rule of the prize court is, that where there is a repugnance between these two species of evidence, the documents and the deposi- tions, the conviction of the court must be kept in equilibrio till it can receive further proof; but it is a rule by no means inflexible ; it is liable to many exceptions ; the ex- ceptions may sometimes be in favour of depositions, and sometimes, though more rarely, on the side of the docu- mentary evidence. A case may exist, in which the wit- nesses may appear to speak with such a manifest disregard to truth, that the court may decide in favour of papers bear- ing upon them all the characters of fairness and veracity. On the other hand it may happen, and does more fre- quently liappen, that the papers may betray such a taint and leaven of suspicion on the face of them, as will give a de- cided preponderanc)' to the testimony of the witnesses ex- amined, especially if these witnesses give a natural account of the part they took in the transaction, and in a manner so ^') 2 I>alh\B, 23. IMiller v. the Kcsolution- 28.'i tAW Ol' CHAP. IX. distinct and clear, as to carry with it every degree of mo- ral probability. The propriety of this practice will be best illustrated by an example: Let us suppose the case of a ship, furnished with documents, before there has arisen any apprehension of a war; there could then be no reason for the introduction of fraudulent papers : fraud is always inconvenient, and seldom adopted as a matter of choice : under such circumstances there is no particular ground of suspicion against the documents. But on the other side, suppose that there is a war, or the apprehension of a war, "when the documents are composed: here, in that decided, or in that doubtful state of things, they become subject to some suspicions in limine ; which suspicion may be increa- sed by their having passed through the enemy's hands. The suspicions will be still further increased, if the proper- ty to which they relate, has continued imder the manage- ment and direction of the enemy. And if in addition to all tliis, they carry such contradictions or difficulties on the face of them, as cannot be explained, admitting the matter to be a fair transaction ; all or any of these circumstances must divest the papers ef their natural credit. (") It is a general rule that no evidence shall be admitted in opposition to the documentary evidence, and preparatory examinations; and the reason of the rule is, that fraud may be suppressed and discouraged. But the principle of this rule applies to cases arising in time of war. The cir- cumstance of exis,ting hostilities may impose a peculiar- obligation on neutral merchants, to keep their titles of pro- perty distinct, and free from any intermixture of enemy's interest, even in appearance ; but where no such special reason exists, the principle does not apply with equal pro- oricty, to govern cases of an assumed character in time of neacc j where the flag and pass have been adopted without i-) I liobir.son, 1. The Vigilfinlia. I MARITIME CAPTURES AND TRITlES. 28IJ any contemplation of war, and for reasons arising out of the internal regulations of a foreign country. (*) Where a claim is interposed, and the court is not satis- iied with the original evidence, further proof is ordered. This privilege of further proof is forfeited by the claim- ant if he appears to be guilty of fraud, malafides^ or unneu- tral conduct. ('*) And the misconduct of one partner in these respects, will affect his co-partners in a general part- nership, and render their property liable to share the same fate with his. So also, if the general agent of a neutral cai go covers enemy's property in the same vessel, though with- out the consent or knowledge of his principal, the proper- ty of his principal is condemnable, notwithstanding it may be distinguished by the papers. (^) Furthii* proof is either general^ and consists of affidavits and documents introduced on the part of the claimants, or hy plea and proof. In the former case, affidavits on the part of the captors are not admitted, except under the special direction of the court. It is seldom done except in cases where there has appeared something in the original evidence, which lays a suggestion for prosecuting the enquiry further. But when the matter is foreign, and not connected with the original evidence of the cause, it must be under very particular cir- cumstances indeed, that the court will be induced to accede to such an application; because, if remote suggestions were allowed, the practice of the court would be led away from ihe simplicity of prize proceedings, and there would be no (^) 5 Robmson, 2. The Vrow Elizabeth: Ih. 15, The Yrow Acna Catharina. 6 Robinson, 1. La Flora, {•") I Rnllnson, 127. The JufFrouw Anna. .B. 165. The Yrouw. 124. The Welvnart. 2 Robinson, 1. The Cenroom. D Robinson, 111. The tjraaf BernstorO'. 4 R-Jnnson, 32. The .Icmmy. G Robinsor), 70. The ATars. 3 Robinson, 343- The liosalie & Betty. ('-•) 2 Sivvf', 308. TheThanix Ing. Co. r. Pratt S; n.^rlcpon. J 2<54 LAW OF CHAP. IX. end to the accumulation of proof that would be introduced, in order to support arbitrary suggestions, (J) But the cap- tors are permitted, on a general order for further proof, to invoke papers from another vessel, not brought in for adju- dication.(^) They are also permitted to invoke from other causes depositions of the same claimants. ('•^) In the latter case, v/here the court order plea and proof, instead of admitting affidavits and documents introduced by the claimants onl)^, each party is at liberty to allege in regular pleadings such circumstances as may tend to acquit or condemn the captured property, and to examine wit- nesses in support of the allegations, to whom the adverse party may administer interrogatories* This species of proof is of the most solemn nature ; it admonishes the parties of the dilliculties of their situation, and calls for all the proof that their case can supply. Condemnation .must necessarily ensue if this evidence is defective. No second reference can be made for further proof, after the cause has undergone a trial of this nature ; it is conclusive, and shuts the door against all supplementary evidence. (^) If the property be liable to perish or subject to deteri- oration, it may be sold by order of the court, and the pro- ceeds of the sale brought into court there to abide the final decision in the cause. (^) Upon appeal, the execution of the sentence is not to be suspended, if the party, in favour of whom the same i$ rendered, enter into a stipulation to restore the ship or goods or the fiill value thereof, in case the sentence be re- {>■) 1 nolnmon, 313. The Adriana. 3 ItobinF.on, 330. The Sarah. (0 G Jioliinson, 351, The Komeo. (0 4 Rolimon, 16G. The Vrlcndschap. (••) 1 Jiobimon, 31. The Magnus. (' ) I'dlin, Sur rOfdonnance, L. 3. tit. 9..;:Des Prises, art. 28. 3 /?*- i^hison, 178. Tlic Copcnhajjen. 2 JUallai, 40.''Stoddard v. Bead and tli, 8qnirrcl. MARITIME CArTURES AND pniZES. 28'; V versed. If no such stipulation is entered into, the pro- perty is to be sold, and the proceeds brought ipto court to abide the final decision in the cause. (•^) Ne\v and further evidence may be introduced in the appellate court, if upon the hearing tha-^ court should be of opinion that the cause is of such doubt as that further proof ought to have been ordered by the court below. But it is not a matter of course in this court to make an order for further proof. When the parties are fully apprized of the nature of the proof which their case requires, and have it in their power to produce it, an appellate court should not readily listen to such an application : but when ib appears that the parties who ask this indulgence have withheld from thr court letters and other documentary testimony, which must be supposed in the particular case, to have been in their possession, they come 'with a very ill grace to ask for any further time to make out their title. Where the affidavits upon which further proof is asked for, are silent with respect to the papers which must have been in the claimants' possession, and which are deemed to have been in their possession, funher pi'oof cannot be allow- ed. («) Costs and damages may in the discretion of the court, be given to the claimants in cases of the unjustifiable seizure and detention of their property ; (*') and ihey are con- demned in costs and damages where th^ey interpose, claimf? manifestly groundless. So also where tlfe seizutje is justi- fiable on account of the misconduct or fault of the claim- ants, the captors are allov/ed their expenses, which are to be paid by the claimants, though restitution of the proper- ty be decreed. (GSToir J. The St. Lawrence- SHpreme Geurt of ttoe tr. S. February T. 1815 M. S. (') 1 Codedes Prisen, 14.3. 308. 37 28(5 LAV/ OF CHAP. IX. 19. After a final sentence of condemnation, the duties j costs, charges, and expenditures, on the captui-ed property are to be first deducted, and (in case the capture be made by a private armed vessel) two per centum on the net amount is then to b# paid over to the collector or chief offi- cer of the customs at the port of the UAited States into which the captured vessel is brought for adjudication, or to the consul or other public agent of the United States if the vessel is brought into a foreign port, in order to form. a fund for the support of the widows and orphans of such persons as may be slain, and for the support of such persons as may be wounded, onboard of private armed vessels in any engagement with the enemy. The remainder of the pro- ceeds is to be distributed among the captors according to any written agreement which_ shall be made between them j and if there be no such agreement, then one moieiy to the owners, and the>other moiety to the officers and crews of private armed vessels, to be distributed among the officei-s and crew, as nearly as may be, according' to the rules prescribed for the distribution of prize money by the act of April, 1800, for the better government of the navy of the United States. The above is the provision contained in the prize act which subsisted during the late war with Great Britain. But by the act for the protection of the commerce of the United States against the Algerine cruisers, of March, 1815, Sec* 4, it is enacted. That any Algerine vessel, goods or effects, which may be so captured and brought into port by any private armed vessel of the United States, duly commissioned as aforesaid, may be adjudged good prize, and thereupon shall accrue to the owners, and officers, and men of the capturing vessel, and shall be distributed according to the agreement which shall have been made between them, or, in failure of such agreement, according to the discretion ol'thy ccAUt having cognizance of the can- «.urc. MARITIME CAPTURES AND PRIZES. 287 A libel by the crew of a private armed vessel, for their respective proportions of a prize, is the proper and regular mode to compel a distribution : but where the proceeds of a prize are in the marshall's hands, the parties entitled may either institute a supplemental libel in the prize court or an action at common law for money had and received : And if a marshall makes distribution without the orders of the prize court, he does it at his peril, and the court before issuing the order will guard against fraud and imposition, •by providing for latent claims. (^) 20. Before we proceed to state the rules for the distribu- tion of prize money it is material to enquire, who are cap- tors ? And this brings us to consider the questions arising from allegations of joint capture. These may be alleged to have been made by public ves- sels of war, or private armed vessels ; or by the assistance and co-operation of land forces. In the first case, that of public ships of war, they are entitled to share in a prize from the mere circumstance of having been in sight at the time of capture and lending a constructive assistance. They are under a constant obligation to attack the enemy wherever seen; a neglect of duty is not to be presumed, and therefore from the mere circumstance of being in sight, a presumption is sufficiently raised, that they are there anhno capiendz.(^^ Thus the French ordinance of June, 1757, art. 10, provides with regard to public.irt'essels of war that those shall be considered as joint captSrs who shall be found together and in sight of the prize at the tin-ke of its being captured. And by the act for the better government of the Navy of the United States, Sec. 6. art. No VII. it is enac- ted that, whereyer one or more public ships or vessels are (g) 2 Dallas, 37. Keane et al. v. The Gloucester- lb, 174. Hender- son V. Clarkson. CO JJynhershoek, Q. J. P. L- 1. c. 18. 1 BQVmsQu, 21, The Yryhei^. 5 RaUmon, 268; La Flore< 2SS LAW OV CHAP. IX. in sight ?,t the time any one or more ships are taking a prize or prizes, they shall share according to number of men on board each ship in sight. But in the case of private armed ves- sels the rule of law is different ; and with respect to them, it must be shewn, that tiiey were constructively assisting. The being in sight is not sufficient to raise a presumption of co- operation in the capture. They clothe themselves with com- missions of war from views of private advantage only. They are not bound to put their commissions in use on every dis- covery of an enemy. Therefore the law does not presume^' in their favour, from the mere circumstance of being in sight, that they were there with the design of contributing assistance, and engaging in the contest. There must be the anhnics capiendi demonstrated by some overt act i by some variacionof conduct which would not have taken place, but with reference to that particular object, and if the intention of acting against the enemy had not been effectually en- tertained. Thus the French ordinanceof January, 1706, art, 1 and 2, provides with regard to privateers that none shall be entitled to share in a prize taken from the enemy, un- less they have contributed to the capture by fighting, or by making such an effort as may have compelled the enemy td surrender, by intimidating him or cutting off his retreat. (') As to Ian i forces, they are not considered as entitled to share in a capture, unless they have actually co-operated and assisted in making it. The mere presence and being in bight of different pllrties of a naval force is, with the ex- ception of privateers, sufRcient to entitle them to be consid- ered as joint captors ', bccaute they are always considered to have that privity of purpose which may constitute a community of interests ; but between land and sea forces acting independently of each other, and for different pur- poses, there can be no such privity presumed ; and there- (i) Brjnkenhoch, Q. J. P. L. 1. c. 18. Martens on Cr.pt m-es, § 32. 6 ^«« bJjison,26i. L'Aoiitic. I i;u^.''a5j9j. Talbol £vC. v.TiirceXJrigs. ^¥ • ''MARITIME CAPTURES AND rRIZH!:". ^S*) fore to establish a claim of joint capture between them, there must be a contribution of actual assistance, and the mere presence, or being in sight, will not be sufficient. And when there is no pre-concert, it must 'be not a slight service, nor an assistance rendering the capture more easy or convenient, but some very material sei-vice, that will be deemed necessary to entitle an army to the benefit of joint capture ; where there is a pre-concert, it is not of so much consequence that the service should be material, because then each party performs the service that is previously as- signed to him, and whether that is important or not, it is not so material ; the part is performed, and that is all that was expected : But where there is no such privit)^ of design, and where one of the parties is offeree equal to the work» and does not ask assistance, it is not the interposing of u slight aid, that will entitle another party to share-C') In all cases, the onus probandi lies on those setting up a capture by construction, because they are not persons strictly within the prize act, but let in only by the inter- pretation of those acting with a competent authority to in- terpret it. It lies with the claimants in joint capture, therefore, either to allege some cases in which ilicir con- struction has been admitted in former instances, or to shew some principle in their favour, so clearly recognized and established, as to have become almost a first principle in cases of this nature. The being in sight is sufficient to entitle parties to be admitted joint captors, and where thai fact is alleged, we do not call for particular cases to au- thorize the claim ; but where that circumstance is want- ing, it is incumbent on the party to make out his claim by an appeal to decided cases, or at leaiBt to principles, which are fairly to be extracted from those cases. And it has been contended that where ships are associated in a coin- raon Qnterprhe^ that circumstance is sufficient to eutitL (■'') 2 liobinsori, 53. Th$ Dorcbeclit. 20O LAW Oi" CIlAl'. IX. them to share equally and alike in the prizes that are made : but certainly this cannot be maintained to the full extent of these terms ; many cases might be stated in which ships so associated would not share. Suppose a case, that ships going out on the same enterprise, and using all their en- deavours to f ffectuatc iheir purpose, should be separated by storms or otherwise, no one would contend that they should share in each other's captures ; there is no case in which such persons have been allowed to share after separation, being not in sight at the time of chasing : it cannot be laid down to that extent, and indeed it would be extremely in- commodious that it should ; nothing is more difficult than to say precisely where a common enterprise begins. In a more enlarged sense, the whole navy may be said to be contributing in the joint enterprise of annoying the enemy. In particular expeditions every service has its divisions and subdivisions ; operations are to be begun and conduct- ed at different places ; in the attack of an island there may be different ports, and different fortresses, and different ships of the enemy lying before them ', it may be necessa- ry to make the attack on the opposite side of the island ; or to associate other neighbouring islands as objects of the same attack : The difficulty is to say where the joint en- terprise actually begins. Again, Is it every remote con- tribution, given xvUh intention, or tvithont hitentwn^ that can be sufficient ? That is not to be maintained ; an actual service'' may be done without intention ; or there may be a general intention to assist, and yet no actual assistance gi- '/en. Can any body say that a mere intention to assist, >\ ithout actual assistance, though acted upon with the most prompt activity, would in all cases be sufficient ? If per- sons under such claims could share, there would be no end io dispute ; no captor wculd know what he Avas about, whether in every prize he made, there might not be some one fifty leagues distant, working very hard to come up : In serving his country every captor would be left in un- .'MARITIME CAPTURES AND PIMZES. 29J. certainty, whether some person whom he never saw, and whom the enemy never saw, might not be entitled to share with him in the rewards of his labour. The great. intent of prize is to stimulate the present contest, and to qj^cou- rage men to encounter present fatigue and present danger, an effect which would be infinitely weakened, if it were known that there might be those not present, and not con- cerned in the danger, who could entitle themselves to share. On these considerations it must ever be held, that the prin- ciple of mere conmon enterprise alone will not be suffi- • cient; it is not salficiently specific, it must be more limit- ed, nor can it be maintained that ships detached from the squadron on views immediately connected with the main ^ enterprise are enti'led to share. Many cases might be put, in whicii that position could not be maintained. Suppose a fleet going to besiege a place, and one ship detached to procure provisions and stores, which does not come up and join the fleet until the place is taken ; it would be very wrong to maintain, that such a vessel, neither present at the commencement, nor at the conclusion of the enterprise, could be entitled lo share ; it has been decided in practice, that she would not; and the distinction taken was this, that if the ship was sent off for common necessaries, after the operations had begun, or if she returned before the object was accomplished, she should be permitted to share, and not otherwise, though her absence was occasioned sole- ly for the purpose of procuring necessaries for the service. Then the limitation ingrafted on the first principle, namely, that the detachment is made for an object immediately connected with the service is not sufficient, something more must be added, and that must be the being in sight. 21. By the act of the 23d April, 1800, for the better go- vernniv-nt of the navy. of the United States, it is enacted, Sec. 5. That the proceeds of all ships and vessels, and the goods taken on board of them, which shall be adjudged good prize, shall, when of equal or superior force t© the i9S LAW oir tuAP* IX. vessel or vessels making the capture, be the sole property of the captors : and when of inferior force, shall be divided cquallj^ between the United States and the officers and men making the capture. Sec. 6. That the prize money, belonging to the officers andmen shall be distributed in the following manner: I. To the commanding officers of fleets, squadrons, or single ships, three twentieths, of v/hich the commanding officer of the fleet or squadron shall have one twentieth, if the prize be taken by a ship or vessel acting under his command, and the commander of single ships, two twen- tieths ; but where the prize is taken by a ship acting inde- pendently of such superior officer, the three twentieths shall belong to her commander. II. To sea lieutenants, captains of marines, and sailing JTiasters, two twentieths ; but where there is a captain, without a lieutenant of marines, these officers shall be en- titled to two twentieths and one third of a twentieth, which third in such case, shall be deducted from the share of the officers mentioned in article No. III. of this section. III. To chapl'.iins, lieutenants of marines, surgeons, pur- sers, boatswains, gunners, carpenters, and niasters mates two twentieths. IV. To midshipmen, surgeons mates, captains clerks, jichoolmasters, boatswains mates, gunners mates, carpen- ters mafes, ship's stewards, sail mal:ers, masters at arms, armourers, cockswains, and coopers, three twentietho and a half. V. To gunners 5-eomen, boatswains yeomen, quarter masters, quarter gunners, sail-makers mates, serjeants and corporals of marines, drummers, fifers, and extra petty offi- cers, two twentieths and a half. VI. To seamen, ordinary rrrjucn, marines, and; all f the rule of distribution among the other maritime pow- ers of Europe ('") In the manner of estimating this rela» (') Q. J. P. c. 18. (™) 2 TamtQii's Jiep. 7. Buckworth v. Tucker. 38 '204: LAW Of CHAP. IX. tive strengtli a great diversity of regulations exists. Valiii statesthat in France the mode varies in three classes of cases of joint capture; 1st. Between a public ship and a privateer the distribution is in proportion to the number of guns ; 2d. Between privateers, in proportion to the . force and equipments and the calibre of the guns of the respective ships, and the estimate in this case depending upon such he- terogenous and complex combinations, is reduced to a unity of denomination by an arbitrary valuation of the component parts; 3d. Between public ships in proportion to the number and calibre of their respective batteries of cannon. In En- gland, no statute regulation exists as to privateers ; and therefore their claims are settled by the general law of relative strength. This relative strength is to be measured, as has been settled by solemn adjudications in the common law and prize courts, by the number of men on board each ship.(") This rule has the^advantage of great practical simplicity and general equity. It seems bottomed on the soundest sense, and places the relative force in the power and activity of animated beings, in which it must always ultin^.ately reside, rather than in the mere Instruments, which without such power and activity would be useless and unavailing.(°) 23. At least as early as the 3-car ITOS, by the British statutes, one eighth of all prizes made by ships under the command of a flag was given, To the flag ofliccr or officers being actually on hoard or directing' or assisting' m the cap- ture, (i') Upon the construction of this clause it was held that actual direction or assistance was not necessary, and that the mere circumstance of holding a flag commission and the authority in virtue thereof to direct and assist in the operations of a fleetj, was such a constructive direction (") Doiifflas, 311. Kobcrls V. Hartley. (") Per Stojii J. The Castigalor and Fame. Circuit Court of the U. S. for the Massacliusetls Diblrict, October T. 1813. 3M, S. f') Jlibimon'g Colliiclmcu Mwiumci, 200 Note. '^. MARITIME CAPTURES AND PRIZES. 295 or assistance as entitled the commander to share, although he had never joined the fleet, or given any order, or done any other ofllclal act in quality of commander. In point o£ fact therefore the commander claimed his share of all pri- zes, made from the date of his commission to the termina- tion thereof. This extensive right was deemed injurious to the service, and at'^length in 1 744, was taken from the flag officer in a variety of cases : 1st. Where prizes were tmade by ships on a station before he arrived within the limits of his command; 2dly. Where prizes were made by reinforcing ships before their arrival within the limits of his command : and 3dly. Where prizes were made by ships on a station, the flag officer of which was returning home, after he had got out of the limits of his command. In all other cases the right stood upon the general clause and extended to ail prizes made by ships uncjer his com- mand. In 1756, these restrictions were somewhat varied, and the form then adopted continued in use until the year js- 1803. In the regulations of 17a6 the flag officer is denied AM^: a right to share: 1st, In prizes made by ships on a sta- ^1// tion, where he is sent to command, before he arrives at ■*' the place to which he is sent, and actually takes upon him the command ; 2dly, In prizes made by a reinforcing squadron, before it shall arrive within the limits of the command of the superior flag officer and actually receive fc some order from him; and 3dly, In prizes made by ships »*. left behind to act under another command, when a flag offi- cer is returning home from a station. (i) 64. Upon the construction of these regulations it has, been held, that a flag officer is not entitled, who has resign- ed and accepted under another distinct command, or huB been superseded at the time of the capture ; nor where the rapturing ship has been detached by the admiralty upon a (<)) 1 R Bl. 261. Johnstone v. Jlargotson. 3 Bos. and FaL 257, NeJ- son V. Tuckei'. 4 East, 238, t 296 LAW OF '" C'itfA^I||X» secret service ; nor where the capturing ship has made the capture without the limits of the station without orders ; nor where the fiag officer has returned home for tempora- ry purposes, leaving his squadron behind on the station ; nor where there has been a temporary suspension of the command, as by the ships going into another station for re- pairs, and acting while there undei^ another command.('^) But in ail cases, not within the exceptions of ihe articles of 1 75&^ the general rule prevails, that the flag officer actually in command, shall receive the flag eighth : And therefore, if he be actually in command, he is entitled, although he has not given any orders, and the capture was made under orders from a former flag officer. And it matters not whe- ther the actual command be bj-^ direct appointment or by devolution in the course of the service. (') Such are the most important distinctions which have been recognized under the prize acts and proclamations of Great Britain. And it is impossible for the attention not to be forcibly struck with the exact resemblance which the provisions of the act of March 2d, 1799, sec. 6. bear to them. The distinctions which have been made under them, reflect light on this subject, and were obviously in the view of Congress in framing our own statutes. 25, As such they were applied to the decision of the following case. During the late war, the frigate Che- sapeake, commanded by Captain Evans, the brig Argus, iind the frigate United States, commanded by Commodore Decatur, were attached together as a squadron, imder the command of the latter, by orders from the navy dtpart- xnent of the 9th September, 1812. On the 6th October, Commodore Decatur gave the captain of the Chesapeake (0 1 ][. Bl.^Gr^. In Notis. . 1 //. Bl. 261, Johnstone v. M;irgetson: 3 lios & Put. 257. Nelson v. Tucker. 4 East, 23S. Vide tJie Ann. 3 Jtobimoii, CO. C Eait, llarvcy v. Coyktt. 4 i?cW«so«, S62. The Orion 3 Ease, 502. ^Holmes v. Riilner. () 4 jSaci, 202, KeitU v- I'ringk. 3MARITIME CAPTURES AND PRIZES. 297 sailing orders for a cruize, and soon afterwards sailed from Boston, and captured the British frigate I*'Iacedonian, in a memorable engagement, returned vMh his prize to the United States, previous to the sailing of the Chesapeake, and was blockaded by a superior force of the enemy. On the 23th November, the Sccnptar} cf the Navy addressed a letter to the Captaip of the Chesapeake, directing him to weigh anchor and proceed as he had ocen directed by Corn- viodore Dicatur to whose squadron he v as attadicd.. The Chesapeake sailed in December, captured the prize ia question, and returned from her cruize in April, when Captain Evans immediately reported his cruize to Com- modore Decatur as his commanding officer. It was contended on behalf of the defendant, 1st, That the Chesapeake at the time of the capture was acting inde- pendently of a superior officer within art. No. I. of sec. 6. of the act of the 23d April, 1800; or 2d, That Commo- dore Decatur had left th'e station, where he had the com- mand at the time of the capture, within art. No. VII. of the same section. As to the first point, the court thought it extremely clear that in no sense could the Chesapeake be considered, at the time of the capture, as acting independently of a su- perior officer. Actual presence of the superior officer at the time of the capture, is neither supposed nor required by the law. It is sufficient if the ship be not detached on a separate service by the government, but remain under the command, and subject to the orders of the superior of- ficer. In such a. case the superior officer is deemed to af- ford constructive assistance, and is responsible for his squadron, however far he may be removed from the scene of action. The second question was wliether Commodore Decatur had left the station where he had the command at the time of capture. In order to lay a fdundation for the ar- gument on this hsad. it was necessary to shew that he hael 398 LAW OF • "^F efMW*tX, a station assigned to him ; for otherwise it is impossible to conceive how he could have left it. Now in the sta- tute, a station necessarily includes the idea of local lim- its. It presupposes certain boundaries of place and com- mand, beyond which the squadron could not lawfully pro- ceed in their cruize. Such*is the uniform meaning of the word in the British naval code, and if would be difficult to assign it another meaning in our own statute, without in- volving absurdities in construction. In point of fact, no station was assigned to Commodore Decatur. His orders "Were of the most unlimited nature. He was at liberty to go where he pleased, consistently with the great object of annoying the enemy. The exception then, supposed in the statute, the casus fcederis^ if the expression may be used, did not arise. The irresistible conclusion was, that as the exceptions of the statute did not apply, the case fell within the general rule, and Commodore Decatur was en- titled to the flag twentieth of the proceeds of the captured vessel.(') (OPer StoiiT, J. Decatur V. Chew. Circuit Court of the U. S. for Massaclmsetts District, October T. 1813. M. 6, I / * ) IfARITIME CAI'TUIIES AND PRIZES'. 2D9 CHAPTER X. Of the effects of a treaty of peace on questions of prize. 1. An armistice, truce, or other suspension of hostili- ties, binds the contracting parties from the date of its con- clusion ; but it cannot have the force of law with regard to citizens or subjects of each, until it is solemnly published : And as an unknown law imposes no obligation, it binds those citizens or subjects only from the time it is notified to them. So that, if before such notification, they should have committed any act of hostility, they are not punishable therefor. But as the sovereign is bound to fulfil his en- gagements, he is obliged to restore prizes made subse- quent to the period when the suspension of hostilities is to take effect.(*) 2. So also of a treaty of peace. It binds the contract- ing parties from the date of its conclusion, and they are obligated to carry it into immediate execution. Hostilities are immediately to cease, unless there is a stipulation to the contrary. But it binds the citizeiis or subjects of each party only from the time it is notified to them. They arc consequently not responsible for hostilities committed by them before receiving this notice. But the sovereign is bound to compel the restitution of all prizes made subse- quent to the time when the pacification is to take eftcct.(^) (^0 Tattel, L. 3. c. 16- § 239. . K'O 11/. L. 4. c. 3. $ 24. J2 J)aUa9, 40. ^ain et al. v, the Speedrel!- ^KX} LAW OF OHAP. X, 3. But those, who by their fault, are ignorant of the con- clusion of an armistice or peace, although they may not.bc liable to punishment,%re respctisible for the damages occa- sioned by their own want of diligence. Mere negligence, and above all slight neglect, levis culpa, may, to a certain extent, exonerate from penai responsibility, and certainly does not merit the same punishment with fraud; but can- not dispense the party from the obligation of repairing the injury he has committed. If an act of mischief be done hy the officers of the sovereign, though through ignorance, in a place where no act of hostility ought to have been ex- ercised, it does not necessarily follow that mere ignorance of that fact would protect the officers from civil responsi- bility. And it has been held in England, that if by arti- cles a place or district was put under the king's peace, and zn act of hostility was afterwards committed therein, the injured party might have a right to resort to a court of prize ; to shew that he had been injured by this breach, and was entitled to compensation ; and if the officer acted through ignorance; his own government must protect him : for it is the duty of government, if they put a certain dis- ttict within the king's peace, to take care that due notice shall be given to those persons by whose conduct that l>eace is to be maintained ; and if no such notice has been given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those per- sons, they are to be borne harmless at the expense of that government whose duty it was to have given that no- tice.('=) But it has likewise been determined, that the ac- tual wrong doer is the only person compellable to proceed to adjudication, or answerable in damages, in the prize court; and that no suit can be commenced against the commander of the station not privy to the fact, on account of hostilities wrongfully committed. ('^) o**^ C) Vattel, L. 3. c. IC. § 239. 1 Jlobimm, 179. The Mentor. ('') I'M. ^.•^ BIARITIME CAPTURES AND PRIZES. SOl 4. In order to avoid these questions it is a frequent prac- tice to stipulate ixi the preliminary articles of peace for a cessation of hostilities at certain times in different places, and for the restitution of property taken afterwards ; and this as well within, as beyond, the period assigned for the ratification of the preliminary articles themselves. The same provision is afterwards inserted in the definitive trea» In the case of such a stipulation, there can be no doubt as to captures made in a particular latitude after the period stipulated, that they must be restored, whether the captor knew of the peace or not. But as to a capture made before^ that period by a captor having notice of the cessation o£ hostilities, the authorities are divided upon the question whether the captured property should be restored. Upon principle it would seem that as the periods stipu'ated are substituted instead of the date of the treaty itself for the cessation of captures, they ought to be considered as if made jlagrante hello where they take place before the expiration of the time limited in the par.icular latitude. Such is the opinion of M. Bonnemant, in his commentary on D'Ha- breu. But on the other hand it may be said that the ob» ject of such stipulations is to supplv the defect o.' positive notice by furnishing a rule of presumptive evidence in its stead, and that where the knowledge of ;he fact that hosti- lities have actually ceased is brought home to the party^ there is no such defect to be supplied. The legal presump- tion is overthrown by the positive fact. This is the opinion of Valin,(^) which was adopted in practice by the council of Prizes at Paris in deciding upon captures of British and Austrian vessels made after the treaties of Amiens and Luneville, but before the expiration of the periods limited (<=) 5 liobiason, 189. The Adolphus Fredcricls In U'.e Ebftbs- ^ Bi'oxuiCs Civ. & Adm. Law, 346. (0 Vdlin, Traits des Pme?, c. 3. no. 5. 39 # 302 l-AW OJf CHAP. X. for captures, in cases where it was positively proved that the French captors had notice of the existence of peace.(s) 5. It has been determined that such a stipulation ex- tends to recaptures as well as to original captures. - Thus by the late treaty of peace between the United States and Great Britain, signed at Ghent on the 24th De- cember, 1814, and ratified on the 18th February, 1815, it wis reciprocally agreed that all vessels and effects which should be taken after the space of twelve days from the ratification, upon all parts of the coast of North America, from the latitude 23 N. to 50 N. and as far eastward in the Atlantic ocean as the 36th degree of W. longitude, should be restored on either, side. A vessel, originally British, was captured by a private armed vessel of the U- nitcd States on the 8th January, 1815, and recaptured on the 7th jMarch by a British ship of war. '"^ There were three parties before the court : the officer and crew of the British ship of war claiming salvage as for a recapture of British property; the original owners pray- ing the vessel to be delivered to them on payment of sal- vage ; and the owners, officers and crew of the American privateer pleading the second article of the treaty of peace. It was admitted that this vessel was seized before the time limited for captures had expired, and was recaptured after *hat period. It was argued therefore on behalf of the owners of the American privateei> that this vessel became theirs by the original capture, and that the subsequent re- capture was not lawful under the treaty, and that conse- quently the vessel ought to be restored to them. The ori- ginal British owners, on the other hand, contended that the recapture was lawful, and claimed restitution under their former title. It was argued tj;)at the British priize ^'cts directed that if imy vessel taken as prize shall appear to have belonged it ' ■} Jzuni, Part ?, c. 4. art. I. § 12. ^fiSf^MARITIME CAPTURE!! AND PRIZES. . a<33 &viy of his majesty's subjects, and to have been before ta- ken by the enemy, and retaken, it shall be restored to the former owner on the payment of salvage. But the court was of the opinion there was no foundation for the argu- ment deduced from that clause, which is merely a domes- tic regulation to settle the question which arises between the original owner and the recaptor. In general, the Bri- tish owner receives his property, and the recaptor receives 1^ a' salvage. In some few cases, as where a vessel has been fitted out as a ship of war, and consequently the danger of the recaptor is the greater, the recaptor is rewarded with the whole. The mere municipal regulation of an act of parliament cannot be intended to affect, nor can it legally affect, the rights of foreign nations. They must be deci- ded by the general law of nations, and by particular trea- ties. It had farther been argued, and a great deal of learning had been displayed to support the argument, from civilians, writers upon the law of nations, and the English lawyers, that the first captors had no title or right to this vessel un- der their seizure, till a legal adjudication ; that, till then, either no right whatever accrued, or at least only to the state, and that therefore the owners of the privateer had no interest to entitle them to claim; that as hostilities were extended, by the treaty, in some parts of the world to one hundred and twenty days after the ratification, within which period this recapture was made, that the state of war still subsisted, and this very privateer might have been actually employed in capturing British ships at the time when the owners appeared as claimants in a British court of prize ; and finally, that the treaty not having specified iiecaptures, did not extend to them. The rule as to the precise time when the right of the captor shall vest, and which is understood to be the same in the United States as in Great Britain, is chiefly a regu- lation as between the state and the captor. As capturing ^ 304 I. AW Of' CHAP. S. ships, vrhether belonging to the state or to individuals, act p.s a part of cbe public force, it is not a question here mere- ly with the individual captors themselves but with the na- tion at large, and it is not affected by any such internal re- gulation. The rule was moreover introduced to prevent the right of recapture from being defeated by transfers to neutrals immediately upon the seizure. To give the ori- ginal owners the chance of recapture, it was held that such transfers were not valid till after condemnation. In truth y the right is complete upon the capture, as has been observ- ed by writers of authority, since there is a just title, that pf war, the animus possidendi under that title, and the ac- tual possession, which is sufficient to constitute a perfect right, under all general principles of law. The extension of the time was introduced by mutual consent and practice for particular purposes, and is merely arbitrary, as is evi- dent froni the fluctuation which has prevailed relating to it, in the varying and successive rules of twenty-four hours, pf infra prjesidia^ and other such securities, till it finally fettled down into the condemnation. */ \ But, without entering farther into these nice and ab- J'"'^''^ Stract questions, it is sufficient for the present purpose, that by the capture, the privateer acquired a legal right of possession, which is undenijjble. It was admitted that the vessel was taken in time of war, from an enemy by a ship of war, regularly commissioned; a, lawful possession was therefore admitted. After the time fixed by the treaty, ivithin the respective limits assigned, a state of peace sub- fiisted between the two countries, as absolute and complete as if no farther hostilities could be any where exercised, and as if the treaty had been concluded for a century. The true question then was, whether a lawful possession can be divested by an hostile force in time of peace ? JNIere- iy to put this quesiion is sufficient to answer it. Peace is that state in which rights are discussed and cliaims made y^TT-icably, and by the ordinary proceedings of courts of >^' ' MARITIME CAPTURES AND PRIZES. 30b law ; to settle them by violence Is peculiar to a state of war. The restoration of peace annuls all modes of force ; they become unlawful. There can be no lawful fighting in time of peace. The question is not limited to this particular case. Here indeed there was no shedding of blood, but it was a seizure by force, a mere submission to a superior power. If it was lawful so to take a vessel, it would be equally lawful to apply force in case of resistance. A re- capture might equally be made by a battle. Any of the British ships of war under the same circumstances, might be retaken from the Americans, or any of theirs might be retaken by the British in the most sanguinary engagements. If nothing short of a sentence of condemnation could ex- tinguish the right of recapture it might exist to a very long and indefinite period. Ships taken in the East Indies might be a twelve-month or more before they could get home to be condemned. Can that be a state of peace in which ships might lawfully engage, or in which scenes of bloodshed between the vessels of two nations might law- fully be exhibited ? Can such a state subsist after it has been expressly agreed by a treaty that all hostilities shall t ease ? Is the forcible capture of a vessel, or is it not, an act of hostility ? If it is, it is prohibited by the treaty. It was said that the treaty does not stipulate that ves- sels recaptured shall be restored. The v/ords are as gene- ral as possible. The restitution is not confined to vessels *' belonging to the subjects of the United States," expres- sions to be found in many treaties, and which, or some- thing equivalent, would probably have been introduced, if such had been the meaning of the two governments, but the words are, *• all vessels and effects." To say that a recapture is not a capture is a mere finesse and equivoca- tion. Such recaptures, as well as other captures, arc li- terally comprehended under the treaty ; they are " ves- sels an4 effects which have been taken" since the time li- mitecl. ^06 lAW O^ ' CKAP. X. Independent of the hostility of the g,ct of recapture, and of any particular stipulations in the treaty, the right of pos- session in the captor was completed by the intervention ot peace, and all right; of recovering in the original owner was barred — The uti possidetis is the basis of every treaty of peace, unless so far as it is otherwise agreed. All things continue in the state in which they are found when the treaty takes effect, unless it is declared otherwise— Where the tree falls there it must lie. All the rules to determine 'when the title by capture is fmal are founded upon one principle laiddov/nby Grotius, that the captui-eis complete when all hope of recovery is lose ; but all hope of recovery is certainly lost when the rernvery becomes unlawful. The conclusion of a peace is therefore as effectual for that pur- pose, as carrying infra proesidia^ condemnation, or any oth- er .circumstances which have been fixed upon. Martens, and other writers, who had been quoted, admit, that peace gives the final and perfect title to captures. And with respect to a supposed recovery of this vessel to the former owner by a sort of postliminium, it is justly observed by Vattel. (Liv. III. Ch. 14. § 226) that '< since the things t)f which the treaty of peace says nothing, continue in the state in which they were found at the moment when the peace was concluded, and are tacitly ceded to the pos- sessor, the right oi postlwmiium has no place after peace is concluded; it relates entirely to the state of war." An argument had been raised, and much compassion ex- cited, by a supposition, that, if this prize was restored, the British master and crew found on board must be restored likewise to a state of captivity. For this there was no foundation whatever. The treaty provided that from the ratification there shall be an universal peace between the people of the respective countries, and they can no longev hold each other in a ^tatc of capti\ity. I #> MARITIME CAPTURES AND PRIZES. 307 , Restitution was therefore decreed to the American pri- vate er.('') 6. A treaty of peace has the effect of quieting all titles of possession arising from the war.(')- Therefore where a question arose as to the title of a neutral purchaser un- der consular and other condemnations, it* was held that the intervention of peace had the effect of curing v.'hatever de- fects might otherwise exist in such title. It was admitted that as to the enemy it would have this effect, and that it would not be lawful to look back beyond the general am- nesty, to examine the title of his possession. But if the vessel, or other thing, has been transferred to the subject of another country, he also v/ill be entitled to the same ben- efit from the treaty, as the captor himself would have been, if he had continued in possession. For otherwise 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 purchaser was to be dispossessed, he would have pL a right,to resort back to the belligerent seller, and demand wj^- compensation from him. Neither will the supervening *'!- of a new war disturb the title. It can have no effect on neutral purchasers who stand in the same situation as be- fore. Those puixhasers, though no parties to the treaty, are entitled to the full benefit of it; because they derive their title from those who are.C^) 7. We have before seen that in order to induce the con- fiscation of enemy's property, found Avithin the territo- ry of the belligerent state at the declaration cf war, some act "*" of the government, other than the declaration itself, is es- sential ; and that such property might be claimed upon the termination of hostilities, unless previously confiscated. Q} (•■■) Tci' Dii. CaoKE. The Legal Tender. Vice Adniiralty Court a*: Halifax, Aprp, '20lh, 1815. (*) Vatiel, C 4. c. 2. § 22. , C^) 6 Robitison, 138. liie Schoone Sophie- SOS LAW OP CRAP. X. It has also been determined that where a vessel had been ' captured, and restored with costs and damages, but no fur- ther proceedings took place at the time in consequence of the breaking out of war with the claimant's country— his rights revived on the return of peace; no step being taken hi the interval of war declaratory of the forfeiture of those rights to the government. The intervention of hostilities puts the property of the enemy in such a situation that con- fiscation may ensue ; but unless some step is taken for that purpose, unless there is some legal declaration of the for- feiture, the light of the owner revives on the return of peace.C") C") Ed-uard^i 62. The, JTeustra Senora de Los Dolores. # -W m APPENDIX No. I. L-ETTER FROM SIR W. SCOTT ATSTD SIR J. NICHOLL^ TO MR. JAY. SIR, I HAVE the honour of sending the paper drawn up hy Dr. Nicholi and myself; it is longer and more particular than perhaps you meant; but it appeared to be an error on the better side, rather 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 ot such parts as may appear more immediately pertinent to the objects of your inquiry =. I take the liberty of adding^ that I shall at all times think myself much honoured by any communications from you, either during your stay here, or after your return, on any- subject in which you may suppose that my situation can give me the power of being 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. WILLIAM SCOTT, Omm^nsj Sfj}f. lot /i, 1794, 49 310 APPENDIX* Paper inclosed in the foregoing letter, SIR, We have the honour of transmitting, agreeably to your excellency's request, a statement of the general principles of proceeding in prize causes, in Bricish courts of admi- ralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdic- tions. 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 Majesty in the year 1753, by Sir George Lee, then judge of the prerogative court. Dr. Paul, his majesty's advocate general, Sir Dudley Rider, his majes- ty^s attorney general, and Mr. Murray (afterwards Lord Mansfield) his majesty's solicitor general. *' When tv/o 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 ene- my, may be acquired by capture at sea i but the property of a friend cannot be taken provided he observes his neu- trality. " Hence the law of nations has established, *' That the goods of an enemy, on board the ship of p. 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 property of a friend, may be taken as prize ; because supplying the enemy with what enables him better to car- ry on the war, is a departure from neutrality. " By the maritime law of nations, universally and im- meraorially received, there is an established method of de- termination, whether the capture be, or- be not^ lawful nrize. r APPENDIX. 311 Before the ship, or goods, can be disposed of by the captor, there must be a regular judicial proceeding, where- in both parties may be heard ; and condemnation thereup- on as prize, in a court of admiralty, judging by the law of nations and treaties. " The proper and regular court, for these condemna- tions, is the court of that state to whom the captor be- longs. " The evidence to acquit or condemn, with or without^ eosts or damages, must, in the first instance, come merely from the ship taken, viz. tht^pi^pers on board, and the ex- amination on oatli^ of the master, and other principal of- ficers ; 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 principal officers of every ship, brought in as a prize, upon general and im*^ partial 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, un- less 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 the master 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 examined in preparatorio, grossly prevaricate ; if proper ship's papers are not on board; or if the master and crew cannot say, whether the ship ©r cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehaviour, or suspi- cion; arising from the fault of the ship taken, and other cir- 312. appendix:. cumstances of tlie case, costs to be paid, or not to be ft- ct-ived, by che claimant, in case of acquittal and restitu- tion : — On the othi^r h.-nd, if a seizure is made without probable cause, the capture is adjudged to pay costs and damages : For which purpose all privateers are obliged to give security for their good behaviour ; and this is referred to, and expressly stipulated by many treaties. *' Though from the ship's papers, and the preparatory ex- aminations, the property does not suHiciently 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 sufficient affidavits, to be neutral, it is pre- sumed to belong to the enemy. Where the property ap- pears from evidence not on board the ship, the captor is justified in bringing her in, and excused paying costs, be- cause he is not in fault; or, according to the circum- stances of the case, may be justly entitled to receive his costs. " If the sentence of the court of admiralty is thought to be erroneous, there is in* every maritime country, a superior court of review, consisting of the most considerable per- sons, to which the parlies 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. *' li no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and con- clusive. " This manner of trial and adjudication is supported, air luded to, and enforced, by many treaties. *' in this mettled, all captures at sea were tried, during ihe lasi^ar, by Great Britain, France, and Spain, and sub- mitted' to by the neutral powers j— -In this method, by courts of admiralty acting according to the law of nations, i^jii^ particular treaties, all captures at sea have immemori- # APPENDIX. <3it* ally been judged of in every country of Europe. Any other method of trial would be manifestly unjust, absurd and impracticable." Such are 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 pre- paratory of the captain and some of the crew, of the cap- tured ship, are taken upon a set of sraiiding 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 sei-ved upon the royal exchange, notifying the capture, and calling upon all per- sons interested to appear and shew cause, why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry with a certificate of its service, and if any claim has been given, the cause is then ready for hearing, upon the evi- dence arising otxt of the ship's papers, and preparatory ex- aminations. The measures taken on the part of the neutral master or proprietor of the cargo, are as follows : Upon being brought into port, the master usually makes a protest, which he forwards to London, as instructions (or "with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his na- tion, in order to claim the ship, and sUch parts of the cargo as belong to his owners, or with which he was particularly entrusted ; Or the master hiDiself, as soon as he has under- 314 APPENDiiw. wt # gone his examination, goes to London to take the necessa-* yy steps. The master, correspondent, or consul applies to a proc- tor, who prepares a claim supported by an affidavit of the claimanc, stating briefly, to whom as he believes, the ship and' goods claimed, 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 strict- ly 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 preparatory examinations^ ^ and to proceed in the usual way. fAs scon as the claim is given, copies of me ship'a papers . * and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It however seldom happens (owing to the great pressure oi business, especially at the commencement of a war) thai causes can possibly be prepared for hearing immediately upon the expiration of the time for the return of the moni- .^ tion ; In that case, each cause must necessarily take its re- gular turn : correspondent measures must be taken by the iieutral master if carried within the jurisdiction of a vice v'.dmlralty court, by giving a claim supported by his affida- vit, and olTering security for costs, if the claim should be . pronounced grosj^:ly fraudulent. Tf tlic claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the court where '■-he scntcr.r ;;iven, or before a notary public (which •cgnlarly hiK.. .lu .je entered v/ithin fourteen days after the -.:ntence) ai!,l he afterwards applies at the registry of the ?>r ! ' r appeal in pi'/.e causes (which is hckl at the same i ArPENDIX. 31^ place as the registry pf the high court of admiralty') for an instrument called an inhibition, and which shou|d be taken out within three months if the sentence be in the high court of admiralty, and within nine months, if in a vice ad- miralty court, but may be taken out at later periods, if a reasonable cause can be assigned for the delay that has in- tervened. This instrument directs the judge, wliose sen- tence is appealed from, to proceed no further in the cause '. it directs the registrar to transmit a copy of al! the proceed- ings of the inferior court : and it directs the party who has obtained the sentence to appear before the superior tri- bunal to answer to the appeal. On applying for this inhi- bition, security is given on the part of the appellant, to the amount of two himdred pounds to answer costs, in case it should appear to the court of appeals, that the appeal is merely vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party and his proc- tor, by shewing, the instrument under seal, and delivering a note or copy of the contents. If the party cannot be found, and the proctor will not accept the service, the in- jlrament is to be served '^ viis et modis" that is by affix- ing it to the door of the last place of residence, or by hang- ing 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;f6rmal part at home is executed by the officer of the court. A certificate of the service is en- dorsed upon the back of the instrument, sworn before a surrogate of the superior court, or before a notary public, if the service is abroad. If the cause be adjudged In a vice admiralty couri, it is ■jsual upon entering an appeal there, to procure a copy of rhe proceedings v/hich tlie appellant sends o\er to his ccr- respoudciit in England, who carries it to a proctor, and the .>ame steps are taken to procure and serve the inhibition, as where the cr.use has been adjudge;:^ "n ♦^e high court, of *^. ■31t> afpen'dix. acirairalty. 15at if a copy of the proceedings cannot be procured in due time., an inhibition may be obtained, by 'ocnding over a copy of the instrument of appeal, or by writ- ing to the correspondent an account only of the time and substance of the sentence. Upon an appeal, fresh evidence may be introdut'ed if upon hearing the cause the lords of appeal shall be of opi- nion, 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 asserted proprietors of the goods, in which they are some- times joined by their clerks and others acquainted with the transaction and with the real property of the gcods claim- ed. In corroboration of these, affidavits may be annexed, original correspondence, duplicates of bills of lading, invoi' ces, extracts from bocks, &:c. These papers must be proved by the affidavits of persons who can speak to their authen- ticity. And if copies or extracts, they should be collated and certified by public notarifs. The affidavits are sworn before the magistrates or others competent to administer 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 upori the degree of suspicion and doubt, that belori'gs to the case. In cases of heavy suspicion and great importance, the'court may order what is called " plea, and proof," that is, in- stead bf admitting a.Tuhu Its and clcxu.r.i-nts introduced b|r the claimants only, each party is at liberty to allege in re- );u!ar pleadings such circumstances as may tend to acquit or tc) condemn the capture, aitd to examine witnesses in ';e allegations, to whom the adverse party inay .u.. '■ liitiiTogatories. The depositions of the wit- in ■ >.n i'l writing; if the witnesses are, to be ex- aiuiufd a!)road, a commission issues for that purpose,— but in no ca-jc Is It necessary for them to come to Englandi "rheiic solemn proceedings are not often resorted to. Standing commissions may be sent to America for the j^encral purpose of receiving examinations of witnesses in all cases where the court may find it necessary for the purposes of justice, to decree an enquiry to be conducted in that manner. With respect to captures and condemnations at Marti- nicO)' which are the isubjects of another inquiry contained in your note, we can only answer in general, that we are Hot informed of the particulars of such captures and con- demnations, 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 honor to be, &c. (Signed) WILLIAM SCOTT. JOHN NICHOLL, 24 AFPEKDLX* ■ich-e cmpechement a lancsoi-^' ^ration dcs mjets PnissicnSi tarit qiHls auront soin d'exercer leur qommerce d'-une niartkre licite, et conformtment a Vctn- fiien usage etahli et reconnu parmi Ics puissances neutres. " Que sa majeste Prussienne nc pent pas ignorer, quil y a des traites de commerce qui snhsistent actuetlement cntre Id Grande Bretagne et certaines etats neutres, et quau moyen des c!/i;agemens foriJicUement contractes de part et d'autre par CCS nicmes traites, tout ce qui rcgafde la maniere d'exer^ ccr Icur com.ineree reciproquemcnt, a ete Jinahment constats it r eerie. *' Qu^en mcme ferns il ne paroit point qu'aucun. traite de la 'jialure susdite existe a present, ou a jamais existe, entre sec majeste et le roy de Prusse ; mais que j)ourtant cela na ja- viais empeche que Ics sujets Prussiens nayent ite favorises par r Angleterre,-par report d leur navigation, cmtaut que les cmtres nations neutres : et cela etant, sa majeste ne presup-^ pose pas, qice Vidce du roy votre maitre seroit d'eotiger cVelle des distinctions, encore moins des preferences y en Jcvoeur dc ses sujets a cet egard. *' Que de plus sa majesty Prussienne est trop eclairec pour' ne pas connoitre, qiiil y a des loix Jixes et etahlies dans ce ghuvernement, dorit on ne pent nullement secarter-, et que s'ilarrimit que la marine Angloise s'avisdt de faire la moin- dre injustice a^gp sujets commercans du roy votre maitre, il y il un tribunal ici, savoir, la haute cour de Vamiraute, a la-- quelle ils se trouoent en droit de s'adresser et de porter leurs plaintes ; assures d' avarice, en pareil cas, qtion leur y re: (Ira bonne justice ; les procedds juridiques dc ladite con t^tant et ayant ite de tout terns hors d\itteinte et irreproch-' nbles; temoin, nombre, d\xcmpies, oil des vaisseaux neutres, pris illic/temeiU, ont etc restituds avecfraix et dununages au.n proprietaires. " Voicice que h: my nia ordon?ie de pons repondre sur le contrnu de vgtre dit mcmoirc ; et sa m'ajeste ne sauroit que sc JUitter, ([iHcu consequence de ee que jc viens d'avancrr ; H APrExDix. 333 ne ifstera plus rien a desirer au roy voire maitre relative^ merit a Vobjet dont il est question ; ct le roy s'en croit d^au" tant plus assure, quil est persuade que sa majeste Prussienne ■tie voudroit rien demander que ne Jut equitahle. " Je suis, avec lien de la consideration^ " Monsieur, *' Voire trts humhle et tres " Oheissant seririteur, " chesterfield:' There need no observations ; it is explicit, and in ex- press terms puts Prussia upon the foot of other neutral powers with whom there was no treaty, and points out the proper way of applying for redress. The verbal declarations made by Lord Carteret in 1T4>4, v/hich are said to have been confirmed by this letter from Lord Chesterfield, 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 Andrie himself understood that goods of the en- emy 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 right was commu- nicated 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 assu- ranees in 1744, because they never were nor could be known ; and there was no occasion to notify them, suppo- sing 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 » i^ S34 APPENDIX* Till 1/46 the Prussian documents were, a certificate of the admiralty, upon the oath of the builder, that the ship was Prussian built j 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 prac- tice 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, &c. alleg- ing the cargo, which was ship timber, bound for Port L'Orient, to be Prusbian property, and in cons'^quence thereof, claiming freedom of the ship. Claiming freedom to the ship from the prcper^y of the cargo being quite new, the proposition was afterwards re- versed- And on board a ship called the Junreaux, 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 lAth of June, 1747, under the royal seal, &c. 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 aUcged to have been Prussian property in said list A. or B. It being mentioned in the siiid Exposition des Motifs^hc. that Mons. Mlchell, in September, 1747, made verbal re- presentations 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 lifits A. and B. of the said cargo, wc directed APPENDIX. 335 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 risk of Frenchmen, to whom it was to be delivered at Port L'Orient, they paying freight according to charter party ; that the Prussian claimant was neither 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 before the 6th of October, 1746, and yet the ship was then in ballast, and the whole of the cargo in question was not laden before May 1747, Several other Prussian claiipcis had, in like manner? come out so clearly to be merely colourable, that Mons. An- drie, from his said letter tlie 29th of May and 9th of June :J7473 appears to have been ashamed of tliem^ THIRD PROPOSITION. " That Lord Carteret, m his said two conversations, specified in your Majesty's name, what goods should be deemed contraband." Answer. The fact makes this question totally imma- terial, because no goods condemned as contraband, or which were alleged to be so, are so much as now suggest- ed to have been Prussian property in the said lists A. and B ; and therefore, whether as enemy's property or contra- band, 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, biit never could be un- derstood to be equivalent to a, treaty derogating from th^t Iaw» ^ 236 APPENDIX. All the observations upon the other parts ot" these ver- bal declarations hold equally as to this. rOURTII PROPOSITIOX. *' That the British ministers have said that these ques- tions 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 ac- cording to the laws of England only, ever took cognizance of prize. The property of prizes being given daring the last war to the captors, your majesty could not arbitrarily release the capture, but left all cases to the decision of the proper courts, judging by law of nations and treaties where there were any ; and it never was imagined that the property of aforeign subject, taken as prize on the high seas, could be affected by laws peculiar to England. 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 vir- tue of their respective commissions ; but neither has a right to try the prizes taken by the other, or to reverse the sen- tences given by the other's tribunal. The only regular method of rectifying their errors is, by appeal to the supe- rior court. APTENDIX. 337 This is the clear law of nations ; and by this method prizes have always been determined in every other mari- time 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 lea,st applicable upon the pre- sent occasion.* SEVENTH PPvOPOSITION. " Great Britain issued reprisals against Spain, on ac- count of captui-es at sea." Answer. These captures were not made in time of war with any power. They were not judged of by courts of admiralty, accord- ing to the law of nations and treaties, but hy rules, which were themselves complained of in revenue courts ; the da- mages were afterwards admitted, liquidated at a certain sum, and agreed to be paid by a convention, which was not performed ; therefore reprisals issued, but they were general. No delfts due here to Spaniards 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 Silesia 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 • This appears from Grotius in th« passages above cited, lib. 3. cap. 3. sgcj^>. 5, mi. 4. in his notes ; and lib. 3. cap. 6. sect. 6. in tus notes. m 33S APPENDIX. an instance where a prince has thought fit to make repri- sals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a prince upon the faith of an engagement of honor, because a prince cannot be compelled, like other men, in an adverse way, by a court of justice. So scrupu- lously did England, France, and Spain adhere to this public faith, that even during the war they suffered no irquiry to be made whether any part of the public debts was due to subjects of the enemy, though it is certain many English had money in the French funds, and many French had mo- ney 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 private contract with the lenders, who advanced their money upon the emperor's obliging himself, his heirs and posteritv, to repay the principal, with interest, at the rate, in the manner, and at the times in the contract mentioned, without any delay, demur, deduction or abatement what- soever ; and, lest the words and instruments made use of should not be strong enough, he promises to secure the per- formance of his contract in and by such other instruments, method, manner, form, and words, as should be most ef- fectUrd and valid to bind the said emperor, his heirs, suc- cessors, and posterity, or as the lenders should reasonabl}"- desire. As a specific real security, he mortgaged his revenues ^^H arising from the duchies of Upper and Lower Silesia for *5'-Sl^H payment of principal and interest; and the whole debt, principal and interest, was to be discharged in the year 1745. If the money could not be paid out of the revenues of Silesia, the emperor, his heirs and posterity, still re- mained debtors, and were bound to pay. The eviction or destruction of a thing mortgaged, does not extinguish the dett or discharge the debtor. '0 APPENDIX. 339 Therefore the empress queen, without the consent of the lenders, 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 emperor in respect of this debt. The seventh of the preliminary articles between the Queen of Hungary and the King of Prussia, signed at Breslau the 11th of June 1742, is in these words: " Sa majestS le rot de Prtisse se charge du seul payment de la ^omme hypothec, iiec stir la Silesie, aux marchands Anglois, selofi le contruJ signe d Londres le 7me de Janvier 1734-5." This siipuiation is confirmed by the ninth article of the treaty between iheir 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 December 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 him- self 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 na- tions, because his faith was engaged to pay it without any delay, demur, deduction, or abatement whatsoever. If these wordsushould not extend to all possible cases, he halli plighted his honor 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 express- ly that it should not be seized as reprisals, or in case oi" war; which is very commonly expressed when sovereign princes or states borrow money from foreigners. There- fore, supposing for a moment that his Prussian majesty't- complaint was found<:d in justice and the law of nations, and that he had a right to make reprisals in, general, lir could not. consistent with his engagemept to""{hc empress 340 APPENDIX. queen, seize this money as reprisals. Beside, this whole debt, according to the contract, ought to have been dis- charged in 174-5. It should, in respect of the private cre- ditors, in justice and equity, be considered as if the con- tract had been performed ; and the Prussian complaints do not begin till 1745, after the whole debt ought to have been paid. Upon this principle of natural justice, French ships and j^lll 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 ma- jesty's courts to the French owners. No such ships or effects ever were attempted to be confiscated as enemy's property here during the war ; beca\ise, 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-payrnent 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 cession was made by the empress queen. But this reasoning is, in some measure, superfluous ; because, if the making any reprisals upon this occasion be imjustifiable, which we apprehend we have shewn, then it is not disputed but that the non-payment ofthis 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. 1). RY]:)ER. W. MURRAY. Jamcfru IS. 17.'-. APriiNDiS^t 34.1 NO. II. President's instructions to private armed vessels. 1. The tenor of your commission under the act of Con- gress, entitled " an act concerning letters of marque, prizes and prize goods," a copy of which is hereto annexed, will be kept constantly in your view. The high seas, referred to in your commission, you will understand generally, to refer to low-water mark ; but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and with the United States. You may nevertheless execute your com- mission within that distance oi the shore of a nation at war with Great Britain, and even on the waters within the ju- risdiction of such nation, if permitted so to do. 2. You are to pay the strictest regard to the rights of neutral powers, and the usages of civilized nations ; and in all your proceedings towards neutral vessels, you are to give them as little molestation or interruption as will consist with the right of ascertaining their neutral charac- cer, and of detaining and bringing them in for regular ad- judication, in the proper cases. You are particularly to avoid even the appearance of using force or seduction, with a view tojijideprive such vessels of their crews, or of their passengers, other than persons in the military ser- vice of the enemy. 3. Towards enemy vessels and their crews, you are to proceed, in exercising the rights of war, with all the jus* tice and humanity which characterize the nation of which you are members. 4. The master and one or more of the principal persons belonging to captured vessels, are to be sent, as soon aftef the capture as may be, to the judge or judges of the pro- per court in the United States, to be examined upon oath, touching the interest or property of the captured vess'l -nfl 44 342 APPENDIX. her lading : and at the same time, are to be delivered to the judge or judges, all passes, charter parties, bills of lading, invoices, letters and other documents, and writings found on board ; the said papers to be proved by the affidavit of the commander of the capturing vessel, or some other per- son present at the capture, to be produced as they were re- ceived, without fraud, addition, subduction or embezzle- ment. By command of the President of the U. States. JAMES MONROE, Secretary of Stat a. NO. III. DOCUMENTS RELATING TO THE BLOCKADE OF MARTINIQUE AND GUADALOUPE. (Copy.) Mr Merry to Mr, Madison, Washington, April 12, 1804. SIR, Mr. Thornton not having failed to transmit to his ma- jesty's government an account of the representation which you were pleased to address to him, under, date of the 27th October last year, respecting the blockade of the islands of Martinique and Guudaloupe, it is with great satisfaction. Sir, that I have just received his majesty's commands sig- nified to me by his principal secretary of state for foreign affairs, under date of the 6th of January last, to communi- cate to you the instructions which have, in consequence of your representation, been sent to commodore Hood, and to the judges of the vice admiralty courts in the West In- dies. I have, accoi'dingly, the honour to transmit to you, Sir. crtclo'jcd, \\\z copy oi a letter from Sir Evean Nepean, se- t APPKNDIX. 343 cretary to the board of admiralty, to Mr. Hammond, hi» majesty's under secretary of state for foreign affairs, spe- cifying the nature of the instructions which have been given. His majesty's government doubt not that the prompti- tude which has been manifested in redressing the griev- ance complained of by the government of the United States will be considered by the latter as an additional evidence of his majesty's constant and sincere desire to remove any ground of misunderstanding that could have a tendency to interrupt the harmony which so happily subsists between his government and that of the United States. I have the honour to be. With high respect and consideration, Your most obedient humble servant, (Signed) ANTH« MERRY. (COPY.) Admiralty' Office, 5th January, 1804. SIR, HAVING communicated to the lords of the admi- ralty, lord Hawkesbury's letters of the 23d ultimo, inclo- sing the copy of a dispatch which his lordship had receiv- ed from Mr. Thornton, his majesty's charge d'affairs in America, on the subject of the blockade of the islands of Martinique and Guadaloupe, together with the report of the advocate general. Thereupon, I have their lordship's commands to acquaint you for his lordship's information, that they have sent or- ders to commodore Hood, not to consider any blockade of those islands as existing, unless in respect of particular ports which may be actually invested, and then not to cap- ture vessels bound to such ports unless they shall previous- ly h^ve been warned not to* enter them, and that they haye. 344 APPENBIX. also sent the necessary directions on the subject to the judges of the vice admiralty courts in the West Indies and America. I am, &c. (Signed) EVEAN NEPEAN. George Hammond, esq. JfK. MERRT TO MR. MADISOff. Washington, April 12, 1804. 3IR, I HAVE the honour to acquaint you that I have just received a letter from rear admiral sir John Duckworth, commander in chief of his majesty's squadron at Jamaica, daitU the second of last month, in which he desires me to communicate to the government of the United States, that he has found it expedient for his majesty's service, to con- vert the siege, which he lately attempted, of Curacoa, into a blockade of :hat island. I cannot dou,b|, sir, that this blockade will be conducted conformably to the instructions which, as I have had the honour to acquaint you in another letter of this date, have been recently sent on this subject to the commander \\\ chief of his majesty's forces, and to the judges of the vice i?idmiralty courts, in the West Indies, should the smallness of the island of Curacoa still render necessary any dis- tinction of the investment being confined to particulai ports *^ I have the honour to be, &c. (Signed) ANT. i^IERRY. APPENDIX.. 344 No. IV. CORHESPONDENCE BETWEEN MR. PINKNEY AND MARQUIS WELLESLEY ON BLOCKADES. Notwithstanding the explicit engagement on the part of the British government contained in the above documents, and confirmed by the decisions of their prize courts, block- ades continued to be proclaimed without an actual investi- ture of the particular ports, and neutral vessels bound to such ports were captured without having been previously warned not to enter them. These blockades were defect- ive, inasmuch as they were constructively established and cons'.ructivcly notified. Their unlawfulness had been set- tled both by diplomatic and judicial authority, in the war which was terminated by the treaty of Amiens ; but this did not {)revent their revival in the late war. The practice of the former war, on account of the remoteness of the United States from Europe, had justified a conjectural des- tination from America to Amsterdam, although the block- ade of that port had been proclaimed in the usual manner, and the party was proved to have known its commence- ment. This rule was incorporated into the treaty between the United States and Great Britain, which was concluded sub spe rati in 1806, but not ratified. The British nego- tiators of that treaty, however, declined to insert in it a de- finition of blockade similar to tliat of the convention of 1801 between Russia and Great Britain, although they ad- mitted the doctrine of the British prize courts to be con- formable to such a definition. That this omission was not without meaning, is rendered evident by the continuance of the blockade of the European coast, from Brest to the Elbe, proclaimed in May, IfiOG, but which if valid in point of notice, was defective for want of an actual investiture of the ports and places included in its terms. This blockade, and other inhibitions of neutral trade of a like character, 346 APPEKDIX. having been made by France the ground of issuing the Ber- lin decree of November, 1806, and iliat decree having been retaliated by the British orders in council of January and November, 1807, and of April, 1809; it became an object of the diplomatic discussions which ensued tespect- ing the repeal of these edicts to ascertain whether the blockade of May, 1806, v/as merged in the orders subse- quently issued, and (in case the Berlin decree should be revoked) would fall to the ground with these orders; or whether the blockade would revive after the revocation of the decrees and orders. Mr. Pinkney, the minister of the United States in London, after a great deal of discussion, succeeded in obtaining from the British secretary for for- eign affairs, an admission, that either the blockade was merged in the orders, and would consequently be involved in their repeal, or if revived, would be enforced in the manner required by the law of nations. In the course of this discussion, the following letters were written, which are here inserted without any other apology than the pre» ceding explanation. LORD WELLESLEY TO MR. PINKNEY.* Foreign Office, December 29, 1810. SIR, In acknov.'ledging the receipt of your letter of the 10th instant, I must express my regret, that you should have thought it necessary to introduce into that letter any to- pics, which might tend to interrupt the conciliatory spirit, in which it is the sincere disposition of his majesty's gov- ernment to conduct every negotiation with the government of the United States. ' This letter was not received till Janu^ SJ, 1811, at night. APPENDIX. 347 From an anxious desire to avoid all discussions of that tendency, I shall proceed without any further observation to communicate to you the view which his majesty's gov- ernment has taken of the principal question which fornxed the object of my inquiry, during our conference of the 5th instant. The letter of the French minister for foreign af- fairs to the American minister at Paris, of the 9th Au- gust, 1810, did not appear to his majesty's government, to contain such a notification of the repeal of the French de- crees of Berlin and Milan, as could justify his majesty's government in repealing the British orders in council. That letter states " that the decrees of Berlin and Milan are revoked, and that from the 1st of November, 1810, they will cease to be in force, it being understood that in consequence of this declaration, the English shall revoke their orders in council and renounce the new principles of blockade which they have attempted to establish." The purport of this declaration appeared to be that the repeal of the decrees of Berlin and Milan would take effect from the 1st of November, provided that Great Britain antecedent- ly to that day, and in consequence of this declaration,, should revoke the orders in council and should renounce those principles of blockade, which the French government alleged to be new. A separate condition relating to Ame- rica, seemed also to be contained in this declaration, by which America might understand, that the decrees of Ber- lin and Milan would be actually repealed on the 1st of No- vember, 1810, provided that America should resent an^- refusal of the British government to renounce the new- principles of blockade, and to revoke the orders in counciL By your explanation it appears, that the American gov- ernment understands the letter of the French minister as announcing an absolute repeal, on the 1st of November, 1810, of the French decrees of Berlin and Milan ; which repeal, however, is not to continue in force unl-ss the Brl- m *♦ '^^t o4& APPENDIX. :% ■ ' tish govenuncnt, within a reasonable time after the 1st of November, 1810, shall fulfil the two conditions stated dis- tinctly in the letter of the French minister. Under this explanation, if nothing more had been required from Great Britain, for the purpose of securing the continuance of the repeal of the French decrees, than the repeal of our orders in council, I should not have liesitated to declare the per- fect readiness of this government to fulfil that condition. On these terms, the British government has always been sincerely disposed to repeal the orders in council. It ap- pears, however;, not only by the letter of the French minis- ter, but by your explanation, that the repeal of the orders in council will not satisfy either the French or the Ameri- can government. The British government is further re- quired, by the letter of the French minister, to renounce those principles of blockade which the French gov- ernment alleges to be new. A reference to the terms of the Berlin decree will serve to explain the extent of this requisition. The Berlin decree states, that Great Britain "" extends the right of blockade to commercial un- fortified towns, and to ports, harbors, and mouths ©f rivers, Vv-hich, according to the principles and practice of all civil- ized nations, is only applicable to fortified places. On the part of the American government, I understand you to re- quire that Great Britain should revoke her order of block- ;ide of May, 1806. Combining your requisition with that of the French minister, I must conclude, that America de- mands the revocation of that order of blockade as a practi- cal instance of our renunciation of diose principles of block- :ide which are condemned by the French government. '1 hose principles of blockade Great Britain has asserted to be ancient and established by the laws of maritime war, ac- knowledged by all civilized nations, and on which depend the most valuable rights and interests of this nation. If the Berlin and Miliiu decrees are to be considered as slill ^v ■f in fbt-ce, unless Great Britain shall renounce these estab- lished foundations of her maritime rights and interests, the period of time is not yet arrived, when th-; repeal of her orders in council can be claimed from her, eiiher with re- ference to the promise of this government, or to the safety and honor of the nation, i trust that the justice of the American government will liat consider, that France, by the repeal of her obnoxious dccreeo under such a condi- tion, has placed the question in that state which can war- rant America in enforcing the non-intercourse act against Great Britain and not against France* In reviewing the actual state of this question, America cannot fail to observe the situation in which the commerce of neutral nations has been placed by many recent acts of the French govern- ment ; nor can America reasonably expect that the system of violence and injustice, now pursued by France with un- remitted activity (while it serves to illustrate the true spi- rit of her intentions) should not require some precautions of defence on the part of Great Britain. Having thus stated my view of the several considera- tions, arising from the letter of the French minister, and from that with which you haVe honored me ; it remains only to express my solicitude that you should correct any interpretation of either which you may deem erroneous. If either by the terms of the original decree to which the French minister's letter refers, or by any other authentic document, you can prove that the decrees of Berlin and Milan are absolutely repealed, and that no further condi- tion is required of Great Britain than the repeal of her or- ders in council, I shall receive any such information with most sincere satisfaction, desiring you to understand, that the British government retains an anxious solicitude to re- voke the orders in council^ as soon as the Berlin and Mi*- Ian decrees shall be effectually repealed without conditions injurious to the maritime rights and honor of the united kingdom. I have the honor to b?, with gre;\t respect and T 4^ 3oG APPENBIX', consideration, sir, your most obedient, and humble ser- va,nt, (Signed) WELLESLEY. William Pinkney, Esquire, S)C\ MR. PINKNT-Y TO T.ORIJ •WF.TJ.F,«5L,EY. Great Cumberland Place, January 14, 1811. MY LORD, I have received the letter which you did me the honor to address to me on the 29th of last month, and will not fail to transmit a copy of it to my government. In the mean time I take the liberty to trouble you with the fol- lowing reply, which a severe indisposition has prevented me from preparisg soonen The first paragraph seems to make it proper for me to begin by saying, that the topics introduced into my letter of the 10th of December, were intimately connected with its principal subject, and fairly used to illustrate and ex- plain it ; and consequently, that if they had not the good fortune to b-e acceptable to your lordship, the fatdt was net mine. It was scarcely possible to speak with more modera- tion than my paper exhibits, of that portion of a long list of invasions of the rights of the United States, which it ne- cessarily reviewed, and of the apparent reluctance of the British government to forbear those invasions in future. I do not know that I could more carefully have abstained from whatever might tend to disturb the spirit which your lordship ascribes to his majesty's government, if, instead of being utterly barren and unproductive, it had occasion- ally been visible in some practical result, in some conces- sion cither to friendship or to justice. It would not have been very surprising, nor very culpable perhaps, if I had wholly forgotten to address myself to a spirit of conciliii;: • t> "^ appendix:. 351 tion, which had met the most equitabljc claims wuh steady and unceasing repulsion ; which had yielded nothing that could be denied ; and had answered complaints of injury by multiplying their causes. With this forgetfulness, how- ever, I am not chargeable ; for, against all the discourage- ments suggested by the past, I have a£ted still upon a pre- sumption that the disposition to conciliate, so often pro- fessed, would finally be proved by some better evidence than a perseverance in oppressive novelties, as obviously incompatible with such a disposition in those who enforce them, as in those whose patience they continue to exer- c^sc. Upon the commencement of the second paragraph, I must observe, that the forbearance which it announces might have afforded some gratification, if it had been fol- lowed by such admissions as my government is entitled to expect, instead of further manifestation of that disregard of its demands, by which it has so long been wearied. It has never been my practice to seek discussions, of which the tendency is merely to irritate ; but I beg your lordship to be assured, that I feel no desire to avoid them, what- ever may be their tendency, when the rights of my country require to be vindicated against pretensions that deny, and conduct that infringes them. If I comprehend the other parts of your lordship's let- ter, they declare in effect, that the British government will repeal nothing but the orders in CQimcil, and that it cannot at present repeal even them, because in the first place, the French government has required, in the letter of the Duke of Cadore to General Armstrong, of the 5th of August, not only that Great Britain shall revoke those orders, but that she shall renounce certain principles of blockade (sup- posed to be explained in the preamble to the Berlin de- cree) which France alleges to be new ; and, in the second place, because the American government has (as you con- jclude) demanded the revocation of the British order of S5'2 APPENDIX. blockade of ?>Iay, lS06, as a practical hi§Jts.nce of that same renunciation:, or, in other words,'ms R^ji^ itself gj;^|^tyf not openly indeed, but indirectly ^d covertly, to tKe*. en- tire requisition of France, as you understand that requisi- tion. It is certainly true that the American gov^ei-ntnent has required, as indispensible in the view of its acts of inter- course and non-intercourse,^e annulment of the British blockade of May, 1896 ; and further, that it has through me declared its confident expectation that other blockades of a similar character (including that of the island of Zea- land) will be discontinued. But by what process of rea- son your lordship has arrived at the conclusion, that the government of the United States intended by this requisi- tion to become the champion of the edict of Berlin, to fa- shion its principles by those of France, while it affect- ed to adhere to its own, and to act upon some partner- ship in doctrines, which it would fain induce you to ac- knowledge, but could net prevail upon itself to avow, I am not able to c njecture. The frank and honorable character of the American government justifies' me in saying that, if it had meant to demand of Great Britain an abjuration of all such principles as the French government may think fit to disapprove, it would not haye put your lordship to the trouble of discovering that meaning by the aid of combina- tions and inferences discountenanced by the language of its minister, but would have told you so in explicit terms^ What I have to request of your lordship, therefore, is that you will take our view^s and principles from our own mouths, and that neither the Berlin decree, nor any other act of any foreign state, may be made to speak for us what we have not spoken for ourselves. The principles of blockade which the American govern- ment professes, and upon the foundation of which it has re- peatedly protested against the order of May, 1 806, and the Other kiQcUed innovations of those extra,ordinary times, h^v^? appe:ndix. 353 already been so clearly explained to your lordship, in my letter of the 21st of September, that it is hardly possible to read that letter and misunderstand them. Recommended by the plainest considerations of universal equit)', you will find them supported with a strength of argument and a weight of authority, of which they scarce- ly stand in need, in the papers which will accompany this letter, or were transmitted in that of September. I will not recapitulate what I cannot improve; but I must avail myself of this opportunity to call your lordship's attention a second time, in a particular manner, to one of the papers to which my letter of September refers. I allude to the. copy of an official note of the 12th of April, 1804, from Mr. Merry to Mr. Madison, respecting a pretended blockade of Martinique and Guadaloupe. No comment can add to the value of that manly and perspicuous exposi- tion of the law of blockade, as made by England herself in maintainance of rules which have been respected and upheld in all seasons and on all occasions by the government of the United States. I will leave it, therefore, to your lordship's consideration, with only this remark, that, while that paper exists, it will be superfluous to seek in any French docu- ment for the opinions of the American government on the matter of it. The steady fidelity of the government of the United States to its opinions on that interesting subject is known to every body. The same principles which are found in the letter of Mr. Madison to Mr. Thornton, of the 27th of Oc- tober, 1803, already before you, were asserted in l^QQ, by the American minister at this court, in his correspondence with Lord Grenville, respecting the blockade of some of the ports of Holland; were sanctioned in a letter of the 20th of September, 1800, from the secretary of state of the United States to Mr. King, of which an extract is en- closed ; were insisted upon in repeated instructions to Mr. IJrIonroe and the specisU mission of 1806; have been main - w 354 APPENDiXt tained by the United States against others as well as against England) as will appear by the inclosed copy of instrujjtions, dated the 21st of October, 1801, from Mr. Secretary Ma- dison to Mr. Charles Pinkney then American minister at 3'Iadrid ; and finally, were adhered to by the United States, when belligerent, in the case of the blockade of Tripoli. A few words will give a summary of those principles ; and when recalled to your remembrance, I am not without hopes, that the strong grounds of law and right, on which they stand, will be as apparent to your lordship as they are to me. It is by no means clear that it may net fairly be contend-^ ed, on principle and early usage, that a maritime blockade is incomplete with regard to states at peace, unless the place which it would affect is invested by land as well as by sea. The United States, however, have called for the re- cognition of no such rule. They appear to have contented themselves with urging in substance, that ports not actually blockaded by a present, adequate, stationary force, employe ed by the power which attacks them, shall not be consid- ered as shut to neutral trade in articles not contraband of war ; that, though it is usual for a belligerent to give notice to neutral nations when he intends to institute a blockade, it is possible that he may not act upon his intention at all, or that he may ejfecute it insufficiently, or that he may dis- continue his blockade of which it is not tabtumary to give any notice : that consequently the presence of the blockad- ing force, is the natural criterion by which the neutral is en- abled to ascertain the existence of the blockade at any givr en period, in like manner as the actual investment of a be- sieged place, is the evidence by which we decide whether the siege, which may be commenced, raised, recommenced and raised again, is continued or not; that of course a mere notification to a neutral minister shall not be relied upon, as affecting, with knowledge of the actual existence of a block- ;^dc, either his government or its citizens; that a vessel APPENDIX, 335' clear*^ or bound to a blockaded port, shall not be consid- ered as violating in any manner the blockade, unless, on her approach towards such port, she shall have been previously warned not to enter it ; that this view of the law, in itself perfectly correct, is peculiarly important to nations, situated at a great distance from the belligerent parties, and there- fore incapable of obtaining other than tardy information of the actual state of their ports; that whole coasts and coun- tries shall not be declared, (for they can never be more than declared) to be in a state of blockade, and thus the right of blockade converted into the means of extinguishing the trade of neutral nations ; and lastly, that every blockade shall be impartial in its operation, or, in other words, shall n(|)t open and shut for the convenience of the party that institutes it, and at the same time repel the commerce of the rest of the world, so as to become the odious instrument of an unjust monopoly, instead of a measure of honorable war. These principles are too moderate and just to furnish any motive to the British government for hesitating to re- voke its orders in council, and those analogous orders of blockade, which the United States expect to be recalled. It can hardly be doubted that Great Britain will ultimately accede to them in their fullest extent; but if that be a san- guine calculation (as I trust it is not) it is still incontro- vertible that a disinclination at this moment to acknowledge them, can suggest no rational inducement for declining to repeal at once what every principle disowns, and what must be repealed at last. With regard to the rules of blockades which the French government expects you to abandon, I do not take upon me to decide whether they are such as your lordship supposes them to be or not. Your view of them may be correct : but it may also be erroneous ; and it is wholly immaterial to the case between the United States and Great Britain whether it be the one or the other. 356 AVFENUl __ As to such British blockades as the United States desiid you to reUnquish, you will not, I ana sure, allege that it is any reason for adhering to them that France expects you to relinquish others. If our demands are suited to the mea- sure of our own rights, anc^of your obligations as they res- pect those rights, you cannot think of founding a rejection of them upon any imputed exorbitance in the theories of the French government, for which we are not responsible, and with which we have no concern. If, when you have done justice to the United States, your enemy shouid call upon you to go further, what shall prevent you from refusing ? Your free agency will in no respect have been impaired. Your case will be better, in truth and in the opinion of man- kind; and you will be therefore^ stronger in maintaining it, provided that, in doing so, you resort only to legitimate means, and do not once more forget the rights of others while you seek to vindicate your owe Whether France will be satisfied with what you may do, is, not to be known by anticipation, and ought not to be the subject of inquiry. So vague a speculation has nothing to do with your duties to nations at peace, and, if it had, would annihilate them. It cannot serve your interests; for it tends to lessen the number of your friends, without adding to your security against your enemies. You are required therefore, to do right, and to leave the consequences to the future, when by doing right you have every thing to gain and nothing to lose. As to the orders in council, which professed to be a re- luctant departure from all ordinary rules, and to be justified only as a system of retaliation for a pre-existing measure of France, their foundation (such as it was) is gone the moment that measure is no longer in operation. But the Berlin decree is repealed; and even Milan decree, the sue- ,cessor of your orders in council, is repealed also. Why Is it, then, tliat your orders have outlived those edicts, and fUatthey.M'Q still to oppress and harass c^s before? Your I %■ lordship answers tliis question explicitly ctiougli, but not satisfactorily. You do not allege that the French decrees are not repealed j but you imagine that the re- peal is not to remain in force, unless the British govern- ment shall, in addition to the revocation of its orders iri council, abandon its system of blockade. I am not con- scious of having stated, as yoiir lordship seems to think, that this is so, and I believe in fact that it is otherwise^. Even if it were admitted, however^ the orders in council ought nevertheless to be revoked. Can " the safety and honour of the British iiation" demand that these orders shall continue to outrage the public law of the world, and sport with the indisputed rights of neutral commerce, after the pretext which was at first invcntfcd for them is gone ? But 5'OU are menaced with a revival of the French system, and consequently may again be furnished with the same pre- text i Be it so ; yet still, as the system and the pretext are at present at an end, so, of course, should be your orders. According to your mode of reasoning, the situation of neutral trade is hopeless indeed. Whether the Berlin de- cree exists or not, it is equally to justify your orders in council. You issued them before it ivas any thing but a shadow, and by doing so gave to it all the substance it tould ever claim. It is at this moment nothing.. It is re- voked and has passed away, according to your own admis- sion. You choose, however^ to look for its re-appearance i and you make your own expectation equivalent to the de- cree itself. Compelled to concede that there Is ho anti- heutral French edict in operation upon the ocean, you think it sufficient to say that there ivill be such an edict, you know not when ; and in the meantime you do all you can to verify your own predittion, by giving to your enemy all the provocation in your power to resume the decrees which he has abandoned. For my part, my lord, I know not what it is that the Bri- tish government requires, with a vie^v to what it calls its 46 V 9 HoS APPENDIX. i^ safety and its honor^ as an inducement to irescind its orders in council. It does not, I presume, im^-gine that such a system will be suffered to ripen into law. It must intend HO relinquish it, sooner or laier, as one of those violent ex- periments for which time can do nothing, and to which sub- mission will be hoped in vain. Yet, even after the pro- fessed foundation of this mischievous system is taken away, another and another is industriously procured for it; so that no man can tell at what time, or under what circum- stances it is likely to have an end. "When realities cannot be found, possibilities supply their place, and that, which was originally said to be retaliation for actual injury, be- comes at last (if such a solicism can be endured or imagin- ed) retaliation for apprehended injuries, which the future may or may not produce, but which it is certain have no existence noxv ! I do not mean to grant, for I do not think, that the edict of Berlin did at any time lend even a colour of equity to the British orders in council, with reference to the United States : but it might reasonably have been expected that they, who have so much relied upon it as a justification, would have suffered it and them to sink together. How this is forbidden by your safety or your honor remains to be explained ; and I am not willing to believe that either the one or the other is inconsistent with the observance of substantial justice, and with the prosperity and rights of peaceful states. Although your lordship has slightly remarked upon cer- tain recent acts of the French government, and has spoken in general terms of " the system of violence and injustice now pursued by France,'* as requiring " some precautions of defence on the part of Great Britain," I do not perceive that you deduce any consequence from these observations, in favour of a perseverance in the orders in council. I am not myself aware of any edicts of France which, now that the Berlin and Milan decrees are repealed, affect the rights *■ '" A-PPENDIX. 35r>' of neutral commerce on the seas. And you will yourselves admit that if any of the acts of the French government, resting on territorial sovereignty, have injured, or shall hereafter injure, the United States, it is for them, and for them only, to seek redress. In like manner it is for Great Britain to determine what precautions of defence those measures of France, which yoti denominate unjust and violent, may render it expedient for her to adopt. The United States have only to insist that a sacrifice of their rights shull not be among the number of those precautions. ^ In replying to that pai^sage in your letter, which adverts to the American act of non-intercourse, it is only necessary to mention the proclamation of the President of the United States, of the 2d of November last, and the act of congress which my letter of the 21st of September communicated, and to add that it is in the power of the British government to prevent the non-intercourse from being enforced against Great Britain. Upon the concluding paragraph of your letter I will bare- ly observe, ihat I am not in possession of any document, which you are likely to consider as authentic^ showing that the French decrees are " absolutely revoked upon the sin- gle condition of the revocation of the British orders in council;" but that the information, which I have lately received fi-oni the American legation at Paris, confirms what I have already stated, and I think proved to your lordship, that those decrees are repealed and have ceased to have any effect. I will now trespass on you no further than to suggest that it would have given me sincere plea- sure to be enabled to say as much of the British orders in council and of the blockades, from which it is impossible to distinguish them. I have the honor to be, with great respect and consideration, my lord, your lordship's most obedient humble servant, (Signed) WM. PINKNEY, T/iC most nohk the Marquis WeUcshn, \ddO > APPENDIX, ' NO V, Paris, le 18 Septembre, 1807. J'ai goumis a sa majesty I'empereur et roi, monsieur, les doutes que s'etait forme s. e. le ministre de la marine et des colonies, sur I'entendue de quelques dispositions du decret imperial du 21 Novembre, 1806, qui a d^clarfe les isles Britanniques en 6tat de blocus ; voici queiles sont les intentions de sa majeste sur les points qui avaient mis en question. 1. Les batimens arm^s en guerre peuvent-ils en vertu du decr6t imperial du 21 Novembre dernier, saisir sur les batimens neutres, soit les propri6t^s Anglaises, soit meme toutes marchandises provenant de manufactures ou du territoire Anglais? Sa majeste m'a fait connaitre, que, puis qu'elle avait jug6 a propos de n'exprimer aucune exception dans son decret, il n y avait pas lieu d'en faire dans I'execution a regard de qui que ce put etre. 2. Sa majeste a sursisu statuer sur la question de savoir si les armeteurs Fran(,ais doivent s'emparer des batimens neutres qui vont en Angleterre, ou qui en sortent, lors meme quil n'ont point a bord de marchandises An- glaises. 3. Sur la troisieme question, qui etait de savoir si les. armemens Franqais sont passible de la retenue ordonnee par I'article 0\ du decret du 21 Novembre, sa majesty a declare que la disposition de cet article n'etait susceptible d'aucutie restriction, c'est a dire, que la retenue doit avoir lieu sur le produit de toutes les confiscations de marchan- dises et proprietes qui ont 6te ou ])ourroicnt etre pronon- cees en extjcution du decri&t, sanst'gard au lieu de la saisic ou a la quality des saisis&an9» ArrENDix. 361 Vous voudrei^ bien> Monsieur, notifier ces decisions au conspil des prises, les faire consigner sur les registres et m'assurer la reception de ma lettre. Recevez, &c. &c. - Le gd. juge min. de la justice, (Signe) REGNIER. Procureur general imperial conseil des prises. General AnJistrong to 31, De Champagny. Paris, November 12th, iSOr. SIR, The document to which these observations are pre- fixed will inform your excellency that an American ship, trading under the protection of the laws of nations, and of particular treaties, and suffering shipwreck on the coast of France, has recently been seized by his majesty's officers, and adjudged by his council of prizes as follows, viz : " Our council puts at liberty the American vessel, the Horizon, shipwrecked the 30th of May last, near Morlaix, and consequently orders, that the amount arising from the sale legally made of the wreck of the said vessel, together with the merchandize of the cargo, which, according to an estimate made in presence of the overseers of the adminis- trations of marine and custom-house, shall have been ac- knowledged not to proceed from English manufactures, nor from English territory, shall be restored to captain Mac Clure, without deducting any other expenses than those re- lative to the sale. And with regard to the other merchandize of the cargo, which, from the result of the said estimate, shall be ac- knowledged to come from manufactures or English territo- ry, by virtue of the fifth article of the decree of the 1st November, 1806, they shall be confiscated for the use of the state ; the whole to be sold by the forms prescribed in the regulations : and the application of the product to be ;M., f ^t>2 ATTEND IX. made In conformity to the arrangements of the said de- cree, deduction being made for the expense of saving the goods, and that of the support of the crew, until the day that the captain shall receive the notification of the present decision." '"' The reasons upon which this decision is founded are at once so new and so alarming to the present friendly rela- tions of the two powers, that I cannot but discuss them with a freedom in some degree proportioned to mv sense of their novelty and importance. " Considering," says the council, " 1st. That the neu- trality of the ship and cargo were sufficiently established, the whole ought to be restored, (agreeably to the provisions of the convention of the 30th of September, 1800,) provided no meixhandize of English origin had been found in her, and of course that she had not been brought with- in the limits of the imperial decree of the 21st of Novem^ feer, 1806." ' Here is an open and unqualified admission, that the ship was found within the rules prescribed by the convention of ISOC) ; that according to these rules, her cargo and herself ought to have been restored, and that such would have been the fact, but for the operation of the decree of the 21st of November, 1 806. In tlie letter your e»xcellency did me the honour to write to me on the 7ih of October last, you thought it " easy to reconcile the obligations of this decree with the preserva- tion of those arising from treaties." It was not for me to examine the means by which this reconciliation could be effected ; they, no doubt, fully existed, and yet exist in his niaiesty's good pleasure ; and, taking for granted this fact, I saw in the opinion nothing but proofs of friendly disposi- tions and pledges that these were not to be either wanionl)' dcstro\'ed or diminished. IIow inauspicious, however, to its aulhoritv and llio consolations derived from it, is this recent act of ilic council of pi.-iScs ? ;ui uct \vhich explicitly ;* *■ ■^ 1 Appexdix. i 303 Acknowledges tlic opposite characters and cotuflicting in- junctiongf^of these two instrumeats ; and which of course draws after it considerations the most serious to the gov- ernment of the United States. The second reason of the council is, *' That the decree declaring (British) merchandize good prize, had principally in view captures made on the high seas ; but that the question, whether shipwrecked goods ought to be restored or confiscated, having always been judged under the 14ih article of the regulation of the 26th of July, 1778, and according to their character, (which might have rendered lawful, or have even commended their seizure at sea,) there is no reason to introduce in this case any new distinction, wiiich, however philanthropic it may appear, has not as yet been adopted as a rule by any maritime nation." , The doctrine resisted in this passage, and which incul- cates the duty of extending protection to the unfortunate, is not new to his majesty's council of prizes. They have themselves consecrated it by their decision of the 5th of March, ISOO. By that decision they restored an enemy ^s ship, (the Diana) on the sing-Ie reason, that " she had been compelled to enter a French port by stress of weather ^^ " I should certainly fail," says the attorney general, " in res- pect to myself and to the council, before wliom I have the honour to represent the government, were I not to viain- tain a principle consecrated bi/ ot/r larvs, ayid by those of all nations. In all circumstances let the loyaltv of the French government serve as the basis of your decisif^ns. Prove yourselves at once generous and just ; your enemies will know and respect your magnanimity." Such was the prin- ciple adopted by the council in the year 1800, and in the case of an enemy's ship, yet we are now told, that this very principle, so honourable to the court, to the nation, and to human nature, is utterly unknown to all maritime people. And on v-'hat occasion do we hear this ? when an enemy's % 364 AprEKDix.- ship Is again thrown on the French cSast? jE^o, It has heer! resel-ve J for the wreck of a neutral and friendly vessel ? for a ship of the United States ! It is not denied, that had this ship escaped the rocks and made the port of Morlaix^ the only inhospitality to which she v/ould have been expo- sed, (under the most rigorous interpretation of the law in question,) would have been that of being ordered again to sea. Has then the misfortune of shipwreck so far altered her condition as to expose her to the injury of confiscation also ? and is this among the principles which the defender p{ maritime rights means to consecrate by his power and his wisdom ? It is impossible^ The third reason of the council is, " That the applica- tion of the 5th article aforesaid, in as far as it concerns the American and other nations, is the result both of the gen- eral expressions of that vei'y article, and of the communica- tion recently made by his excellency, the grand judge, con= cerning the primitive intention of the sovereign." This reason will be found to be substantially answered iii my reply to reason, No. 5, of the counciL It will be seen, that the opinion given here, that " the application of arti- cle 5, of the imperial decree, to American commerce, is the result of the general expressions of that very ar- ticle," was not the opinion of the council, on the 5th of March last, v.'hen they judged the case of the Hibernia; they then declared, in totidem verbis, that the decree " said nothing of its own influence on the convention of 1800, be- tween the United States and France. The fourth reason of the council is, " that the expedition in question having certainly been made with full knowledge! of the said decree, no objection can be drawn, with any pro- priety, from the general rules forbidding a retrospective ac-* tion, nor even, in this particular case, from the posterior date of the aqt, in wliicli the sovereign decides the ques- tion, since th^t act sprung from his supreme wisdom, no? t ^'- APPENDIX. -h 305 ab ail iuterpetraiion of a doubtful point, but as u declaration of an anteriol^ and positive disposition." A distinction is here attempted to be taken, between the interpretation of a doubtful point, J^id the declaration of an anterior and positive rule. This distinction cannot be maintained ; for if the rule had been positive, there would have been no occasion for the declaration. Neither the minister of marine, nor the council of prizes could have had any doubts on the subject; the execution of the decree would have been prompt arid peremptory ; nor would a second act, on the part of his majesty, after the lapse of twelve months, have been necessary to give operation to the first. Need I appeal to your excellency's memory, for the facts on which these remarks turn ? You know that doubts did exist — you know that there was, under them^ much hesitation in pronouncing. You knov/ that as late as the 9th of August I sought an explanation of the decree in question, and that even then your excellency, (who was surely a competent and legitimate organ of his majesty,) did not think yourself prepared to give it : the conclusion is inevitable. His majesty's answer, transmitted to the court of prizes on the 18th of September last, through the medium of the grand judge, was in the nature of an inter- pretation, and being so, could not, without possessing a retro-active quality, apply to events many months anterior in date to itself. The fifth reason of the council, and the last which enters into my present view of the subject, is, " that thotigh one of the principal agents of his majesty had given a contrary opinion, of which the council had at no period partaken, this opinion being that of an individual, could not, wliatever con- sideration its author may merit, balance the formal declara- tion given in the name of his majesty himself; and that, ll if the communication of this opinion had, as is alleged, giv- en room to, and served as a basis for many American shipments, and particularly of the one in question, this cir- 47 # 366 APPENDIX. .!.'*- T' cumstance which may call for the iudulgi;tfte of his majes- ty, in a case in which the confiscation is entirely to the ad- vantage of the state, does not prevent a council rigid in its duty, to pronounce in conformity to the decree of the 21st of November, and of the declaration which followed it." It would appear from this paragraph that not finding it easy to untie the knot, the council had determined to cut it. Pressed by the fact, that an interpretation of the decree had been given by a minister of his majesty, specially charged with its execution, they would now escape from this fact and from the conclusions to \Vhich it evidently leads by al- leging, 1st. That at no time had the council partaken of the opin- ion given by the minister : and, 2d. That this opinion being that of an individual could not possess either the force or the authority of one truly ministerial. ^ It appears to me, as I think it will appear to your excel- " Ifency, that the council have, in these statements, been less correct than is usual to them on similar occasions. If, as they now assert, they have never partaken of the minister's opinion — if they have never even hesitated on the question, whether the decree of November did, or did not, derogate from the treaty of 1800 — Wh}-, I ask, suspend the Ameri- can cases generally ? or v.hy decide as they did in the case of the Hibernia? If I mistake not, we find in this case the recognition of the very principle laid down by the min ister of ;; arine. That officer says, " in my opinion the November decree does not work any change in the rules at present observed with respect to neutral commerce, and con sequently none in the convention of the 8th Vandemaire- y«ar nine." And what says the council, " admitting that this part of the cargo, (the rum and ginger) was of British origin^ the disj)ositions of the November decree^ {which, contain nothing- with regard to their oxvn injiuencc over the convention of the Bth Vandemaire., year nim^ evi- APPENDIX. 367 dcntly cannot be ar^fed to a ship leaving America on the sixth of the same month of November ; and of course can- not have authorised her capture in the moment she was en- tering the neutral port of her destination." We have here three distinct grounds of exemption from the effects of the November decree, 1st. The entire silence of that decree with regard to its own influence over the convention of 1800. 2d. The early period at which the ship left the United States. And, Sd. The neutral character of the port to which she was destined. If such, Sir, were the principles admitted by the council on the 5th of March last, with what correctness can it be now said, " that at no period have they ^jartaken of the opinion of the minister ?'' The second fact asserted by the council is, that the inter= pretation of the decree in question, given on the 24th of December, 1806, w^s private not publ c— or in other wordsi that it was the interpretation of the man^ not that of the minister — and as such, cannot outweigh the more recent declaration coming directly from his majesty himself. On the comparative weight of these declarations I shall say nothing, nor shall I do more to repel the first part of the insinuation, fthat the mi7i'Ster'*s declaration was that only of the indimdnal) — than to submit to your excel- lency my letter of the 20th of December, 1806, claiming from that minister an official interpretation of the decree in question, and his answer of, the 24th of the same month, giving to me the interpretation demanded. To your excellency, v/ho as late as the 21st of August last, considered the minister of marine as the natural orgaa of his majesty's will, in whatever regarded the decree afore- said, and who actually applied to him for information rela- ' ting to it, this allegation of the council of prizes and the reasoning founded upon it, cannot but appear very extraor- 4ina,ry, and will justify me^ in requesting that his majesty ft Ife^- % '* 3(58 APPENDIX. ^^, may be moved to set aside the decision in question, on the ground of error in the opinion of the council. If in support of this conclusion I have drawn no argu- ments from the treaty of 1800, nor from the laws of nations, your excellency will not be at a loss to assign to this omis- sion its true cause. It would surely have been a useless formality to appeal to authorities, not only practically, but even professedly extinct. In the letter of the minister of justice of the 18th September, we are told by his majesty himself, that ^' since he had not judged proper to make any exception in the letter of his decree, there was no room to ' make any in its execution," and in the report of your ex- cellency's predecessor, of the 20th November 1806, we have these memorable words : " England has declared those places blockaded, before nhich she had not a single ship of war. She has done more, for she has declared in a state of blockade, places, .which all her assembled forces were incapable of blockad^- ing — immense coasts, and a vast empire. Afterv/ards, drawing from a chimerical right and from an assumed fact the consequence that she might justly make her prey of every thing going to the places laid under interdiction, by a simple declaration of the British admiralty, and of every thing arising therefrom, and carrying this doctrine into effect, she has alarmed neutral navigators, and driven them to a distance from ports whither their interests at- tracted them, and which the law of nations authorised them to frequent. Tlius it is, that she has turned to her own profit, and to the detriment of Europe, but more particular- i)' of France, the audacit)'' with which she mocks at all rights and insults even reason itself. Against a power which forgets to such a pitch all ideas of justice, and all humane sentiments, rvhat can be done but to forget them for an instant cne^s self?'''' Words cannot go further to shew i^ the extinguished authority in the one case, of the treaty sub- sisting between the United States and his imperial ma- .*' Am. t^' APPENDIX. 369 jesty, and in the other, of the law of nations : to appeal to them therefore, would be literally appealing to the dead. Accept, Sir, Sec. Sec. (Signed) JOHN ARMSTRONG. His Excellency, the Minister of Foreign Affairs. m^t No. VI. RULES OF THE DISTRICT COUKT FOR THE SOUTHERX i)ISTRICT OF NEW-YORK IN PRIZE CAUSES. 1st. There shall be issued under the seal and authority of this court, ccmmissions to such persons as the court shall thinkiflt, appointing them commissioners to take the examinations of witnesses in prif^e causes in prepai-atory, on the standing interrogatories which have been settled and adopted by this court, and to discharge such other duties in relation to ships or vessels, or property brought into the district of New-York, as prize, as shall be designated, by the said commissions, and the rules and orders of this court. 2d. The captors of any property brought into the dis- trict of New- York, as prize, or some one in their behalf, shall without delay, give notice to one of the commission- ers aforesaid, of the arrival of such property, and of the place where the same may be found. 3d. That upon the receipt of such notice, the commis- sioner or commissioners shall repair to the place where the said prize property then is, and if the same be a ship or vessel, or if the property be on board a ship or vessel, he shall cause the said ship or vessel to be safely moored in sufficient depth of water, or in soft ground, so that the ship may receive no damage. The said commissioner or com- m 370 APPENDIX. mis >Ioners shall then take from the captors or others, infor- mation of the arrival of the captured ship or vessel, or pro- perty, and of the time when the same was brought into the district. That the said commissioner or commissioners, in case the prize be a ship or vessel, shall examine whether bulk has been broken, and if it be found ^hat bulk has been broken, the said commissioner or commissioners shall take information upon what occasion, or what cause the same was done. If the property captured be not a ship or vessel, or in a ship or vessel, the commissioner or commissioners shall exv amine the chests, packages, boxes or casks containing ihe sub- ject captured, and shall ascertain whether the same has been opened, and upon what occasion the same were opened,"and shall in every case, examine whether any of the property originally captured has been secreted or taken away subse- quently to the capture. And in every case, the commis- sioner, before he leaves the captured property, shall secure the same by se^s vipon the hatches, doors, chests, bales^, boxes, casks or packages, as the case may require, so that they cannot be opened without breaking the said seals, and the said seals shall not be broken, or the property removed, much less unladened from any vessel, unless by special or- der of this court, excepting only in cases of fire or tem- pest, or of absolute necessity. If the captured property be not a vessel, or on board a vessel, the commissioner or commissioners shall take a detailed account of the particu^ lars thereof, and shall cause the same to be deposited un- der seals as aforesaid, in a place of safety, there to abide the order or decree of this court. 4th. If no notification shall within reasonable time have been given by the captors, or by any person on their be- half, of any property which may be brought as prize within this district, and the commissioners, or either of them, shall become informed thereof by any means, it shall be the duty of the s^id commissioners, or one of them, to repair to the m. m APPENDIX. 371 / , •■ place where such^roperty is, and to proceed in respect to the same, as if notice had been given by the captors. 5th. The captors shall deliver up to the commissioner or commissioners, when he or they shall, conformably to the foregoing rule, repair to the place where such cap ured property is, or at such other time as the said commission- ers, or either of them, shall require the same, all such pa- pers, passes, sea-briefs, charters, bills of lachng, cockets, letters and other documents and writings as shall have been found on board the captured ship, or which have any refe- rence to or connexion with the captured property, and which are in the possession, custody or power of the cap- tors. The said papers, documents and writings shall be regularly marked and numbered bv the said commissioner or commissioners, and the captor, chief officer or some other person who was present at the taking of the prize, and saw that such documentr,, papers and writings were found with the prize, must make a deposition before the said commissioner or commissioners, who are hereby au- thorised to take the same,, that they are delivered up to the said commissioner or commissioners as they were found or received, without any fraud, subduction or em- bezzlement. And if any documents, papers or writir4gs Relative to or connected with the captured property are missing or wanting the deponent shall in his said deposi- tion, account for the same according to the best of his knowledge, informaHon and belief. And the deponent must further swear, that if at any time thereafter, and be- fore the final condemnation or acquittal of the said proper- ty, any further or other papers relating to the said captu- ed property shall be found or discovered, cc the knowledge of the ^deponent, they shall also be delivered up, on infor- mation thereof given to the commissioners or to this court: which deposition shall be reduced to writing by the com- missioners, and shall be transmitted to the clerk of the court as herein after mentioned. 4 37*^ Apr£:\i>i\, 6th. That when the said documents, pifiper 3 and writhigs are delivered to a commissioner, he shall i*etaui the same till after the examination in preparatorio shall have been made by him, as is hereafter provided, and then he shall transmit the same with the same affidavit in relation there- to, the preparatory examinations, and the information he may have received in regard to the said captured property, under cover and under his seal to this court, addressed to the clerk thereof, and expressing on the said cover to what captured property the documents relate, or who claims to be the captors thereof, or from whom he received the in- formation of the capture, which said cover shall not be opened without the order of this court. 7th. That within three days after the captured property shall have been brought within the jurisdiction of this court, the captor shall produce to the commissioner or commissioners, three or four, if so many there be, of the company or persons v.'ho were captured with or who claim the said captured property, and in case the capture be a vessel, the master, mate or supercargo must always be two in order that they may be examined by the said commis- sioner or commissioners in preparatory upon the standing interrogatories. 8th. That each commissioner appointed or to be p- pointcd pursuant to the rules of this court, for taking ex- aminations in preparatorio, shall be furnished with a print- ed copy of these rules, and of the standing interrogatories certified by the clerk, and in the examination of witnesses in preparatorio, the commissioner or commissioners shall use no other interrogatories but the said standing inter- rogatories, unless special interrogatories are directed by this court : nevertheless, they may explain at all times to ii witness when it may be necessary, any of the said inter- rogatories. They shall write down the answer of eyery witness separately to each interrogatory, and not to seve- ral interrogatories together. Whqj^i a witness declares he APPENDIX. 373 cannot answer to any interrogatory, the commissioner or commissioners shall admonish the witness, that by virtue of his oath taken to speak the truth, and nothing but the truth, he must answer to the best of his knowledge, or when he does not know absolutely, then to answer to the best of his belief concerning any one fact. 9th. That the examination of every witness shall h?. be- gun, continued and finished in the same day, and not at different times. That copies of the standing interrogatories shall not be returned by the commissioner or commission- ers with the examinations, but it shall be sufficient for the answers of the witnesses to refer to the standing interroga- tories by corresponding numbers : that before any witness shall be examined in the standing interrogatories, the com- missioners, or one of them, shall administer to him an oath in the following form : " You shall true answer make to all such questions as shall be asked of you on these in- terrogatories, and therein j'ou shall speak the whole truth, and nothing but the truth, so help you God." If the wit- ness is conscientiously averse to swearing, an affirmation to the same effect shall be administered to him. 10th. That the examination of each witness on the stand- ing interrogatories, shall be retui-ned according to the fol- lowing form. Deposition ef A. B. a witness produced, sworn and examined in preparatorio on the day of in the year at the house of situated in the city of on the standing interrogatories established by the district court of the Uni- ted States, for the district of New- York. The said wit- ness having been produced for the purpose of such exa- mination by C. D. in behalf of the captors of a certain ship or vessel, called the (or of certain goods, ■U'ares and merchandize as the case may be.) 1st. To the first interrogatory, the deponent answers that he was born at &c. 48 374 ' APPENDIX. 2d. To the second interrogatory, the deponent answers that he was present at, the time of the taking, &c. That when the interrogatories have been all answered by a witness, he shall sign his depositions, and the commis- sioner or commissioners shall put a jurata thereto in the usual form, and subscribe his name to the same. 11th. That no person having or claiming any interest in the captured property, or having anj' interest in any ship having letters of marque or commissions of war, shall pre- sume to act as a commissioner. Nor shall a commissioner presume to act tither as proctor, advocate or counsel either for captors or claimants in any prize cause whatever. 12th. If the captain or prize master neglect or refuse to give up and to deliver to the commissioner or commission- ers, the documents, pr-pers and v/ritings relating to the captured property, according to the foregoing rule, or re- fuse or neglect to produce, or cause to be produced, wit- nesses to be examined in preparatory, within three days after the arrival of the captured property within the juris- diction of this court, or shall otherwise unnecessarily delay the production of the said documents, papers or writings, the commissioners, or one of them nearest to the place where the captured property may be, or before whom the examination in preparatorio may have been already begun, shall admonish in writing the delinquent to produce the said documents, papers and writings, and to bring forward??^ his witnesses, and if he shall still neglect, or unnecessarily delay so to do, such commissioner or commissioners shall certify the same to this court, that such proceedings may thereupon be had as justice may require. 13th. If within twenty-four hours after the arrival with- in this district, of any captured vessel, or of any property taken as a prize, the captors or their agent shall not give notice to a commissioner, pursuant to the provisions herein made, or shall not, two days after such notice given, pro- duce witnesses to be examined in preparatorio, then any APPENDIX. J/CJ person claiming the captured property and. restoration thereof, may give nouce to the commissioners as aforesaid, of the arrival of the said captured property, and thereupon such proceedings may be had by the commissioners in res- pect to the said property, and relative to the documents, papers and writings connected with the said capture, which the claimant may have in his possession, custody or power, and» relative to the examination of witnesses in preparato- Yio as near as may be, as is before provided for cases where the captors shall give notice and examine in preparatorio-> And the said claimant may in such cases file his libel for restitution, and proceed thereon according to the rules and practice of this court. 14th. That as soon as may be convenient after the cap- tured property shall have been brought v/ithin the jurisdic- tion of this court, a libel may be filed and a monition shall thereupon be issued, and such proceedings shall be had as are provided by the 89th and 90th sections of the act en- titled. An act to regulate the collection of duties on im- ports and tonnage in cases of vessels, goods, wares and merchandize which become forfeited in virtue of said act. 15th. That in all cases by consent of captor and claim- ant, or upon attestation exhibited upon the part of th,6 claim- ant only, without consent of the captor, that the cargo or part thereof is perishing or perishable, the claimant specl-^ fying tlie quantity and quality of the cargo, may have the'' same delivered to hirn on giving, bail to answer the value thereof if condemned, and further to abide the event of the suit, such bail to be approved of by the captor, or other- wise the persons who give security, swearing themselves to bdseverally and truly worth the sum for which they give securitj^ But if the parties cannot agree upon the value of the cargo, a decree or coipmission of appraisement may issue from the court to ascertain the value. In cases when there is no claim, an affidavit being exhibited on the part of the captor, of suclll perishing or perishable cargo, speci- Jf' -'-aiCZ*. 37t> appemjix, fying the quantity and quality thereof, the captor may have a decree or commission of appraisement and sale of such cargo, and bring in the proceeds into court in view of any claim, virtually to abide further orders. 16th. That the name of each cause be entered by the clerk upon the list for hearing in their order, according to the dates of the returns of the monitions, and the lists are to be constantly hung up in the court room and clerk's of- fice for public inspection. Proviso : This order of hear- ing is to be invariably observed, unless in any cause of great national importance, the judge shall find it necessary to direct the hearing of any particular cause immediately. 17th. That in all cases -where a decree or commission of appraisement and sale of any ship and cargo, or either of them shall have issued, that no question respecting the ad- judication of such ship and goods or either of them, or as to freight or expenses, shall be heard, till the said decree or commission shall be returned with the account of sales, and the proceeds according to such accompt of sales paid into the clerk, to abide the order of the court in respect thereto. 18th. That after the examinations taken in preparatory in the standing interrogatories, are brought into the regis- try, and the monition has issued, no further or other ex- aminations upon the said interrogptories shall be taken, or affidavits received in the office without the special direc- tions of the judge, upon application made in open court. 19th. That there shall be no invocation of papers from one captured ship to another, without the special permis- sion of the judge, at least two days previous to the, cause coming on, in which such papers are intended to be used, founded on an affidavit on the part of the captors, that such papers, in the opinion of his counsel, are material and necessary ; it being understood that the case of the ship from whence the invocation is proposed to be made, shall have been previously heard, and its papers in possession ot • * APPENDIX. 377 '-■^ the court ; and that necessary extracts from such papers should only be used. But as the Intention of the captor is to discover fx-aud, the party who hath an interest in con- fusing evidence and in fraudulently putting different pa- pers on board different ships, the claimants are precluded from invoking, but may argue from the papers invoked by the captors. 20th. That in all motions for commissions and decrees of appraisement and sale, the time shall be specified, with- in which it is prayed that the commissions or decrees shall be made returnable. 21st. That the commissioner or commissioners make re- gular returns on the days in which their commission or decrees 'are returnable, stating the progress that has been made in the execution of the commissions or decrees, and if necessary, praying an enlargement of the time for the completion of the business. 22d. That the commissioner or commissioners bring in the proceeds which have been collected at the same time with their returns ; and if the whole proceeds have not been collected, they return only such sums as may be re- quired to answer accruing expenses. 23d. That on the returns of commissions or decrees, the commissioners or the marshal bring in the vouchers. 24th. That all monies brought into court in prize causes, shall be forthwith paid into bank, pursuant to the of the general rules of this c()urt, and shall only be dr^vn out on the specific orders of the court in favor of the per- sons respectively having right, their agents or representa- tives duly authorized to receive the same. 2^th. That each commissioner, for discharging the du- ties'which he is hereby to perform, shall be entitled to the following fees, and the two commissioners resident in the city of New-York shall each be entitled to the like fees ia each case. J* J<5 APPENDIX. For receiving and entering a notice of cap- ture, ...... For attending at place where the captured property is, For attending to the safety of a vessel. For inspecting captured property, putting the same under seal, receiving and examining all letters, documents and papers relative to the same, over and above all disburse- ttients that may actually be paid, for mo- ving or transferring a vessel or property to a place of safety, and under all actual disbursements and expenses, . For writing an afRdavit with respect to pa- pers, and taking an account thereof, and for marking and numbering the same. For transferring papers and information to the clerk of the court, . . . <, For drafting and copying the examination of each witness, and for administering the oath to the same, for each folio. For any special services not herein provided for, such compensation as the court under all the circumstances of the case shall think reasonable and just. No. VII. FORM OF PRIZE LIBEL. Disirm Court of the United States of America, for (rt District of New-York. Jj^t a special district court of the United States of Ame- rica, for the district of New-York, held at the city of New- York, in the i>aid district, on the second day of January, t APPENDIX. ■• 379 in the year of our Lord one thousand eight hundred and thirteen, comes Natlum Sanford, attorney of the said Uni- ted States, for the district of New-York, who prosecutes in this respect for the said United States, and also for the officers and crew of the frigate of the said United States, called the United States, hereinafter mentioned, and being present in this honorable court in his proper person, in the name and on behalf of the said United States, and the of- ficers and crew aforesaid, alleges, propounds and declares, as follows, that is to say — First — That open and public war did at all the times men- tioned in this libel, exist, and does now exist, between the United States of America and their territories, and the united kingdom of Great Britain and Ireland and the ' dependencies thereof. Secondly — That Stephen Decatur is, and at all the times , mentioned in this libel, was a captain in the navy of the said United States, and is, and at all the times hereia mentioned, was commander of the said frigate of the said United States, called the United States. Thirdly — That the said Stephen Decatur, captain and com- mander of the said frigate, called the United States, as aforesaid, did, in pursuance of the said state of war, and instructions from the President of the said United States, on the twenty-fifth day of October, in the year of our Lord one thousand eight hundred and twelve, on the-i high seas, to wit, on the Atlantic ocean, subdue, seize and take as prize of war, a certain ship, vessel or frigate, called the Macedonian, with her tackle, apparel and fur- niture, and also her arms, ammunition, stores, provisions and appurtenances. Fourfl^ — That the said ship, vessel or frigate, called the Macedonian, is, and at all the times hereinafter mention- ed, was a public vessel of war, belonging to the king oi the united kingdom of Great Britain and Ireland, and vvas employed in his service. I -Jfc J380 APPENDIX. Fifthly-r—Thzi the said ship, vessel or frigate, called the Macedonian, having been so seized and taken as afore- said, has been brought into the port of New- York, for legal adjudication, and is now in the said port, within the jurisdiction of this honorable Court. Sixthly — That by reason of the premises, the said ship, vessel or frigate, called the Macedonian, with her tackle, apparel and furniture, and also, her arms, ammunition, stores, provisions and appurtenances, have become for- feited to the said United States, and to the officers and crew of the said frigate of the said United States^ called the United States, and ought to be considered to their use. Lastly — .That all the premises are and were true, public, and notorious, of which true proof being made, the said attor- ney prays the usual process and monition of this honor- able court in this behalf to be made, and that all persons interested in the said ship, vessel or frigate, called the Macedonian, her tackle, apparel and furniture, arms, ammunition, stores provisions and appurtenances, may be cited in general and special to answer the premises, and all due proceedings being had, that the said ship, vessel or frigate, called the Macedonian, hei^tackle, ap- parel and furniture, arms, ammunition, stores, provisions and appurtenances, may for the causes aforesaid and V others appearing, be condemned by the definitive sen- tence and decree of this honorable court, as forfeited and adjudged to be lawful prize as aforesaid, &c. NATHAN SANFORD, Attorney of the United States^ for the district of New-Tork.^^ ALPHABETICAL INDEX. A. Page Abandoumeut by the captors . 52 Acceptance from the enemy of a license to trade . . . 159 Allegiance, permanent or temporary 101 Allies, property of engaged in trade with the enemy . . 223 Ally, prizes carried into the ports of and adjudicated in a consular tribunal 260 Ally, prizes carried into ports of and condemned in courts of the captor's country 261 Attempts to evade the rule prohibiting trade with the enemy . 220 Apparent exceptions to the rule 221 Appendix 309 Appeal, disposition of the property in case of . . . . 281 further prool'on 285 Articles of promiscuous use destined to a port of naval equipment 1 77 Armstrong, General, his letter to M. do Champagny . . 361 Aurora, case of the 168 B. Berliriilre^ee, rescript relative to 36q Blockaded ports, trade to 190 Blockade, right of extended to total prohibition of neutral commerce !b. definition of ,..,.., , 193 notice of Jb. 49 ALPHABETICAL INDEX. Page Blockade, penalty for breach of 203 of Mart'nioHe and Gnadaloupe . . • . . .lb. documents relating to ..... . 342 Boats, fishing GO Britain, lavr of relating to recapture ..... 246 constitution of prize courts in . . . . . 272 British order in council, relative to the sale of vessels . . 62 residents in Portugal 151 orders in council 191 law prohibiting ransoms . 231 regulations as to distribution of prizes to flag officers . 294 c. Capture by tenders attached to ships of war .... 36 by vessels commissioned against one power of effects be* longing to another ...... 37 of merchant vessel iu defending herself . . . .lb. things subject to . . . . . . . 41 defined 52 when consummated , . lb, in neutral territory . . 54 of ransom bill by the enemy 235 Captures in violation of treaty of peace, responsibility for . . 300 limitation of as to time and place '. . . . 301 Captured property, title to iu whom vested . . . . 41 Captors, fr*-.ight to on neutral goods 70 Carrying despatches of the enemy 186 Cartels -jj^ 58 Character, national how affected by the flag and pass . ^ilB" 1^8 national of Europeans in the Kast .... 149 Citizenship for commercial purposes 102 Commissions foreign, laws prohibiting acceptance of . • . . _ 45 Commercial iohubitaocy 102 ' ALPHABETICAL JNDEX. Page Common law as to tra!• de Ghampagny . , - 361 ALPHABETICAL IMDEX, Page Libel, prize form of . 370 Licenses to trade with the enemy GO acceptance ofcause of confiscation lAQ License, implied 221 I'iens, neutral and other upon enemy's property ... 80 Limitation of captures in treaty of peace ..... 301 Liverpool Packet, case of ... . ... 170 Loss of ransomed vessel . 233 M. Mackintosh, Sir James his decision respecting instructions abridging the rights of neutrals 50 Maritime law of England, as to trading with the enemy . . 209 Marshall, C. J. his opinion upon a question of domicil . . 117 Martinique and Guadaloupe, documents relating to the blockade of 342 Master, seizure under an agreement with the .... 52 Military persons, transportation of 181 Municipal law, property engaged in violation of . . . . 225 N. Xational character of Europeans in the East .... 14!) flag and pass how affecting . . . 158 ^Natural and acquired domicil 1.03 domicil easily reverts . . . . . . .105 >i^aval equipment, port of articles destined to . . . . 177 3ieutral vessels laden with enemy goods 71 enemy goods in whether liable to confiscation . 74 ^^ carrier of enemy's property, freight to •. . . . 7& and other liens upon enemy's property ... 80 property sometimes liable to capture . . . .175 ■Tssel carrying enemy's forces liable to confiscation . 184 carrying despatches of the enemy . <• . .186 ALPHABETICAL INBEX. Page Neuti'al commerce, right of blockade extended to total prohibitioa of 190 port, trade to-the enemy's coiintiy through . . . 220 country, trade by a partiiersliip ia . . . . lb. territory, capture hi 54 jurisdictioD, captures withia hofv adjudicated . . 258 state, restituticiii of the property ot its own subjects, brought within its jurisdiction . . . . . .lb. territory, in vvhiit cases property continues in the captor ' when brought into 259 ports, extent of belligerent rights in ... . 260 ^ prizes carried into and coudemned in the courts of the captor's country lb. Neutralized commodities, trade in 221 Notice of blockade 'l93 o. Order in council, British relative to transfer of vessels ... 62 Orders in council, British 191 Ordinance, French requiring certaiu proafs of transfer ... 64 Ordinances, municipal invalidity of .... * . 63 P. Parluership iu a neutral couQtl(7, trade by 22U Passport, vessel sailing under ."iQ Payment of ransom, how enforced 236 Peace, treaty of ^ ogg Penalty for resistance to visitation and search . . . .95 of confiscation of contraband, whether extending to return voyage . 133 Penalty for breach of blockade 203 Pirate, recapturo fr«m 23T ALPHABETICAL INDEX. Pagi Pirates, taking by 54 Pica ftPd proof 283 Pre-emption, ri;:lit of ....;... . 177 Presidfciit's instructions of the 28th August, 1812, ... 48 Private armed vessels, security given by 42 responsibility of owners aud^^fficers of . 43 President's instructions to ... 341 Prize courts, constitution of 266 conclusiveness of their judgments .... 274 jurisdiction of as to property taken on land . . 278 proceedings . . . . . . . : . 280 libel, form of 378 Prizes carried into ports of an ally or co-belligerent . . . 261 *** ^ neutral ports . . ; . . . lb, ' distribution of . . . . . . . . . 286 Port of naval equipment, things destined to .... 177 of an ally, prizes carried into . . . . . . 260 Portalis, M. his discourse before the cauncil of prizes . . - 267 Portugal, British residents in 151 law of as to recaptures 246 Postliminiiyjus 241 Promiscuous liw, things of 176 Proof, fuj ther 283 Property, enemy's these liable to capture 14 freight to the neutral carrier of . . . 79 ' neutral and other liens upon .... 80 transfer of in transitu . . . . 85 wrongfully taken before a declaratioa of war . . 39 *^ captured title to in whom vested .... 41 ^ of persons domiciled in the enemy's country . . 101 neutral, sometimes liable to capture . . . . 175 engaged in 'violation of municipal law . . . 225 -^ neutral salvage for when payable .... 239 50 ALPHABETICAL INDEX. Page Public hostilities assimilated to a war 31 armed vessels 41 R. Ransoms 231 British law prohibiting' lb. payment pf how enforced . . . . . . 236 Ransomed vessel, deviation from the route prescribed for . 233 i loss of lb. Ransom bill, capture of by the enemy 235 Recapture on account of deviation of ransomed vessel . . . 234 different species of 237 from a pirate lb from a captor commissioned but not an enemy . 238 from an enemy . . . . . . - • 241 Recapture law of France as to 244 ' of Spain . .• 244 of Portugal 246 of Denmark ....... lb. of Sweden lb. of Great Britain .lb. ofthe United States 247 of merchant vesseMmder convoy by convoying ship . 249 Recaptured vessel, freight upon cargo to .... 251 Reciprocity, law of . ' 312 Reprisals .......... II Rescript relative to the Berlin decree * MO Rescue . . . ■ i^ 251 Responsibility of owners and officers of private armed vessels . 43 for captures in violation of treaty pf peace . . 300 Retroactive effect of declaration of war 3.'* ^ulc as to the effect of proofs of property . . . . . 6C Rules ofthe District Cpjurt for the Southern District of New-York, in prize causes . . 369 i« ALPHABETICAL INDEX. s. Page Sale of vessels must be absolute and unconditional ... 64 by the enemy to a neutral at sea 248 of property liable to perish, or subject to deterioration . 284 Salvage for neutral property, when payable upon freight . .-^ 250 Scott, Sir W. his and Sir J. NicboU's letter to Mr. Jay . . 309 Security given by private armed vessels 42 Seizure under an agreement with the master .... 62 Ships built for war ^80 Slave trade , . 227 Suspension of hostilities 2Sl^ and revival of enemy's right 307 Taking by pirates 5-i Tender attached to ships of war, capture by ... . 36 Testimony, documentary and other 281 Time, the grand ingredient in constituting domicil . . . lOJ Title to captured property, in whom vested .... 41 Titles of possession, effects of peace upon .... 307 Transfers of enemy's property in transitu . . . . .85 Trade to b!ocka