/US' 
 
 (UortipU &U1 B»rl|onl Slibtarij 
 
Cornell University Library 
 JX 2582.L4 1875 
 V.2 
 The law of nations considered as indepen 
 
 3 1924 016 935 722 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924016935722 
 
THE 
 
 LAW OF NATIONS 
 
 CONSIDERED* AS 
 
 INDEPENDENT POLITICAL COMMUNITIES. 
 
 a 
 
THE 
 
 LAW OF NATIONS 
 
 CONSIDEEED AS 
 
 INDEPENDENT POLITICAL COMMUNITIES. 
 
 ON THE RIGHTS AND DUTIES OF NATIONS 
 IN TIME OF WAR. 
 
 BY 
 
 SIE TEAVEES TWISS, D.C.L, F.E.S. 
 
 MEMBER OP THE INSTITUTE OE INTERNATIONAL LAW, AND ONE 
 OF HEB majesty's COUNSEL. 
 
 SECOND EDITION REVISED, 
 
 WITH AN INTRODUCTORY yURIDICAL REVIEW OF THE RESULTS 
 
 OF RECENT WARS, AND AN APPENDIX OF TREATIES 
 
 AND OTHER DOCUMENTS. 
 
 OXFORD: 
 
 AT THE CLAKENDON PEESS. 
 
 LONDON: 
 
 LONGMANS, GREEN, AND CO. 
 MDCCCLXXT. 
 
 [All rights reserved ^ 
 
OXFORD: 
 E. PiCKAED Haxl and J. H. Staot, 
 
 PBINTEKS TO THE UNITEESITY. 
 
PREFACE 
 
 TO THE FIRST EDITION. 
 
 IhE Author has endeavoured, in treating of the 
 Rights and Duties of Nations in time of War, to 
 observe, as far as the subject would permit, the 
 same method of investigation, which he has found 
 eminently convenient in discussing the Rights and 
 Duties of Nations in time of Peace. He has ac- 
 cordingly sought to ascertain under each head the 
 leading Principles, which lie at the foundation of 
 the Law, by an historical analysis of the Practice 
 which has prevailed amongst Nations at various 
 times, as the earlier Practice will be found in most 
 instances to disclose some general Principle, based 
 upon an absolute view of Belligerent Right, the 
 application of which has become modified in 
 modern Practice, either under the civilising in- 
 fluence of Commerce, or in deference to some con- 
 flicting Right of Neutrals. 
 
 If the process of this Modification be carefully 
 traced. Commerce will be found to have exerted 
 its civilising influence chiefly through the form 
 
VI PREFACE 
 
 of express Treaty-Engagements, concluded in time 
 of Peace upon a deliberate view of the mutual 
 interest of the contracting Parties ; whilst the ad- 
 justment of Belligerent Right with the conflicting 
 Right of Neutrals has been for the most part the 
 result of a tacit agreement between the Neutral 
 and the Belligerent, the acquiescence of the Neutral 
 in each case being purchased by a concession from 
 the Belligerent of no little importance to the 
 general Peace of the World. 
 
 History, in its relation to the Rights of War, 
 may truly be said to be Philosophy teaching by 
 Example; and the wider and more complete the 
 historical survey will have been, the more irresis- 
 tible will be the conclusion, that the employment 
 of Force on the part of Nations in the prosecution 
 of Right against other Nations has become subject 
 to Rules, which are in accordance with Reason, 
 and have the Common Weal for their object. 
 
 The end of War, regarded as a High Trial of 
 Right between Nations, is either to redress past 
 injury, or to prevent future injury, and the mode, 
 whereby Belligerent Force operates to accomplish 
 one or other of these objects, is by taking security 
 {pignoratio) from the wrong-doer; in other words, 
 by the seizure of his property. Hence War implies 
 necessarily a direct operation of Force against 
 Property, whilst it entails only accidentally the 
 employment of Force against the Persons of indi- 
 viduals, by reason of the resistance which they 
 
TO THE. PIEST EDITION. Vll 
 
 may offer to the process of taking security ffom 
 the Avrong-doer. A Declaration of War implies in- 
 deed, that a Nation intends to overcome by Force 
 any resistance, which may be offered to it in exact- 
 ing satisfaction ; but whilst the seizure of the Pro- 
 perty of the Enemy is a necessary means for 
 procuring satisfaction, which no Belligerent can 
 be expected to renounce, the measures to be 
 adopted for overcoming resistance are susceptible 
 of infinite modifications; and it is in respect of 
 such modifications that the Civilisation of the nine- 
 teenth century is far in advance of that of the 
 seventeenth and eighteenth centuries, and may 
 be expected in its turn to be left behind by the 
 Civilisation of future ages. 
 
 With regard to the Rights, which a state of War 
 gives rise to between the Subjects of two Belli- 
 gerent Powers, the greater mildness of modern man- 
 ners, coupled with the instinct of Human Nature, 
 which leads us to pity in others what we fear for 
 ourselves, has insensibly operated to restrain the 
 extreme exercise of those Rights, and wherever 
 the employment of Belligerent Force in an extreme 
 manner has fallen into desuetude, the revival of 
 its exercise would justly be regarded as an inno- 
 vation upon the modern Practice, and, as such, a 
 breach of the Customary Law of Nations. 
 
 On the other hand, if we regard the Duties, 
 which a state of War gives rise to between a 
 Belligerent Power and the Subjects of a Neutral 
 
VIU PEEFACE 
 
 Power, a tacit agreement would seem to have been 
 entered into between Neutral and Belligerent 
 Powers, that on the one hand the Neutral State 
 shall not be implicated in the misconduct of the 
 individual, and on the other hand the offender shall 
 be subject to the exercise of Belligerent Right. 
 Forfeiture of Property is under such circumstances 
 the penalty, which the Belligerent State inflicts 
 upon the Subjects of a Neutral Power for every 
 departure from Neutrality, whilst the Neutral 
 State abstains from all interference between the 
 captors and the captured, on the understanding 
 that it shall not be responsible for the misconduct 
 of its Subjects, nor be involved by their acts in 
 War against its wilL It is the duty of every 
 Neutral Power, as such, to observe Impartiality, 
 and consequently, if its Subjects voluntarily array 
 themselves under the banner of one of the Belli- 
 gerent parties, to make no complaint, if they are 
 treated by the other as Enemies. But it will 
 always be a question of a most delicate nature 
 with regard to its own citizens for a Neutral State 
 to renounce the obligation of protecting them from 
 the operation of Belligerent Force, unless it shall 
 be satisfied of the justice and legality of the rules 
 of conduct, which the Belligerent Power prescribes 
 to its Commissioned Agents. Hence, whilst the 
 Neutral Nation allows to a Belligerent Nation the 
 unobstructed exercise of the Rights of War, its 
 own dignity and security require that a Court of 
 the Law of Nations should sit in judgment on each 
 case, and pronounce whether its Subjects have 
 
TO THE FIRST EDITION. IX 
 
 been guilty of a breach of Neutrality^ or the Com- 
 missioned Agent of the Belligerent Power has ex- 
 ceeded his authority. It was in this direction, that 
 the first step was made to vindicate the equality 
 and independence of Neutral Powers by Treaty- 
 Stipulations, that all questions of Prize of War in 
 regard to Neutral property should be submitted by 
 the Belligerent captor to a judicial enquiry, so that 
 the Neutral Subject might be heard in his defence, 
 and not be deprived of his property, until his com- 
 plicity with the Enemy should have been estab- 
 lished. No wrong will have been inflicted upon 
 the Subject of a Neutral Power, if he should be 
 punished by the strong arm of a Belligerent Power 
 for a breach of Neutrality, as soon as his bad Faith 
 has been established ; but an intolerable wrong 
 may be inflicted upon a Neutral merchant by a 
 Belligerent captor, if his property should have been 
 seized and detained in bad faith, under the pretext 
 of the Right of every Belligerent to submit the 
 conduct of the Subjects of a Neutral Power to the 
 ordeal of a judicial enquiry. The prompt action of 
 Prize Tribunals is intended to mitigate this evil, 
 and it is therefore incumbent on the good Faith of 
 every Belligerent Power to prevent any unreason- 
 able delay in the action of those Tribunals. 
 
 A great concession has been made to the con- 
 venience of Neutral Commerce by the Declaration 
 issued by the Powers assembled in Congress at 
 Paris in 1856, under which they have renounced in 
 regard to one another the exercise of Belligerent 
 
X PREFACE 
 
 Right against Enemy's goods laden in vessels under 
 the mercantile flag of a Neutral State. The Neutral 
 Merchant has ever been a great instrument under 
 Providence in mitigating the extreme exercise of 
 Belligerent Right, and the victories of Commerce 
 may be traced through a long series of Treaties and 
 Declarations, which serve to mark the epochs, 
 when the more rigorous usages of War have been 
 formally renounced by the leading Maritime 
 Powers, after whose example such usages have 
 subsequently been allowed by all civilised Nations 
 to fall into desuetude. 
 
 The Right of a Belligerent to debar his Enemy 
 from all supplies by blockading his coasts, is a 
 right in the exercise of which all Nations, which 
 profess Neutrality, must be prepared to acquiesce ; 
 but the interests of Neutral Commerce, under the 
 more enlightened views of the present age as to 
 the reciprocal benefits which result from Com- 
 merce, may demand a more candid consideration 
 at the hands of Belligerent Powers, than they have 
 heretofore received. 
 
 That a Belligerent Power should cut off the 
 supplies, which a Neutral merchant is carrying 
 from a Neutral port to the Enemy's country, is 
 eminently reasonable ; but that a Belligerent Power 
 should cut off the supplies, which a Neutral 
 merchant is carrying from the Enemy's ports 
 to a Neutral country, may not accord so entirely 
 with Reason, nor will it always rest upon the 
 same foundations of Necessity. Great Britain and 
 
TO THE FIKST EDITION. XI 
 
 France established a blockade on i June 1854, 
 against the vessels of all Nations entering the river 
 Danube;, whilst Neutral vessels were allowed to 
 come out with cargoes destined to Neutral ports. 
 Accordingly Greek and Ionian vessels continued to 
 load cargoes in the Danubian ports, and the Neutral 
 Nations of Europe were not debarred during the 
 continuance of hostilities from all access to one of 
 their accustomed granaries. It may well merit the 
 calm consideration of Statesmen, whether the con- 
 duct of the Allied Powers on this occasion, in the 
 exercise of the Right of Blockade, has not furnished 
 an example of moderation, which will be deserving 
 of imitation under circumstances of an analogous 
 nature, where Neutral Nations depend upon access 
 to the country of a Belligerent for their normal 
 supplies of an article of primary necessity. 
 
 Another question suggests itself in reference to 
 the exercise of the Right of Blockade arising out 
 of the Declaration of the Congress of Paris, that 
 " Blockades in order to be binding ought to be ef- 
 fective ;" in other words, " ought to be maintained 
 by a force sufllcient to prevent really all access to 
 the coast of the Enemy." No explanation is af- 
 forded in the Protocols of the Congress on the 
 subject of the forms, which are to attest the reality 
 of an effective Blockade. 
 
 On the one hand, it seems reasonable to sup- 
 pose, that the Congress had in view some other 
 criterion of the reality of an effective Blockade 
 than the actual capture of an offending vessel; 
 
XU PREFACE 
 
 on the other hand, where the presence of a block- 
 ading squadron off the mouth of a port is no- 
 torious, a Neutral merchant can hardly claim in 
 good Faith, that his vessel should receive an actual 
 warning from one of the Belligerent cruisers, in 
 order that the reality should be established of all 
 access to the Enemy's coast being interdicted. It 
 may however deserve consideration, whether the 
 good Faith of every Belligerent Power, which is 
 a party to the Declaration of Paris, should not 
 prompt it to grant a period of Grace, after a 
 Blockade has been de facto established, during 
 which the effectiveness of the Blockade shall be 
 attested to Neutral merchants by an actual warn- 
 ing given by the blockading squadron to all vessels 
 seeking access to a blockaded port, and during 
 which period no Neutral vessel shall be confis- 
 cated, unless she attempts to run past the block- 
 ading squadron after such warning. 
 
 With regard to Contraband of War, no merchant 
 can with reason complain of being treated by a 
 Belligerent Power as an adherent of the Enemy, 
 if he carries to the Enemy supplies of war; but 
 there are many articles of Equivocal Use, and 
 there will be from time to time articles of Novel 
 Character, respecting which it will not be always 
 clear to the merchant, that it is inconsistent with 
 Neutrality to transport them to the Enemy's coun- 
 try. Naval steam-engines, for instance, are articles 
 of modern invention, and were for some time con- 
 sidered to be only serviceable for vessels of Com- 
 
TO THE FIRST EDITION. XIU 
 
 merce, whereas they are now likely to supersede 
 all other motive power for ships of War. It may 
 be a question in the present day, whether it would 
 not be in accordance with that large Equity, which 
 the great and rapid development of International 
 Commerce demands at the hands of Belligerents, 
 in order that good Faith on all sides should be 
 maintained, that every Belligerent Power should 
 at the outset of War notify to aU Neutral Powers 
 what articles of Equivocal Use and Novel Charac- 
 ter it intends to capture and confiscate, if they 
 should be intercepted by its cruisers in the course 
 of transport to the Enemy's country. That Belli- 
 gerent Powers are entitled to notify such articles 
 to Neutral Powers, and to confiscate them after 
 such Notification, seems not to have been doubted 
 in the seventeenth century. Sir Leoline Jenkins, 
 after stating his opinion to King Charles II, that 
 nothing ought to be adjudged Contraband by the 
 Law of Nations but what is subservient to the 
 uses of War, goes on to say, " except in the case 
 of Besieged Places, or of a General Notification 
 made by Spain to all the world, that they will 
 condemn all the pitch and tar which they meet 
 with." (29 Aug. 1674.) But whilst a Belligerent 
 Power, to whose detriment a prohibited trade is 
 cari'ied on, may with Reason seize and confiscate 
 articles of a certain character, although they may 
 belong to the Subjects of a Neutral Power, if they 
 are in the course of transport to the Enemy^s 
 country, the Law of Nations does not impose upon 
 a Neutral Power, as such, any obligation to pre- 
 
XIV PREFACE 
 
 vent its Subjects from embarking their property 
 in trade with either of two Belligerent Powers. 
 
 The transport of merchandise to the ports of a 
 Belligerent State is per se a perfectly lawful act 
 on the part of a Neutral merchant ; and it is 
 only by reason of the accidental uses, to which 
 certain articles of merchandise may be applied 
 in consequence of War existing between two 
 States, that the Right to intercept such merchan- 
 dise in the course of transport on the High Seas 
 to the ports of a Belligerent Power, and to con- 
 fiscate it to its own uses, accrues to the adverse 
 Belligerent. The right of the Neutral to transport 
 and of the adverse Belligerent to seize, are con- 
 flicting Rights, and neither party can charge the 
 other with a criminal act. Upon this view of 
 the Common Law, which is sanctioned by the 
 highest Authorities, it would be under an erro- 
 neous conception of the juridical relations which 
 exist between Belligerent States and Neutral States, 
 that a Belligerent Power, in the absence of special 
 Treaty-Engagements with a Neutral Power, should 
 hold itself entitled to complain to the latter of its 
 not exercising its authority to restrain the trade 
 of its Subjects with the adverse Belligerent. The 
 Belligerent, to use the language of an eminent 
 Judge of the Supreme Court of the United States, 
 must content himself with cutting up the Neutral 
 Commerce, and ought to make no complaint to 
 the Neutral Power, not even where the individual 
 merchant rescues his vessel after capture, and 
 escapes into his own or a friendly port. 
 
TO THE FIRST EDITION. XV 
 
 The historical survey, which the Author has 
 endeavoured to complete, as occasion has per- 
 mitted, in the course of the following pages, 
 establishes the material fact, that the main Prin- 
 ciples of Prize Law were considered nearly in the 
 same light four hundred years ago as in the 
 present day; and that the Eules, in which those 
 Principles were then embodied, were framed with 
 particular attention, and with special regard to 
 the Practice and Usage which had anciently pre- 
 vailed in such matters. We have thus the ex- 
 perience of ages attesting the existence of a Law, 
 to which Belligerent Nations pay respect even in 
 the moment of victory, and the beneficial operation 
 of which Law has been promoted by equitable 
 concessions, which Belligerents have wisely made 
 from time to time, in the administration of it. The 
 Rights of War can never be absolutely renounced 
 by Nations, for they are Natural Rights, to which 
 every Nation may be compelled, under circum- 
 stances of an extreme kind, to have recourse ; but 
 the exercise of those Eights can at all times be 
 moderated, and it is by moderation in the exercise 
 of them, that those Nations which claim to be 
 the. leaders of the civilised World in the arts of 
 Peace, are bound to set an example to other 
 Nations in time of War. 
 
 OxrORD, June i8, 1863. 
 
PREFACE 
 
 TO THE SECOND EDITION. 
 
 IhE present Edition contains very little new 
 matter, as far as the body of the work is concerned. 
 Some corrections and additions have been made, 
 where it was necessary to adjust the text to the 
 altered political circumstances of either hemisphere, 
 or to keep it on a level with the advancement of 
 learning on other subjects, but no departure has 
 been made from the principles, upon which the 
 author has stated in the first edition, that the 
 Rights and Duties of Nations in time of War have 
 their foundation. The author, however, has con- 
 sidered that it would be for the advantage of the 
 reader, that the results of the wars of the last 
 ten years should be succinctly reviewed in a 
 special chapter, which should form an Introduc- 
 tion to the work, and that the modern theories 
 on the subject of War, which are advocated by 
 eminent continental Publicists, should be briefly 
 discussed in their bearings on the true interest of 
 a Belligerent, which is to enforce upon the enemy 
 the necessity of doing justice, whilst inflicting 
 upon him the least amount of irreparable harm. 
 
PREFACE TO THE SECOND EDITION. XVll 
 
 The loss of life and the loss of territory are of 
 the latter character, but the destruction of pro- 
 perty may be repaired. War however presup- 
 poses always a certain sacrifice of life, but the 
 civilisation of the present century is steadily 
 striving to mitigate that sacrifice, and the con- 
 duct of the wars of the last ten years has shown, 
 that, it has been in many respects successful. 
 On the other hand, as regards territory, the an- 
 nexation of territory is not necessary to effectuate 
 the lawful purposes of war, when its object 
 is to obtain redress for wrong, and where 
 States are conterminous, such annexations are 
 fraught with the seeds of future wars. There 
 may be grounds occasionally on which such an- 
 nexations are justifiable, as safeguards against 
 future wrong, but the justification of the great 
 annexations of territory, which have been the re- 
 sults of the wars of the last ten years, has been 
 in many cases sought for in the voices of the 
 populations of the annexed territories. This is 
 a very remarkable feature in the modem con- 
 duct of war, more especially as the modern 
 theory, that war should be regarded as a «tate 
 of relations between Governments only, and not 
 between Nations, is calculated to detach the 
 population of an invaded country from the cause 
 of its Government, and to facilitate its acquisition 
 at the end of the war by the voice of the popula- 
 tion. The author has noted in the Introduction 
 the complicated stages of diplomacy mixed with 
 the popular vote, through which a way was found 
 
 b 
 
XVUl PREFACE TO THE SECOND EDITION. 
 
 to the unification of the Italian Kingdom, and 
 to the formation of the new Confederation of Ger- 
 many. He has also thought it useful to append 
 to the work the Treaties and International Acts 
 of the last ten years, which have a special 
 bearing on the Rights and Duties of Nations in 
 time of War. It will be seen from their perusal, 
 that the European Governments are steadily acting 
 in concert with a view to mitigate the practice 
 of warfare, and are placing on record their con- 
 viction, that many forms of inflicting harm on 
 life and property may be properly abandoned by 
 Belligerents, either as not warranted by the ne- 
 cessities of modern warfare, or as not tending 
 directly to effectuate the purposes of lawful war 
 in any degree commensurate with the suffer- 
 ings which they are calculated to cause. It is 
 the conviction of the author, that the juridical 
 principles upon which the present practice of 
 wai-fare rests are sound principles, and that their 
 maintenance is necessary for the safety of Na- 
 tions, and that what true civilisation requires is 
 not their abandonment, but their application 
 with a more discerning judgment, and with 
 greater equity. 
 
 Temple, London, 
 Oct. 4, 1875. 
 
INTRODUCTION 
 
 TO THE SECOND EDITION. 
 
 I HE first edition of this work was published in 
 1863, at a time when a Civil War was raging be- 
 tween the States of the North American Union, 
 which gave rise to some intricate questions of 
 Public Law between the United States of America 
 and the Maritime Powers of Europe. Those ques- 
 tions have been adjusted by amicable negotiation 
 since the termination of the War. The result of 
 that War has been to maintain the Sovereignty of 
 the Union unimpaired throughout all the territory 
 over which the authority of the Federal Govern- 
 ment extended before the War. Since that time 
 the peace of the Continent of Europe has been 
 disturbed by four Wars, and each War has been 
 attended with a dislocation of the Sovereign Power 
 and a political redistribution of territory. In 1864 
 the Allied Armies of Austria and of Prussia over- 
 ran the Duchies of Sleswig and of Holstein, whilst 
 Denmark blockaded the Baltic ports of Prussia. 
 The result of that unequal contest was that the 
 King of Denmark had to renounce all his Sovereign 
 rights over the Duchy of Lauenburg and over the 
 Duchies of Sleswig and of Holstein in favour of 
 
 b % 
 
XX INTRODTJCTION 
 
 the King of Prussia and of the Emperor of Austria. 
 In 1866 Italy declared War against Austria, and 
 Prussia likewise made War upon Austria, the 
 result of which was that Austria renounced her 
 Sovereignty over the Lombardo-Venetian Kingdom 
 and withdrew with her German provinces from the 
 Germanic Confederation. In 1870 the armies of 
 the newly established Kingdom of Italy occupied 
 the Papal States, and the Roman Provinces, not- 
 withstanding the Protest of the Papal Government, 
 were annexed to the Italian Monarchy by a Decree 
 of the King of Italy (2 Oct. 1870). In the same 
 year France declared War against Prussia, and the 
 result of that War was that France renounced 
 under the Treaty of Frankfort (10 May, 1871) all 
 her rights over a large part of Lorraine and over 
 the whole of Alsace in favour of the German Em- 
 pire. The last ten years have thus proved to be 
 a very eventful period in the history of European 
 Wars ; and although those Wars have been attended 
 with their usual desolation, the practice of warfare 
 has been somewhat ameliorated, and the period 
 has been marked by three International Acts, to 
 which aU the European States have acceded, the 
 object of which has been to conciliate in some 
 degree the necessities of War with the laws of 
 humanity, namely, the Conventions of Geneva of 
 1864 and of 1868 respectively, and the Declaration 
 of St. Petersburg of 1868. 
 
 It was an expressed wish of the Powers, who 
 took part in the Congress of Paris of 1856, that 
 
TO THE SECOND EDITION. XXI 
 
 States, between which any serious misunderstanding 
 might arise, should have recourse, as far as circum- 
 stances might allow, to the mediation of a friendly 
 Power before appealing to arms. This wish was 
 partially responded to in the War between Den- 
 mark on the one hand and Austria and Prussia 
 on the other in 1 864, as the alleged grievance^ out 
 of which that War ostensibly arose, was capable 
 of being adjusted by amicable mediation. That 
 grievance was set forth in a note presented on 
 16 January, 1864, on the part of Austria and of 
 Prussia jointly summoning Denmark to abrogate 
 the common constitution for Denmark and for 
 Sleswig, which had been sanctioned by the King 
 of Denmark on 18 November, 1863, as being in- 
 consistent with the Treaty-engagements contracted 
 by Denmark with the two Powers in 1852. An 
 Austro-Prussian army having entered the Duchy 
 of Sleswig for the purpose of compelling the Danes 
 to evacuate the Duchy, and having overrun a con- 
 siderable part of Jutland, an attempt was made by 
 France, Great Britain, Russia and Sweden, to bring 
 about an amicable arrangement between the con- 
 tending parties, but the Conferences of London, 
 which were commenced with that object on 20 
 April, 1864, terminated on 22 June, 1864, without 
 any satisfactory result, and hostilities, which had 
 been suspended during the mediation, were re- 
 sumed. The final result of this War was that by 
 the Treaty of Vienna (30 October, 1864) the King 
 of Denmark renounced all his rights over the 
 Duchies of Sleswig and of Holstein, and over the 
 
XXU INTEODUCTIOIir 
 
 Duchy of Lauenburg, in favour of the King of 
 Prussia and of the Emperor of Austria, and en- 
 gaged himself to recognise whatever arrangements 
 the two Powers might make respecting those 
 Duchies. By the Treaty of Gastein (14 August, 
 1865) Prussia and Austria agreed to terminate their 
 joint dominion over the ceded territories, Prussia 
 undertaking to administer the government of the 
 Duchy of Sleswig and Austria that of the Duchy 
 of Holstein, whilst Austria ceded all her right over 
 the Duchy of Lauenburg to Prussia. By the sub- 
 sequent Treaty of Prague (23 August, 1866) Austria 
 renounced all her acquired rights over the Duchies 
 of Holstein and of Sleswig in favour of Prussia, and 
 the Duchies were incorporated with the Prussian 
 Monarchy by Letters Patent of the King of Prussia 
 on 12 January, 1867. 
 
 The next following War which broke out be- 
 tween Austria and Italy in 1866 led to the 
 reunion of the Lombardo -Venetian Kingdom to the 
 States of the King of Italy. By a Treaty signed 
 at Vienna on 24 August, 1866, the Emperor of 
 Austria ceded the Lombardo -Venetian Kingdom to 
 the Emperor of the French, who agreed to accept 
 it, but the French Commissioners were not to be 
 put into possession of it, until Peace had been 
 signed between Austria and Italy. Peace was 
 subsequently signed at Vienna on 3 October, 1866, 
 and the Emperor of Austria formally consented by 
 the third Article of the Treaty of Peace, that the 
 Lombardo -Venetian Kingdom should be reunited 
 
TO THE SECOND EDITION. XXIU 
 
 to the Kingdom of Italy. Thereupon the French 
 Commissioners were formally put into possession 
 of the Lombardo -Venetian Kingdom, and on 19 
 October, 1866, General Le Boeuf, on the part of 
 the Emperor of the French, handed it over to the 
 Commissioners of the King of Italy, in order that 
 the inhabitants of the Kingdom might declare by 
 universal suffrage their wishes on the subject of 
 their annexation to the Kingdom of Italy. The 
 inhabitants of the Italian provinces were accord- 
 ingly convoked, and declared by their suffrages 
 their desire to be united to the Kingdom of Italy 
 under the Constitutional Monarchy of Victor 
 Emanuel II. and his descendants. The King of 
 Italy thereupon issued a Decree (4 November, 1866) 
 declaring the provinces of Venetia and the pro- 
 vince of Mantua to form an integral part of the 
 Kingdom of Italy, and the incorporation of the 
 ceded provinces was thus completed. 
 
 On the other hand, the War, which broke out in 
 the summer of 1866 between Austria and Prussia, 
 entailed as one of its consequences the dissolution 
 of the Germanic Confederation, such as it was 
 constituted by the Federal Act of 18 15, and by the 
 Final Act of 1820, whilst Austria by the Treaty of 
 Nikolsburg (26 July, 1866) recorded her formal 
 consent to the formation of a new Constitution for 
 Germany to the exclusion of her German provinces 
 from the Confederation. The new Constitution of 
 Germany however was not accomplished at once. 
 A Confederation of North Germany was first formed. 
 
XXIV INTEODUCTIOX 
 
 at the head of which was Prussia, whilst Bavaria, 
 "Wurtemberg, Baden, and Hesse, south of the River 
 Maine, constituted themselves into a South German 
 Military League. The Northern and Southern 
 States however became united in 1870 by a series 
 of Treaties into one Germanic Confederation, which 
 assumed iii 187 1 the title of the German Empire, 
 under a Constitution promulgated by the King of 
 Prussia in the name of the Confederation of North 
 Germany, and by the Kings of Bavaria and of Wur- 
 temberg, and by the Grand Dukes of Baden and 
 of Hesse respectively, in their own names (16 
 April, 1 8 71). The existing Germanic Confedera- 
 tion, which has under this constitution adopted the 
 title of the German Empire, consists of twenty-- 
 seven States, namely, Prussia with Lauenburg, 
 Bavaria, Saxony, Wurtemberg, Baden, Hesse, 
 Mecldenburg-Schwerrin, Saxe-Weimar, Mecklen- 
 burg-Strelitz, Oldenburg, Brunswick, Saxe-Mein- 
 ingen, Saxe-Altenburg, Saxe-Cpburg-Gotha, Anhalt, 
 Schwarzburg - Rudolstadt, Schwarzburg - Sonders- 
 hausen, Waldeck, Reuss the elder branch, Reuss 
 the younger branch, Schaumburg-Lippe, Lippe, 
 Lubeck, Bremen, and Hamburg. Austria no longer 
 appears in the list of the Federated States, whilst 
 Prussia is the representative of Hanover, Elec- 
 toral Hesse, Holstein, Nassau, and Frankfort, and 
 has had assigned to her seventeen votes in the 
 Council of the Empire, the other States having 
 forty-one votes amongst them. 
 
 Meanwhile certain territorial changes have been 
 
TO THE SECOND EDITION. XXV 
 
 peaceably carried out in the East of Europe in 
 modification of the arrangements concluded under 
 the Treaty of Paris of 1856. By a Convention 
 signed at Paris on 19 August, 1858, between the 
 Seven Powers who were parties to the Treaty of 
 1856, the Principalities of Moldavia and Walachia 
 were united together under one Hospodar under the 
 title of the United Principalities of Moldavia and 
 Walachia, and certain privileges and immunities 
 were secured to them subject to the Suzerainty of 
 the Sultan and under the collective guaranty of the 
 Co-Signatory Powers. The provisions of this Con- 
 vention were subsequently modified at a Conference 
 of the Plenipotentiaries of the Seven Powers as- 
 sembled at Constantinople on 28 June, 1864. A 
 further Conference was held in Paris in 1866, be- 
 tween the Plenipotentiaries of the same Powers 
 on the same subject, in consequence of the Govern- 
 ment of Prince Couza, as Hospodar of the United 
 Principalities, having come to an end. Pending the 
 deliberations of the Plenipotentiaries the Roumanian 
 people, by a plebiscite, elected Prince Charles Louis 
 of HohenzoUern-Sigmaringen, under the name of 
 Charles I, to be Hospodar of the United Princi- 
 palities, notwithstanding a previous declaration on 
 the part of the Conference, that the Roumanian 
 assembly could only elect a native subject of the 
 Ottoman Porte to be Hospodar. The Ottoman 
 Porte accordingly recorded a formal protest in the 
 Protocols of the Conference against the election of 
 Prince Charles, and the guaranteeing Powers re- 
 fused to recognise the election. Meanwhile Russia 
 
XXVI INTRODUCTION 
 
 and Turkey proposed, that an arnaed intervention 
 of the guaranteeing Powers should take place in 
 order to maintain the existing Treaty-arrangements, 
 but both France and England were of opinion that 
 such an intervention would be inopportune, and 
 ultimately the Ottoman Porte waived its objections 
 to the Election, and issued a Firman of Investment 
 to Prince Charles Louis of HohenzoUern-Sigmarin- 
 gen on 23 October, 1866. It was urged in the 
 course of the Conferences, on the part of Prussia, 
 that the real object of the Treaties was the main- 
 tenance of the Suzerainty of the Porte, so far as it 
 involved the principle of the integrity of the Otto- 
 man Empire, and that the organic constitution of 
 the Principalities was a subordinate question, in- 
 asmuch as that Constitution had undergone con- 
 siderable modifications in 1 858. Russia and Tuxkey, 
 on the other hand, maintained that the Treaties of 
 1856 and of 1858 formed a whole, and that it was 
 not permissible to violate them in one point any 
 more than in another. The observations of the 
 Russian Plenipotentiary on this occasion were 
 destined to point a moral, when a fitting oppor- 
 tunity presented itself, which occurred in 1870, 
 when Prince Gortchacow addressed a Circular De- 
 spatch of the date of 44 October, 1870, to the 
 Representatives of Russia at the Courts of the 
 Six Co-Signatory Powers. In this Despatch, which 
 is a remarkable State paper, the Russian Minister 
 for Foreign Affairs brings to the attention of the 
 Russian Diplomatic Agents the fact, that the Treaty 
 of Paris of 1856 has been permitted by the Great 
 
TO THE SECOND EDITION. XXVU 
 
 Powers to be infringed with impunity as regards 
 the Principalities of Moldavia and Walachia, and 
 that it has not been faithfully observed by the 
 Ottoman Porte in allowing foreign vessels of War 
 to pass the Straits of the Dardanelles, and even 
 entire fleets to enter the Black Sea, the presence 
 of which was a violation of the neutrality of its 
 waters; and further, that the novel appliances of 
 armour to vessels of War, unknown in 1856, was 
 fraught with danger to the safety of Russia from 
 the great inequality of the Russian and Turkish 
 naval forces. On these grounds, the Despatch goes 
 on to say, the Emperor of Russia cannot admit, 
 that Treaties infringed in several general and 
 essential clauses should continue to be obligatory 
 upon him as regards the direct interests of his 
 Empire, and that the safety of his Empire should 
 repose upon a fiction, which had not resisted the 
 trial of time, and that it should be imperilled by 
 his respect for engagements, which had not been 
 observed in their integrity. The Emperor accord- 
 ingly declares, that he cannot consider himself to 
 be any longer bound by the obligations of the 
 Treaty of 44 March, 1856, as far as they restrain 
 his rights of sovereignty in the Black Sea, and 
 that he holds himself to be entitled to denounce 
 to the Sultan the special Convention, which limits 
 the number of vessels of War, which the two 
 Powers had reserved to themselves the right of 
 maintaining in the Black Sea. On the other 
 hand, he had no wish to depart from the general 
 arrangements of the Treaty of 1856, as regards 
 
XXViii INTRODUCTION 
 
 the Eastern question, and was willing to come 
 to an equitable arrangement with the Co-Signatory 
 Powers, which should be better calculated to 
 secure the repose of the East and the European 
 equilibrium. 
 
 There is a prevalent impression consequent on the 
 publication of this Circular Despatch, that Russia 
 acted forthwith upon the view expressed in it, and 
 took advantage of the circumstance, that France 
 was engaged in a war with Germany, in order to 
 renounce her engagements to the Great Powers 
 respecting what has been termed in the language 
 of diplomacy the neutralisation of the Black Sea, 
 but which in fact was the naval disarmament of 
 Russia in the Black Sea. Russia, however, has 
 not set so dangerous an example of bad faith. 
 The propositions of the Imperial Cabinet were 
 formally brought under the consideration of the 
 Co-Signatory Powers at a Conference opened in 
 London on 17 January, 1871, in which the first 
 act on the part of the Plenipotentiaries was to 
 sign a Protocol, which was made an annex to 
 the General Protocol of the Conference in these 
 terms :— " The Plenipotentiaries of North Germany, 
 Austria-Hungary, Great Britain, Italy, Prussia, and 
 Turkey, assembled this day in Conference, recog- 
 nise, that it is an essential principle of the Law 
 of Nations, that no Power can liberate itself from 
 the engagements of a Treaty, nor modify its stipu- 
 lations, except with the consent of the contracting 
 parties by means of an amicable understanding." 
 
TO THE SECOND EDITION. XXIX 
 
 This Protocol was at once signed by the Plenipo- 
 tentiaries of the six Powers (17 January, 1871). 
 The Plenipotentiary of France was not present at 
 the first Session of the Conference, but he affixed 
 his signature to the Protocol immediately upon his 
 arrival in London. 
 
 The ultimate result of this Conference was, that 
 Russia and Turkey having agreed to abrogate the 
 Special Convention concluded between them on 
 44 March, 1856, to which reference is made in 
 Prince Gortchacow's despatch, the Articles of 
 the General Treaty of 1856 confirming that Con- 
 vention were abrogated with the consent of all 
 the Signatory Powers, and were replaced by the 
 following article : — " The principle of the closiiig 
 of the Straits of the Dardanelles and of the Bos- 
 phorus, such as it was established by the Separate 
 Convention of March 41 of 1856, is maintained, 
 with power to His Imperial Majesty the Sultan to 
 open the said Straits in time of peace to the vessels 
 of war of friendly and allied Powers, in case the 
 Sublime Porte should judge it necessary to secure 
 the stipulations of the Treaty of March 44, 1856." 
 
 The Protocol of London of 17 January, 187 1, con- 
 tains an International Recognition, which is of great 
 importance in its application to cases, where diplo- 
 matists assembled in Congress have affixed their sig- 
 natures to a general Treaty, to which are annexed 
 special Treaties concluded in a separate form be- 
 tween certain of the Powers which are parties to 
 
XXX INTRODUCTION 
 
 the General Treaty, and which are declared to have 
 the same force and validity as if they formed part 
 of the General Treaty. It has been the practice of 
 Nations to hold, that the nan-execution or the 
 violation of a Treaty by one of two contracting 
 parties gives to the other party the option either of 
 constraining by force the defaulting party to fulfil 
 its engagements, or to hold itself released in its 
 turn from its obligations under the Treaty. The 
 casus foederis in Cases, where there are only two 
 parties to a Treaty, is simple, but it becomes 
 complicated, where there are several parties to a 
 treaty, and more particularly where the Treaty 
 contains engagements, which do not equally and 
 directly affect all the parties. With regard to the 
 right of the parties, who are directly affected by 
 those engagements, to enforce them against one 
 another without the co-operation of the Co-Signa- 
 tories of the General Treaty, there can be no doubt, 
 where the engagements are also the subjects of 
 special and separate Treaties, which have been 
 annexed to the General Treaty, but with regard to 
 their right to hold themselves released from their 
 own obligations under those separate Treaties, 
 without the consent of all the Signatories to the 
 General Treaty in cases where the separate Treaties 
 have been violated, there has been no settled 
 practice, to which reference can be made as evi- 
 dence of a common conviction of Nations on the 
 subject. 
 
 In fact, great doubt has been cast upon the 
 
TO THE SECOND EDITION. XXXI 
 
 subject by the difference of opinion which was 
 manifested to Europe in 1 846 as existing between 
 France and England on the one hand, and Austria, 
 Prussia, and Russia on the other, as to the effect 
 of incorporating in the Principal Act of the Con- 
 gress of Vienna, 1820, the separate Treaties con- 
 cluded between the three latter Powers on the 
 subject of the independence and neutrality of the 
 free city of Cracow and its territory. The French 
 and English views were that the Principal Act was 
 an European Act, whilst the three Powers, who 
 had guaranteed the independence and neutrality 
 of Cracow, maintained that it was only a General 
 Record of the special and separate Treaties. All 
 doubt may henceforth be considered to be set at 
 rest as regards a General Treaty to which several 
 separate treaties are annexed, and declared to 
 have the same force and validity as if they 
 formed part of the General Treaty, inasmuch as 
 Prince Gortchacow having raised the question in 
 his Circular Despatch, the Seven Powers have 
 solemnly recorded their recognition of the prin- 
 ciple, that no Power can liberate itself from 
 the engagements of such a Treaty, nor modify its 
 stipulations without the consent of all the con- 
 tracting parties. A similar observation will apply 
 to the Protocol of Paris of 16 April, 1856, as 
 regards the interpretation to be given to the De- 
 claration of Maritime Law of the same date. The 
 Plenipotentiaries agreed under that Protocol, that 
 the Powers which had signed the Declaration, or 
 had acceded to it, " cannot hereafter enter into 
 
XXXU INTKODUCTION' 
 
 any arrangement in regard to the right of neutrals 
 in time of war, which does not at the same time 
 rest on the four principles, which are the object 
 of the Declaration." 
 
 The deliberations of the Congress of Paris of 
 1856 have given a great impulse to the exertions 
 of philanthropists to mitigate the severities of war, 
 and have raised their hopes that nations may cease 
 to have recourse to war, wherever the subject mat- 
 ter in dispute between them is capable of being 
 adjusted upon considerations of superior right. One 
 influential school of philanthropists is working with 
 a view to render the results of war so valueless 
 that no sane Nation would enter upon a war; 
 another important body boldly condemns war as 
 an unreasonable proceeding, and advocates the 
 establishment of tribunals of arbitration for the 
 settlement of all international disputes. Both of 
 these schools have laudable objects in view, and the 
 latter school is justified in invoking the Protocols 
 of the Congress of Paris as giving countenance to 
 its efforts. The former school, on the other hand, 
 is not so clearly warranted in appealing to the 
 Declaration of Paris, as involving in its first 
 Article, by which Letters of Marque are declared 
 to be abolished, the principle that the private 
 property of enemy-subjects should be exempt ft'om 
 belligerent seizui-e both on land and on sea. The 
 real object of the Declaration of Paris was to make 
 war, as a state of international relations, less bur- 
 densome to Neutrals. The first step was accord- 
 
TO THE SECOND EDITION. XXXlll 
 
 ingly to declare that War on the High Seas should 
 be carried on only by National ships; the second 
 step was to limit belligerent interference with 
 Neutral commerce to those cases in which that 
 commerce was contributing to sustain the enemy's 
 defence ; the third step was to abolish what have 
 been termed paper-blockades, by declaring that 
 blockades ineflfectively maintained should not be 
 binding on Neutrals. The benefits of the Declaration 
 of Paris were properly extended to Neutrals in 
 the war which France and England jointly carried 
 on against the Emperor of China in i860, notwith- 
 standing that China was not a party to that De- 
 claration, but no immunity from capture was con- 
 ceded during that war by the Allied Powers to 
 enemy merchant vessels, as has been erroneously 
 stated by some writers. The Order in Council on 
 the subject (March 7, i860) has been printed in 
 the eleventh volume of Mr. Hertslet's Collection 
 of Treaties, p. no. 
 
 A novel principle, however, has been introduced 
 into the wars, in which Austria was engaged against 
 Prussia on the one hand, and against Italy on the 
 other in 1866, namely, that enemy merchandise 
 and enemy merchant ships should be exempted 
 from capture on the High Seas, on condition that 
 the enemy observed reciprocity. A Decree to that 
 effect was issued by Austria on 13 May, 1866, 
 which was affirmatively responded to by Prussia 
 on 19 May, 1866, and by Italy on 20 June, 1866. 
 On the breaking out of hostilities between the 
 
XXXIV INTRODUCTION 
 
 Confederation of North Germany and the French 
 Empire in 1870, the King of Prussia published at 
 Berhn a J)ecree (16 July, 1870), exempting all 
 enemy merchant vessels from capture without any 
 condition of reciprocity, but as France continued 
 to exercise her customary right of belligerent 
 capture against enemy merchant vessels, the Em- 
 peror of Germany annulled the Berlin Decree by 
 an Imperial Ordinance dated from Versailles on 
 19 January, 1871. These and similar measures 
 testify to the general desire of the European Govern- 
 ments to mitigate the practice of warfare, where 
 their own safety does not require the enforcement 
 of its more severe rules. In the wars of 1866 it 
 was evidently for the convenience of Austria not 
 to have to send an armed fleet into the Baltic to 
 protect her commerce, and Prussia was reciprocally 
 benefitted by not having to send an armed fleet 
 into the Mediterranean, whereas in the war of 
 1870 it was more for the advantage of Prussia 
 than of France that enemy merchandise and enemy 
 merchant ships should be exempt from belligerent 
 capture, and accordingly France did not respond 
 to the advances of Prussia. 
 
 The employment of force by one State to coerce 
 another, where such States are independent com- 
 munities, has no justiflcation but necessity arising 
 out of the fact that the State, which it is sought to 
 coerce, either has refused to do justice, or is intent 
 on working injustice. A casus belli, however, is 
 rarely determined by considerations of right. That 
 
TO THE SECOND EDITION. XXXV 
 
 recourse is for the most part had to war from 
 motives of personal or of national ambition is as 
 patent in the present day, as it was at the com- 
 mencement of the present century. The history 
 of the last ten years supplies overwhelming evi- 
 dence of this fact. On the other hand, the same 
 period is remarkable for the number of inter- 
 national disputes, which have been referred to 
 arbitration, and have been settled without recourse 
 to war. These disputes were for the most part 
 about territory or about property, and the example 
 of great Powers may be cited, as testifying that 
 recourse may be had to arbitration in such cases 
 without any derogation from the dignity of an In- 
 dependent State. It may also merit observation 
 that great Powers have on several late occasions 
 referred questions in dispute between them to 
 the arbitration of private individuals, one of the 
 most remarkable instances being a controversy 
 which arose out of the Treaty between the United 
 States and Paraguay, in which the question at issue 
 between the two Powers was referred to the arbi- 
 tration of an American citizen, Mr. Andrew Johnson 
 of Tennessee, who decided the question against the 
 United States. A want indeed has been felt of a 
 Code of Procedure for the guidance of International 
 tribunals of Arbitration. It has been one of the 
 first objects of the Institute of International Law, 
 founded at Ghent in 1873, and it is peculiarly 
 within its province as a Council of Jurists, to pre- 
 pare such a Code, and accordingly a Code, which 
 has been drawn up by Dr. Goldschmidt, Judge of the 
 
 c % 
 
XXXVl IKTRODUCTION 
 
 Supreme Court of Appeal of the German Empire, 
 has been carefully revised by the Institute, and may 
 be expected to be published within a short time. 
 
 Mr. Henry Richard, M.P., who is steadfastly 
 labouring to bring about an agreement amongst 
 Nations as to the wisdom of having recourse 
 to arbitration instead of war for the settlement 
 of international differences, has justly caUed 
 attention, at a meeting of the Association for 
 the Reform and Codification of the Law of 
 Nations held lately at the Hague, to the fact 
 that there is some uncertainty as to what is 
 the Law of Nations on many subjects which 
 may come into controversy between Nations, and 
 that International Law is not at present in a 
 satisfactory state. There is no doubt that the 
 evidence of what is Law between Nations is not 
 always forthcoming in writing, and, that the ex- 
 ternal relations or conditions of nations, as of 
 individuals, are continually undergoing changes, 
 for which the recognised rules of International 
 intercourse may not have made provision, but it 
 would be a misapprehension to suppose that there 
 is nothing like a system of Law acknowledged and 
 agreed upon amongst Nations. If we are to ac- 
 quiesce in the narrow definition of Law, which 
 has found favour with many writers on Municipal 
 Institutes, and which limits the idea of Law to one 
 of the forms in which it is expressed, it may be 
 admitted that there is no Law of Nations, for there 
 is no common Superior to impose his will upon 
 
TO THE SECOND EDITION. XXXVU 
 
 independent Nations. But Law in the highest 
 sense of the term, in which it is used to designate 
 the rules which guide the conduct of intelligent 
 beings, is the expression of their Unity of Will 
 (Einheit des Willens), and as the Law of any one 
 people is the expression of its common conviction, 
 so the Law of Nations is the expression of the 
 common conviction of Nations. The existence of 
 such a common conviction is evidenced in the case 
 of Nations either by their practice or by inter- 
 national Acts in the form of Declarations or Con- 
 ventions, just as in the case of a people the evi- 
 dence of its common conviction is to be found in 
 its Customs, or in the written decisions of its 
 Courts, and in the enactments of its Legislature. 
 It may be true that as regards the practice of 
 Nations the facilities are not so great for ascer- 
 taining that practice, as the facilities for ascer- 
 taining the customs of a people, but the principle 
 involved in both inquiries is one and the same, 
 and if there be an ascertained practice of Nations 
 in any matter, it may be taken to be the expres- 
 sion of their Unity of Will, and as such is to be 
 regarded as the Law which governs their mutual 
 relations to one another in that matter. On the 
 other hand, it may be conceded, that as the greater 
 part of the Law of Nations, which is evidenced by 
 the practice of Nations, is jus non scriptum, there is 
 more uncertainty as to what is the Law of Nations 
 in many matters, than is consistent with the 
 general advancement of knowledge on other sub- 
 jects in the present day, and that it may well 
 
XXXVlll INTKODTJCTION 
 
 deserve the consideration of Statesmen and of 
 Jurists, whether International Law may not be 
 brought into a more satisfactory state by being 
 reduced into writing \ Such indeed seems to be 
 the conviction of jurists in both hemispheres. 
 Mr. David Dudley Field, of the United States, has 
 recently published the Draft Outlines of an In- 
 ternational Code, which has been translated into 
 Italian, and is being now translated into French ; 
 whilst Professor Bluntschli, of Germany, has lately 
 published a classical treatise entitled "Inter- 
 national Law Codified," which has been translated 
 into French. Meanwhile an International Asso- 
 ciation has been formed for the preparation of a 
 Code of the Law of Nations, the labours of which 
 body must of necessity be slow, if they are to be 
 sure, and such an Association can only hope to be 
 successful in its enterprise, if it bases its work on 
 the common conviction of Nations, the consensus 
 gentium; as to the fitness and sufficiency of its con- 
 clusions. Its first effort as regards Private Inter- 
 national Law has been made according to a sound 
 method, and it may be hoped that by following up 
 that method it will succeed in its present enterprise 
 of Codifying the Law of Nations on the subject of 
 Bills of Exchange, which have been aptly termed 
 the International Currency of the civilised world. 
 
 ^ There is a difficulty, which to the meaning of a written Law. 
 
 besets the Codiiication of the Theliistoryof theBulwer-CIayton 
 
 Law of Nations, that as regards treaty and of the Three Eules of 
 
 the Public branch of that Law the Washington treaty show how 
 
 there is no Court to determine formidable is this difficulty, even 
 
 its interpretation, if there should when both the contracting parties 
 
 be anydispute bet ween Nations as speak a common language. 
 
TO THE SECOND EDITION. XXXIX 
 
 An important effort is being made by a distin- 
 guished School of Jurists to shift the foundations 
 of Law on which War itself rests, and just at the 
 moment when the right of private War has been 
 effectively blotted out from the volume of Public 
 European Law by the Declaration of Paris abolish- 
 ing Letters of Marque, a new definition of War has 
 been propounded, under which Nations are to re- 
 nounce the exercise of the right of War against one 
 another, and War, like Diplomacy, is to become the 
 exclusive business of Governments. If the projects 
 of this estimable body of men were likely to pave 
 the way to the abolition of all War, and to the 
 substitution of International Arbitration in the 
 place of War, just as the Wager of Battle contri- 
 buted to put an end to private War among the 
 members of particular States, and led up to the 
 adoption in its place of Trial by the Assize, all good 
 men would wish them God's speed in their enter- 
 prise. But such is not the interpretation which 
 the States, that have welcomed this new definition 
 of War, have attached to it, nor is such the con- 
 sequences which they anticipate in accepting it. 
 The consequence which they contemplate is that 
 every Government shall enforce on its own people 
 a system of compulsory military service, the dam- 
 nosa hereditas of the first French Revolution ^, and 
 
 ^ What a scourge to hu- Emperor Napoleon I to the late 
 
 manity the military conscrip- Prince Metternich, at Dresden, 
 
 tion of modern times is calcu- on the Emperor's return from 
 
 lated to prove, cannot be better Moscow. " What are to me a 
 
 illustrated than in the memor- million of lives? I have sent 
 
 able words addressed by the to death three hundred thousand 
 
Xl INTRODUCTION 
 
 that the States of Europe shall be always under 
 arms. As a corollary to this new definition of War, 
 it is proposed to proclaim the sanctity of private 
 property in warfare. If it were possible to persuade 
 Nations to apply such a principle effectively to 
 continental warfare, it would be a happy device 
 to arrest at once the inroad of an invading army, 
 for no such inroad could be made into an enemy's 
 country without a violation of private property. 
 The very ground on which a belligerent army must 
 encamp is private property; the crops which it 
 must trample under foot in its march are private 
 property; the farm-buildings and the villages which 
 it must devastate and destroy in battle are private 
 property. The vicissitudes of War also must some- 
 times render the exaction of supplies for the sup- 
 port of an army moving in an enemy's country 
 imperative even in the case of well disciplined 
 troops. Respect therefore for private property in 
 a Continental War must always be a question of 
 degree. To destroy private property, where such 
 destruction is necessary to facilitate the operations 
 of War, is as justifiable from the necessity of the 
 case as the destruction of public property ; to seize 
 it by way of requisitions, to the extent to which 
 such requisitions are necessary for the support of 
 a "belligerent army, is justifiable on the same prin- 
 ciple as the War itself on which the army is en- 
 Germans to spare my French conversation from tte late 
 subjects " (Que me font, k moi, Prince himself. M. Thiers in 
 un million d'hommes 1 J'ai fait his Histoire du Consulat et de 
 tuer trois cent mille Allemands I'Empire, Livre 49, has given 
 pour sauver mes Frangais). Tlie an imperfect version of them, 
 author had the words of the 
 
TO THE SECOXD EDITION. xli 
 
 gaged. But as it has been found in practice to be 
 for the true interests of a belligerent army to make 
 formal requisitions rather than to pillage, so it has 
 been found to be for its true interests to make com- 
 pensation for its requisitions, rather than to exact 
 them M'ithout payment. The experience of the 
 Spanish army, which co-operated with the British 
 army in the invasion of France in 1813, amply 
 testified to the former fact, whilst the experience 
 of the British army was fully corroborative of the 
 latter \ But no Belligerent Power has admitted 
 as yet in practice any obligation on its part to pay 
 for the supplies which it may have to levy in an 
 enemy's country, much less any duty on its part to 
 abstain from exacting those supplies by requisitions 
 upon the inhabitants. That the States, which are 
 disposed to accept this new definition of War, are 
 not prepared to abandon the right of an invading 
 army to levy supplies upon the inhabitants of an 
 invaded country, is apparent upon the face of the 
 Draft Project of an International Declaration con- 
 cerning the Laws and Customs of War, which has 
 been lately revised at a Conference in Brussels, 
 in which the Delegates of those States took part, 
 and which it is proposed to take further into con- 
 sideration at a second Conference to be held at 
 St. Petersburgh. 
 
 One feature of the present civilisation is that the 
 application of steam-power to ships has not only 
 
 ' Despatches of F. M. the tenant-Colonel Gurwood, vol. xi. 
 Duke of Wellington, by Lieu- p. 395, p. 420, p. 502, p. 551. 
 
Xlii INTRODUCTION 
 
 rendered an armed ship a more formidable engine 
 of War than heretofore, but has enabled a fleet of 
 unarmed ships to become a reliable base of military 
 operations against an enemy's territory, in fact to 
 serve as an extension of the territory of the bel- 
 ligerent, from which the invasion of an enemy's ter- 
 ritory may be successfully directed and supported. 
 The Crimean War was a striking illustration of the 
 territorial aptitude of a fleet of transport and store 
 ships under the improved means of navigating 
 them to form such a base of military operations. 
 One consequence of this has been that there is 
 a growing conviction amongst Nations that an in- 
 creased responsibility has devolved upon States, 
 which desire to remain neutral between two 
 friendly Powers, which are at War with each 
 other, to prevent the equipment and despatch 
 from their ports of ships, which there is reason- 
 able cause to believe will be employed in the 
 military or naval service of either Belligerent, 
 although those ships are private property. An- 
 other consequence has been that Neutral States 
 have felt themselves called upon in good faith to 
 place greater restrictions on the hospitality to be 
 shown in their ports towards ships under a bel- 
 ligerent flag. It was an object of the Treaty of 
 Washington of 1865 to concert a Code of Rules 
 on the former subject, which should be binding 
 henceforward on both the contracting parties, and 
 should be recommended by them to all civilised 
 States for general adoption; but, unfortunately, 
 when the arbitrators under that Treaty came to 
 
TO THE SECOND EDITION. xliu 
 
 apply "the three rules" of that Treaty, it was 
 found that the arbitrators were not all of accord 
 as to the proper interpretation to he given to them, 
 and " the three rules" having served their purpose 
 for the settlement of a passing dispute, have been 
 allowed to remain a dead letter, as regards their 
 contemplated incorporation into the General Law 
 of Nations. But one thing has resulted from 
 the adoption of those rules for the purpose of 
 deciding amicably a controversy between Great 
 Britain and the United States, that both those 
 Powers have placed on record before an interna- 
 tional tribunal their conviction, that ships, which 
 are capable of being employed in the military or 
 naval service of a Belligerent Power, have peculiar 
 qualities, which distinguish them from other chattels 
 which are suitable for warlike purposes, and that 
 the circumstance of their being private property is 
 of no weight as regards the responsibility of a 
 Neutral Power to prevent their equipment and their 
 despatch from its ports, if it wishes to maintain 
 good faith. The members of the Institute of In- 
 ternational Law, in their Session at Geneva in 1874, 
 took "the three rules" of the Treaty of Washington 
 into their consideration, and pronounced an opinion 
 that "the three rules," although in point of form 
 they were open to objection, were in substance the 
 clear application of a recognised principle of the Law 
 of Nations. There is an apparent contradiction of 
 principle between that opinion and the proposal, 
 which has been favourably entertained by a 
 majority of the members of the Institute in their 
 
Xliv INTEODUCTION TO THE SECOND EDITION. 
 
 recent Session at the Hague, that the right of cap- 
 turing Enemy's ships on the High Seas, if they are 
 private property, should he denied to a Belligerent. 
 Besides, as the modern Law of Nations has invested 
 a ship, notwithstanding it is private property, with 
 a territorial character on the High Seas in time of 
 peace, there seems no sound reason why a ship should 
 be divested of its territorial character in time of 
 War on the ground of its being private property, 
 more particularly when the very circumstance of 
 War invests it with peculiar territorial qualities, 
 which are not a fiction of Law, but are of sub- 
 stantial and indispensable service for the purposes 
 of War, where one of the belligerent parties is a 
 Maritime Power. 
 
 TEA VERS TWI6S. 
 
 Temple, London, 
 October 4, 1875. 
 
OF THE 
 
 EIGHTS AND DUTIES OF NATIONS 
 IN TIME OF ¥AE. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 SETTLEMENT OF INTERNATIONAL DISPUTES, 
 
 Sect. Page 
 
 I . Nature of International Differences i 
 
 %. Duty of Self-Preservation 3 
 
 3. Right of International Action 5 
 
 4. Amicable Conference 5 
 
 5. Arbitration 7 
 
 6. Germanic Confederation 11 
 
 7. Mediation I2 
 
 8. Congresses of Christian Powers 15 
 
 9. Conferences of Vienna of 1855 16 
 
 10. Retorsion 18 
 
 1 1 . Reprisals 30 
 
 la. Embargo %\ 
 
 13. Marque and Contremarque 23 
 
 14. The Admiralty Jurisdiction 25 
 
 15. Reprisals consistent with Peace 28 
 
 16. Negative and Positive Reprisals ,.,. 29 
 
 17. Special and General Reprisals 30 
 
 18. Reprisals against the Two Sicilies in 1839 34 
 
 19. Reprisals not always lawful 35 
 
 20. Reprisals against Persons — The Due de Belleisle — 
 
 The Envoys of the Confederate States of America 37 
 
 21. Congress of Paris of 1 856 41 
 
xlviii CONTENTS. 
 
 CHAPTER II. 
 
 WAR AND ITS CHARACTERISTICS. 
 Sect. _ Page 
 
 33. War as defined by Grotius 43 
 
 33. Bynkershoek's definition 44 
 
 34. War, the Contention of Independent Political Com- 
 
 munities — View of Grotius as to Private Warfare 45 
 
 a5- Albericus Gentilis 48 
 
 2,6. War a necessary alternative 49 
 
 27. Lord Bacon's view of War 51 
 
 38. Private Peace inconsistent with Public War 5a 
 
 39. Lawful recourse to War 54 
 
 30. Offensive and Defensive War ^6 
 
 31. Formal Declaration of War — Law of Germanic Em- 
 
 pire in twelfth century — Law of Europe in four- 
 teenth century 57 
 
 33. Declaration and Proclamation of War by Heralds-at- 
 Arms — Last Declaration of War by a Herald-at- 
 Arms in 1657 60 
 
 33. Printed Declarations of War — Manifestoes of War to 
 
 Neutral Nations 62 
 
 34. Recall of Resident Envoys 64 
 
 35. Disuse of Formal Declarations of War 65 
 
 36. Object of Proclamations of War at home 68 
 
 3 7 . Object of Manifestoes to Neutral Powers 70 
 
 38. Opinion of M. de Hautefeuille and of Burlamaqui — 
 
 Practice of the United States of America 71 
 
 39. The Status ante helium ambiguous 74 
 
 40. Unilateral Declaration of War sanctions reciprocal 
 
 hostilities 75 
 
 41. Recall or Dismissal of Resident Envoys — Ignorance 
 
 of hostilities on the part of Neutrals 76 
 
CONTENTS. Xlix 
 
 CHAPTER III. 
 
 COMMENCEMENT OF WAE. 
 Sect. Page 
 
 4a. Effect of War upon individuals 79 
 
 43. Natural-born and adopted Citizens 82, 
 
 44. Inhibition of intercourse with the Enemy — Recall of 
 
 natural-born Subjects 83 
 
 45. Commissions to carry on hostilities 84 
 
 46. Enemy-subjects within the Territory of a Belligerent 86 
 
 47. Treaties of Commerce — Enemy-property within the 
 
 Territory of a Belligerent 87 
 
 48. Obligation of good Faith 89 
 
 49. Ancient Practice of Provisional Embargo 93 
 
 50. Enemy-subjects resident in the Territory of a Belli- 
 
 gerent 93 
 
 51. Enemy-subjects in transitu — Detention of British 
 
 Subjects in France by the First Consul in 1803... 95 
 
 53. Modern practice not to detain Enemy-subjects 99 
 
 $2,- Debts due to Enemy-subjects 100 
 
 54. Opinion of Mr. Justice Story loi 
 
 55- Chancellor Kent — Vattel — Bynkershoek 104 
 
 56. Judgment of Jjord EUenborough in Wolff v. Oxholm 106 
 
 57. Suspension of Commercial Contracts 109 
 
 58. Debts due by an Enemy-sovereign — The Silesian 
 
 Loan — The Russian-Dutch Loan no 
 
 59. Embargo of Enemy-property afloat in the ports of a 
 
 Belligerent 114 
 
 60. Commencement of War with Russia in 1854 116 
 
 61. Immovable property of Enemies in the Territory of 
 
 a Belligerent 118 
 
1 CONTENTS. 
 
 CHAPTER IV. 
 
 EIGHTS OP A BELLIGERENT WITHIN THE TEERITOEY 
 
 OF AN ENEMY. 
 
 Sect. Page 
 
 62. General Right of a Belligerent against Enemy's pro- 
 perty 119 
 
 6^. Regulated exercise of that Right 130 
 
 64. Right within Enemy's Territory — Movable property 
 Booty of "War — Military contributions in lieu of 
 Booty 133 
 
 6^. Destruction of military stores and provisions — De- 
 vastation of crops 1 35 
 
 66. Immovable property of Enemy-subjects — National 
 
 Domain of an Enemy 136 
 
 67. State Papers and Public Archives 138 
 
 68. Public Libraries and Museums — The Gallery of the 
 
 Louvre in 1815 139 
 
 69. Public Edifices — The Capitol at Washington 133 
 
 70. Property water-borne in an Enemy's ports 134 
 
 7 1 . Distinction between Booty and Prize 136 
 
 CHAPTER V. 
 
 EIGHTS OF A BELLIGERENT ON THE HIGH SEAS. 
 
 73. Maritime intercourse of Nations 139 
 
 73. Object of War — Enemy's property on the High Seas 140 
 
 74. The Office of Admiral 143 
 
 75. The Admiralty Jurisdiction of Nations — Order of 
 
 Prize Proceedings 144 
 
 76. The Judgments of the Sea or Rooles d'Oleron — The 
 
 Customs of the Sea — Consolat del Mar 145 
 
 77. Distinction of Ship from Cargo — French Reglement 
 
 ofi543 148 
 
 78. Edict of 1584 — French doctrine of Hostile Infection — 
 
 Ordonnance of 1681, and later French Ordinances 150 
 
CONTENTS. li 
 
 Sect. Page 
 
 79. Rule of United States of America 153 
 
 80. Freight payable to Neutral Shipowner 1 55 
 
 81. Grand Pensionary de Witt — Treaties of Utrecht and 
 
 later Treaties 1^6 
 
 8a. Four Systems of Maritime Law — The Natural System 
 
 of the Consolat del Mar 158 
 
 83. The French System of Ship and Cargo mutually 
 
 infecting each other 160 
 
 84. The Dutch System of the Cargo following the 
 
 Character of the Ship 161 
 
 85. The System of the Congress of Paris of 1 856 162, 
 
 86. The Parties to the Declaration of Paris 1 63 
 
 87. Territorial Theory of Hiibner, Kliiber, and Martens . 166 
 
 88. Opposite Views of Bynkershoek and Lampredi 168 
 
 89. Objections to the Territorial Theory 1 70 
 
 90. The Passport or Sea-Letter — Ambiguity of the Mer- 
 
 cantile Flag 173 
 
 91. Right of Visitation and Search — Case of the Swedish 
 
 Convoy 177 
 
 92. Right of Approach 179 
 
 93. Regulation of the Right of Visitation and Search — 
 
 Rule of an Affirming Gun 180 
 
 94. Treaty of the Pyrenees 7 Nov. 1659 184 
 
 95. Right of Detention for Enquiry 185 
 
 96. Neutral merchant ships may not sail under Convoy . 186 
 
 97. Neutral merchandise in an armed ship of the Enemy 
 
 — British Prize Courts — Doctrine of the Prize 
 Courts of the United States of America 188 
 
 CHAPTER VI. 
 
 ON BLOCKADE. 
 
 98. Ancient Practice of prohibiting all Trade with the 
 
 Enemy 190 
 
 99. Object of a Blockade 192, 
 
 d 2 
 
lii CONTENTS. 
 
 Sect. Page 
 
 loo. Penalties for the violation of a Blockade 1 93 
 
 I o I . Regulated exercise of the Right of Blockade 195 
 
 103. Legal requirements of a binding Blockade — Decla- 
 ration of the Congress of Paris 197 
 
 103. Characteristics of an Effective Blockade 199 
 
 104. Knowledge on the part of the Master of a Vessel 
 
 dispenses with actual Warning 3oi 
 
 105. Constructive Notice — Public Notification — General 
 
 Notoriety ;. 303 
 
 106. Fact of a Blockade must accord with the Notification 205 
 
 107. Practice of the French Prize Courts 307 
 
 108. Practice of the United States Prize Courts 309 
 
 109. Violation of a Blockade aio 
 
 no. Equity of British Prize Courts 3ia 
 
 III. Favourable construction of Licenses 314 
 
 113. Breach of Blockade by Egress 315 
 
 113. Egress lawful in certain cases 317 
 
 114. Duration of ^/e^ic^MM after Egress 318 
 
 115. Effect of Fraud in Egress 33i 
 
 116. Cargo not always condemned with the Ship 333 
 
 I r 7. Extent of Coast which may be placed under Blockade 334 
 
 118. Limited operations of a Blockade 337 
 
 119. Effect of a Blockade on Licenses 338 
 
 I30. Effect of Licenses on a Blockade 330 
 
 CHAPTEE VII. 
 
 CONTEABAND OP WAR. 
 
 131. Origin of the term Contraband 355 
 
 133. Application of the term to International Trade — 
 
 Treaty of Southampton of 1635 334 
 
 133. First Proclamation of King Charles I — Second Pro- 
 
 clamation of 1636 — Earliest Catalogue in extenso 
 
 of Contraband of War 226 
 
 134. Zouch on Fetial Law — Queen Elizabeth and the 
 
CONTENTS. liii 
 
 Sect. Page 
 Polish Envoy — Queen Elizabeth and the Hanse 
 
 Towns 240 
 
 125. Usage of Europe in the sixteenth- century — ^Albe- 
 
 ricus Gentilis 243 
 
 126. Kliiber— Heffter — Early Conventions in restraint of 
 
 Neutral Trade — ^Placaarts of the States General in 
 
 the sixteenth century 244 
 
 127. Practice of European Powers at the end of the six- 
 
 teenth century 247 
 
 128. Practice of the seventeenth century 249 
 
 129. Doctrine of Grotius as to Contraband of War 250 
 
 130. Treaty of Westminster of 1654 — Treaty of Paris of 
 
 1655 251 
 
 131. Treaty of the Pyrenees of 1659 254 
 
 132. Treaty of Whitehall in 1661 — Treaties of Breda and 
 
 Madrid in 1677 — Treaty of St. Germain-en-Laye 
 
 of 1677 255 
 
 133. Treaty of Whitehall of 1689 259 
 
 134. Opinion of Sir Leoline Jenkins 261 
 
 135. Treaty of Utrecht of 1 7 13 262 
 
 1,35. British Treaty-Engagements 264 
 
 137. Concert of European Nations as to certain articles... 267 
 
 138. Bynkershoek's view 268 
 
 139. Vattel 270 
 
 140. Italian and Spanish Jurists 270 
 
 141. French Jurists 271 
 
 142. Practice of British Prize Courts 27a 
 
 143. Difficulty of specifying articles conditionally Contra- 
 
 band 274 
 
 144. General doctrine of British Prize Tribunals 276 
 
 145. British Treaty with the United States in 1796 280 
 
 146. Right of Preemption — Treaty of Westminster of 
 
 1656— Treaty of Whitehall of 1 661— Treaty of 
 
 Orebro of 1812 282 
 
 147. Treaty of Upsal of 1654 — Equity as to Conditional 
 
 Contraband 287 
 
liv CONTENTS. 
 
 Sect. P^g? 
 
 148. Ships under circumstances Contraband of War aoo 
 
 149. The Transport, and not the Sale, of Merchandise to 
 
 the Enemy penal under the Law of Nations 290 
 
 150. Treaty-Engagements between Prussia and the 
 
 United States of America 293 
 
 151. Belligerents may not interfere with Trade within 
 
 the Jurisdiction of a Neutral State 295 
 
 CHAPTER VIII. 
 
 ENEMY CHAEACTEE. 
 
 15a. Domicil, the criterion of National Character for 
 
 purposes of War 299 
 
 153. Permanent Residence constitutes Domicil 302 
 
 154. An acquired Domicil may be abandoned at the out- 
 
 setofWar 304 
 
 155. The Character of Property is not always identical 
 
 with the Character of its Owner 306 
 
 156. The Enemy Character may be engrafted sub modo 
 
 on the Neutral Character 309 
 
 157. Distinction between Enemies de facto and Enemies 
 
 de jure , 311 
 
 158. Employment of Neutral Property in the service of 
 
 a Belligerent State 313 
 
 159. The Mercantile Character is not affected by the 
 
 Consular Character 316 
 
 160. The Character of the produce of Landed Estates 
 
 varies with the Character of the Country and not 
 of the Owner — Santa Cruz — City of Hamburg — 
 Island of Corfu 318 
 
 161. Treaties of Cession — Louisiana — Treaty of Tilsit — 
 
 The Seven Islands 330 
 
 162. The Character of Property cannot be changed in 
 
 transitu on the High Seas 322 
 
CONTENTS. Iv 
 
 103. Exceptions in transactions of good Faith originating 
 
 in time of Peace 02,4 
 
 164. Enemy Character may attach to Places in the oc- 
 
 cupation of an Enemy .- 02,6 
 
 165. Friendly Character may attach to Places in the oc- 
 
 cupation of an Ally 337 
 
 CHAPTER IX. 
 
 ON CAPTURE AND ITS INCIDENTS. 
 
 166. Duty of Captors to bring in their captures for 
 
 adjudication as Prize 329 
 
 167. Enemies have no locus standi in a Prize Court 331 
 
 168. What is essential to constitute a Capture 332 
 
 169. Form of proceeding in Great Britain to constitute 
 
 Prize Courts 334 
 
 1 70. Jurisdiction of Courts to distribute Prize ^^6 
 
 171. Absolute Control of the Crown overall Captures ... 340 
 1 73. Recapture subject to the Jus postliminii 341 
 
 173. Rule of Twenty- Four hours Possession 343 
 
 174. Salvage on Recapture — Practice of Great Britain 
 
 and of the United States of America 345 
 
 175. Practice of France, Spain, Denmark, Sweden, and 
 
 Holland 346 
 
 176. Insurable interest of British Captors 348 
 
 177. Ancient Practice as to Prisoners of War 350 
 
 178. Modern Cartels for the exchange of Prisoners 353 
 
 179. Cartel Ships ^^^ 
 
 180. Ransom of Captures at Sea 356 
 
 181. Ransom Bills 357 
 
 182. Hostages 360 
 
 1 83. Modern Restraints upon Ransom ^61 
 
 184. Joint Captures 364 
 
 1 85. Distribution of Prize amongst joint Captors 367 
 
 186. Condemnation of Prizes brought into the port of an 
 
 Ally 369 
 
Ivi CONTENTS. 
 
 CHAPTER X. 
 
 ON PEIVATEERS. 
 Sect. Page 
 
 187. Privateers are distinguishable from Letters of 
 
 Marque 374 
 
 188. Gradual Restraint of Private Expeditions on the Sea 376 
 
 1 89. Privateers in the sixteenth and seventeenth centuries 380 
 
 190. A Commission of War must be on board a Privateer 384 
 
 191. What constitutes a lawful Commission of War 387 
 
 193. A Privateer may not have two Commissions of War 
 
 from different Powers 3^9 
 
 193. Belligerent Powers may grant Commissions of War 
 
 to Aliens 391 
 
 194. British Practice in issuing Commissions to the 
 
 Commanders of private Ships 393 
 
 195. Restraints upon Privateers 394 
 
 196. Purport of Instructions issued to British Privateers — 
 
 Distinguishing Flag of British Privateers 396 
 
 197. The Flag of Foreign Privateers 397 
 
 198. Verification of the Military Flag of a Privateer ... 399 
 
 199. A Neutral merchant- vessel cannot claim to verify a 
 
 Privateer's Belligerent Character 401 
 
 300. The exercise of the Belligerent Right of Visit and 
 
 Search regulated by Treaties 403 
 
 aoi. Privateers not admitted to the same Comity as 
 
 Public Ships of War 407 
 
 20a. Restrictions upon Privateers in Neutral waters 409 
 
 203. Treaty-Restraints upon Neutral Subjects accepting 
 
 Commissions from Belligerent Powers 411 
 
 204. Municipal prohibitions against Subjects accepting 
 
 Commissions of War from Foreign Powers 414 
 
 305. Privateers under Special Conventions Piratical vessels 
 — Distinction between Piracy under special Con- 
 ventions and Piracy under the Common Law 416 
 
CONTENTS. Ivii 
 
 Sect. Page 
 
 ao6. Conventions amongst States against the Employ- 
 ment of Privateers 431 
 
 307. Declaration of the Congress of Paris of 1 856 433 
 
 CHAPTER XI. 
 
 ON THE EIGBTS AND DUTIES OP NEUTRAL POWERS. 
 
 308. Views of Grrotius as to the relations between Belli- 
 gerents and Neutrals 435 
 
 209. Increased importance of the subject in the eighteenth 
 
 century ^ 436 
 
 aio. Bynkershoek's views ■.. 437 
 
 311. Views of Wolff and Vattel 439 
 
 313. Views of Martens 431 
 
 313. Perfect Liberty of Commerce within the Territory 
 
 of a Neutral Power 433 
 
 314. Distinction between Trade on the High Seas and 
 
 Trade within the Territory of a Neutral Power . . . 434 
 
 315. Exceptional/S^fls^wsof the Merchant on the High Seas 436 
 
 316. The Political Duties of Neutral Nations towards 
 
 Belligerent Nations 439 
 
 317. Inviolability of the Territory of a Neutral Nation... 441 
 
 318. The Passage of Belligerents through Neutral Ter- 
 
 ritory 443 
 
 319. Hospitality to Belligerent ships discretional on the 
 
 part of Neutral Powers 446 
 
 330. Neutral Bights of Police over Belligerent vessels of 
 
 War in Neutral waters 447 
 
 331. Right of a Neutral Power to exclude Privateers and 
 
 all Prizes of War from its ports 451 
 
 333. Belligerent privilege of Asylum in Neutral waters . 453 
 
 333. Right of a Neutral Power to allow Belligerent 
 
 Powers to recruit troops within its Territory 454 
 
 334. Views of the United States Government as to a 
 
 Belligerent enlisting troops in Neutral Territory .. 455 
 
Iviii 
 
 CONTENTS. 
 
 Sect. Page 
 
 335. Eight of a Neutral Power to prohibit the enlist- 
 ment of troops within its Territory 457 
 
 CHAPTER XII. 
 
 ON THE EIGHTS AND DUTIES OF NEUTRAL POWERS, 
 CONTINUED. 
 
 326. Trade within the Territory of a Neutral State 460 
 
 337. Purchase and sale of Ships by the Subjects of Neu- 
 tral Powers 463 
 
 aa8. Sale of Ships of War by a Neutval Power..... 467 
 
 339. Modified Neutrality under Treaty-Engagements ... 469 
 
 330. Non-interference with Trade consistent with the 
 
 Neutrality of a State 473 
 
 331. The Policy of the United States of America, as a 
 
 Neutral Power, to interdict certain branches of 
 
 Trade 475 
 
 333. Trade, unless interdicted, not a violation of the 
 
 Sovereignty of a Neutral State 477 
 
 333. Jurisdiction over Captures in Neutral waters exer- 
 
 cised by the Neutral Power , 483 
 
 334. Ancient jurisdiction exercised by Neutral Powers in 
 
 matters of Prize 484 
 
 335. Neutral Courts do not entertain the question of 
 
 Damages 488 
 
 236. A Neutral Power may claim a vessel captured in 
 violation of its Territory before a Belligerent Prize 
 Court 493 
 
 337. Neutral Powers do not interpose their jurisdiction 
 
 in cases of Rescue 40^ 
 
 338. Conflict of jurisdiction between a Neutral Admiralty 
 
 Court and a Belligerent Prize Court 497 
 
 339. Duties of a Neutral Power in cases of Civil War . . . 499 
 
 340. Belligerent Right of Capture reconcilable with the 
 
 Independence of Neutral Powers C05 
 
CONTENTS. • lix 
 
 APPENDIX. 
 
 Page 
 Congress of Paris, 1 856 511 
 
 I. Expression of tlie wish of the respective Powers 
 thaj} States, before appealing to arms, should have 
 recourse to the good offices of a Friendly Power, 
 
 14 April, 1856 514 
 
 %. Declaration of Maritime Law, 16 April, 1856 ... 519 
 3. Agreement of the respective Powers as to the in- 
 divisibility of the four principles of the Declara- 
 tion, 16 April, 1856 ^1,'}, 
 
 Convention for the amelioration of the condition of the 
 Wounded in Armies in the Field, signed at Ge- 
 neva, aa August, 1864 524 
 
 Accession of the British Government to the Convention, 
 
 signed at London, 1 8 Feb., 1 865 534 
 
 Additional Articles to the Convention, signed at Geneva, 
 
 30 Oct., 1868 536 
 
 Articles concerning the Marine 540 
 
 Circular of the Swiss Federal Council, 16 Dec, 1868 ... 548 
 Note of the British Secretary of State for Foreign Affairs, 
 
 ai Jan., 1869 550 
 
 Note of the French Ambassador at London, a6 Feb., 
 
 1869 55a 
 
 Circular of the Swiss Federal Council, a May, 1870 555 
 
 Declaration of a mutual engagement between the respec- 
 tive Powers to renounce the employment of certain 
 projectiles in time of War, signed at St. Peters- 
 burg, 39 Nov., 1868 558 
 
 Conferences of London, 1 87 1 561 
 
 B/ecognition on the part of the respective Powers, that it 
 is an essential principle of the Law of Nations, 
 that no Power can liberate itself from the engage- 
 ments of a Treaty, unless with the consent of the 
 contracting Powers, 17 Jan., 1871 567 
 
Ix CONTENTS. 
 
 Page 
 Treaty for the revision of certain articles of the Treaty of 
 
 Paris, 1856, signed at London, 13 March, 1871 .. 578 
 Convention between Russia and Turkey, abrogating the 
 
 special Convention of 18 March, 1856, signed at 
 
 London, 13 March, 1871 580, 
 
 British Foreign Enlistment Act, 9 August^ 1870 (33 and 
 
 34 Viet. ch. 90) 594 
 
 Index 609 
 
THE LAW OF NATIONS. 
 
 CHAPTER I. 
 
 SETTLEMENT OP INTERNATIONAL DISPUTES. 
 
 Nature of International Differences — Duty of Self-preservation — 
 Right of International Action — Amicable Conference — Compro- 
 mise — Arbitration — Mediation — Congresses of Christian Powers — 
 Duty of Moderation — Retorsion — Embargoes — Practice of Marque 
 and Reprisals — Letters of Contremarque — Growth of the Admiralty 
 Jurisdiction — Armemens en Course — Grant of Reprisals — Reprisals 
 consistent with Peace^Negative and Positive Reprisals — Special 
 and General Reprisals — The Grand Pensionary DeWitt — Conditional 
 Declaration of War — Chief Justice Hale — Reprisals against Spain in 
 1739 — Reprisals against the two Sicilies in 1839 — General Reprisals 
 not always lawful — Sir Leoline Jenkins — Grotius — Bynkershoek — 
 Vattel — Reprisals against Persons — Political Envoys exempt from 
 Reprisals — Case of the Due de Belleisle — Case of the Envoys of the 
 Confederate States of America in the British packet Trent — Regu- 
 lation of the Practice of Marque and Reprisals by Treaties — Renun- 
 ciation of the Practice of Marque by the Congress of Paris in 1856. 
 
 § I . Nations being independent political bodies, Diflferences 
 holding intercourse with one another upon a footing ^ationa. 
 of equality and reciprocity, are liable, in satisfying 
 the duties of Natural Society, to have differences 
 
 PART II. B 
 
^ SETTLEMENT OF 
 
 with one another upon questions of mutual Right. 
 These differences may arise, either by reason of a 
 Nation refusing to perform a good ofiSce to another 
 Nation, to the performance of which the latter con- 
 siders itself to have a claim of Eight ; or by reason of 
 a Nation suffering an ill office from another Nation, 
 from which the former considers itself entitled of 
 Eight to be exempt. "The differences," says VatteP, 
 " which arise between Nations or their rulers are on 
 account either of contested rights or of injuries re- 
 ceived. A Nation ought to maintain the rights 
 which belong to it ; on the other hand the care of 
 its own safety and glory forbids it to submit to in- 
 jury. But in fulfilling the duty which a Nation owes 
 to itself, it must not forget its duties to other 
 Nations." It is in the practical adjustment of these 
 two principles, according to the circumstances of each 
 individual case, that we discover the- rule for ap- 
 peasing the disputes which may arise between 
 Nations upon questions of Bight. A Nation cannot 
 claim anything as of Eight due to itself, which would 
 be injurious to another Nation ; neither can it claim 
 in redress for an injury, which it has undergone, any-. 
 thing which would be inconsistent with the Eight of 
 another Nation. Equality and reciprocity are funda- 
 mental conditions in measuring the remedies for 
 international Wrong, equally as they are fundamental 
 conditions in determining the Right, the violation 
 of which constitutes international Wrong. 
 
 \ 2. The perfection of every political community 
 consists in its aptitude to fulfil the ends of civil 
 society ; and one of the chief ends of civil society is 
 to secure, by the cooperation of all the members of a 
 political community, a greater degree of well-being 
 to each individual than he could obtain by his own 
 ^ Droit des Gens, L. II. c. 17. § 323. 
 
INTEENATIONAL DISPUTES. 3 
 
 unaided exertions. Accordingly, in the act of poli- 
 tical association, by virtue of which a multitude of 
 men constitute themselves into a State or Nation, 
 each individual enters into an engagement with the 
 body to promote the general welfare ; and the State 
 or Nation in return enters into an engagement with 
 each member to facilitate for him the means of sup- 
 plying his necessities, and to protect and defend him. 
 It is manifest therefore that the maintenance of the 
 political association itself is an essential condition 
 for the fulfilment of these reciprocal engagements, 
 and the State or Nation is thus uiider a primary 
 obligation to preserve itself; in other words, Self- 
 preservation is a primary duty of National Life. 
 This duty of Self-preservation on the part of a Nation Duty of 
 implies, as a coroUary, the duty of preserving each vatiou. 
 of its members. It owes this duty in the first place 
 to itself, since the loss of one of its members impairs 
 the integrity of the body, and at the same time 
 weakens it. It owes this duty also to each of its 
 merabersin particular, for the individuals, who compose 
 a Nation, have united themselves together for their 
 mutual defence and common advantage ; and none of 
 them can justly be deprived of this Union, and of the 
 advantages which he expects to derive from it, whilst 
 he fulfils on his side the conditions of it. The body 
 of a Nation cannot abandon a province, or a town, or 
 even a single individual member, unless compelled to 
 it by necessity, or indispensably obliged to it by the 
 strongest reasons founded on considerations of the 
 public safety^. 
 
 § 3. The obligation of a Nation to preserve itself 
 and to preserve all its members, is not limited to 
 those matters only which afiect its internal constitu- 
 tion, but extends to its external relations with other 
 2 Vattel, Droit des Gens, L. I. c. 2. § 17. 
 B 2 
 
4 SETTLEMENT OF 
 
 Nations; in other words, to those matters which 
 regard the intercourse of itself as a political commu- 
 nity, or of its members individually, with any other 
 Nation as such, or with the several members thereof. 
 The right of Self-preservation accordingly gives to a 
 Nation a moral power of acting in regard to other 
 Nations in such a manner, as may be requisite to 
 prevent them from obstructing its preservation or its 
 perfection ^. This Right is a perfect Right, since it 
 is given to satisfy a natural and indispensable duty ; 
 and our Right may frequently fail to be respected, 
 and its effects wiU be uncertain, unless we may use 
 compulsion towards those who refuse to fulfil the 
 corresponding obligation. A Nation has accordingly 
 a right to resist any attempt on the part of another 
 Nation to injure it, and in case that it has suffered an 
 injury from another Nation, to exact complete repa- 
 ration for it. At the same time it is bound to abstain 
 from doing any injury to another Nation, and to give 
 adequate satisfaction for any injury, which it may 
 have inflicted upon it. An individual citizen is at 
 liberty to waive his right and to forgive an injury, 
 without incurring any increased risk to his life or 
 property, for he lives under the protection of the 
 Civil Magistrate, and may invoke his aid against any 
 ungrateful and malicious fellow-citizen, who may 
 have been encouraged by his indulgence to renew the 
 offence. But a Nation cannot appeal to any superior 
 Power on earth, in case it should have forgiven an 
 injury, which has been inflicted upon it by another 
 Nation, and thereby have encouraged it to offend 
 again. A more powerful Nation may indeed over- 
 look an injury, which it has received from a less 
 powerful Nation, without any derogation to its 
 future safety ; but between Powers which are nearly 
 ' Vattel, L. II. c. 4. § 49. 
 
INTERNATIONAL DISPUTES. 5 
 
 equal, the submiasion on the part of one of such 
 Powers to an injury, without insisting upon complete 
 • satisfaction from the other Power, is almost always 
 attributed to cowardice or weakness, and seldom fails 
 to subject the injured party to further wrong of a 
 more atrocious character. A Nation is accordingly 
 bound, in the presence of another Nation, to main- 
 tain its Right, and to seek satisfaction for wrong, 
 under the penalty of forfeiting its character of an 
 independent political body ; for to acquiesce tamely 
 in an injury which has been inflicted upon any of its 
 members by another Nation, would be equivalent to 
 the admission of its inability to secure to its mem- 
 bers the enioyment of their Eiffht without the con- i^'giit of 
 
 . Interna- 
 
 sent of the other Nation ; in other words, it would tionai 
 be a virtual acquiescence on its part in a state of 
 dependence upon the other Nation. A Nation has 
 therefore a moral Eight of Action against other 
 Nations, which withhold from it its Right, or have 
 inflicted injury upon it. But this Right of Action 
 against another Nation is capable of being exercised 
 either by an appeal to reason, or by a recourse to 
 arms. But a recourse to arms, although it may ulti- 
 mately assert and enforce substantial justice to be 
 done by the Nation, which has been a wrong-doer, 
 brings with it, as an indirect but necessary conse- 
 quence, such a train of evils and calamities resulting 
 to innocent individuals, that an appeal to reason 
 should always be made in the first instance, unless 
 there is evident peril to the safety of a Nation, if it 
 does not have immediate recourse to arms. 
 
 § 4. An appeal to Reason may be made in various 
 ways. Amicable Conference is the first and most ob- Amicable 
 vious mode; and it commends itself to Nations by two eno".^"" 
 weighty considerations. Men will often concede to 
 Reason what thev feel bound to deny to Force ; for, to 
 
b SETTLEMENT OF 
 
 give way to argument savours of generosity, or at least 
 does not necessarily imply any inferiority ; whilst 
 men for the sake of preventing war will allow of • 
 several things, to which they could not be compelled 
 by force of arms. The object of Amicable Conference 
 is to examine candidly the subject in dispute, with a 
 view to do justice, so that the party, whose Right is 
 found to be the more doubtful of the two, may volun- 
 tarily renounce it. To renounce a right after discus- 
 sion does not necessarily imply a want of power to 
 enforce it, which might encourage an enemy to make 
 further encroachment ; but, on the contrary, is con- 
 sistent with a wish to do justice. There are even 
 occasions, when it may be advisable for the Nation, 
 which is found to have the clearer Eight, to renounce 
 it for the sake of preserving Peace and gaining a 
 friend ; for to renounce a Right in this manner is not 
 to abandon or neglect it, and in yielding up amicably 
 what you are entitled to maintain by force, you 
 conciliate an opponent. Amicable Conference will 
 generally lead to an equitable adjustment of the con- 
 flicting pretensions of Nations ; and where the sub- 
 ject in dispute is difficult to adjust by the standard 
 Compro. of strict Right, it tends to facilitate a Compromise, 
 which is for the most part a preferable alternative to 
 war. As examples of Compromise, we may refer to 
 the settlement of the boundary between the territory 
 of the United States and the British possessions in 
 North America. In the case of the North-east 
 Boundary* it had been found impracticable to ascer- 
 tain a line, which would answer the conditions of 
 the previous treaty-engagements between the two 
 Powers : in the case of the North-west Boundary^ 
 
 * Treaty ofWashington, 9 Au- ° Treaty of Washington, 15 
 
 gust, 1842. Martens, Nouveau ' January, 1846. Ibid. IX. p. 27. ' 
 Eecueil G6n6ral, III. p. 456. 
 
 mise. 
 
INTERNATIONAL DISPUTES. 7 
 
 Great Britain thought it consistent with her dignity 
 to recede from her strict right, and adopted a com- 
 promise from considerations of convenience. 
 
 The established practice amongst Nations, of ac- Resident 
 crediting Resident Envoys to foreign Courts, facili- ™ ^^^^^' 
 tates in a high degree the settlement of international 
 disputes by amicable conference ; and as long as 
 Resident Embassies continue to be maintained as 
 normal channels of international communication, there 
 will be a permanent guaranty amongst nations, that 
 some attempt will always be made to settle their 
 disputes by reason, before they have recourse to 
 arms. This guaranty will be increased in strength, 
 in proportion as Diplomacy acquires the character of 
 a Science, and the Diplomatic Envoy comes to be 
 selected from those persons, who have made the 
 Rights of Nations their peculiar study. The Roman 
 people seem at a very early period of their history to 
 have appreciated the importance of submitting their 
 disputes with other Nations to a council of judges, 
 well versed in the science of international Rights 
 before they had recourse to arms ; and it was the 
 province of the College of Fecials not merely to 
 advise the State in negotiating peace and alliance, 
 but to furnish, when required, ambassadors qualified 
 to demand redress for injuries received from other 
 Nations, and to declare war against them, if adequate 
 redress should not be granted ®. 
 
 § 5, Arbitration is another method of bringing ArMtra- 
 international disputes to a peaceable termination, 
 where direct conferences between the Representatives 
 of the Nations, which are at issue upon a question of 
 Right, have failed to bring about an amicable settle- 
 ment. When nations have agreed to refer any 
 
 " Cicero de Officiis, L. I. c. 13. Cicero de Eep. L. II. c. 17-. 
 Livii Hist. L. I. c. 32. 
 
8 SETTLEMENT OF 
 
 question in dispute between them to Arbitration, 
 their good faith is pledged to abide by the decision 
 of the Arbitrator, unless the decision should involve 
 a clear departure from the terms of the reference, or 
 should be in absolute conflict with the rules of 
 justice and therefore incapable of being the subject 
 of a valid international compact, or should be the 
 manifest result of fraud and collusion with one of 
 the parties. A departure from the terms of the re- 
 ference was alleged on the occasion, when the United 
 States of America and Great Britain agreed by the 
 Convention of London (29 Sept. 1827'') to refer the 
 points of difierence which had arisen in the settle- 
 ment of the boundary between the British and Ame- 
 rican dominions, as described in the fifth Article of 
 Treaty of the Treaty of Ghent, to some friendly Sovereign or 
 State, who should be invited to investigate and make 
 a decision upon such points of difference ; and they 
 further agreed that the decision of the arbiter, when 
 given, should be taken as final and conclusive, and 
 should be carried without reserve into immediate 
 efiect by Commissioners appointed for that purpose 
 by the contracting parties. Notwithstanding the ab- 
 solute terms in which the parties to this Convention 
 bound themselves to acquiesce in the decision of the 
 Sovereign arbiter, the Senate of the United States 
 considered that the opinion of the King of the Nether- 
 lands on the case referred to him, which he delivered 
 in writing to the Plenipotentiaries of the United 
 States and of Great Britain on 10 Jan. 1831, was not 
 obligatory on the United States ^ on the ground that 
 the award did not follow the submission, but merely 
 
 ^ Martens, N. E. VII. p. 491. son, 6 Dec. 1831. British and 
 
 British and Foreign State Papers Foreign State Papers 1830, 31. 
 
 1826, 7. p. 1005. p. 957. Message of 4 Dec. 1832. 
 
 ' Message of President Jack- ib. 1831, 32. p. 244. 
 
INTERNATIONAL DISPUTES. 9 
 
 recommended a conventional line, which it designated"; 
 and accordingly, upon the advice of the Senate, the 
 President of the United States opened a further ne- 
 gotiation with the British Crown. Cases of fraud and 
 collusion on the part of an international arbiter are 
 rare. Puffendorf ^'^ alludes to an instance in which the 
 Emperor Maximilian and the Doge of Venice sub- 
 mitted their difi'erences to the arbitration of Pope 
 Leo X, while each of them privately tampered with 
 the Roman Pontiff to declare on his side. 
 
 Cases in which the decision of the arbitrating 
 Power is in direct conflict with the rules of justice 
 are equally rare. They occur for the most part 
 where the arbiter has some advantage in view, 
 which may accrue to himself from an unjust decision, 
 and where he is sufficiently powerful not to fear the 
 resentment of the parties, who have deferred the 
 settlement of their conflicting claims to his decision. 
 Of this character was that decision of the Roman 
 people, which Livy narrates with very strong repro- 
 bation, when the cities of Ardea and of Aricium Ardea and 
 having deferred their dispute in regard to the sove- -*■"<=!"'"• 
 reignty over a certain country to the arbitration of the 
 Roman people, the Assembly of the Roman Tribes 
 adjudged the territory in controversy to be the pro- 
 perty of the Roman State". Grotius^^ has very 
 justly observed, that although in a doubtful case of 
 title both Nations are bound to seek for conditions of 
 compromise rather than to have recourse to war, yet 
 this obligation presses more strongly on the Nation 
 which makes a claim, than on the Nation which is in 
 
 ' American Annual Eegister, VI. p. 141. 
 
 1830, 31. p. 146. " Livii Historia, L. III. c. 71. 
 
 1" Puffendorf, Law of Nature ^'^ Grotius, L. II. c. 23. § 11, 
 
 and of Nations, L. V. c. 13. Wolff, Jus Gentium, § 576. 
 § 4. Guicciardini Istoria, Tom. 
 
l"*) SETTLEMENT OF 
 
 possession of a thing ; for it is agreeable not only to 
 civil but to natural law, that the possessor of a thing 
 in all cases of equal claim should be in a more fa- 
 vorable position than the party who seeks to disturb 
 him : Melior est conditio possidentis. A claimant 
 accordingly, who may be satisfied of the goodness of 
 his cause, but cannot prove that a party in possession 
 is wrongfully in possession of a thing, cannot lawfully 
 make war, because he has not the right to compel the 
 other to give up possession. It is not necessary that 
 Nations, in referring any matter in dispute between 
 them to the arbitration of a third party, should se- 
 lect an independent State or a Sovereign Prince 
 as arbiter. It was by no means unfrequent in the 
 middle ages for Nations to refer the decision of 
 matters, which might be in controversy between them, 
 to the arbitration of the Faculty of Law in some 
 famous University. Thus we find the Doctors of the 
 Law School great Law School of Bologna continually called 
 of Bologna, ^p^i^ to fumish arbiters in the disputes between the 
 , Italian Republics. On the other hand, the most 
 powerful States in modern times have not hesitated 
 to refer to Commercial Tribunals the decision of ques- 
 tions, which may have arisen between themselves and 
 a less powerful State, and in which the commercial 
 interests of their subjects have been concerned. Thus 
 Great Britain has on two very recent occasions agreed 
 Senate of with Portugal to refer to the Senate of the city of 
 Hamburg, jjamburg the decision of claims made by British 
 Merchants against the Portuguese Government, and 
 the Senate of Hamburg has undertaken on both 
 occasions the arbitration; and it has decided the dis- 
 pute on the first occasion in favor of the Portuguese 
 Government", and on the second occasion in favor 
 of the British Merchant^*. 
 
 '^ Croft's Case, 1858. ^'^ Shortridge's Case, 1861. 
 
INTERNATIONAL DISPUTES. 11 
 
 § 6. Arbitration, writes VatteP^, is a very reason- 
 able mode, and one that is perfectly conformable to 
 the law of Nature, for the decision of every dis- 
 pute which does not directly interest the safety of a 
 Nation. Accordingly we find it sometimes a matter 
 of stipulation in treaties of alliance between inde- 
 pendent States, that their disputes shall be submitted 
 to arbiters, in case they cannot adjust them by 
 amicable conference. Such a provision is more par- 
 ticularly a feature of Federal Pacts, under which 
 neighbouring States associate themselves together 
 for the permanent purpose of mutual defence, and 
 are recognized internationally in the character of a 
 Confederated Body of States. Thus it was provided 
 by Article XI of the Act which constituted the late 
 Germanic Confederation, that the Confederated States Gei-mmic 
 
 1 T 1 , 1 , , -I Confedera • 
 
 should not make war upon one another under any tion. 
 pretext whatsoever, nor should prosecute their dif- 
 ferences by force of arms, but should refer them to 
 the Diet. The Diet on the other hand undertook 
 to mediate between the States which might have , 
 differences with one another ; and if its mediation 
 should fail, then to refer their dispute to an Austegral 
 tribunal (Austragalinstanz), to the judgment of which 
 the litigant parties were to submit without appeal. 
 After a similar design was the proiect of the Abbe ^i^be st. 
 
 r r J Pierre. 
 
 St. Pierre for securing a perpetual peace amongst 
 the European Powers, which was circulated in Europe 
 shortly after the conferences which led to the Peace 
 of Utrecht, and at which conferences the Abbe was 
 present. By a kind of pious fraud, with a view 
 to recommend it more strongly to the adoption of 
 Sovereign Princes and their ministers, he attributed 
 the project to King Henry IV. of France and his 
 
 '^ L. II. c. i8. § 329. 
 
12 SETTLEMENT OF 
 
 minister Sully ^^ He subsequently developed his 
 plan more fully in 1729, and based it upon the state 
 of possession amongst the European Powers as 
 settled by the treaties of Utrecht, seeking to make 
 that state of things perpetual by preserving the 
 equihbrium of forces between those Powers, and by 
 adjusting all controversies between tbem by pacific 
 means. With this object in view he proposed that the 
 members of the Christian commonwealtb of Nations 
 should renounce the right of making war upon one 
 another, and accept the mediation of an European 
 Diet for the settlement of their mutual differences, 
 three fourths of the votes being necesteary for a defi- 
 nitive judgment". This scheme in its speculative 
 details has many striking features of resemblance to 
 the machinery of the late Germanic Diet. 
 Mediation. § J. Mediation, whereby a third Power interposes 
 its good offices to bring about the peaceable settlement 
 of a matter which is in dispute between two Powers, 
 differs from Arbitration in this respect, that the de- 
 cision of an arbiter is obligatory, whilst a mediator 
 merely gives counsel and advice. It is perfectly law- 
 ful for an independent Power to offer to mediate be- 
 tween other independent Powers which are either 
 preparing for or actually engaged in war, and to 
 suggest to them a compromise, if a claim of right has 
 
 " Projet de Traits poiir rendre tentats de I'Europe. TJtrecht, 
 
 la Paix perpetuelle entre les 1713. 
 
 Souverains Chretiens, pour main- " Wheaton's History of the 
 
 tenir toujours le commerce entre Law of Nations, p. 262. It is 
 
 les Nations, et pour affermir not improbable that the project 
 
 beauooup davantage les maisons of the Abbd St. Pierre may have 
 
 Bouveraines sur le tr6ne, propos^ suggested to Prince Metternich 
 
 autrefois par Henri le Grand some of the details of his plan 
 
 Eoi de France, a,gr66 par la for organising the Diet of the 
 
 Reine Elizabeth, par Jaques I. late Germanic Confederation. 
 et par la plupart des autres po- 
 
IKTEENATIONAL DISPUTES. 13 
 
 been set up by either of them ; or in case the dispute 
 should relate to an injury which has been inflicted 
 upon either of them, to advise that a reasonable satis- 
 faction for the injury should be offered and accepted. 
 It is obviously the duty of an individual, vrhen he is not 
 under any obhgation to take part in a dispute between 
 his friends, to endeavour to bring about an amicable 
 settlement between them ; whilst it is frequently the 
 interest of a Nation to prevent war breaking out 
 between other Nations, for some of the sparks of the 
 fire which is kindled in its neighbourhood may pos- 
 sibly reach it ; whilst, on the other hand, it may be 
 dangerous to a Nation to have both or either of its 
 neighbours ruined. A care for its own safety will 
 therefore justify a Nation in interposing its good 
 offices between disputing Nations. The interposition 
 of a Nation to prevent a war between two other 
 Nations is an act of a totally different character 
 from the intervention of a Nation in the domestic 
 affairs of another Nation ; ' and whilst the latter is 
 objectionable on principle, as an encroachment on the 
 just rights of an independent political community, 
 the former is not only in strict law an international 
 proceeding, but may be the imperative duty of a 
 Nation, whenever the occurrence of war would oblige 
 it to take part with one or other of the belligerents. 
 Puffendorf -^^ holds that two or more neutral Nations, 
 if they have a common interest that a war should 
 be terminated, may lawfully agree upon what terms 
 peace ought to be concluded between the belligerent 
 parties, and may thereupon prescribe such terms of 
 agreement to the belligerents, with a manifesto that 
 they will join their forces against the party which 
 refuses those terms ; and that this sort of mediation 
 
 ^^ Law of Nature and Nations, L. V. c. 13. § 7. 
 
14 SETTLEMENT OF 
 
 is the more commendable, if it puts an end to a war 
 whicli would prove destructive to one or both of the, 
 parties. Upon some such principle, Eussia, France, 
 and Great Britain, interposed as mediators between 
 the Ottoman Porte and the Hellenic people, and 
 secured on the part of the Porte the recognition 
 Kingdom of an independent kingdom of Greece, under their 
 " joint guaranty. Bynkershoek^® holds that it is not 
 allowable for a Nation to interpose between other 
 Nations and to compel them to make peace ; but 
 the practice of Nations is opposed to his views, and 
 cue of the instances which he cites seems to suggest 
 a principle, which rather sanctions the right of inter- 
 position, than militates against the existence of this 
 right. Thus France, England, and Holland united 
 to compel Sweden to make peace with Denmark on 
 and Den ^^ ^^J 1659, ^^ ^ moment wheu Sweden was on 
 mark. the poiut of entirely subjugating Denmark. The 
 extinction of the international life of a State, in the 
 continued existence of which, as a member of the 
 family of Nations, all other Nations have an interest, 
 is an event respecting which all Nations may claim 
 to have a voice, and, if they please, to take up arms 
 to prevent it. War between Nations, in the sense in 
 which it imposes the duties of Neutrality upon other 
 Nations, is a contest for the attainment of Bight, and 
 not a struggle to accomplish the ruin of either party. 
 Grotius^" maintains that war may be justly under- 
 taken by any Nation against a Nation which prose- 
 cutes its revenge with malice, and exceeds the just 
 measure of punishment in avenging a wrong which 
 it may have suffered from another Nation. Thus a 
 powerful Nation, under the pretext of injury received 
 
 " QuBBst. Jur. Publ. c. 25. '" De Jure Belli, L. II. c. 20. 
 
 § 10. § 40. 
 
INTERNATIONAL DISPUTES. 15" 
 
 from a weaker Nation, might declare war against it, 
 and proceed to subjugate it, when the latter was 
 prepared to make adequate redress. Under such cir- 
 cumstances any Nation woixld be justified in mediat- 
 ing to prevent war ; and as a recourse to arms on the 
 part of the more powerful Nation would be without 
 lawful excuse after an ofiPer of complete redress had 
 been made by the offending Nation, any mediating 
 Power would be justified in such a case in inter- 
 posing to compel the more powerful State to remain 
 at peace. A war waged under such circumstances 
 would be an unjust war on the part of the more 
 powerful Nation ; and it is at all times the duty of 
 Nations to interpose and arrest the perpetration of 
 injustice, seeing that in an unjust war every Nation 
 may rightfully side with the party which is wrong- 
 fully attacked. 
 
 §8. It is not always easy for a third Power, which 
 offers to mediate between two contending Powers, to 
 satisfy them both of the integrity of its intentions in 
 offering its mediation, and if it should advise either 
 to remit something of its pretensions, to preserve a 
 character for impartiality. Hence it becomes advis- 
 able, when war threatens to break out between any 
 two Nations, in the necessary absence of any consti- 
 tuted tribunal before which the plaint of a Nation can 
 be brought for adjudication, that two or more Nations 
 should offer their joint mediation to maintain peace. 
 Grotius^^ holds that it would be not only useful, but 
 that it is in some respects necessary, that Congresses Con^fsseg 
 of the Christian powers should be held from time Powers, 
 to time, in which the controversies, that may have 
 arisen amongst any of them, may be settled by others 
 whose interests are not affected by them, and in which 
 
 " De Jure Belli, L. 11. c. 23. § 8. 4. 
 
16 SETTLEMENT OF 
 
 measures may be taken to compel disputing parties 
 to accept peace on equitable terms. The practice of 
 the Sovereign Powers of Europe since the peace of 
 Westphalia has been to cooperate in a policy of Me- 
 diation, wherever there has been probable danger of 
 the Balance of Power, as established by the Treaties of 
 Osnabriick and Munster, being effectively disturbed. 
 A system of European Concert has thus been main- 
 tained, with slight intermissions, since that time by 
 Conferences or Congresses of the European Powers. 
 A Congress ^^ is an assembly of Plenipotentiaries, 
 appointed to find out means of conciliation, and to 
 discuss and adjust the respective pretensions* of the 
 contending parties, who should always be invited 
 to take part in the deliberations of the Congress. 
 One of the most recent instances of this form of joint 
 Confer- Mediation is furnished by the Conferences of Vienna, 
 
 encea of •' ^ ' 
 
 Vienna, commeucod ou 1 5 March 1855, and in which Austria, 
 France, and Great Britain endeavoured to mediate 
 between Russia and the Ottoman Porte, with a view 
 to prevent a war between those Powers, and to bring 
 about an amicable settlement of their differences in 
 the general interest of Europe. The Plenipotentiaries 
 of the two contending Powers took part in the Con- 
 ferences ; and when the efforts of the Congress had 
 failed to secure peace, the mediating Powers^* sided 
 with that Power, which in their opinion had been 
 wrongfully attacked. 
 
 § 9. It is the duty of a Nation, when it advances 
 a claim of right to a thing which it does not possess, 
 to show a good foundation for its demand. Posses- 
 sion in the case of Nations gives rise to the Bight 
 of not being disturbed, unless the origin of the pos- 
 session can be shown to have been wrongful . Hence 
 
 2=^ Vattel, L. II. c. t8. § 330. 
 
 2' Martens, N. E. G^n. XV. p. 633. 
 
INTERNATIONAL DISPUTES. 17 
 
 it is not justifiable for a Nation to disturb by force 
 of arms another Nation which is in possession of a 
 territory, if the claimant has only an uncertain or 
 a doubtful title, but a claimant in such a case has 
 a right to compel a possessor, even by force of arms if Duty of _ 
 
 , , -TIT • Pi.! moderation. 
 
 necessary, to come to an amicable discussion of the 
 question of right, or to submit it to arbitration, with 
 a view to settle the point in dispute by articles of 
 agreement.. If, on the other hand, a dispute should 
 arise between two Nations on account of an injury re- 
 ceived^ by one of them, the injured party ought to fol- 
 low a similar rule of proceeding, unless it is convinced 
 that its adversary would not entertain with sincerity 
 its 'proposal for an amicable reparation, or that the 
 delay, which the discussion of the wrong would give 
 rise to, would only expose it to greater danger of 
 being worsted in an appeal to arms. This moderation 
 is the more becoming, and as Vattel says, is in general 
 cases even indispensable, since the act which a Nation 
 may be disposed to regard as an injury, does not 
 always proceed from a design^' to offend it, and may 
 be rather a mistake than an act of malice. Besides "■ 
 
 it frequently happens that the injury has been done 
 by individuals without any sanction from the Nation 
 of which they are members, and if satisfaction should 
 be demanded from it, the Nation will not refuse to do 
 justice. Instances are frequent in which Sovereign 
 Princes have refused to countenance the wrongful acts 
 of their subjects towards the subjects of other Sove- 
 reign Princes, and have thought it not a derogation 
 from their independence, upon complaint made to 
 them, to give satisfaction for the wrong. It is per- 
 fectly consistent with good faith for a Nation, which 
 has received an injury, to make preparations for war, 
 
 21 Vattel, L. II. c. i8. § 331. 333- 337- 
 ^' Ibid. L. II. c. 18. § 338. 
 
 PART II. 
 
18 SETTLEMENT OF 
 
 while it attempts by pacific negotiation to obtain 
 reparation for the injury. For war must be presumed 
 to be the necessary alternative, if amicable negotiation 
 should fail, and the right of self-preservation warrants 
 a Nation in taking measures to guard itself against 
 hostile surprise. 
 
 ^ ID. When a Nation cannot obtain redress in an 
 amicable manner from another Nation, either for the 
 refusal of a right, or the infliction of a wrong, it may 
 proceed to do justice to itself in the former case by. 
 Retorsion, in the latter case by Reprisals. When a 
 Sovereign Prince is not satisfied with the manner in 
 which his subjects are treated according to the laws 
 Eetorsion and customs of another Nation, he is at liberty to 
 '^ ' declare, that he will treat the members of that Nation 
 in the same manner as his own subjects are treated. 
 This is what is called by VatteP® Retorsion of Eight. 
 " There is nothing in this," he observes, " but what is 
 conformable to justice and sound poHcy. No one can 
 complain on receiving the same treatment which he 
 has exhibited to others." Kliiber^^ has instituted a 
 Ketoraion distinction between Eetorsion of Fact (retorsio facti) 
 of Fact. ^^^ Retorsion of Right (retorsio juris), and limits the 
 application of the latter term to questions of Comity, 
 as distinguished from questions of Eight. But the 
 distinction appears to have no practical value, and 
 tends to cause confusion rather than greater clearness. 
 It may be true that for ofiences against Comity, a 
 Nation has no other remedy than to reciprocate the 
 uncourteous conduct of the offending Nation, for 
 a violation of Comity is clearly not the subject of a 
 just war^^ as every Nation must be the final judge 
 for itself of the nature and extent of the Comity or 
 
 =' Eetorsion de Droit, L. II. ^r Kluber, § 234. 
 
 c. 18. § 341. Eetorsio Juris, =' Grotius, L. II. c. 22. § 16. 
 
 Wolfii, Jus Gentium, § 582. 
 
INTERNATIONAL DISPUTES. 19 
 
 courtesy which it will show to other Nations. But 
 there are many rights, for the refusal of which the 
 proper remedy, as between Nations, is passive Retali- 
 ation, or in other words Retorsion. Thus if a Sove- 
 reign Prince should forbid to the subjects of another 
 Sovereign Prince access to the ports of his territory 
 for the purposes of peaceful commerce, the latter 
 Prince may with justice retort the prohibition upon 
 the subjects of the former in regard to his own 
 ports. But the prohibition of all commerce would 
 not be a suspensions^ of Comity, but a denial of a 
 Natural Right, for the total hinderance of commerce 
 would be contrary to the nature of human society, 
 being the debarring of mankind, as St. Ambrose says, 
 from sharing the goods of their common mother, 
 which are scattered about for the benefit of aU. Yet 
 a Nation in such a case would not be justified in 
 having recourse to war. In like manner, if a Nation 
 chooses to grant to the subjects of another Nation 
 special privileges within its territory, although it may 
 be contrary to natural equity to exclude the subjects 
 of other Nations from the enjoyment of similar ad- 
 vantages, yet such exclusion does not constitute a 
 wrong which may be redressed by arms, but only 
 justifies Retorsion or passive Retaliation, Active 
 Retaliation, or the Lex Talionis in its full sense, has Lex Taiio 
 no place between Nations, for a Nation has no right °'^' 
 to extend a penalty beyond what its own safety 
 requires ; and Retaliation which is unjust between 
 individuals, would be much more unjust between 
 Nations, because it would be difficult in the latter 
 case to make the punishment fall upon the actual 
 wrong-doers^". On the other hand, Sovereign Princes 
 are held to participate so far in the wrongful acts of 
 
 2" Grotius, L. II. c. 2. § i8. L. II. c. i8. § 339. Kluber, 
 
 ^o Vattel, L. I. c. 13. § 171; § 234- 
 
 C 2 
 
20 SETTLEMENT. OF 
 
 their subjects, and subjects are held to be so far 
 amenable for the faults of their rulers, amongst 
 which faults the foremost is their neglect to compel 
 their subjects to do justice to the subjects of other 
 Sovereign Princes, that they may reasonably be re- 
 quired mutually to share the inconveniences, which 
 Will result from a reciprocal rule of conduct being 
 adopted by other Nations. 
 
 §11. If a Nation has refused to pay a debt to, or 
 has inflicted an injury upon the subjects of another 
 Nation, and the former has refused to make satisfac- 
 tion or to give redress, the latter may proceed to do 
 Reprisals, justice to its subjects by making Reprisals upon the 
 former. Every political community takes upon itself 
 the responsibility of the acts of its members in rela- 
 tion to other political communities, if, upon complaint 
 made to it, it does not constrain the wrong-doers to 
 make satisfaction. A Nation, as such, only takes 
 cognisance of individual men as members of a Na- 
 tion, and who, as such, belong either to its own poh- 
 tical body, or to some other independent political 
 body. If an individual is a wrong-doer, and is a 
 member of its own body, the Governing Power of a 
 Nation proceeds to exact satisfaction from him ac- 
 cording to its own laws ; but those laws being only 
 operative within its own territory, a Nation cannot 
 exact satisfaction in like manner from a member of 
 another independent political body, who does not 
 happen to be within its territory. It must in such 
 a case demand at the hands of the Gloverning Power 
 of the Nation, to which the offending party belongs, 
 satisfaction for the offence ; and if the Nation refuses 
 to constrain its own subject io make such satisfac- 
 tion, it takes upon itself the responsibility of his 
 acts, and makes itself an accessory to the wrong 
 which he has committed. An injured Nation is 
 
INTERNATIONAL DISPUTES. 21 
 
 under such circumstances justified in seizing both, the 
 persons and the property of the subjects of the other 
 Nation, with a view to keep them as pledges untU it 
 has obtained satisfaction ; or even, in the case of pro- 
 perty, to apply it "at once in satisfaction of the debt, 
 or in compensation for the injury^". 
 
 § 1 2. Embargo is one of the modes of proceeding Embargo. 
 which a Nation may adopt with a view to obtain 
 satisfaction for a debt or an injury. The term is 
 borrowed from the Spanish Law-procedure, and sig- 
 nifies arrest or sequestration ; and it is applied to the 
 seizure or detention of persons or property, which 
 happen to be within the territory of a Nation at the , 
 time of seizure. Embargo is a term of very varied 
 import. It is frequently used to denote the seizure 
 of ships and cargoes in the ports of a Nation under 
 the authority of its municipal law; and such seizures 
 and the consequent detention are spoken of as Civil 
 Embargoes. An International Embargo, on the other 
 hand, is an act not of civil procedure, but of hostile 
 detention. It may be made for the same object as 
 Reprisals are made upon the high seas, namely, for 
 the satisfaction of a debt, or for the redress of an 
 injury; but it may also be made in cases where 
 Reprisals could not justly be granted, and frequently 
 by way of prelude to war. It is, however, not in 
 itself an act of war, but is at first equivocal as to its Equivocal 
 effect ; and if the matter in dispute ends in recon- ter? ^^ 
 ciliation, the' seizure, although hostile in form, proves 
 in substance to have been merely a temporary se- 
 questration consistent with relations of amity. On 
 the other hand, if the transaction ends in war, the 
 subsequent hostihties impress a retrospective cha- 
 racter on the Embargo, and it is to be considered a 
 
 s»Grotius, L. III. c. 2. § 14. Puffendorf, L. T. c. 13. § 10. Vattel, 
 L. II. §342. 
 
22 SETTLEMENT OP 
 
 hostile sequestration ab initio. The property siezed in 
 such a case is liable to be regarded as the property 
 of persons who were trespassers ah initio, and guilty 
 of injuries, which they have refused to redeem by 
 any amicable alteration of their measures. Such is 
 the necessary course, to use the language of Lord 
 Stowell^^ if no particular compact intervenes for the 
 restitution of such property taken before a formal 
 declaration of hostilities. It may be open to ques- 
 Provisionai tion, howover, whether the doctrine of provisional 
 goes. ' Embargoes has not been maintained by the British 
 Prize Courts in too absolute a manner. An Embargo 
 by way of obtaining redress may be justifiable, not- 
 withstanding that the parties, whose persons and 
 property are seized and detained, have ventured 
 within the jurisdiction of the Nation which makes 
 the Embargo, trusting to that security which the 
 existing relations of peace between the two Nations 
 warrant. If they should suffer in the result, they will 
 sufier vicariously for the wrong which their Nation has 
 refused to redress, and they will have no just cause of 
 complaint except against the original wrong-doer, or 
 their own Nation, which has failed to compel him to 
 do justice. But an Embargo, which is made merely 
 in contemplation of war under circumstances in which 
 Eeprisals could not be justly granted, cannot well be 
 distinguished from a breach of good faith towards 
 the parties who are the subject of it. It seems not 
 unreasonable therefore to limit the international right 
 of Embargo to those cases, in which it is clear that 
 the Nation which makes the Embargo is entitled to 
 exact satisfaction for a debt, or compensation for an 
 injury ; and in which cases the right may be law- 
 fully exercised during that ambiguous state of things, 
 which precedes open war. The , President of the 
 '' The Boedes Lust, 5 Eobinson, p. 246. 
 
INTERNATIONAL DISPUTES. 23 
 
 United States (Jefferson) thus speaks of the Em- 
 bargo laid upon American vessels in British ports in 
 1807-8^^: "The immediate danger we are in of a 
 rupture with England is postponed for this year. 
 This is effected by the Embargo, as the question was 
 simply between this and war. That may go on a 
 certain time, perhaps through the year, without the 
 loss of their property to our citizatis, but only its 
 remaining unemployed in their hands. A time would 
 come, however, when war would be preferable to the 
 continuance of the Embargo." 
 
 ^ 13. Reprisals is a term derived from the oldRepnsaia. 
 French word Reprisalles, which is found in docu- 
 ments of the fourteenth century, as for instance, 
 under the antique form of Beprisalx, in an English 
 Statute, 17 Edw. III. st. 2. c. 17. (anno 1355), and 
 likewise in a treaty between England and France, 
 of 7th of May, 1360^^. The Latin, forms Beprce- 
 salia or Repressalice, the latter of which is adopted 
 by Bynkershoek, do not appear to have been fa- 
 miliar to Grotius, as he uses the word pignoratio, 
 which is borrowed from the Civil Law of Eome ; but 
 the word Repreysallice occurs in an ancient Aragonese 
 Charter'*, of a date as early as anno 1326, so that we 
 may be satisfied that the International remedy for 
 Wrong, which the word Eeprisals denoted, was in 
 general practice in Europe during the early part of 
 the fourteenth century. The practice of Eeprisals 
 seems to have been the complete form of the exercise 
 of the Eight of Eedress, which had been termed as 
 early as the twelfth century the practice of Marque. Practice of 
 The word Marque, which is of French origin, has '''^"^' 
 been identified by some authors with the German 
 
 32 Letter to Charles Pinckney, '' Dumont, Trait^s, Tom. II. 
 
 March 30, 1808. Jefferson's Cor- Pt. I. p. 16. ,, , , , 
 
 respondence, Vol. IV. p. 1 1 4- "* Ducange, Vox MarcJia. (4.) 
 
24 SETTLEMENT OF 
 
 "Mark," or the Latiu Marcha, in the sense of a 
 boundary ; and Letters of Marque have been accord- 
 ingly interpreted to mean Letters of Licence granted 
 by a Sovereign Prince to his subjects to cross the 
 frontier of his territory with the object of attacking 
 a neighbouring Prince or his subjects. By other 
 authors the phrase Letters of Marque has been held 
 to mean Licences from an Independent Prince to set 
 a mark upon, or to seize as a pledge, the goods of 
 others. There is no doubt that the verb Marcare^ 
 or Marchiare, is used in documents of the thirteenth 
 century in a sense akin to that of the pure Latin 
 wordi. pignorare. A Charter granted anno 1283, by 
 Peter (III.) the Great, of Aragon, to the citizens of 
 Barcelona, forbids any provisions imported into the 
 city of Barcelona by sea or land from being arrested 
 or taken in pledge. Victualia quae apportantur in 
 Barcinona per piare vel per terram . . . non marcentur 
 neque pignorentur . . . tam pro alienis debitis quam 
 pro propriis ^^. So, likewise, the Council of Marciac^", 
 in France, in the next century (anno 1326), enacted 
 that, Personse Ecclesiasticse vel earum bona pro aliis 
 non marchientur vel pignorentur. (Cap. LIY.) 
 
 The analogy of the Eoman Civil Law, which 
 authorised a creditor in certain cases to proceed 
 summarily against his debtor per pignoris capi- 
 onem^', in other words, to seize any property be- 
 longing to his debtor as a pledge for the payment 
 of his debt, suggests rather that the original meaning 
 of the word marcare, m connection with the jus 
 marcandi. Droit de Marque, was that of arresting 
 and sequestrating goods or property, and in this 
 Letters of scnsc WO find Letters of Contremarque issued by 
 marq^ue. Sovereign Princes to their subjects, authorising them 
 
 ^^ Ducange, Glossarium, Vox Par. II. p. 1767. 
 Marcare. =' Gaii Institut. L. IV. c. 26. 
 
 3" Labbei Concilia, Tom. XI. 
 
INTERNATIONAL DISPUTES. 25' 
 
 in their turn to seize the goods of those who had 
 taken from them their goods under the authority of 
 Letters of Marque. 
 
 f 14. .The granting of Letters of Marque by Sove- 
 reign Princes to the commanders of private ships, 
 armed and equipped for maritime vs^arfare at the ex- 
 pense of their owners, although it may now be re- 
 garded as an institution of a barbarous age, which 
 ought to be allowed to fall into desuetude, was never- 
 theless the first systematic attempt to regulate private 
 warfare on the high seas, and thereby paved the way 
 for its abolition. During that long period of anarchy, 
 which prevailed on the high seas after the breaking 
 up of the Roman Empire, merchants had been com- 
 pelled to form themselves into voluntary associations 
 for mutual defence against lawless sea-rovers, and 
 thus it happened, that the police of the high seas came 
 to be administered by voluntary associations. These 
 bodies were accustomed to exact redress without 
 waiting • for any authority of Princes, not merely in Growth of 
 behalf of the members of such associations, but also raity Jurls- 
 in behalf of other honest merchants, who had been '^"'*'™- 
 despoiled of their goods by pirates, or had otherwise 
 suffered violence on the high seas in the pursuit of 
 their lawful calling. Besides these associations for 
 mutual defence, other associations were organised in 
 the great commercial cities of the Mediterranean, for 
 the express purpose of makmg war against pirates, 
 and articles of association came to be framed with a 
 view to regulate the conduct of their expeditions, and 
 the distribution of the booty captured from the enemy. 
 There is extant a very ancient body of Regulations, 
 for the Government of cruisers fitted out by volun- 
 tary associations of the above character, which are 
 printed in most of the Editions of the Italian ver- 
 sion of the Book of the Consulate of the Sea imme- 
 
26 SETTLEMENT OF 
 
 diately at the end of the " Good Customs of the Sea." 
 Jn the Venetian editions, these regulations^' have 
 their chapters numbered consecutively, as if they were 
 a continuation of the Customs of the Sea. They 
 are, however, altogether distinct in their origin, and 
 form a separate treatise in the earliest MSS^^ 
 M. Pardessus has very judiciously separated these 
 regulations from the Customs of the Sea, and has 
 published them apart, under their proper title of 
 Armemens " Chapitros sur les Armemens en Course," as forming 
 part of the Usages of the Kingdom of Aragon in mat- 
 ters of Maritime Prize '*. From these regulations it 
 would appear that these private Societies of cruisers, 
 or to call them by their Italian name corsari, were 
 allowed to appropriate to themselves the property 
 whicb they had captured at sea, without the authority 
 of a Commission from any Sovereign Prince, and 
 without any necessity of bringing in their prizes for 
 adjudication before disposing of them. It would not 
 be unreasonable to suppose that this general licence 
 of cruising against pirates, styled la guerra del corso, 
 would degenerate in course of time into something 
 very much akin to the evil practices wbich it was 
 intended to suppress, and that it would become 
 necessary for Sovereign Princes to regulate in its 
 turn the practice of cruising (la course). We ac- 
 cordingly find Ordinances issued by Sovereign Princes, 
 
 '' In the Venetian edition of press marks Espagnol 124, and 
 
 the " Consolato del Mare," Espagnol 56. They have been 
 
 printed in 1549, which was lately collated by the author, 
 
 the first to obtain circulation who has published the Catalan 
 
 in the North of Europe, these text of the Customs of the Sea, 
 
 regulations form chapters 298- accompanied by an English trans- 
 
 334, in continuation of the Gus- lation, in the appendix to the 
 
 toms of the Sea. Black Book of the Admiralty, 
 
 °^ These MSS. are in the Vol. III. p. 50. 
 Bibliotheque Nationale in Paris. '' Lois Maritimes, Tom. V. 
 
 They are in the Catalan language, p. 396. 
 and are distinguished by the 
 
INTERNATIONAL DISPUTES. 27 
 
 tipon consultation with the Councils of Commerce 
 (les prud-hommes de mer), for regulating the prac- 
 tice of cruising, and after the Admiralty Jurisdiction 
 came to be exercised by Sovereign Princes, measures 
 were taken by them to put an end to the system 
 of private warfare on the high seas, by stipulating 
 with one another that their subjects should not 
 be allowed to make war without an authority to 
 that effect from their respective Sovereigns. It 
 would seem that, in the thirteenth century^", Sove- 
 reign Princes had begun to forbid their subjects to 
 cruise against the subjects of other Princes without 
 their authority ; but it was not before the fourteenth 
 century that any mention of Letters of Marque occurs 
 in Public Treaties, or that it came to be thought 
 obligatory upon private cruisers to provide themselves 
 with an authority from a Sovereign Prince in the form 
 of Letters of Marque, or of Letters of Eeprisals. 
 
 § 15. When an injury has been committed by the 
 subjects of an Independent Prince upon the subjects 
 of another Independent Prince, and the former has 
 plainly refused, or unreasonably delayed, to procure 
 redress to be made by the offending parties, the 
 latter, in virtue of his obligation to protect his sub- 
 jects, is warranted in authorising them to make Grant of 
 Eeprisals*^ upon the offending parties and their fel- ^''P"^*'^- 
 low-subjects, for their feUow-subjects accept the 
 responsibility of the acts of the offending parties by 
 
 *" Thus King Edward I. of restitutionetn." Eymer, Foedera, 
 England says, in a letter of the T. II. p. 69. 
 year 1295, " Bernardus nobis " The Law and Custom of 
 supplicavit, ut nos sibi licentiam Nations in respect of Reprisals 
 marcandi homines et subditos is very lucidly set forth in a Re- 
 de regno Portugallise et bona eo- port (Oct. 1 1, 1650) made by the 
 rum per terram et mare, ubicun- Judge of the High Court of Ad- 
 que eos et bona eorum invenirg miralty of England to the Council 
 possit, concederemus, quousque of State. Thurlow's State Papers, 
 de sibi ablatis integram habuisset Vol. I. p. 264. 
 
28 
 
 SETTLEMENT OF 
 
 supporting the Sovereign Power of their State in 
 its refusal or delay to procure redress. It is not an 
 unreasonable view of the origin of this practice of 
 Reprisals, which refers it to the inability of Inde- 
 pendent Princes, in the infancy of international life, 
 to induce their more powerful subjects to make 
 redress for wrong done by them to the subjects of 
 other Independent Princes ; as in such cases Princes 
 would be likely to prefer that the injured parties 
 should exact redress for themselves, rather than they 
 should have to turn their arms against their own 
 subjects to compel them to make such redress. 
 
 The employment of force by an Independent 
 Prince, for the purpose of making Eeprisals against 
 the subjects of another Independent Prince, has ac- 
 cordingly been held to be compatible with tbe main- 
 tenance of general pacific relations between the two 
 Reprisals ^ations. Bynkershoek observes that Eeprisals*^ have 
 
 consistent . y _ •'■ 
 
 with Peace, only placo in time of peace. Reprisals are for the 
 most part resorted to for the purpose of redressing 
 a wrong inflicted upon an individual, after he has 
 ineffectually demanded justice from the Sovereign 
 Power of the Na,tion, of which the wrong-doer is a 
 member. Under such circumstances, everything that 
 belongs to the Nation^is subject to Reprisals, where- 
 ever it can be taken, provided that it is not a deposit 
 entrusted to the public faith ^ ; for as a Nation has 
 control over the latter only in consequence of that 
 implicit confidence, which the owner of the deposit has 
 placed in its good faith, it ought to respect it as sacred 
 even in the case of open war. But as between Nations, 
 the property of individuals is regarded as belonging 
 to the Nation at large, of which they are members. 
 Accordingly the private property of every individual 
 
 *^ Eepressaliis locum non esse Juris Publici, c. 24. 
 nisi in pace. Bynkershoek, Qusest. *^ Vattel, L. II. c. 18. § 344. 
 
INTERNATIONAL DISPUTES. 29 
 
 member of a Nation is liable to Reprisals in redress 
 for wrong inflicted upon a member of another Nation. 
 Further, it is only from the Sovereign Power of a 
 Nation, that authority is rightfully derived to make 
 Reprisals upon the private property of the members 
 of another Nation. Yattel holds that when Reprisals 
 have been made, it is the duty of the Sovereign to 
 compel those of his subjects who by their conduct 
 have given occasion for just Reprisals, to compensate 
 those upon whom the Reprisals have fallen, and so to 
 take care that the property of innocent persons be 
 not made answerable for the obligations of others. 
 For although the Sovereign, by refusing or delaying 
 to do justice, may have brought on Reprisals against 
 his own subjects, those who were the final cause of 
 them do not become less guilty, and the fault of their 
 Sovereign does not exempt them from repairing the 
 consequences of their own offence. 
 
 §i6. Jurists, who confine the use of the term. Retorsion 
 to remedies for departures from Comity, have divided 
 Reprisals into negative and positive Reprisals, accord- Negative 
 ing as they are instituted by reason of the refusal of t^eEe-' 
 a Right or the infliction of an Injury. According p™*'®- 
 to tliis nomenclature which Kliiber appears to have 
 introduced, and which is adopted by Mr. Wheaton** 
 and Dr.PhiUimore, negative Reprisals take place when 
 a State refuses to fulfil a perfect obligation which it 
 has contracted, or to permit another Nation to enjoy 
 a right which it claims. Positive Reprisals, on the 
 other hand, take place when a State seizes persons 
 and efiects belonging to another Nation, in order to 
 obtain satisfaction for a wrong or an injury. Hefiter, 
 on the other hand, following Grotius, De Wolff, and 
 Vattel, Hmits the term Reprisals to acts of force, to 
 w;hich a Nation has recourse in order to obtain satis- 
 
 " "Whqaton, Elements, P. IV. c. i. § 2. Phillimore, Vol. III. § 12. 
 
30 SETTLEMENT OF 
 
 faction for wrong or injury done to itself or its subjects, 
 and according to this view, those acts which are termed 
 Negative Eeprisals are more properly classed under 
 the head of Retorsion. If we look to the etymology 
 of the words Retorsion and Eeprisals, Heflfter appears 
 to have reason on his side. The sense, which ancient 
 usage has attached to the term Letters of Eeprisals, 
 coincides with the etymology of the word, besides 
 whenever Eeprisals are spoken of in Treaties, there 
 is no doubt that acts of forcible seizure are in the 
 contemplation of the framers of those Treaties. 
 Special He- $ 1 7, A moro substantial and less technical division 
 of Reprisals is that which is founded upon the extent 
 to which a Sovereign Power permits them to proceed. 
 Eeprisals are Special j when a Sovereign Prince grants 
 Letters of Eeprisals and Marque to certain of his 
 Subjects, who have suffered wrong from the Subjects 
 of another Sovereign Prince, for which they have in 
 vain demanded justice. Such Reprisals are held in 
 practice to be perfectly consistent with a state of 
 amity between Nations, and they are identical with 
 the Reprisals of the fourteenth century, by which 
 private war was reduced to a certain order, and the 
 way was paved for its extinction by subjecting it to 
 the control of Sovereign Princes. 
 General General Reprisals, on the other hand, is a general 
 
 permission given by a Sovereign Power to its Sub- 
 jects to seize the persons and property of the Subjects 
 of another Power. It is immaterial in what manner 
 such Eeprisals are executed, whether by the commis- 
 sioned ships of the Crown, or by the armed ships of 
 its Subjects at large under Letters of Marque and 
 Eeprisals from the Crown, so long as General Eepri- 
 sals are ordered by the Sovereign Power to be made 
 against the persons and property of the Subjects of 
 another Power. Several writers, following the sup- 
 
INTERNATIONAL DISPUTES. 31 
 
 posed authority of the G-rand Pensionary De Witt, r>e witt, 
 approve his remark, as if it was of general applica- 
 tion, that " he saw no difference between General Ee- 
 prisals and Open. War*^" There is however an im- 
 portant difference between them, and it would appear 
 that those writers who have supposed themselves to 
 be countenanced by the Grand Pensionary of the 
 States General, have not sufficiently kept in view the 
 occasion of his remark. It appears that England had 
 laid an Embargo in 1662 upon all Dutch vessels in 
 British ports in favour of the Knights of Malta, in 
 reprisal for the detention by the Dutch of certain 
 property belonging to the Knights, and that the 
 States General*^ remonstrated against Eeprisals being 
 made by a Sovereign Prince in behalf of foreigners, 
 not his subjects, as being contrary to the practice 
 of Nations. England on this occasion acquiesced in 
 the justice of the Dutch remonstrance, and directed 
 the Embargo to be raised. On this occasion the Grand 
 Pensionary remarked that he saw no difference be- 
 tween General Eeprisals and Open War ; and it may 
 well be, that such a general sequestration of Dutch 
 vessels in British ports, if not warranted by the Law 
 of Nations, could only be regarded as an act of Open 
 War against the States General. But an order for 
 General Eeprisals seems to be distinguishable in the 
 practice of Nations from a declaration of war in this 
 respect, that a State of Peace is not terminated by an 
 order for General Eeprisals in the same manner, as it 
 
 *' This remark of the Grand Grand Pensionary. But the note 
 
 Pensionary is cited in a note to is not found in the original edi- 
 
 a passage in Vattel, L. II. c. 18. tion of Vattel's work: it is added 
 
 § 346. Several writers have re- for the first time in the edition 
 
 ferred to it, as if it were a state- of 1797, which was published 
 
 ment of the customary law of after Vattel's death. 
 Europe,which Vattel himself had " Bynkershoek, De Foro Le- 
 
 adopted in the very words of the gatorura, c. 22. 
 
oZ SETTLEMENT OF 
 
 is terminated by a declaration of war. There is still 
 a locus pcenitentice open to a Nation, against which 
 General Eeprisals have been declared and have even 
 begun to be enforced; and until it resents an act 
 of General Eeprisals, there is no war. If a Nation 
 declares war against another Nation, it renounces all 
 its treaties of friendship and alliance with it, and 
 there is an end to all international amity towards its 
 subjects. Thus it was contemplated by President 
 Jefferson*^ in 1808, that recourse should be had by the 
 United States of America to General Eeprisals against 
 the Continental System of the Emperor Napoleon, on 
 the assumption that a repeal of the edicts issued by 
 the Emperor and by the President of the United 
 States respectively would at once revive relations 
 of peace without the delay and ceremonies of a 
 treaty. Jefferson, it is true, speaks of the relations 
 which would exist between Prance and the United 
 States under a system of General Eeprisals as relations 
 between belligerents ; but so in a certain sense are 
 Special Eeprisals, being acts of forcible seizure for 
 the attainment of right, which are not altogether 
 consistent in theory with perfect peace between Na- 
 tions, yet in practice they are held to be exceptional 
 measures consistent with amity, and which do not 
 give rise to a State of War *^. The more correct view 
 seems to be, that General Reprisals per se are not in- 
 consistent with a State of Peace, although they may 
 
 *' " Perhaps the advocates of to Lt. Governor Lincoln, Wash- 
 
 the second (war) may to a for- ington, Nov. 13, 1808. Jeffer- 
 
 mal declaration of war prefer son's Correspondence, 8vo. Loud, 
 
 general letters of Mark and 1829, Vol. IV. p. 119. 
 
 Reprisal, because on repeal of ^ Letters of Marque and Re- 
 
 their edicts by the belligerents, prisal are mentioned in the 9th 
 
 a revocation of the letters of of the Articles of Confederation 
 
 Mark restores peace without the of the United States (anno 1781) 
 
 delay, difficulties, and ceremonies' as issuing in time of peace, 
 of a treaty." Letter of Jeiferson 
 
INTERNATIONAL DISPUTES. 33 
 
 be in certain cases a preliminary step towards a 
 public war. According to present usage, tbey are S°j'^'{i°°" 
 in the nature of a conditional declaration of war, tion of war. 
 which, however, may still be averted by an offer of 
 satisfaction from the offending State. Chief Justice 
 Hale, in his Pleas of the Crown (Vol. I. p. 162, 3), 
 says, that " General Marque or Reprisal doth not make 
 the two Nations in a perfect state of hostility be- 
 tween them, though they mutually take from one 
 another, as enemies, and many times, in process of 
 time, these General Reprisals grow into a very formal 
 war : and this was the condition of the war between 
 us and the Dutch 22 Feb. anno 1664, the first be- 
 ginning whereof was by that Act of Council, which 
 instituted only a kind of universal Reprisal, and 
 there were particular reasons of State for it, but in 
 process of time it grew into a very war, and that 
 without anv war soleinnly denounced." Thus General Reprisals 
 Letters of Marque and Reprisal were issued by Eng- Spain in 
 land against Spain on 10 July, 1739, by reason of ^''^^' 
 Spain exercising a right of search over English 
 vessels beyond the limits of her jurisdictional waters 
 on the coast of South America. The Ambassadors of 
 both Powers, notwithstanding this, remained at their 
 respective posts. Spain in return issued Letters of 
 Reprisal on 20th July, 1739, and if was not until 
 two months had expired after the English Letters 
 of Reprisal had been issued, that the Ambassadors of 
 the two Nations left the Courts to which they had 
 been respectively accredited. War was formally de- 
 clared by England on 19th October, 1739. 
 
 ^18. That General Reprisals are distinct in charac- 
 ter from War, and are not attended with that interrup- 
 tion of all friendly relations which War entails, may 
 be inferred from the proceedings which took place in 
 1839-40, between her Britannic Majesty's Govern- 
 
 PART II. D 
 
34 SETTLEMENT OP 
 
 Reprisals meiit and the Grovernment of the King of the Two 
 TVosloiiies Sicilies, in reference to the Sulphur Monopoly ia 
 jn 1839. Sicily, which had been granted by the Crown of 
 Naples to a Company of French Merchants (Messrs. 
 Taix, Aycard, and C^^.) The British Government 
 held that the grant made to the French Company 
 was a breach of the Treaty of Commerce of 1816 
 between Great Britain and the Two Sicihes. On this 
 occasion, after the British Minister at Naples had 
 formally demanded the revocation of the grant made 
 to the French Company, and the Neapolitan Govern- 
 ment had decHned to comply with this demand, orders 
 from the British Government were transmitted to the 
 Admiral of the British fleet in the Mediterranean Sea 
 " to cause all Neapolitan and Sicilian ships which he 
 might meet with either in the Neapolitan or Sicilian 
 waters to be seized and detaiaed, until such time as 
 notice should be received from her Majesty's Minister 
 at Naples that the just demand of her Britannic Ma- 
 jesty's Government had been complied with." Lord 
 Palmerston, then Secretary of State for Foreign 
 Affairs, upon the announcement that the British 
 Admiral was proceedmg to carry out his instructions, 
 sent a despatch*' to the British Minister at Naples 
 (April 14, 1840), in which he observes, that "as the 
 Eeprisals, which Sir Eobert Stopford has been in- 
 structed to make, do not, however, constitute war, it 
 is not the wish of Her Majesty's Government that 
 you should follow up those steps by quitting Naples. 
 If indeed the Neapolitan Government were to add to 
 the injustice, which it has committed towards British 
 subjects in regard to the Sulphur Monopoly, by any 
 acts of violence towards British subjects or property, 
 you would in such case leave Naples, and retire to 
 
 *° British and Foreign State Papers, 1840, 41, p. 202. 
 
INTERNATIOlirAL DISPUTES. 35 
 
 Eome, there to await further instructions." On 1 7th 
 April the British fleet began to make Eeprisals in the 
 vicinity of Naples, and captured a number of Neapo- 
 litan vessels. An Embargo was at the same time 
 laid in the ports of Malta on all vessels that bore the 
 Sicilian flag*". Naples, on the other hand, made pre- 
 parations for defence ; and the Neapolitan Govern- 
 ment laid an Embargo*^ on all British vessels in Nea- 
 politan and Sicilian ports. Everything appeared to 
 be tending to open war, when the Cabinet of the 
 Tuileries offered its mediation, and the King of the 
 Two Sicilies accepted it (26 April, 1840). Reprisals 
 thereupon ceased to be made on either side ; the 
 Neapolitan Government agreed to dissolve its con- 
 tract with the French Company, and the vessels 
 seized by the British fleet by way of Reprisals were 
 restored to their Neapohtan owners without the 
 general relations of peace between the two Nations 
 having suffered any such interruption, which required 
 that they should be renewed by any formal Treaty 
 of Peace between the two Nations. 
 
 §19. Although General Reprisals do not neces- Reprisals 
 sarily put an end to all relations of amity, and so far lawful. 
 are means for procuring international redress short 
 of actual war, there are cases in which it would not 
 belawful to use Reprisals by way of prelude to war, 
 and in which a proclamation of General Reprisals 
 would be equivalent to a proclamation of War. To 
 such cases the observation of the Grand Pensionary 
 De Witt^^ is justly applicable, when he remarked, 
 that he saw no distinction between the General Ee- 
 prisals made by the British Government and open 
 War. Acts of Reprisal as distinguished from acts of 
 
 ^" Annual Kegister, 1840, p. versel, 1840, p. 48. 
 210. '^ Letter to- the King m 
 
 =1 Annuaire Historique Uni- Council, Oct 8, 1675. 
 
 D 2 
 
36 SETTLEMENT OF 
 
 War are only allowed by the Law of Nations, when 
 there has been a denial of justice to a well-founded 
 claim, or such a delay as is inconsistent with an 
 
 Sir Leoiine honest intention to do justice. " Reprisals," says 
 Sir Leoiine Jenkins ^^, "will not lie where there is 
 neither denial of justice, nor a delay amounting to 
 
 Grotius. denial." " Reprisals," writes Grotius, " are a species 
 of violent execution, which . takes place when Right 
 
 Bynker- is denied^*." "Reprisals," says Bynkershoek^^ "are 
 not to be granted except upon an open denial of 
 justice." "It is only for an evidently just cause," 
 
 Vattei. writes VatteP", " and for a clear and undeniable debt, 
 that the Law of Nations allows us to make Reprisals ; 
 for he who advances a doubtful claim cannot in the 
 first instance demand anything more than a fair 
 examination of his right. In the next place, before 
 he proceed to such extremities, he should be able 
 to show that he has ineffectually demanded justice, 
 or at least that he has every reason to think that it 
 would be in vain for him to demand it. Then alone 
 does it become lawful for him to take the matter 
 into his own hands, and to do himself justice." 
 
 International justice may be denied in several 
 ways, (i) by the refusal of a Nation, either to enter- 
 tain the complaint at aU or to allow the right to 
 be estabhshed before its ordinary tribunals, (2) or, by 
 studied delays and impediments, for which no good 
 reason can be given, and which in effect are equiva- 
 lent to a refusal, (3) or by an evidently unjust and 
 partial decision^'. But if a court of competent 
 
 °' Sir Leoiine Jenkins's Works, ^' Qusestiones Juris Publici, 
 
 VoL II. p. 778. L. I. c. 24. 
 
 '* Locum autem habet, ut °° Law of Nations, L. IL e. 
 
 aiunt juris consulti, ubi jus 18. § 343. 
 
 denegatur. Grotius de Jure B. " Vattei, L. II. c. 18.- § 
 
 et P., L. III. c. 2. § 14. 350. 
 
INTERNATIONAL DISPUTES. 37 
 
 jurisdiction should pass an erroneous judgment in 
 a doubtful question in which a foreigner is a party, 
 such a result would give no right of Eeprisals to 
 the Nation to which the foreigner belongs, if the 
 judges have been left free, and have given sen- 
 tence according to their conscience. Upon doubtful 
 questions, different men think and judge differently ; 
 and all that a foreigner can desire is, that justice 
 should be as impartially administered to him as it 
 is to the subjects of the Prince, in whose courts 
 , the matter is tried. Grotius observes, that " in a 
 doubtful case the presumption is always in favour 
 of the established judges, and that Reprisals are 
 permitted by custom only, where judgment is given 
 plainly against Kight^l" 
 
 f 20. Reprisals by the custom of Nations extend 
 to persons as well as to property. Reprisals against Bepnaais 
 persons known by the Greek name dv8po\r]'\^ia, or the persons, 
 seizure of persons, are recognised by Grotius, Vattel, 
 Bynkershoek, and all modern writers ; but under the 
 practice of the Christian Nations of Europe this 
 form of Reprisals is seldom resorted to, except with a 
 view to obtain satisfaction for the unjust seizure or 
 detention of other persons. Thus in 1740^' the Em- 
 press Catherine of Russia having arrested the Baron 
 de Stackelberg, who was a natural born subject of 
 Russia but had acquired a Prussian domicil and 
 was in the military service of Prussia, the King of 
 Prussia made reprisal by seizing two Russian sub- 
 jects, and detained them until the Baron de Stack- 
 elberg was liberated. Whenever persons are thus 
 seized by way of reprisal, they are entitled to be 
 treated as hostages, whose lives are sacred, and who 
 
 ' «8 De Jure Belli, L. III. c. =" Moser,Versuch,VIII. 504. 
 
 2. § 5- 
 
38 SETTLEMENT OF 
 
 are entitled to good treatment^". A Sovereign has 
 no right to put to death the subjects of a State 
 which has done him an injury, except when they are 
 engaged in actual war against him. By the Law of 
 Nations all the subjects of an offending Power, 
 whether they are natural born subjects or persons 
 who have acquired a domioil in his territory by 
 long residence therein, are liable in their persons 
 and their property to the operation of Eeprisals 
 made against that Power ; but individuals who may 
 be only temporarily resident in the country, or 
 travelling through it, do not thereby incur any 
 liability to Eeprisals®^ ; for the hability to undergo 
 Eeprisals is as it were a liability to share the burden 
 of a public debt, to which those are not liable who 
 are only subject to the laws of a country for a time. 
 Political Political Envoys, although they may be perma- 
 empt from Jiently resident in a country, are equally exempt 
 Beprisaia. ^q^^ the Operation of Eeprisals. They cannot be the 
 subjects of Eeprisals, either in their persons or in 
 their property, on the part of the Nation which has 
 received them in the character of envoys (legati), 
 for they have entrusted themselves and their pro- 
 perty in good faith to its protection ; on the other 
 hand, they cannot be the subjects of Eeprisals on the 
 part of another Nation, which may be entitled to 
 make Eeprisals on the Sovereign to whom they are 
 accredited, as they are not domiciled within his ter- 
 Grotius. ritory. Grotius appears to consider that Political 
 Envoys who are on their way to our enemies, and 
 come within our territory without having first ob- 
 tained letters of safe conduct, may be seized by way 
 of reprisaP^ The meaning of Grotius is -not alto- 
 
 '" Vattel, L. II. c. i8. § III. c. 2. § '^. 
 351. '^ A numero tamen subdito- 
 
 *' Grotius, de Jure Belli, L. rum jure gentium excipiuntur 
 
IKTEEKATIONAL DISPUTES. 39 
 
 gether dear, and several writers have objected to such 
 an interpretation of the passage, but as Grotius else- 
 where^^ says that if Political Envoys (legati) presume 
 to pass without a safe conduct through the territory 
 of a Power to which they are not accredited, and are 
 going to its enemies, or coming from its enemies, or 
 in any other way take part with its enemies, they 
 may be lawfully killed, there is no difficulty in sup- 
 posing that he means to lay it down, that a mission 
 to or from an enemy will expose a Political Envoy, 
 whilst he is in transitu through the territory of 
 a belligerent Power, to the operation of reprisals on 
 the part of that Power. Thus the Due de Belle- Due de 
 isle, having incautiously entered' the Hanoverian 
 territory on his way to St. Petersburg, as ambas- 
 sador from the King of France, who was at that time 
 at war with Hanover and Great Britain, was arrested 
 with his suite by the Hanoverian Grovernment, and 
 sent to England as a prisoner of State^^. It is quite 
 another thing, observes Grotius, if any Prince shall 
 out of his own territory contrive to surprise the Am- 
 bassadors of another State, for this would be a direct 
 breach of the Law of Nations^l The case of the 
 seizure of the Envoys of the Confederate States of 
 America on their way to Europe on board the British The British 
 Post Office Packet, the Trent, by an United States Trent, 
 cruiser, would seem to come within the prohibition 
 
 legati non ad hostes nostros "* Martens, Causes c^l^bres du 
 
 missi, et res eornm. De Jure Droit des Gens, Tom. I. p. 285. 
 
 Belli, L. III. c. 2. § 7. °^ Aliud sit si quis extra 
 
 '^ Non pertinet ergo hsec lex fines suos insidias ponit legatis 
 
 ad eos per quorum fines, non alienis, eo enim jus gentium vio- 
 
 accepta venia, transeunt legati ; laretur. Et hoc continetur in 
 
 nam siquidem ad hostes eorum Thessalorum oratione contra 
 
 eunt, aut ab hostibus veniunt, Philippum apud Livium (L. 
 
 aut alioqui hostilia moliuntur, XXXIX. c. 25). Grotius de 
 
 interfici etiam poterunt. De Jure Jure Belli et Pacis in notis suis 
 
 Belli, L. II. c. 18. § 5. ad L. II. 118. § v. 2. 
 
40 SETTLEMENT OF 
 
 laid down by Grotins. Their seizure was justly 
 resented by Great Britain as a direct breach of the 
 Law of Nations, and the Envoys, at the demand of 
 the British Government, were set at liberty by the 
 Government of the United States, and allowed to 
 proceed to Europe in a British vessel. 
 Institution ^21. It has been observed that the institution®^ of 
 of Marque. Letters of Marque and Eeprisal was the first sys- 
 tematic step in controlling private warfare, and in 
 restraining individuals from disturbing the public 
 peace at their own discretion. The Eight of Marque, 
 as a prerogative of Sovereign Power, is mentioned 
 in Letters Patent and Diplomas of the twelfth cen- 
 tury^', in which the Sovereign grants to certain of his 
 subjects the Eight of Marque against others of his 
 subjects, in other words, grants to them permission 
 to seize the persons and goods of others of his sub- 
 jects, against whom they have made complaint. In 
 the thirteenth century we find Sovereign Princes 
 granting Marque to their subjects against the sub- 
 jects of other Sovereign Princes. In the fourteenth 
 century®^ Municipal Laws were passed in various coun- 
 tries, prohibiting individual citizens from making 
 Eeprisals without having previously obtained Letters 
 of Marque from a Sovereign Prince. In the fifteenth 
 century'''* Treaties of Peace occur frequently, in which 
 there are stipulations that all ships, which should go 
 out of port, should give security not to make Eeprisals ; 
 other treaties also occur in this century, in which the 
 Contracting Parties undertake not to grant Reprisals 
 
 ^^ Ducange, Glossarium, Vox "" Treaties between France 
 
 Mourcha. and England, anno 1440, Du- 
 
 "' Eymer, Foedera, Tom. II. mont, T. III. pars i. p. 548 ; 
 
 p. 691. Letter of King Edward between Spain and England, 
 
 I. of England. anno 1489, Dumont, T. II. pars 
 
 °^ 27 Edw. III. St. 2. c. 17. ii, p. 219. 
 anno 1359. 
 
INTERNATIONAL DISPUTES. 41 
 
 to their subjects at all, unless they should have first Regulations 
 addressed a complaint to the Sovereign, from whose of Marque 
 subjects they have received injury, and have been "^^ ^''^**'^^" 
 refused redress''". In the sixteenth century we find it 
 stipulated in various treaties of commerce that neither 
 party shall grant Letters of Marque or Eeprisal 
 against any others than the principal dehnquents 
 and their goods, and only for manifest delay or denial 
 of justice''^ In the seventeenth century treaties 
 for the first time appear, in which it is agreed that 
 no Reprisals shall be granted on either side, but 
 that prompt justice shall be administered^^. These 
 treaties however are exceptional, as it was stipu- 
 lated in most treaties of this period, that if justice 
 were not done within a definite period, as for in- 
 stance, three, four, or six months. Reprisals should 
 be allowed. In the eighteenth century we find a 
 great number of treaties, providing that the goods of 
 the subjects of either party, which may lie within the 
 territory of the other , party, shall be exempt from 
 seizure for Reprisals, except on account of the debt 
 or crime of the owner''^. It has been the crowning Renuncia- 
 work of the Congress of Paris, in the nineteenth Marque by 
 century, to abolish the practice of Sovereign Princes p°°i^7r °^ 
 issuing Letters of Marque, as far as the Nations 1S56. 
 which are parties to the Declaration of Paris are 
 concerned, the first Article of which declares that 
 
 '" Treaty between France and and tte United Provinces, anno 
 
 Spain, anno 1489, Dumont, T. 1739; France and Denmark, 
 
 IV. pars ii. p. 11. anno 1742; Sweden and the 
 
 " Treaty between France and United States, anno 1783; 
 
 England, anno 15 10, Dumont, Prussia and the United States, 
 
 T. IV. pars i. p. 126. anno 1785 ; Austria and Russia, 
 
 '^Treaty between England anno 1 785 ; England and France, 
 
 and Denmark, anno 1621, Du- anno 1786; France and Eussia, 
 
 mont, T. V. pars ii. p. 393. anno 1787 ; Eussia and Portu- 
 
 '' Treaties between France gal, anno 1787. 
 
42 SETTLEMENT OP INTEENATIONAL, DISPUTES, 
 
 " La Course est et demeure abolie^*." The effect of 
 
 this Declaration- will be examined in a subsequent 
 
 chapter, in which La Course, or the use of Priva- 
 teers, will be more fully discussed. 
 
 '* Martens, N. R. Gdn. XV. p. 768. 
 
CHAPTER II. 
 
 WAR AND ITS CHARACTERISTICS. 
 
 War as defined by Grotius — Bynkershoek's definition — War the 
 contention of independent political communities in the prosecution 
 of Right — View of Grotius as to Private Warfare — Albericus Gen- 
 tilis — War a necessary Alternative — Lord Bacon's view of War as 
 the highest trial of Right — Grotius — Private Peace inconsistent 
 with Public War — Lawful recourse to War — Offensive and Defensive 
 War — Vattel — Grotius — Formal Declaration of War — Law of the 
 Germanic Empire in the Twelfth Century — Law of Europe in the 
 Fourteenth Century — Declaration of War by Heralds-at-Arms — 
 Proclamation of War at home by Heralds — No British Declaration 
 of War by a Herald since Queen Mary's reign — Last occasion of a 
 Declaration of War by a Herald-at-Arms in 1657, at Copenhagen 
 — Printed Declarations of War in the reign of Charles II — Mani- 
 festoes of War to Neutral Nations — Recall of resident Envoys — 
 Disuse of formal Declarations of War — Last occasion of a formal 
 Declaration of War by Great Britain in 1762 — Letter of Lord 
 Chancellor Thurlow in 1778 — Object of Proclamations of War at 
 home — Object of Manifestoes to Neutral Powers — Opinion of M. de 
 Hautefeuille as to the necessity of a Declaration of War — A State of 
 War de facto — Texas and Mexico — Burlamaqui's opinion — Practice 
 of the United States of America — The maintenance of the Status 
 ante bellum conditional — Unilateral Declaration of War sanctions 
 reciprocal hostilities — Recall or Dismissal of resident Envoys — 
 Treaties — Ignorance of hostilities on the part of Neutrals. 
 
 5 2 2. War has been defined by Grrotius, at the War aa 
 outset of his work, to be the State or Condition of Grotius. 
 parties contending by force, as such. " Status per 
 vim certantium qu4 tales sunt." Under this large 
 
44; WAR AND ITS CHAEACTEEISTICS. 
 
 acceptation of the term "War" Grotius comprises 
 every species of contention by force, not even ex- 
 cluding single combats, which he regards as forms of 
 private war, and which, as being more ancient than 
 public wars, and of a common nature, he considers 
 should be classed under the same general head ^ In 
 adopting this terminology, Grotius admits that the 
 term War had, prior to his time, been used for the 
 most part to denote public as distinguished from 
 private contentions by force, which he accounts for on 
 the ground that the more eminent species frequently 
 usurps to itself the name of its genus. He assigns, 
 at the same time, as his reason for not including 
 justice in his definition of war, that the object of his 
 enquiry was to determine whether any war can be 
 just, and if so, what may be called a just war ; and 
 it was therefore necessary for him to distinguish the 
 subject War from the question which he proposed 
 to examine respecting it. 
 Bynker- f 23. Byukershock has objected to the definition, 
 
 definition, which Grotius has adopted, as imperfect, although he 
 agrees with him in considering war to be the State 
 or Condition of parties in contention, as distinguished 
 from an act of contention, or the contest itself. He 
 proposes what he conceives to be a more complete 
 definition, when he says that war is a contention, by 
 way of force or deceit, of independent parties in the 
 j)rosecution of their right. " Bellum est eorum, qui suae 
 potestatis sunt, juris sui persequendi causa concerta- 
 tio per vim vel dolum ^." In adopting this definition, 
 Bynkershoek admits that war may exist between in- 
 dividual men equally as between States, but only in 
 the case where such individual men are suce potestatis, 
 in other words, acknowledge no pohtical superior. He 
 
 ^ De Jure Belli et Pacis, L. I. ^ Observationes Juris Publici, 
 
 c. I. § II. L. I, c. I. 
 
WAR AND ITS CHAEACTERISTICS. 45 
 
 rejects altogether the notion of private war, as a dis- 
 tinct species of war, even in theory, seeing that the 
 word private implies a political body, of which the 
 parties in contention are respectively members and 
 are accordingly, as such, not sucepotestatis. War there- 
 fore, according to Bynkershoek, is properly predicated 
 only of contentions by force or deceit between parties 
 which acknowledge no political Superior, and which 
 cannot therefore have recourse to a common judge, 
 in other words, between independent political bodies; 
 for the individual man, living in a state of soHtude, 
 is an ideal person, of whom no counterpart is found 
 in real hfe. Further, Bynkershoek defines the object 
 of all war to be the prosecution of Eight, either in 
 the way of self-defence or of self-redress, and in this 
 respect his definition is in harmony with the more 
 complete idea of war, of which Grotius has given 
 an outline in his preliminary chapter, when he says 
 that no war ought to be undertaken except for the 
 obtaining of Eight, nor, when undertaken, ought it to 
 be carried on beyond the bounds of Eight and Good 
 Faiths 
 
 ^24. The more important distinction between the War the 
 definitions, which Grotius and Bynkershoek have 0?"^-°'' 
 respectively adopted, consists in the limitation of the f^^^^l^ 
 term War, on the part of the latter writer, to the Commuui- 
 contention of parties who are sues potesiatis. War, 
 regarded as the subject of rights and obligations, is 
 not only such in reference to the belligerent Nations 
 themselves, but also in reference to other Nations 
 which take no part in the actual contention, but are 
 said to be neutrarum partium. A state of War, 
 when it exists between two Nations, gives to such 
 Nations special rights, as Belligerents, both in regard 
 
 ^ Prolegomena, § 26, 
 
46 WAR AND ITS CHARACTERISTICS. 
 
 to each other, and likewise in regard to Neutral 
 Nations, which do not exist during a state of Peace. 
 It would seem unreasonable therefore to hold that 
 whilst two independent political communities are 
 at peace with one another, and with all other in- 
 dependent political communities, any individual 
 members of either community can be at war with one 
 another, and thereby give rise to special rights and 
 obligations on the part of the communities of which 
 they are respectively members, both in regard to each 
 other, and in regard to other political communities, 
 which will be foreign to the general relations of peace 
 which exist amongst the communities themselves. 
 War, therefore, as the subject of special rights be- 
 tween the belligerent parties and likewise between 
 the belligerent parties and neutrals, must be dis- 
 tinguished from War in the more extensive sense in 
 which Grrotius employs the term at the outset of his 
 work, namely, as denoting every sort of contention 
 by force, in contrast with a judicial proceeding. 
 View of " Undoubtedly," says Grotius, " the liberty of Private 
 to'^PHvate Warfare, which existed before judicial tribunals were 
 '^^^- established, has become much restricted, yet there 
 are cases in which that Uberty still exists, namely, 
 wherever judicial tribunals are wanting ; for the law, 
 which forbids a person to obtain that which is his 
 right in any other way than by a judicial proceeding, 
 ought to be equitably understood, as applying only 
 to those cases in which there is access to a judicial 
 tribunal." Now a judicial tribunal may be wanting 
 either for the moment or permanently. It is want- 
 ing for the moment, as happens on all those occasions, 
 when a judge cannot be waited for without certain 
 danger or loss ; it is permanently wanting, either de 
 jure, as if a person be in an unoccupied place, as for 
 instance, on the high seas, in a desert, or on an unin- 
 
WAR AND ITS CHAEACTERISTICS. 47 
 
 habited island, or in any other place where there is 
 no established civil society; or de facto, as when the 
 subject members of a civil society will not submit to 
 the judge, or the judge openly refuses to take cogni- 
 sance of the matters in dispute .* 
 
 In all these cases Grotius holds that the liberty of 
 Private Warfare still exists. It is not necessary to 
 enquire whether there is, in fact, such an analogy 
 between the cases in which individuals prosecute 
 their Right by force in the absence of a judicial 
 tribunal, and the cases in which a political community 
 prosecutes its Eight by force, as to warrant Grotius 
 in classing them under the same generic head. It 
 wiU be sufficient to bear in mind the more extensive 
 sense in which Grotius uses the term War, and to 
 remember that the ideas, which it expresses in his 
 system, correspond to that more extensive use of the 
 term. This circumstance will account for the con- 
 clusions of Grotius being occasionally at variance with 
 those of other writers, who limit the term War to 
 the contention of communities, which acknowledge no 
 political superior. 
 
 ^25. It may well be the case that Grotius, in 
 maintaining the liberty of Private Warfare, and in 
 seeking to subject it to rules analogous to those which 
 should govern Public War, was in advance of the 
 practice of the age in which he lived, and of which 
 he speaks in strong terms of abhorrence, as ex- 
 hibiting "a license in making war, of which even 
 barbarian nations might be ashamed, recourse being 
 had to arms for slight reasons, or for no reasons at 
 aU ; which being once taken up, there was no longer 
 any reverence for Right, either divine or human, just 
 as if men had been let loose to commit all sorts of 
 
 * De Jure Belli et Pads, L. I. c. 3. § 11. 
 
48 WAK AND ITS CHaEACTERISTICS. 
 
 crime without restraint." But the Universal Society 
 of Nations has happily made considerable progress 
 since the age of Grotius, and in the interval much, 
 which was repugnant to its true nature, has been 
 slowly but steadily eliminated from its practice. 
 If the case may still perchance occur, in which 
 individual men have no other resource, in order to 
 prevent injury or grievous loss being inflicted upon 
 them by others, than to use force, such use of force is 
 not held to give rise to a state of War either between 
 the parties themselves, or the independent political 
 communities of which they are members. The acts 
 of the individuals must be authorised by the Sove- 
 reign power of the States, of which they are subjects 
 or citizens, before they can be held to give rise to. 
 a state of War. In vain would independent political 
 communities agree that all disputes between their 
 respective members shall be settled by amicable dis- 
 cussion, if individuals were at liberty to contest with 
 one another their mutual rights by force. War, there- 
 fore, in the sense in which its rights and obligations 
 are the subject of Public Law, has no place between 
 Aiberious private persons. " Bellum est armorum publicorum 
 justa contentio^." The employment of force in the 
 prosecution of Bight within the territory of a Nation 
 may be a lawful act on the part of individuals, if it 
 be sanctioned by the Law of the territory : if, on the 
 other hand, it be not so sanctioned, it will be a tres- 
 pass against the peace of the Nation to which the 
 territory belongs, and will be punishable as such by 
 the Sovereign Authority of the State, without any 
 disturbance of the peace of other Nations. The em- 
 ployment of force, on the other hand, in the prosecu- 
 tion of Eight, in a place which does not belong 
 
 ' Albericus Gentilis de Jure Belli, L. I. c. 1 1 . 
 
 Gen tills. 
 
WAR AND ITS CHARACTERISTICS. 49 
 
 exclusively to any Nation, but to which all Nations 
 have an equal right of access, will only be a lawful 
 act on the part of individuals, if it be authorised by 
 the common Law of Nations ; for no Nation can 
 claim of Eight to enforce its territorial Law, to the 
 exclusion of all other Law, in a place over which it 
 has not an exclusive right of sovereignty. In a place 
 therefore which is puhlici juris, if the employment 
 , of force by private persons be not authorised by the , 
 public Law of Nations, it ^s^j^e a trespass against 
 the general peace of Nations, and wUl be justiciable 
 as such by all Nations. In order therefore that the 
 employment of force by individuals beyond the limits 
 of the territory of the Nation, of which they are 
 citizens, should have any countenance of Public Law, 
 their acts must be clothed with a certain public cha- 
 racter, which can be imparted to them only by the 
 authority of the State of which they are citizens. 
 The use of force under such authority by private 
 persons may justly be regarded as the act of the 
 Nation itself; and the parties against whom that 
 force is exercised will have the right of treating it 
 as an act of War, which they may resent if they 
 please, according to the rules which govern the dis- 
 putes of Nations by arms. 
 
 ^26. War then may be regarded as an alternative War a 
 state of international relations, which supersedes the ^tematwe. 
 relations of Peace, whenever Nations prosecute their 
 Eight by force. It is impossible that differences 
 should not arise between Nations upon questions of 
 Eight amidst the complicated relations of inter-^ 
 national society ; and whenever such differences arise^ 
 the particular question of Right, which is at the 
 foundation of them, must be decided in favour of the 
 one or the other Nation, in order that the controversy 
 may be appeased, and the interchange of good offices 
 
 PAET II. E 
 
50 WAR AND ITS CHARACTERISTICS. 
 
 between them, which is the true end of international 
 society, may be resumed. In every civil society, tribu- 
 nals have been set up, before which disputes between 
 individual citizens as to their respective rights may 
 be submitted to the arbitrament of reason ; and if 
 the party who has been adjudged before any such 
 tribunal to have done wrong, should thereupon not 
 redress such wrong, the united force of all the mem- 
 bers of the civil society to which he belongs, which is 
 termed the Sovereign Power of the civil society by 
 reason of the authority, which directs the action of 
 the united force of all its members, being concen- 
 trated in the person of a supreme Chief, will compel 
 the wrong-doer to make redress. But the obligations 
 of Natural Society which are enforced by the Sove- 
 reign Power of a State in the case of Civil Society, 
 although they are equally binding in International 
 Society, cannot be enforced by any analogous su- 
 preme authority. When a question of Right is in 
 controversy between Nations, there is no supreme 
 Chief to whose hands the direction of the united force 
 of all Nations has been intrusted, and who would be 
 enabled thereby to enforce the decree of any tribunal, 
 to which the question of controverted Right might be 
 referred. But the differences, to which the question 
 of disputed Right will have given origin, must sus- 
 pend of necessity the peaceable intercourse of Na- 
 tions ; for Nations, in respect of their intercourse, 
 are Peers or Equals ; and no Nation can continue to 
 hold intercourse with another Nation under the 
 sense of that inequality, which is implied by sub- 
 mitting voluntarily to Wrong. Hence it becomes a 
 requirement of International Society, that every 
 question of Right between Nations should be ad- 
 justed, so as not to derogate from their equality as 
 Peers. In the absence of all other means of adjust- 
 
WAR AND ITS CHARACTERISTICS. 51 
 
 ment, every Nation falls back upon the united force 
 of all its members, and endeavours to enforce what it 
 conceives to be Eight, by the exertion of that force 
 against the wrong-doer. War is thus undertaken by 
 a Nation from necessity, when Right cannot be ob- 
 tained by a judicial proceeding. "Ex necessitate 
 introductum bellum, quss est, quia inter summos 
 principes populosque liberos judicium civile et in- 
 ermis disceptatio esse non potest, qui judicem scilicet 
 non habent et superiorem ; unde meritoque summi 
 sunt, et publicorum appellationem merentur soli, cum 
 minores omnes loco privatorum censeantur '." 
 
 § 2j. Lord Bacon ^ has adopted a similar view of Lord ^ 
 the nature of what is rightly termed War, when he view of 
 speaks of Wars as being " the highest trials of Eight, ^'"'' 
 when Princes and States, that acknowledge no supe- 
 rior upon earth, shall put themselves upon the justice 
 of God for the deciding of their controversies by such 
 success, as it shall please Him to give on either side. 
 And as in the process of particular pleas between 
 private men all things ought to be ordered by the* 
 rules of Civil Laws, so in the proceeding of War 
 nothing ought to be done against the Law of Nature 
 or the Law of Honour." In other words, nothing 
 should be attempted in war which is contrary to the 
 practice of civilized nations, or contrary to good faith. 
 That there is a practice of Nations in matters of war 
 to which all Nations are expected to conform them- 
 selves^, is an axiom of those tribunals which take 
 
 ° Albericus Gentilis de Jure majestatis patrant, si bellum 
 
 Belli Comment. I., who says fur- gerunt." 
 
 ther, " Et hinc fit, ut bellum non " Observations on a Libel, 
 
 sit, ubi ea cessat necessitas ad Tom. V. p. 384, Basil Montague's 
 
 Martem judicem recurrendi; ces- edit. 
 
 sat autem semper, si principes ^ The Hurtige Hane 3 Ch. 
 
 inferiores prseliantur aut populi Rob. p. 326. 
 subditi j immo crimen hi laesse 
 
 E 2 
 
52 WAR AND ITS CHAEACTEEISTICS. 
 
 .special Cognisance of the incidents of international 
 Grotius. life in time of war. " Let it be granted," says Gro- 
 tius, " that Laws must be silent in the midst of arms, 
 provided they are only those laws which are civil and 
 judicial, and proper for times of war ; but not those 
 which are of perpetual obligation, and are equally 
 suited to all times : for it was very well said by 
 Dion Prusffiensis, " that between enemies written, 
 that is, civil laws are of no force ; but unwritten laws 
 are in force, that is, such laws as Nature dictates, 
 pr the consent of ISTations has instituted^." 
 Private ^28. Private War being thus inconsistent with 
 
 consistent Pubhc Pcace, it follows that Private Peace is equally 
 ^ar. " '" inconsistent with Public War. Peace may be defined 
 to be that state or condition of things, in which nien 
 adjust their differences on questions of Eight by 
 Reason. It would be an error to suppose that the 
 absence of aU differences on the subject of Eight is 
 the true test of that state or condition of inter- 
 national relations, which is termed Peace, as con- 
 - 'trasted with War. Differences as to mutual Eight 
 must arise in the most elementary stages of human 
 society ; for the fundamental condition of Natural 
 Society is, that each individual member of a com- 
 munity shall do for the other members everything 
 which their welfare requires, and which he can per- 
 form, without neglecting the duty which he owes 
 to himself. Social Eight accordingly consists in the 
 correct adjustment of the balance of duty between a 
 man and his neighbour, in other words, between men 
 living in society. When men unite themselves in 
 Civil Society, the adjustment of the balance of duty 
 between a man and his neighbour, when they differ 
 as to their respective obligations, is ascertained by 
 
 '' De Jure Belli et Pacis, Prolegomena, § 27. 
 
WAR AND ITS CHARACTERISTICS; 53 
 
 discussion before a third party, who is authorised 
 by the Sovereign power of the civil community to 
 decide all differences between its members, and may 
 invoke the aid of the whole community to carry his 
 decision into effect. When Nations, however, unite 
 themselves in International Society, the adjustment 
 of the balance of duty between them respectively, 
 when they differ, cannot be effected by discussion 
 before a common judge; for the community of Nations 
 has never yet consented to authorise any international 
 tribunal to decide such differences, and to invoke the 
 aid of the whole community to carry its decisions into 
 effect. In the absence of any common judge or 
 arbiter between the members of different Nations, a 
 citizen of one Nation, who conceives himself wrong- 
 fully prejudiced by the conduct of the citizen of 
 another Nation, has no other resource than to invoke 
 the aid of the entire Nation, of which he is a member, 
 to enforce an adjustment of the balance of duty be- 
 tween him and the wrong-doer. The only mode, 
 whereby that adjustment can be effected against the 
 will of the wrong-doer, is by setting in motion against 
 the Nation itself, of which the wrong-doer is a mem- 
 ber, the united force of all the members of the poli- 
 tical community of which the party wronged is a 
 member, in order to constrain the former to exert its 
 sovereign power over the wrong-doer, and compel 
 him to make redress. It is the exercise of the united 
 force of all the members of an independent political 
 community for this object, which is properly termed 
 War in the juridical sense of the term. " Cum sint 
 duo genera decertandi, unum per disceptationem, 
 alteram per vim, cum que illud proprium sit hominis, 
 hoc belluarum, confugiendum est ad posterius, si 
 uti non licet superiori. Quare suscipienda quidem 
 bella sunt ob eam causam, ut sine injuria in pace 
 
54 WAR AND ITS CHAEACTEEISTICS. 
 
 vivatur^." It is the paramount duty of every inde- 
 pendent political community to protect its members 
 from suffering wrong, either at the hands of other 
 members of the same community, or at the hands 
 of members of other communities ; and as it is a 
 maxim of poHtical law that no citizen can stand 
 aloof and claim to be neutrarum partium in cases 
 of civil tumult, so it is, by parity of reasoning, an 
 axiom of international law, that no member of an 
 independent political community can be at peace 
 with any member of another independent political 
 community, when the communities themselves are 
 at war. For an individual citizen to stand aloof, 
 when 'the united force of all the members of a 
 political community is to be put forth against the 
 members of another political community, would be 
 to betray a primary duty of Civil Society, which 
 is constituted after the fashion of a State, with the 
 express design of the Sovereign Power enforcing 
 the co-operation of all its subjects, at the proper 
 times and places, in the business of mutual assistance 
 and mutual defence. 
 Lawful § 29. An appeal to the united force of all the 
 
 trwar! members of a political community to procure Right 
 to be done, to one of its members on the part of 
 a member of another political community, in other 
 words a recourse to War, becomes lawful only when 
 it becomes necessary'", and it becomes necessary only 
 when amicable negotiation has been tried and failed, 
 or when it is morally certain to fail, if it should be 
 tried, or when it cannot be tried without certain 
 danger. According to the Fetial Law of the Eomans 
 no war was just which had not been preceded either 
 
 " Cic. Off. L. I. c. II. nulla nisi in armis relinquitur 
 
 " Justum est bellum quibus spes. Livii Hist. L. IX. c. i. 
 necessarium, et pia arma, quibus 
 
WAR ANB ITS CHARACTERISTICS, 55 
 
 by a formal demand of redress, or by declaration and 
 proclamation of war. " Ex quo intelli gi potest, nullum 
 bellum esse justum, nisi quod aut rebus repetitis 
 geratur, aut denuntiatum ante sit et indictum"." A 
 Nation may with good cause have recourse to war, 
 either to procure reparation for injury done, or to 
 obtain security against injury threatened; in other 
 words, a Nation may lawfully make war upon another 
 Nation, which has violated or threatened to violate 
 its rights. But if a Nation takes up arms, when she 
 has not received any injury nor is paenaced with 
 any injury, she has recourse to forpe without lawful 
 cause. When an injury has been inflicted upon a 
 Nation, it is right that reparation should be made 
 to it, if the injury be of a nature to be repaired, or 
 in case that the mischief resulting from it be irrepar- 
 able, then that compensation should be jnade, and 
 further that securities should be taken by the Nation, 
 that the injury sjiould not be repeated. Again, if an 
 injury should be threatened, it is right that a Nation 
 should protect itself and take securities for its future 
 safety. Hence arises a distinction between wars 
 which are made to redress injury, and wars which 
 are undertaken to prevent injury. When war is 
 undertaken to enforce the reparation of ^.n injury, 
 and to exact satisfaction for it, it is termed an 
 offensive war ; when it is undertaken tp repel actual 
 or threatened attack, it is called a defensive war. 
 The latter, however, is not necessarily a just war ; 
 for if a Nation, which wages an offensive war, has 
 justice on its side, its adversary has no right to make 
 forcible opposition ; and a defensive war wiU be in 
 such a case an unjust war, for it is an act of in- 
 justice to resist any person, who is asserting a lawful 
 
 " Cic. Off. L.I. c. II, 
 
56 WAR AND ITS CHARACTERISTICS, 
 
 riglit^l But if the Nation, wliioh has been originally 
 in the wrong, offers to make restitution or reasonable 
 satisfaction, and the other Nation is not content to 
 accept it, the balance of right will incline in favour 
 of the Nation which has offered satisfaction, and a 
 defensive war on its part will be a just war. 
 Offensive $30. The distinction between an offensive and a 
 
 and defen- ,i. ., . i-ii 
 
 Bive War. dctensivc war in the sense m which these terms are 
 employed by Wolff and Vattel, is not unimportant 
 in its bearings upon the question, whether a Nation 
 may have recourse to arms in the prosecution of 
 Eight against another Nation without previous notice. 
 
 Vattel. "War," says VatteP^, "is either offensive or defen- 
 sive. The Power, which takes up arms to repel the 
 attack of an enemy, carries on a defensive war ; the 
 Power, which is first to take up arms and attack a 
 Nation which is living at peace with it, wages an 
 offensive war. The object of a defensive war is 
 simple ; it is self-defence. The object of an offensive 
 war varies with the various affairs of Nations, but 
 in general it has regard either to the prosecution of 
 right, or to security. In the case of a defensive 
 war, when a Nation takes up arms to repel attack, 
 the reason of the thing dispenses with any previous 
 
 Grotius. notice." " By the Law of Nature," writes Grotius, 
 " where either force is repelled by force, or punish- 
 ment is inflicted upon him who is the offender, there 
 no denunciation is required." It is otherwise, how- 
 ever, in the case of an offensive war. " But as often," 
 continues Grotius, " as one thing is to be taken for 
 another, or the goods of a debtor to be seized for 
 a debt, a formal demand is requisite, and still more 
 
 '^ Kliiber, § 235, founds his " Droit des Gens. L. III. 
 
 distinction between a defensive c. i. § 5. Wolff. Jus Gentium, 
 
 andanoffensivewaronthecircum- § 615. 
 stance of its justice or injustice. 
 
WAR AND ITS CHAEACTERISTICS. 57 
 
 when the goods of those who are the subjects of the 
 debtor are to be seized ; so that it may be evident 
 that we can obtain our own, or what is due to us, 
 in no other way^''." For this right of so seizing is 
 not a primary right, but a secondary and substitutive 
 right. And in like manner before he, who has the 
 supreme Power, be attacked for the debts or offences 
 of bis subjects, there ought to be interposed a formal 
 demand which may put him in the wrong, so that 
 he may be rightly deemed to be the cause of the 
 damage, or to be responsible for it." In all such 
 cases, in order to work the peculiar effects, which 
 are legally incidental to a State of War, a declaration 
 is required, if not on both sides, at least on one side, 
 as a preliminary to actual hostihties^^ The practice 
 of Nations appears to have been in accordance with 
 the views of Grotius as late as the middle of the 
 seventeenth century. 
 
 5 31. The formal mode of declaring Avar, as estab- formal 
 
 - . i' , . . . ° - Declaration 
 
 lished m Lurope m the- twelfth century, was by of War. 
 Letters^® of Defiance, under the Seal of the Sovereign 
 Power who declared war, and which were delivered 
 by a messenger^' into the hands of the Sovereign 
 
 ^* Natural! jure, ubi aut vis non utrinque, sed ab alfceri par- 
 
 illata arcetur, aut ab eo ipso qui tium. Ibid, 
 deliquit poena deposcitur, nulla ^* Litterse diffidationis — Let- 
 
 requiritur denuntiatio. At quo- tres de deifyance. — A very early 
 
 ties pro re unS res alia, aut pro form of such a letter (anno 1427) 
 
 debito res debitoris invaditur, is given in Leibnitzii Codex Jur. 
 
 multoque magis si res eorum, Gent. p. 348, in which Amadeeus 
 
 qui debitori subditi sunt, occu- Duke of Savoy, announces to 
 
 pare quis velit, interpellatio re- Philip Duke of Milan, his in- 
 
 quiritur, quS constet alio modo tention " cum amicis nostris 
 
 fieri nequire, ut nostrum aut prosilire, ut dum licet valeamus, 
 
 nobis debitum consequamur. De Altissimo conoedente, conspiratis 
 
 Jure B. et P. L. III. c. 3. § vi. injuriis obviare." The reply of 
 
 I & 2. the Duke of Milan is annexed. 
 
 ^^ Cseterum jure Gentium ad ^'' The Declaration of War on 
 
 effectus illos peculiares omnibus the part of Charles V of France 
 
 casibus requiritur denuntiatio, against Edward III of England 
 
58 WAR AliTD ITS CHARACTERISTICS. 
 
 Power against whom war was declared. The practice 
 of declaring war by heralds and pursuivants-at- 
 arms, which prevailed in the fifteenth and sixteenth 
 centuries, has been considered by some writers^® to 
 have had its origin in the magnanimity of Knightly 
 Honour, rather than in consideration of Order and 
 Right, and to be one of the instances of the improve- 
 ment, which the Law of Nations derived from -the 
 institutions of Chivalry. It seems, however, probable, 
 that the custom itself of formally declaring war, as a 
 preliminary step before recoTU-se could be had to actual 
 hostilities, did not originate in any volx^ntary impulse 
 of high chivalric feeling, but was either a tradition of 
 the ancient Fetial Law of the Romans, which survived 
 the fusion of Eoman and Barbaric institutions, or was 
 founded on an institution of the early Germanic 
 tribes^^ and had acquired the character of Law 
 throughout the Germanic Empire of the Romans in 
 the time of the Emperor Frederic Barbarossa. (Anno 
 1 152-1190.) The Peace of the Empire (Land^Friede), 
 which was established by a constitution of that Em- 
 peror, made in the Diet.of Nurnberg (anno 1187), re- 
 served to everyone the right to do justice to himself, 
 provided only that he gave three days' notice to his 
 Law of the adversary. It was one great object of this qonstitution 
 E^re in to check the practice of private warfare amongst the 
 Cmtu^ Princes of the Germanic Empire, and to modify its 
 
 was delivered by a valet of the seal pronounced it to be genuine, 
 French King's household into the apd made preparations for war. 
 hands of the English King, ip his Froissart Chronicles, I. c. 250. 
 Council Chamber, The latter i' Ward on the Law of Na- 
 expressed surprise at so mean a tions, Vol, II, p. 2of . 
 messenger being the bearer of '' Turpinus in Carolo Magno, 
 the letter; saying that it ought c. 17. Talis erat inter eos in- 
 to have been sent " by a prelate, stitutio, quod, si aliquis treugam 
 or a valiant baron, or knight," datamantediffidentiamfrangeret, 
 and at iirst doubted its genuine- statim interficeretur. Ducange, 
 ness ; but after examining the vox Diffidare. 
 
WAR AND ITS CHAIUCTERISTICS. 59 
 
 evils by regulating its commencemeBt. The same 
 Emperor had been powerful enough to abrogate the 
 right of private warfare altogether amongst the cities 
 and nobles of the Kingdom of Italy at the Diet of 
 Eoncaglia (anno 1158), and he was so firmly re- 
 solved^" to uphold the practice of giving notice 
 to an adversary before commencing wai', as essential 
 to good faith, that he sent a messenger to Saladin 
 the Great to demand satisfaction from him for the 
 injuries which he had inflicted on the Christian 
 community, and in case of refusal to declare war 
 formally against him. We find the rule of giving 
 three days' notice of intended hostilities maintained 
 in a still more peremptory manner in the thirteenth 
 century by the Golden BulP^ of the Emperor 
 Charles IV, (anno 1356,) which regulated the manner 
 of commencing war amongst the German Princes, 
 and which provided that no one should on any pre- Law of Eu- 
 text invade his neighbour, unless he had given pJIjrteenth 
 him three days' personal notice beforehand, or had*^®"'""^' 
 publicly signified his intention to make war against 
 him at the place of his usual residence in the 
 presence of competent witnesses. From these and 
 other instances, which occur in French and Spanish 
 Annals ^^, there can be no doubt that in the four- 
 teenth century it was the established Law of Europe, 
 that an offensive war could not be rightfully com- 
 menced without a previous declaration of hostilities. 
 
 ^^ Et quia imperialls majestas ^^ C. 1 8. De Diffidationibus. 
 
 neminem citra defectionem impe- ^^ Diffidamento non prsece- 
 
 tit, sed hostibus suis bella semper deiite legitimo et forali, regu- 
 
 indicit, destinatus ab Imperatore lariter nuUus potest in Arragonia 
 
 ad Saladimiin nuntius, ut vel alium damnificare, capere, aut 
 
 • Christianorumuniversitati, quam occidere, vel castrum ejus per vim 
 
 Isesit, satisfaoiat in plenum, vel et foriam occupare : alias in- 
 
 diffiduciatus se prseparet ad bel- currit poenam traditionis. Mich. 
 
 lum. Auctor. Hist. Hierosolym, del Molino, Repertorium. 
 anno 1177. 
 
60 WAR ANB ITS CHARACTERISTICS. 
 
 f 32. The primary object of a formal Declaration of 
 War was to notify to a party the intention of his ad- 
 versary to prosecute his right by force ^^- Bnt after 
 war came to be exclusively a trial of Right between 
 Nations, in which Sovereign Princes alone could 
 take the initiative, and in which the whole body 
 of their subjects was bound to array itself in -arms 
 against the adverse Nation, it became necessary 
 for Sovereign Princes to notify by a Proclamation 
 to their subjects the cessation of peace, and the 
 existence of a state of war with all its legal con- 
 sequences. The form and manner of declaring war 
 abroad, as well as of proclaiming war at home, was, 
 no doubt, influenced in some degree by the institu- 
 tions of Chivalry ; and the Herald of the middle 
 ages came to discharge functions analogous to 
 those, which were assigned to the Fetial of Ancient 
 Rome, as the messenger of peace and war. We find 
 Declaration accordinfflv that the most solemn mode of declarino; 
 
 of War by . , ^ „ , . t . , 
 
 Heraids-at- war m the fifteenth and sixteenth centuries was by 
 a herald-at-arms. Thus Garter King-of-Arms was 
 sent by King Edward IV to Louis XI of France 
 with a letter written in such fine language and 
 style, that, according to Philippe de Commines, it 
 could not have been written by an English hand^. 
 The Registers of the Heralds' CoUege in London 
 contain numerous entries of similar missions on the 
 part 'of Garter, or Clarencieux, or Norroy King-of- 
 Arms. The functions of the Herald, however, were 
 
 Prodama- not confiued to the business of declaring war abroad. 
 
 arhoiue. "'^ The commencement of war was generally proclaimed 
 
 ''^ Sed ut justum hoc signi- significatio ab altera partium al- 
 
 ficatubelluiiisit,noiisufiicit inter teri facta sit. Grotius, L. Ill, 
 
 summas utrinque potestates geri ; c. 3. § g. 
 
 sed oportet, ut audivimus, ut et ^* Memoires of Philippe de 
 
 publice decretum sit et quidem Commines, L. IV. c. 4. 
 ita decretum publice, ut ejus rei 
 
WAR AND ITS CHARACTERISTICS. 61 
 
 by heralds-at-arms on behalf of the Sovereign Prince 
 to his subjects. Thus we find it. recorded by 
 Holhnshed, on the occasion of Queen Mary de- 
 claring war against Henry II of France by a 
 herald-at-arms, that the war was brought to the 
 knowledge of the English ^N^ation by a proclamation 
 of an equally solemn character. " In this season," 
 (anno 1557,) writes the chronicler ^'^ "although the 
 French King (as was said) was verie loth to have 
 warres with England, yet the Queene (Mary) tan- 
 gling herself contrarie to promise in her husband's 
 quarrel, sent a defiance to the French King by 
 Clarencieux King-of-armes ; who comming to the 
 citie of Hemes, where the said King then laie, 
 declared the same unto him the seventh of June, 
 being the Mondaie in Whitsun-weeke. On the which 
 daie. Carter and Norreie King-of-armes, accompanied 
 with other heralds, and also the lord maire and cer- 
 teine of the aldermen of the citie of London, by sound 
 of three trumpets that rode before them, proclaimed 
 open war against the said King, first in Cheapeside, 
 and, after in other parts of the citie, where custom- 
 arilie such ' proclamations are made : the sherifies 
 still riding with the heralds tiU they had made an 
 end, although the lord maior brake off in Cheapeside 
 and went to St. Peter's to hear service, and after 
 to Paules, where (according to 'the usage then) he 
 \\^nt in procession." This record of the double fact LastBiitis 
 of a Declaration of War abroad and of a Proclamation of War bj 
 of War at home is the more curious, as it seems to at-i!^ms." 
 have been the last occasion of any English Sovereign 
 declaring war by a herald-at-arms. 
 
 There was no Declaration of War in the reign of 
 Queen EHzabeth, on the occasion of the Expedition 
 
 25 Hollinslied Chronicles, Vol. IV. p. 87. 
 
62 WAB AND ITS CHAKACTBEISTICS. 
 
 of the Spanish Armada, although there was a State 
 of War after that event between England and Spain. 
 So likewise in the reign of Charles I, Lord Clarendon^^ 
 narrates how Villars, Duke of Buckingham, " made 
 war upon France without any colour of reason, or 
 so much as the formality of a Declaration from the 
 King, containing the ground and provocation and 
 end of it, according to custom and obligation in 
 the like cases, for it was observed that the Manifesto, 
 which was published, was in the Duke's own name, 
 who went admiral and general of the Expedition." 
 
 The practice, however, of declaring war by a 
 herald-at-arms had not entirely passed away on the 
 continent of Europe in the early part of the seven- 
 teenth century ; for we find it told by the historian 
 LastT>e- of the reign of Louis XIV, that Louis XIII still 
 Warby"a° cluug to the ancicut rule, and sent a herald-at-arms 
 Armstn* ^*^ Brussels, in 1635, to declare war against Spain^'. 
 1657. This is cited by many writers as the last known 
 instance of the kind ; but there appears to have 
 been one later instance in 1657, when Sweden de- 
 clared war against Denmark^^ by a herald-at-arms 
 sent to Copenhagen. 
 PrintedDe- f 33- It appears from a passage in Chief- Justice 
 of War in Hale's " Plcas of the Crown-"", that in the reign 
 CharieriL^^ Charlcs II the solemn form of declaring war 
 then in use was by a printed declaration, such as 
 that monarch issued against the Dutch in 167 1. 
 The institution of permanent embassies resident 
 in the capital cities of Europe, which dates from 
 the ministry of Cardinal Bichelieu, could not but 
 
 ^^ Clarendon's History, Vol. I. § 267. Holberg Danmarks Eige's 
 
 p. 71. ed. Oxford 1826. Hist. Tom. III. p. 241. 
 
 '" Voltaire Sidcle de Louis ^' Pleas of the Crown. I. 
 
 XIV. c. II. p. 162. 
 
 2' Marten's Precis, L. VIII. 
 
WAR AND ITS CHAJlACTEKISTICS. 63 
 
 tend very much to modify the earlier forms of 
 international intercourse, more particularly in re- 
 gard to the coiirse of proceedings introductory 
 to war. Further, during the Thirty Years' War, 
 the Law of Nations underwent a rapid develop- 
 ment, for the stormy conflicts resulting from the 
 union of religious with pohtical antipathies con- 
 sequent on the Reformation, and which had been 
 confined in the sixteenth century to single states, 
 convulsed the entire political system of Europe in 
 the seventeenth century, and the Northern Powers 
 of Europe came to take a part in the disputes 
 of Central and Southern Europe. War, therefore, 
 whenever it broke forth, was attended by more 
 general consequences ; and hence it became ex- 
 pedient for Nations which were about to become 
 belligerents to give notice of their intention to other 
 Nations, so that the latter might, if they did not 
 side with either party, know from what period they 
 should observe the duties of neutrality. Hence 
 originated a practice for belligerent Nations^" to 
 issue Manifestoes to other Nations, to make known Manifestoe 
 
 ' .of War to 
 
 the fact that they have taken up arms. Grotius Neutral 
 speaks of this as an estabhshed' practice in his ^^°^' 
 time ; and Vattel considers that a belligerent Power 
 is bound to publish a Manifesto to neutral Powers, 
 in order to obviate all diflSculties that may other- 
 wise arise from the subjects of the latter Powers 
 carrying to a belligerent any supplies in the nature 
 of contraband of war^^, and so incurring the penalty 
 of their confiscation, if they should be captured by 
 the adverse telligerent. 
 
 ™ Et has ob causas solent a ut de spe probabili juris ex- 
 
 bellum gerentibus publicse signi- equendi appareat. Grotius,L.III. 
 
 ficationes fieri ad alios populos, c. i. § v. 4. 
 turn ut de jure causae, turn etiam ^' L. III. c. 2. § 64. 
 
64 WAR AND ITS CHARACTERISTICS. 
 
 § 34. It is usual for a Nation whicli contemplates 
 
 the necessity of making war upon another Nation 
 
 to apprise the other Nation of its sense of an injury 
 
 having been inflicted upon it or of a right having 
 
 Recall of been denied to it through the medium of its Resi- 
 
 Kesident . ° . . rv i 
 
 Envoys, dent Envoy ; and if no satisfaction should be onered, 
 to recall its Resident Mission. This step, however, 
 although it may imply the cessation of friendly 
 relations, does not necessarily constitute a state of 
 war between two Nations'^. A Nation may even 
 go further, and authorise reprisals to be made against 
 another Nation ; and if no other step should be taken 
 on either side, the persons and property seized by 
 way of reprisals may be detained as pledges for 
 satisfaction without any war necessarily resulting 
 thereupon. Thus, in 1739, on occasion of Spain 
 having failed to pay a sum of money within 
 a certain time specified in a treaty between the 
 Crowns of Spain and of England, the King of Eng- 
 land granted letters of marque and reprisal against 
 Spain, and Mr. Keene, the British Minister at 
 Madrid, was instructed to declare to the Court of 
 Spain that his master, although he had permitted 
 his subjects to niake reprisals, would not be under- 
 stood to have- broken the peace, and that this per- 
 mission would be recalled as soon as his Catholic 
 Majesty should be disposed to make the satisfaction 
 which had been so justly demanded. His Cathohc 
 Majesty, however, having ordered all the British 
 ships in the harbour of Spain to be seized and de- 
 tained, the King of England would keep measures 
 with him no longer, but denounced war against him^^. 
 
 ^^ Thus Prance and Great ensue. 
 
 Britain recalled their Diplo- '^ Smollett's History of Eng- 
 
 matic Envoys from Naples in land, Vol. III. p. 27. 
 1859, but ^Yar did not thereupon 
 
WAR AND ITS CHAEACTEEISTICS. 65 
 
 In such a case as this, a right of hostilities, as 
 between the two Nations, accrued to England at 
 once upon the original breach of a treaty on the 
 part of Spain ; but the exercise of that right waa 
 suspended'*. The character of the acts of reprisal 
 continued to be ambiguous, until war was declared. 
 After war had been once declared, it reflected back 
 upon the original breach of a treaty an undoubted 
 character of hostility, and the property seized by 
 way of reprisal became subject to condemnation, a& 
 the property of enemies ab initio '^. 
 
 § 35. It may be taken to be the established Disuse of 
 practice of European Nations, since the Peace ofciarations 
 Paris (anno 1763), to dispense with any formal ''^ ^^'^^ 
 , Declaration of War between the parties, and to at- 
 tach all the legitimate consequences of war to a state" 
 of hostilities which has been duly recognised and ex- 
 plicitly announced by a domestic Manifesto or State 
 paper. The last occasion on which England had 
 recourse to a formal Declaration of War was on 
 2 January 1762, when she- declared war against 
 Spain, and by that Declaration authorised and re- 
 quired ah. the King's subjects to do and execute 
 acts of hostihty against the King of Spain, his 
 vassals and subjects, while she also advertised alL 
 
 ^* From a letter addressed by I'j May 1756, against France; 
 
 Lord Chancellor Thurlow to the 2 May 1762, against Spain. 
 King's Advocate General, on 1 2 ^^ Upon this principle Eng- 
 
 December 1778, a MS. copy of land refused to restore to France 
 
 which is in the author's pos- at the Peace of Paris (anno 1763) 
 
 session, it appears that there had the captures made by her fleets 
 
 been six declarations of war on before the declaration of war in 
 
 the part of the King of Eng- 1756, on the ground that the 
 
 land since the Revolution of right of hostilities did not 
 
 1688; namely, that of 7 May result from a formal declara- 
 
 1689, against France ; 4 May tion of war, but from the hos- 
 
 1702, against France and Spain; tilities which the aggressor first 
 
 16 Dec. 17 18, against Spain; offered. Ann. Register, anno 
 
 19 October 1739, against Spain ; 1760, p. 263, 
 
 PABT II. F 
 
(36 WAR AND ITS CHARACTERISTICS. 
 
 other persons, of what Nation soever, not to trans- 
 port or carry any soldiers, arms, powder, ammunition, 
 or other contraband goods, to any of the territories 
 or dependencies of the King of Spain. On the 
 occasion of the next following war between Eng- 
 land and France, in 1778, the first public act of the 
 British Government was to recall its ■ ambassador 
 fiom Paris, and to lay an embargo upon all French 
 vessels in British ports, immediately upon receiving a 
 declaration^" in writing from the French ambassador 
 in London, that the French King had entered into 
 a treaty of friendship and commerce with the United 
 States of North America, " as a body of States, 
 which had been in the fuU possession of indepen- 
 dence since 4 July 1776," and that he was prepared 
 to maintain effectively his treaty rights and the 
 honour of his flag. France thereupon recalled her 
 ambassador from the Court of St. James, and the 
 French Mediterranean fleet having sailed to North 
 America, a series of engagements took place between 
 French and English vessels, although no Declaration 
 of War had been issued on either side. Meanwhile 
 the British Channel Fleet, under Admiral Keppel, 
 came into collision with some French frigates, and 
 the two Nations drifted into open war. The occa- 
 sion of this war was somewhat exceptional, being the 
 first instance of an Established Power recognising 
 formally the independence of the revolted subjects 
 of another Established Power, with which it was 
 at peace, and at the same time, when it announced 
 its recognition of thejr independence, declaring that 
 
 '° This Declaration of 1 5 March of State for Foreign Affairs. It 
 
 1778 was delivered by the Mar- will be found in the Nouvelles 
 
 quis de Noailles, the Ambassador Causes Cdldbres du Droit des 
 
 of France in London, to Lord Gens, par 1« Baron Ch. de Mar- 
 
 Weymouthjthe British Secretary tens, Tom. L p. 406. 
 
WAR AND ITS CHARACTERISTICS. G7 
 
 it had entered into a treaty of friendship and com- 
 merce with them, and was determined effectively 
 to protect its subjects in the enjoyment of their 
 treaty privileges. England, under these circum- 
 stances, considered that the conduct of the French 
 King was not merely an act of aggression against 
 her, but a violation of the Law of Nations; and 
 consequently that she was entitled to resent it, 
 and make prize of French vessels, without any 
 necessity of formally declaring war against France. 
 That the British Government so determined to act 
 after mature deliberation may be gathered from a^'*^'^"^ 
 letter of Lord Chancellor Thurlow's^^, in which he chancellor 
 discusses the precedents . of a Declaration of War. in Ty^Z' 
 "I find a doubt hath been started whether it be 
 , correct to make prize or to condemn it as confiscate, 
 and still more to distribute it to the captors, before 
 a Declaration of War. Upon the kst it is insisted, 
 that the goods of Nations, not declared Enemies, 
 can at most be taken as Reprisal, and detained only 
 as pledges for satisfaction. It is said that this 
 was done in 1 754, and that no Prizes were actually 
 condemned or distributed before Declaration of War 
 at that period. Declaration is said to be necessary 
 to what writers call a Solemn War, but it has been 
 the practice of Nations in all ages to begin hostilities 
 otherwise. What the Supreme Power of any other 
 country may do, the King here has been in the 
 use of doing in the matter of War against strange 
 Nations, Therefore if you could, without trouble 
 to yourself, order a search, I should be extremely 
 
 ^'' Letter of Lord Chancellor possession of the author, and 
 
 Thurlow to Philip Stephens, Esq. formerly belonging to Sir James 
 
 Secretary of the Admiralty, dated Marriott, the King's Advocate 
 
 1 2 August 1 7 78, a copy of which General. 
 exists in a MS. volume in the 
 
 F 2 
 
68 WAR AND ITS CHAEACTEEISTICS.. 
 
 happy to find what the course has been especialljr 
 since the Kevolution in this respect, in giving 
 orders to King's ships to take prizes, in granting 
 commissions to Privateers, Letters of Marque and 
 Eeprisal,, in proclaiming such purposes, in, distri- 
 buting Prizes to Captors, antecedent to Declaration 
 of War." 
 Procw ^ 3^" '^^^ object of a Proclamation of War, in the 
 tions of sense in which that expression is used to signify 
 home. a public announcement of hostihties on the part of 
 a Sovereign Power for the information and direc- 
 tion of its Subjects, as distinguished from a direct 
 notification of hostilities made to the State against 
 which war is to be carried on, is to fix the date 
 from which special duties attach to the Subjects of 
 the belhgerent Power as regards the Enemy. After 
 war has been proclaimed, no pacific relations of 
 whatever nature can be entertained between the re-; 
 spective Subjects of the belligerent Powers, except 
 under Hcense or convention. AH trade is suspended, 
 no contracts are legal, no debts can be enforced, and 
 no suits can be sustained by or against an enemy 
 before the municipal tribunals of either State. Ex 
 natura belli commercia inter hostes cessare non est. 
 dubitandum, is the language of Bynkershoek^®, and 
 Valin treats it as a question beyond aU dispute in, 
 his time. But there is no absolute necessity that 
 there should have been a Proclamation of War io, 
 order to establish the legal quahty of alien enemy 
 against a Subject of a Foreign Power. In the 
 reign of Queen Elizabeth it was held to be sufficient 
 to show that there was a State of War in fact be- 
 tween the Crown of England and Spain, and that 
 the Spaniards were actual enemies of the Queen, 
 
 ^* Quaest. Jur. Publici, L. I. c. ii. 
 
"WAR AND ITS CHAEAOTERISTICS. 69 
 
 in order to disable a Spanisli Subject from suing 
 a British Subject in a British court in an action 
 of debt. So likewise in France it was ruled by a 
 court of competent jurisdiction, on 13 May 1757, 
 that there was a State of War between France and 
 England on 29 October 1755, by reason of the acts 
 of hostility committed by English cruisers against 
 French vessels, although war was not declared by 
 England before 17 May 1756^". So likewise the war 
 between the United States of America and Mexico, 
 in 1846, was commenced by a conflict of armed 
 forces in the disputed territory, and without any 
 declaration on either side ; and the Congress of the 
 United States passed an Act subsequently recog^ 
 nising the existence of the war**. A State of War 
 may thus exist between two countries as respects 
 the mutual rights and obligations of the citizens of 
 each country in relation to one another, without any 
 proclamation or indication thereof, or other formal 
 matter of record to prove its commencement. 
 
 § 37. It has been observed that the right of hos- 
 tilities, as between two belligerent Nations, does not 
 result from any formal Declaration of War, but from 
 the aggression of one Nation upon the independence 
 of the other. The obligation of neutrality, on the 
 other hand, as between the respective belligerents 
 and other Nations, does not arise, except upon 
 notification from one or other belligerent that he 
 is at war with his adversary. A Nation is bound 
 to bring to the knowledge of other Nations, with 
 which it is at amity, the fact of its being obliged 
 to take up arms to maintain its rights against 
 
 ^^ Hale's Pleas of the Crown, 1S29. 
 
 I. p. 162. Valiu, Commentaire *" Halleck's International Law, 
 
 sur rOrdonnance de la Marine, San Francisco, 1861. p. 354. 
 L. III. Tit. VI. § 3. p. 457. Ed. 
 
70 WAE AND ITS CHARACTBEISTICS. 
 
 another Nation, so that they may take measures 
 to warn their citizens to observe the duties of neu- 
 Objeotof trality. For this purpose Manifestoes are usually 
 to Neutral published by the belligerent Powers at the com- 
 mencement of the war, which set forth the grounds 
 upon which they feel justified in taking up arms. 
 After that a Manifesto, which always implies, if it does 
 not in terms contain, a declaration of war, has been 
 circulated by the diplomatic Envoys of the belligerent 
 State at the Courts of the various Neutral Powers, 
 it wiU be no longer competent for the Subjects of 
 those Powers to plead their ignorance of a State of 
 War between the belligerents. A Manifesto may be 
 •regarded as an Appeal or Protest addressed by an 
 injured Nation*^ to the Community of Nations. It 
 ought to set forth in dignified language the cause 
 of complaint and the efforts to obtain redress ; — 
 it should speak with a certain reserve of the injuries 
 which the Nation has undei'gone, and with a certain 
 moderation of the satisfaction which it seeks for 
 «uch injuries. It ought to set forth the facts with- 
 out colour or animosity, and state the principles of 
 Public Law upon which it rehes to maintain the 
 justice of its cause. It should speak with respect 
 of its adversary as its equal ; and should avoid em- 
 bittering the dispute by offensive expressions. In 
 a word, it should avow regret that ancient friends 
 should have become temporary adversaries, and ex- 
 press a hope of a sincere reconciliation after the 
 
 *' An "Exposd des motifs/' lish Government published an 
 
 or a " M^moire Justificatif," as answer under the latter title 
 
 the case may be, is sometimes from the pen of the historian 
 
 published; but this is a totally Gibbon. They will be found in 
 
 distinct paper from a Manifesto, Ch. de Martens, Nouvelles Causes 
 
 The French Government pub- C^Mbres du Droit des Gens, I. 
 
 lished a paper under the former p. 425 & 436. 
 title in 1779, to which the Eng- 
 
WAR AND ITS CHARACTERISTICS. 71 
 
 dispute has been adjusted. " The Homeric heroes," 
 says Vattel, " called each other before battle " dog' 
 and 'drunkard.'" The Emperors and Popes of the 
 middle ages treated each other with as little delicacy. 
 But we may congratulate our age on the superior 
 gentleness and humanity of its manners, and not 
 treat as vain politeness those courtesies, which are 
 productive of real and substantial effects*^. 
 
 ^38. Amongst modern publicists M. de Haute- Opinion 
 feuiUe ^ stands alone in maintaining that war is not Hante- 
 regularly commenced as regards the adverse Nation, ®" '^' 
 except after a direct Declaration of War, although 
 it may be regularly commenced in regard to Nations, 
 which do not take part in the hostilities, after the 
 diplomatic circulation of a Manifesto. He admits 
 that Vattel and De Kayneval, who have maintained 
 the necessity of a Declaration as contrasted with 
 the looser doctrines of Bynkershoek, Kliiber, and De 
 Martens, allow that the diplomatic circulation of a 
 Manifesto is in effect equivalent to a direct Declara- 
 tion of War ; but he persists in holding that war, and 
 more particularly a maritime war, requires to be legale 
 ised by a special Declaration made to the adversary. 
 Let it be considered for a moment to what conclusions 
 this position leads. If- the character of all acts com- 
 mitted before a Declaration of War is to be measured 
 by the same standard which apphes to a state of 
 Peace, then acts of violence committed under such 
 circumstances on the high seas will be acts of piracy, 
 and those who have committed them may be treated 
 as hostes humani generis; but no Courts of Admiralty 
 in any country have ever ventured to pronounce the 
 acts of parties, who are belligerents de facto before 
 a Declaration of War, to be piratical acts. Further, 
 
 *2 Heffter, § 121. des Nations Neutres, Tit. III. 
 
 *^ Des Droits et des Devoirs c. i. § 11. p. 139. ed. 1858. 
 
72 WAR AND ITS CHAKACTEKISTICS. 
 
 A State 'where there is a State of War de facto between 
 
 of War , 1 1 -n> 1 • 
 
 de facto, parties, which cannot be preceded by a Declaration, 
 ■• as for instance in the extreme case of a Civil War, 
 where part of a Nation has erected a distinct and 
 separate government, the existence of a State of 
 War, under such circumstances, is of necessity re- 
 cognised by foreign Powers, although they may 
 not have acknowledged the political independence 
 of the new Government ; and foreign Courts ad- 
 ministering the Law of Nations have uniformly 
 treated each party as a belligerent, in reference to 
 all acts asserted by it to have been done jure 
 
 Merico.'"^ ieZZ^. Thus the existence of a civil war between 
 the people of Texas and the authorities and people 
 of the other Mexican States was recognised by the 
 President of the United States, in the month of 
 November, 1835. Official notice of this fact, and of 
 the President's intention to preserve the neutrality 
 of the United States, was soon after given to the 
 Mexican Grovernment ; and when the armed' schooner 
 Invincible, sailing under the flag of the newly con- 
 stituted Eepublic of Texas, captured in the month of 
 April 1836 the American brig Packet, on the alleged 
 ground that she was laden with a cargo contraband 
 of war, destined for the use of the Mexican army, 
 the Attorney General of the United States formally 
 advised the President, that the charge of Piracy 
 against the crew of the Texian brig could not be 
 sustained**. 
 
 Buria- Burlamaqtii*^ on the other hand, maintains with 
 
 opinion, moro rcasou, both as regards the real object of a 
 Declaration of War, and as regards the actual prac- 
 tice of Nations, that "the formalities observed by 
 different Nations in Declarations of War are arbitrary. 
 
 " Opinions of the Attorneys- Vol. II. p. 1066. 
 General of the United States, " Droit Nafcurel, Pt. IV. c. 4. 
 
WAR AND ITS CHARACTERISTICS. 73 
 
 'It is immaterial what the form may be, so that the 
 opposing Sovereign does not remain in ignorance of 
 it." Thus, inasmuch as according to the Constitution 
 of the United States of America, it belongs to the 
 province of the Legislative as distinguished from the 
 Executive Government to declare war, a war can- 
 not be regularly commenced by the Federal Union 
 without an Act of Congress. The passing of such 
 an Act by Congress is accordingly held by the 
 United States to be a formal official notice to all 
 the world, which is entitled to the same international 
 respect as is paid to a Declaration of War or to a 
 Manifesto, when it falls within the proper province 
 of the Executive Government of a Monarchical State 
 to issue such documents. Accordingly the United Practice of 
 States commenced active hostilities against Great states of 
 Britain -in 1812^, as soon as the Act of Congress '"®™*- 
 had been passed, without waiting to communicate 
 to the British Government any notice of its in- 
 tentions, and without issuing any Manifesto setting 
 forth the motives for commencing war. 
 
 ^39. It is undoubtedly of importance that there 
 should be a well defined boundary line to mark the 
 commencement of a State of War between two Na- 
 tions, so that those acts which are to be considered 
 as the effects of war may be readily distinguished 
 from those which each Nation is entitled to regard 
 as injuries, and for which reparation may be de- 
 manded, when terms of Peace have to be settled. 
 But it is not always easy, as a matter of fact, to 
 draw such a line. As long as it was the practice 
 for a Nation to make a formal Declaration of War 
 before commencing active hostilities, nothing was 
 more easy than to draw a line between acts done 
 before and acts done after the Declaration of War; 
 *" Kent's Commentaries, Vol. I. § 55. 
 
74 WAR AND ITS CHARACTERISTICS. 
 
 and it was not unusual to stipulate in Treaties of 
 Peace that all places and property seized before the 
 Declaration of War*' should be restored. The Status 
 The status ante helium would, in such a case, be satisfied by 
 ambi^ou™ returning to the state of possession before war had 
 been declared. But after Nations came, to engage 
 in active hostilities before either of them had made 
 any formal Declaration of War, the Status ante helium 
 would not be secured by stipulating that matters 
 should be replaced in the state in which they were 
 before war was declared. Thus the war between 
 Great Britain and France, which was terminated by 
 the Peace of Aix-la-Chapelle, may be said to have 
 commenced with the battle of Dettingen, on 26 June 
 
 1743, which was fought between the French and 
 English armies, the latter being commanded by the 
 King in person, or at least by the sea fight on 
 9 February 1744, off Toulon, between the English 
 fleet and the combined French and Spanish fleets. 
 Yet no Declaration of War was made by France be- 
 fore 20 March 1744, nor by England until 29 March 
 
 1744, when she issued a Counter-Declaration of War. 
 Accordingly we find that it was stipulated in the 
 treaty of Aix-la-Chapelle*^ (18 October 1748) that 
 " all conquests made since the commencement of the 
 present war^ shall be restored, as well in Europe 
 as in the East and West Indies, in the state in which 
 they are at present." Under such an agreement the 
 Status ante bellum would only be satisfied by either 
 party giving up aU its conquests. 
 
 *' Ante denuntiationem belli. ^^ Vattel has fallen into an 
 
 Treatyof Utrecht, between Great inaccuracy in speaking of this 
 
 Britain and Spain, anno 17 13, provision of the treaty of Aix- 
 
 Art. VIII. Schmauss, Corp. Jur. la-Chapelle, as if it referred to 
 
 Gent. Acad. p. 142 1. all prizes made before the de- 
 
 *' Wenck. Codex Jur. Gent, claration of war. L. III. § 56. 
 Vol. II. p. 325. 
 
WAR AND ITS CHARACTEEISTICS. 75 
 
 § 40. "When one Nation declares war against an- Unilateral 
 other Nation, writes Grotius, the Declaration becomes o/war '"" 
 reciprocaP". Upon this principle Lord Stowell held ^ed" rocai 
 that a Declaration of War on the part of Sweden hostilities, 
 against Great Britain was not a mere challenge on 
 its part to be accepted or refused by the other 
 country, but proved the existence of actual hostilities 
 on one side at least, and put the other party also 
 into a State of War, although it might think proper 
 to act on the defensive only". Cases have occurred 
 in which a hostile demonstration has been held to 
 amount to a virtual declaration of war, and to be ' 
 a justification for having recourse to arms without 
 any formal Declaration of War. 
 
 Such seems to have been the justification under 
 which the British fleet, commanded by Admiral Byng, 
 on II August 1 718, destroyed the Spanish fleet at 
 Passaro. The English ambassador at Madrid had 
 previously warned the Spanish Prime Minister, Car- 
 dinal Alberoni, that if the threatened invasion of 
 Sicily was not abandoned, England would oppose 
 Spain with all her power, and had communicated to 
 him the orders,, which the English Admiral had re- 
 ceived, to hinder and obstruct the invasion. Alberoni 
 in reply sent a note to the effect, that the English 
 Admiral might execute the orders which he had re- 
 ceived from the King his master. In this case, if 
 the English Admiral had waited for his Government 
 to issue a formal Declaration of War, Spain would 
 have been enabled to destroy the ally, whom the 
 English fleet had been sent to protect. The ne- 
 cessity, therefore, of the case sanctioned immediate 
 actioUj but the answer itself of Alberoni, in accepting 
 
 50 
 
 L. III. 0. 3. § vii. 2. son, 247. "The Nayade." 
 
 " The "Eliza Anne." i Dod- Eobinsou, p. 253. 
 
76 JVAR AND ITS CHARACTERISTICS. 
 
 the alternative, might be regarded as a virtual de- 
 claration of war. War was in fact commenced from 
 the battle of Passaro, although England did not 
 formally declare war against Spain until December 
 17, 1 7 18; but when the treaty of Madrid'^ (June 
 31, 172 1) came to be negotiated, it was provided that 
 all the vessels and effects seized by either Spain or 
 England, either before or after the Declaration of 
 War, should be restored. 
 Recall or ^ Ai. The recall or dismissal of a resident Envoy is 
 of resident generally considered as equivalent to a declaration 
 nvoys, ^£ ^jvsir, although we find occasional instances where 
 friendly relations have been suspended by that event, 
 without war resulting therefrom. In certain treaties 
 of commerce provision has been made that a rupture 
 of peaceful relations shall not be held to exist, until 
 after the recall or dismissal of the respective Envoys 
 Treaties, or Ministers of the contracting parties. Such a pro- 
 vision is found in the Treaty of Eio Janeiro *^, between 
 Great Britain and Portugal ; and in the Treaty of 
 Rio Janeiro, between Great Britain and BraziP^; and 
 in Treaties concluded between Brazil and France in 
 1826, Brazil and Prussia in 1827, and Brazil and 
 Denmark in 1828. "If there should arise any mis- 
 understanding, breach of friendship, or rupture, be- 
 tween the two Crowns (which God forbid), the rupture 
 shall not be deemed to exist until after the recall or 
 departure of their respective diplomatic agents," is 
 the provision which is found in these treaties. This 
 is a very wise and reasonable arrangement, which if it 
 should be ever generally adopted, would prevent all 
 
 '^^Schmauss, Corpus Jur. Gent. XXXI. Martens, N. E. III. p^ 
 
 Academicum, p. 2143. 213. 
 
 ^' Treaty of Commerce be- ** Treaty of 17 August 1827. 
 
 tween Great Britain and Portu- Martens, N. E. VII. p. 479. 
 gal, 19th February 18 16, Art, 
 
WAR AND ITS CHAEACTERISTICS. 77 
 
 disputes and difficulties as to the true date of the 
 legal commencement of War, As War puts an end 
 to all amicable intercourse between the Subjects of 
 the belligerent Powers, and abrogates all antecedent 
 treaty engagements, it seems reasonable that its, 
 legal commencement should be marked by the formal 
 cessation of amicable intercourse between the Govern- 
 ments. In the absence of any special treaty arrange- 
 ments on this subject, the general rule as regards 
 belligerents seems to be this, that a State of War may 
 exist between them without any Declaration of War 
 on either side. It may begin with mutual hostih- 
 ties^^ and the legitimate consequences of war will 
 ensue from the immediate commencement of such 
 hostilities. But with regard to other Nations, they 
 are not charged with the duties of neutrality until 
 a State of War between the belligerents has been 
 officially announced to them, or until they have 
 otherwise acquired a positive knowledge of its ex- 
 istence. War may exist notoriously^^, in which case 
 it is not competent for a neutral Power to refuse to 
 recognise its existence. On the other hand, if a third if"°™°?^ 
 
 ° . . . ofnostih- 
 
 party is hond fide ignorant of the existence of a war ties on the 
 between two other parties, there is no foundation in Neutrals, 
 its case for the duties, which the Law of Nations 
 attaches to the. Neutral Character, for it is un- 
 conscious that it has any occasion to act in that 
 character. Under the circumstances of such hond 
 fide ignorance of the existence of war between Great 
 Britain and France, two Spanish vessels resisted the 
 exercise of the right of visitation and search by a 
 British cruiser ^'^. Notwithstanding such resistance on 
 
 ^ Sir W. Scott in the " Eliza " The San Juan Baptista and 
 
 Anne." I Dodson, p. 247. La Purissima Conception. sRob- 
 
 '^ La Nuestra Senora de la inson, p. 34. 
 Caridad. 4 Wheaton, p. 497. 
 
78 WAR AND ITS CHAEACTEEISTICS. 
 
 their part, which is in itself an offence of a very 
 heinous character, Lord Stowell directed the Spanish 
 vessels to be released, on the ground that the masters 
 of them were unconscious that they had any neutral 
 duties to perform. 
 
CHAPTER III. 
 
 COMMENCEMENT OF WAR. 
 
 Effect of War upon individuals — Natural born and adopted 
 citizens — Inhibition of intercourse with the enemy — Recall of 
 natural born subjects — Commission to carry on hostilities — 
 Enemy-subjects within the territory of a belligerent — Treaties of 
 Commerce — Enemy-property within the territory of a belligerent — 
 Milder practice in modern times — Obligation of good faith — 
 Ancient practice of Provisional Embargo — Enemy-subjects resident 
 in the territory of a belligerent — Enemy-subjects in transitu — 
 Detention of British subjects in France by the First Consul in 
 1803 — Modern practice not to detain enemy-subjects — Debts due 
 to enemy-subjects — Opinion of Mr. Justice Story, Mr. Chancellor 
 Kent, Vattel, and Bynkershoek — Judgment of Lord Ellenborough, 
 in Wolff V. Oxholm — Wheaton— Suspension of Commercial Con- 
 tracts — Debts due to an Enemy-Sovereign — Conduct of Prussia in 
 regard to the Silesian Loan — Conduct of Great Britain in regard 
 to the Eussian-Dutch Loan — Embargo of enemy-property afloat 
 within the territory of a belligerent— Conduct of the Allied Powers 
 at the commencement of the war against Russia in 1854 — Russian 
 reciprocity — Immovable property of enemy-subjects within the 
 territory of a belligerent. 
 
 S 42. A SOLEMN Declaration of War (diffidatio)'^^^°^°^ 
 
 ' ■•,• 1 r-ji War upon 
 
 purported to be a renunciation on the part 01 the individuals. 
 Sovereign, who declared war, of all international 
 obligations towards the Sovereign against whom war 
 was declared, so that no peaceful relations of any 
 kind could thenceforth be entertained between them, 
 except under express convention. The existence of 
 
80 COMMENCEMENT OF WAR. 
 
 mutual hostilities of such a nature, as to constitute 
 de facto a State of War between two Sovereign 
 Powers, is attended with analogous consequences in 
 suspending all peaceful intercourse between the poli- 
 tical communities, over which they are Sovereigns, 
 acd in constituting all the individual members of the 
 one Nation enemies of the individual members of the 
 other Nation. As Private War is inconsistent with 
 PubHc Peace, so Private Peace cannot coexist with 
 Public War. " In former times, and especially in small 
 states," writes Vattel, " whenever war was declared, 
 every man became a soldier ; the entire people took 
 up arms, and engaged in the war ; after a short time 
 a selection came to be made, and armies were formed 
 of picked men, and the rest of the people continued 
 to pursue their usual avocations. At present the 
 use of regular troops is everywhere established, but 
 principally in the great States. The Public Power 
 raises soldiers, distributes them in different corps 
 under the authority of chiefs and other officers, and 
 keeps them on foot as long as it thinks necessary; 
 as every citizen or subject is. bound to serve the 
 State, the Sovereign has a right to enroll those whom 
 he pleases in case of necessity^." Accordingly as: 
 every member of a political community is under an 
 equal obligation to serve and defend the State, as far 
 as he is capable, no individual is exempt by the Law 
 of Nations from taking up arms in its defence. It is, 
 however, optional with every community to organise 
 itself in the inanner, which it thinks most convenient 
 for its own defence in time of war. Hence the obli- 
 gation of each individual member of a political com- 
 munity to take an active part in any war, in which 
 the community is engaged, will depend upon the 
 Constitutional Law of the comm unity. Amongst some 
 ' Vattel, Droit des Gens, L. II. c. 2. § 9. 
 
COMMENCEMBKT OF WAR. 81 
 
 nations there is a legal obligation upon every citizen 
 under a certain age to serve the State in arms, and 
 lot decides upon whom the actual burden of military 
 duty shaU devolve. Amongst other Nations the pro- 
 fession of arms is voluntary, like the profession of 
 letters, with this difference however, that the Nation 
 undertakes to pay those of its citizens who choose 
 to enroll themselves in its standing army, as it is 
 just that those who do not serve should pay their 
 defenders. There have been on the other hand 
 instances where Nations have been content to ex- 
 empt their own citizens from active military service, 
 and to entrust their defence to a regular army of 
 foreign origin serving them for pay. Such were the 
 •Swiss regiments in the service of Spain and of 
 Naples, and such were the Irish regiments in the 
 service of the Emperor, and the Scotch regiments 
 in the service of Sweden and of France. But in 
 all such cases, if a soldier of foreign origin takes 
 service in the standing army of a Nation, he becomes 
 for the time of his service a member de facto of the 
 Nation for all belligerent purposes. No person is 
 entitled to object to his so taking service, but the 
 Sovereign Prince to whom he owes similar service 
 by virtue of his allegiance, as a natural born subject ; 
 and if he has entered into the military service of a 
 foreign Power without the consent of his Sovereign, 
 he will have offended indeed against the laws of his 
 native country, and may disentitle himself to enjoy 
 the privileges of a citizen, if he should return to that 
 country. But by the Law of Nations every man is 
 free to attach himself to any political community, 
 which may be disposed to admit him to membership, 
 if he finds it to be for his advantage^. He may 
 make its cause his own, and espouse its quarrels ; 
 
 2 Vattel, L. III. c. 2. § 13. 
 PART II. G 
 
82 COMMENCEMENT OF WAR. 
 
 but the act must be his own voluntary act. If a 
 person accordingly voluntarily quits his native coun- 
 try, and seeks service with a foreign Prince, it is no 
 violation of the Law of Nations, if the Prince should 
 engage him in his service without the previous con- 
 sent of the Sovereign, to whom he owes natural alle- 
 giance. But it would be a violation of the Law of 
 Nations for a foreign Power to enlist soldiers within 
 the territory of another State without the permission 
 of the Sovereign of that State ; and if at any time 
 a foreign Power has been guilty of such an act, it 
 has been held a sufficient cause for a declaration of 
 war against it, unless it should have made suitable 
 reparation. 
 
 ^43. When a Nation is at war with another Nation, 
 aU the members of the one- Nation are the enemies 
 Natural of ^}^q other Nation. This rule of ioint association 
 
 born and , •, , . . 
 
 adopted ui War applies to adopted citizens, equally as to 
 natural born citizens. " Without doubt," says Gro- 
 tius, " all the subjects of the Sovereign, from whom 
 an injury has been received, who are such for a per- 
 manent cause, are liable to the law of reprisals, 
 whether they be natives or citizens ^." The same rule 
 applies likewise to aU persons who come to reside 
 within the country of a belligerent Power with the 
 knowledge of the existence of war, equally as to aU 
 who have come into the country before the war, and 
 continue to reside there after the commencement of 
 hostilities for a longer time than is necessary for 
 their convenient departure. " Without doubt," writes 
 Grotius*, " strangers who come into an Enemy's 
 country after a war has been begun and is known to 
 exist, may be treated as enemies, and those, who have 
 gone thither before the war has commenced, may by 
 
 ^ De Jure B. et P. L. III. * De Jure B. et P. L. III. 
 
 c. 2. § vii. 2. c. 4. § vi. vii. 
 
 citizens. 
 
COMMENCEMENT OP WAE. 83 
 
 the Law of Nations be taken for enemies after a 
 moderate time, within which they should depart." 
 All such persons are de facto subjects of the Enemy- 
 Sovereign, being resident within his territory, and are 
 adhering to the Enemy, so long as they remain within 
 his territory. If they, however, quit the Enemy's 
 territory with the intention of abandoning it, and 
 of resuming a permanent residence in the country of 
 their origin, they divest "themselves of the enemy- 
 character at once, upon so quitting the Enemy's 
 territory. It is otherwise, however, with the natural 
 born subjects of an Enemy-Sovereign ; they may ba 
 treated as enemies by the other belligerent wherever 
 he may find them, except they should be within 
 neutral territory, in which case it is the privilege of 
 the neutral Sovereign to prohibit aU violence being 
 offered to them. The neutral Sovereign has a right 
 to insist that all persons within his dominions, who 
 may have differences to settle, shall settle them in his 
 courts by a judicial proceeding and not by violence. 
 Thus Demophoon is represented as saying to the 
 ambassador of Eurysthenes, 
 
 " If you can charge these guests with an offence. 
 You shall have justice, but not drag them hence ^." 
 
 ^44. It is customary for the Government of a 
 country, at the commencement of a war, to issue an 
 edict or proclamation, whereby it notifies to its Sub- 
 jects the particular line of conduct, which they are to 
 pursue in regard to the Enemy. These edicts for the inhititiop 
 most part have reference to commerce and to personal cow with 
 intercourse of an amicable character, which it is usual ** enemy. 
 to inhibit except it be carried on under special licenses 
 or cartels. It is competent also for a belligerent Sove- 
 reign, at the commencement of a war to recall all 
 his natural born Subjects, who may be in the service 
 
 ^ Euripidis Heraclidae, 251, 252. 
 G 2 
 
84: COMMENCEMENT OF WAE. 
 
 Eeoaii of either of the Enemy or of any neutral Power, in order- 
 born sub- that they may take their share of duty in defending 
 •'*" ^' their native country. Edicts of both kinds, termed 
 Edicta inhibitoria and Edicta avocatoria*, were issued 
 by the Eoman Emperor of the Germans in 1792 and 
 in 1793''; and a long series of Edicts of the latter kind, 
 extending over a period of a century and a half (1548 
 to 1704), have been preserved in the Codex Augus- 
 teus Saxonicus Electoralis, 2310 — 2367^ The more 
 usual course in the present day is for a Sovereign 
 Prince not to recall his natural born Subjects, who 
 may be resident in an Enemy's country at the com- 
 mencement of a war, but to leave them free to re- 
 main, if they please, in their adopted country, subject 
 however to the inconvenience of being regarded and 
 treated as enemies so long as the war may last. 
 
 ^45. When a Nation takes up arms against an- 
 other Nation, it declares itself from that time an 
 Enemy to all the individual members of the latter, 
 and authorises them to treat it as such. If there- 
 fore regard be had to the Natural Law of Nations, 
 it would appear that as soon as two Nations are 
 engaged in war, all the Subjects of the one may 
 commit hostiUties against the Subjects of the other, 
 and do them all the damage which is authorised 
 by the practice of Nations towards Enemies. The 
 ancient Declarations of War were couched in language 
 of the most general character, under which every 
 Commia- Subject of the belligerent Sovereign was commanded 
 carry on to attack the Enemy, courir sus aux ennemis. But 
 hostilities, ^^g j^ii(jgj. practice of the Christian States of Europe 
 has confined the duty of undertaking active hostUi- 
 
 ' The "Jus avocandi cives ex Volkerrechts, § 277. 
 
 alieno territorio" has been dis- ' Von Martens, § 269. 
 
 cussed by various writers cited ^ Kliiber, § 240. 
 in Kamptz, Neue Literatur des 
 
COMMENCEMENT OF WAK. 85 
 
 ties against the Enemy to the commissioned officers 
 of the State, and soldiers or sailors serving under 
 them. " The necessity of a special order to act," 
 says VatteP, " is so thoroughly recognised, that even 
 after a Declaration of War has been made, if the 
 country people of themselves commit hostilities, the 
 Enemy treats them without any regard, and causes 
 them to be hung like so many robbers or brigands^". 
 The same course is pursued with respect to privateers 
 at sea. A commission from their Sovereign or his 
 admiral can alone, in case they are captured, ensure 
 them such treatment as is shown to prisoners taken 
 in regular warfare." We find, accordingly, that the 
 phraseology of modern Declarations of War has been 
 modified agreeably to a milder practice. Thus the 
 last formal Declaration of War on the part of Great 
 Britain, which was issued on 2 January 1762, 
 against Spain, ran in this form : " We will and re- 
 quire our Generals and Commanders of our forces, 
 our Commissioners for executing the office of our 
 High Admiral of Great Britain, our Lieutenants of 
 our several counties, Governors of our forts and 
 garrisons, and all other officers and soldiers under 
 them by sea and land, to do and execute all acts of 
 hostility in the prosecution of this war against the 
 king of Spain, his vassals, and subjects, and to 
 oppose their attempts, willing and reqiiiring all our 
 subjects to take notice of the same, whom we hence- 
 forth strictly forbid to hold any correspondence or 
 communication with the said king of Spain or 
 his subjects." Vattel holds that, where the ancient 
 form of language is retained in modern Declara- 
 tions -of War, Custom will control its interpretation. 
 The general order embodied in such Declarations 
 
 ' Droit des Gens, L. III. § 226. 
 '° Martens, Precis, § 271. Kluber, § 246. 
 
86 COMMENCEMENT OP WAR. 
 
 authorises indeed, and even obliges every Subject of 
 whatever rank to arrest the person and property 
 of the Enemy, when they fall into his hand ; but it 
 does not invite any Subject to undertake any offensive 
 expedition without a commission or special order^^ 
 Enemy- X , g_ After hostilities have been once commenced, 
 
 subject •> ~ , . , ' 
 
 within the the persous of enemies are liable to detention, and 
 ofabeiu- their property to confiscation, if they are within the 
 gerent. territory of a belligerent Power. The Eom an Law was 
 extremely harsh in this particular, for we find it to 
 have been considered to be settled law in the time 
 of the Emperor Justinian ^^, that the citizens of a 
 country, who had gone to another country in time 
 of peace, became slaves, if war broke out between 
 the two countries and they were seized within the 
 enemy's territory. "According to strict authority," 
 writes Chancellor Kent, " a State has a right to deal 
 as an enemy with persons and property so found 
 within its power, and to confiscate the property and 
 detain the persons as prisoners of war^^." Grotius 
 holds that such persons can only be detained as 
 prisoners of war until the termination of hostilities, 
 on the ground that it is justifiable to weaken the 
 power of the Enemy by detaining his Subjects whilst 
 war continues ; but upon the termination of hostilities, 
 there can be no reasonable objection to their being 
 set free, as they cannot be conceived to have done 
 anything wrong ^*. Bynkershoek, whilst admitting 
 
 " Droit des Gens, L. III. " In pace postliminium, nisi 
 
 § 227. Heffter, § 124. aliter convenerit, est Hs qui non 
 
 " Dig. XLIX. Lib. XV. § 12. virtute bellica superati, sed fato 
 
 Verum in pace qui pervenerunt sue deprehensi sunt, ut qui, 
 
 ad alteros, si bellum subito ex- cum bellum subito exarsit, apud 
 
 arsisset, eorum servi efficiuntur, hostes reperiuntur. L. ill. c. 9. 
 
 apud quos jam liostes suo facto § iv. i. At de his qui bello ex- 
 
 deprehenduntur. orto deprehensi erant, dici idem 
 
 " Kent's Commentaries, L. I. non poterat, nam in illis nullum 
 
 § 56. injurisB consilium fingi poterat. 
 
COMMENCEMENT OP WAR, 87 
 
 the Eight of a belligerent Power to seize and detain 
 enemy-subjects, who may be within his territory at 
 the commencement of war, speaks of that Eight as 
 being rarely exercised in his days^^. " Captura autem 
 quamvis apud Eomanos etiam exercita sit adversus 
 eos, qui tempore belli exoriuntis in alterius imperio 
 inveniebantur, hodie, quamvis exerceri possit, raro 
 tamen exercetur." Bynkershoek considers that the 
 exhibition of forbearance in regard to enemy-subjects, 
 under such circumstances, is a concession to hu- 
 manity, unless it should have been a "matter of 
 treaty-stipulation ; and that wherever there are 
 treaty-stipulations, whereby an interval of time is 
 secured to the Subjects of a belligerent Power to 
 enable them to withdraw themselves and their pro- 
 perty in safety out of the Enemy's territory, they 
 will rightly be made prisoners of war and their 
 property confiscated, if they should not have with- 
 drawn themselves from the Enemy's territory within 
 the time specified by treaty. 
 
 § 47. There are writers of eminence on the other Treaties of 
 hand, who have maintained that the series of treaties, 
 which stipulate for the allowance of a reasonable time 
 after the outbreak of war for the Subjects of a belli- 
 gerent Power to withdraw their -persons and property 
 out of the territory of an Enemy, are but affirmations 
 of Common Eight or Public European Law. Thus 
 Emerigon in commenting upon various modern treaties 
 of commerce, and amongst others upon the treaty con- 
 cluded between France and the United States of Ame- 
 rica (5 Feb. 1778), whereby it was provided that in 
 case of war breaking out between the two Nations, an 
 
 Tamen ad minuendas hostium Itaque consensum in hoc est, ut 
 
 vires retineri eos manente bello tales in pace semper libertatem 
 
 non iniquum videbatur ; bello obtinerent, ut confessione par- 
 
 autem composito nihil obtendi tium innocentes. Ibid. § iv. 3. 
 poterat, quominus dimitterentur. " Qusest. Jur . Publici, L. I. c. 3 . 
 
88 COMMENCEMENT OP WAK. 
 
 interval of six months after the Declaration of War 
 should be allowed to the merchants of either Nation, 
 Enemy- j^^ i\^q towns or cities which they inhabit, to collect 
 ■within the and transport their merchandise ; and that if they 
 lTeiiig^-° should suffer any damage or injury in the meanwhile 
 ^^^*" at the hand of the citizens or subjects of either of the 
 contracting parties, they should have full and entire 
 satisfaction^® — observes "that such treaties are nothing 
 more than declaratory of the Common Law. In effect," 
 he says, " he, who relying on the public faith, comes 
 amongst us to trade, or for other lawful cause, is not 
 to be treated as an enemy, simply because war breaks 
 out between his Nation and our own." Vattel to the 
 same effect says, " The Sovereign declaring war can 
 neither detain the persons nor the property of those 
 subjects of the Enemy, who are within his dominions 
 at the time of the declaration. They come into his 
 country under the public faith. By permitting them 
 to enter and reside in his dominions, he tacitly pro- 
 mised them fuU liberty and security for their return. 
 He is therefore bound to allow them a reasonable time 
 for withdrawing with their effects : and if they stay 
 beyond the term prescribed, he has a right to treat 
 them as enemies — as unarmed enemies, however. But 
 if they are detained by an insurmountable impedi- 
 menti or by sickness, he must necessarily, and for the 
 same reasons, grant them a sufficient extension of the 
 term. At present, so far from being wanting in this 
 duty. Sovereigns carry their attention to humanity 
 still further ; so that foreigners, who are subjects of 
 the State against which war is declared, are very 
 
 1* Martens, Eecueil, II. p. 596. il sera accordd six mois aprfes la 
 
 Afin de promouvoir d'autant declaration de guerre aux mer- 
 
 mieux le commerce des deux chands dans les villes et cit^s 
 
 c6tds, il est convenu que, dans le qu'ils habitent, pour rassembler 
 
 cas oil la guerre surviendroit et transporter leurs merchan- 
 
 entre les deux nations sus-dites, dises. Art. XX. 
 
COMMENCEMENT OF WAR. 89 
 
 frequently allowed full time for the settlement of 
 their affairs. This practice is observed more espe- 
 cially with regard to merchants, and care is moreover 
 taken to provide for their case in commercial treaties. 
 The king of England has done more than this. In 
 his last Declaration of War against France, he ordered 
 that all Frenchmen, who were in his dominions, might 
 remain there in perfect security in regard both to 
 their persons and their property, provided they de- 
 meaned themselves dutifully^'." Vattel's observations 
 are applicable also to the next following formal De- 
 claration of War made by England (2 Jan. 1762), 
 against Spain; the concluding paragraph of which was 
 to this effect : " And whereas there may be remaining 
 in our kingdom divers of the subjects of the king of 
 Spain, we do hereby declare our Eoyal intention to be 
 that .all the Spanish subjects, who shall demean them- 
 selves dutifully towards us, shall be safe in their per- 
 sons and effects ^^" 
 
 § 48. If the observations of Emerigon and Vattel are 
 limited to the natural born subjects of an Enemy, who 
 have established themselves for the purposes of trade 
 in the country of a belligerent Power before the 
 breaking out of war, much may be said in favour of 
 their view, that such parties cannot be at once treated 
 as enemies by the belhgerent Power with due regard Obligation 
 to good faith. They are clearly distinguishable fromfeufh." 
 natural born subjects of the Enemy, who are within the 
 jurisdiction of the belligerent Power at the commence- 
 ment of a war casually as visitors for the purpose of 
 
 " Droit des Gens, L. III. c. against Spain is set fortli at 
 
 4. § 63. Vattel published his length in the appendix of Dr. 
 
 work in 1758, he is therefore re- Pratt's edition of Mr. Justice 
 
 ferring to the English Declara- Story's Notes on the Principles 
 
 tion of War against Prance of 17 and Practice of the Prize Courts. 
 
 May 1756. London, 1854. 
 
 1* This Declaration of War 
 
90 COMMENCEMENT OF WAU, 
 
 trade or pleasure. A foreigner who has established a 
 house of trade in the country of a belligerent Power, 
 has given security as it were for his good behaviour, 
 and is contributing by his industry and capital to 
 promote the welfare of the country, which he inhabits, 
 equally with its natural born citizens. The Govern- 
 toent of the country, on the other hand, having per- 
 mitted him to establish himself under its jurisdiction 
 by the side of its natural born subjects, must be taken 
 to have accorded its protection to him, as an adopted 
 subject, equally as to its native subjects. It is obvi- 
 ous therefore that the personal relations of such an 
 individual to the Sovereign of the country in which 
 he has established himself, are substantially different 
 from the personal relations of foreigners in transitu : 
 and that there is a tacit contract between him and the 
 Sovereign, that as long as he obeys his laws, the latter 
 will accord to him his protection ; but his relations of 
 strict Eight {stricti juris) towards the Sovereign of the 
 country in which he has established himself, will be 
 determined by the Territorial Law, of which he was 
 bound to inform himself when he first established 
 himself in the country. The Territorial Law of every 
 Nation, for instance, prescribes for the most part cer- 
 tain conditions, under which a foreigner may become 
 a naturalised subject or citizen, and as such have 
 within its territory all the rights and privileges of a 
 natural born subject in time of war, equally as in time 
 of peace. But if a foreigner, resident within the terri- 
 tory of any particular Nation, should not have been 
 naturalised in conformity with the requirements of its 
 Territorial Law, his personal status will continue to be 
 that of an alien, and if war should arise between his 
 native country and the country in which he has estab- 
 lished himself, his personal relation with the latter 
 country will be that of an alien enemy. An indepen- 
 
COMMENCEMENT . OF WAR. 91 
 
 dent Power under such circumstances will be justified 
 in case of war, in the exercise of its strict Right, to 
 order him, with all other alien enemies, to quit its 
 dominions, although he may have estabhshed him- 
 self therein hona fide for purposes of trade, and 
 have acquired a commercial domicil under the Law 
 of Nations. But in exercising his strict Eight, a 
 belligerent Sovereign must observe good faith towards 
 such persons, and allow them a reasonable interval of 
 time to collect and transport their goods and effects. 
 It would be inconsistent altogether with good faith to 
 treat them in a summary manner as enemies, unless 
 the public safety imperatively required it, — as, for in- 
 stance, if they should be in league with the Enemy, 
 and be preparing to co-operate with an invading army. 
 In such a case there would be bad faith on their part, 
 and the Sovereign of the country might at once ex- 
 ercise his extreme Right, as a belhgerent, against them 
 with perfect good faith on his part. 
 
 § 49. It may be affirmed, that there is now a long 
 established Practice amongst the Christian Powers of 
 Europe, from which it would be an immoral act for 
 any of them to depart without notice, to refrain from 
 seizing the effects of ahen merchants, who are resident 
 for purposes of trade within their territory at the time 
 when war breaks out. It was one of the provisions 
 of the Great Charter of King John (15 June 12 15), 
 that "all merchants (unless publicly prohibited 
 beforehand) might have safe conduct to depart from, 
 to come into, to tarry in and go through England 
 for the exercise of merchandise, without any un- 
 reasonable impost, except in time of war ; and that 
 upon the breaking out of war with their Nation they 
 should be attached (if in England) without harm of 
 body or goods, until the King or his great Justiciary 
 be informed how English merchants are treated in 
 
92 COMMENCEMENT OF WAE. 
 
 the Enemy's country ; and if English merchants are 
 
 secure, then the enemy merchants should have the 
 
 Ancient same security ^^." The early practice of England 
 
 practice of t , ^ , ^ i j_ t 
 
 Provisional wouid thus appear to have been to embargo enemy 
 m argo. ]]Qgj.(;}ja,nts at the commencement of the war, and to 
 release them subsequently on conditions of reciprocity 
 being observed. Such also seems to have been the 
 practice of the Scandinavian Nations^" ; and a passage 
 in Mattheyr Paris seems to show that it had been the 
 ancient practice of the kings of France not to seize 
 the persons or goods of enemy merchants, who were 
 resident within their dominions when war broke out, 
 as he censures the conduct of Louis IX. of France in 
 1242, in arresting the persons and goods of the 
 English merchants trading within the kingdom upon 
 the breaking out of war, as contrary to duty and 
 derogatory to the ancient dignity of the kingdom. 
 Henry III. of England, on hearing of the king of 
 France's severity, immediately retaliated by reprisals 
 against the persons of French merchants resident ia 
 England ^^ 
 
 Whatever may have been the practice of France in 
 the thirteenth century, it seems probable that the 
 interests of international commerce had not at that 
 period given rise to any fixed rule amongst Nations. 
 But we find in the middle of the fourteenth century 
 (a.d. 1354), that it was an express provision of the 
 Law of England, that foreign merchants residing 
 
 ^' Blackstone's Commentaries, facto antiquam Gallise dignita- 
 
 Vol. I. p. 260. tem. Cum autem hujus pro- 
 
 ™ Stiernhobk de Jure Sueo- tervitatis infamia aures et cor 
 
 num, L. Ill, c. 4. Eegis Anglise tetigisset, jussit 
 
 ^^ EexPrancorum mercatorum similiter ut per regnum Anglo- 
 
 Anglise corpora cum suis bonis, rummercatoresregniGallisesub- 
 
 per regnum negotiantium, secus irent merito talionem. Matth. 
 
 quam decuit, capi feraliter im- Paris, Hist. p. 483. 
 peravit, Isedens enormiter in hoc 
 
COMMENCEMENT OF WAE. 93 
 
 in England^^, when war broke out, should have con- 
 venient warning of forty days, by proclamation, to 
 depart the realm with their goods ; and if by reason 
 of accident they should be prevented from so doing, 
 they were to be allowed forty other days to pass with 
 their merchandise^ with liberty to sell the same. The 
 example of England in this matter was soon after- 
 wards followed by King Charles V. of France, when 
 he issued an ordinance declaring that foreign mer- 
 chants who should be trading in France at the time 
 of the Declaration of War, should have nothing to 
 fear, for they should have Hberty to depart freely 
 with their effects ^^. 
 
 § 50. In the fifteenth century the importance of Enemy- 
 international commerce began to be generally appre- resident in 
 dated by Governments, more particularly as the Con- ^^^ *^™" 
 federation of the Hanse Towns gave great political belligerent, 
 weight to mercantile interests; and we find accord- 
 ingly a treaty concluded between the Hanse Towns 
 and Louis XI. of France (anno 1483) under which 
 merchants of the Hanse Confederation were to be at 
 liberty to remain in the French dominions for one 
 year after war broke out, with protection of persons 
 and goods. In the next century it came to be a 
 common stipulation in treaties of commerce, that a 
 period of time, varying from three months to two 
 years^*, should be allowed to the subjects of the con- 
 tracting parties, after war should have been declared, 
 to withdraw themselves and their goods and effects 
 in safety from the enemy's country. France seems to 
 have been eminently the leading Power in entering 
 into such treaties ^^ Thus we find a treaty concluded 
 
 22 Statute of Staples, 27 Ed. L. I. p. 338. 
 
 III. c. 17. ■ ^* Dumont, Corps Diplom. 
 
 ^^ H^rault, Abr^g^ Chronolo- L. III. p. 23. 
 
 gique de I'Histoire de la France, ^^ In the treaty between Per- 
 
94 COMMENCEMENT OP WAR. 
 
 in 1662 between France and the States General of 
 the United Provinces, under which an interval of six 
 months was to be allowed to the subjects of either 
 of the contracting parties, if war should arise between 
 them, to withdraw with their goods and effects from 
 the Enemy's country. A treaty in Hke terms was 
 concluded not long afterwards, between England and 
 the States General (31 July 1667). Where there 
 were no such treaty engagements, all that good faith 
 could require was, that a reasonable time should be 
 allowed for merchants to withdraw from an Enemy's 
 country. We find accordingly that Louis XIV. of 
 France, in declaring war against England on 26 
 January 1666, being under no treaty engagements 
 with that Power to allow anv definite time to 
 English merchants to withdraw from his dominions, 
 issued nevertheless a Proclamation (i Feb. 1666), 
 to the effect that " his Declaration of War was not 
 intended to operate against those individuals of the 
 English Nation who might be resident in France with 
 peaceful intentions, but that they might withdraw 
 in safety with their goods and effects within three 
 months, saving always to such individuals, as might 
 have become naturalised, the right of remaining in 
 France as French subjects." It would appear from a 
 long series of precedents too numerous to be cited 
 in detail, that the obligation of good faith towards 
 resident foreigners has been acknowledged by the 
 practice of beUigerent Powers to operate as a re- 
 striction upon the exercise of their summum jus, as. 
 
 tugal and the States General So long an interval is accounted 
 
 (6 Aug. 1660) it is provided for by the circumstance, that one 
 
 " that the subjects of either or both of the contracting parties 
 
 power, if war should break out had colonies or dependencies in 
 
 between them, shall have two the East or West Indies, 
 years to withdraw their goods." 
 
COMMENCEMENT OF WAR. 96 
 
 belligeretts, to seize and detain them as enemies upon 
 the ottbreak of war. It is otherwise, however, with 
 foreigners, who are in transitu, and happen to be 
 within the territory of a belligerent Power at the time, 
 when war has been commenced against the Sovereign, 
 to whom they owe allegiance. Between such persons 
 and the Government of the country, in which they 
 may happen to be, there is no such implied contract 
 as exists in the case of foreigners, who have been 
 permitted by its laws to establish themselves within 
 its territory on- the sahae footing for purposes of 
 trade as its natural born subjects. 
 
 I 5 1 . The exercise of the summum jus of a belli- Enemy- 
 gerent in regard to enemy-subjects in transitu is not |^ iranluu. 
 altogether obsolete, although it may be regarded as a 
 (natter of Comity between belligerent Powers to re- 
 frain from seizing and detaining, as prisoners, any 
 enemy subjects whatsoever, who may happen to be 
 within their respective dominions at the outbreak of 
 war, if they conduct themselves without offence. A 
 remarkable exception to this Comity took place upon 
 the commencement of war between England and 
 France in 1803, when the First Consul issued an 
 ordinance that "all the English- from the age of Detention 
 
 • 1, ,•, 11T • • /> of British 
 
 eighteen to sixty, or holding any commission Irom subjects in 
 his Britannic Majesty, who are at present in France, f^^^^^^ 
 be constituted prisoners of war, to answer for those Consul in 
 citizens of the Republic,, who may have been arrested 
 and made prisoners by the vessels or subjects of his 
 Britannic Majesty previous to any Declaration of 
 War." This ordinance bore date 22 May 1803, and 
 purported to be issued on a Report received on that 
 very day from the Maritime Prefect at Brest, an- 
 nouncing that "two English frigates had taken two 
 French merchant vessels in the Bay of Audierne 
 without any_ previous Declaration of War, and in 
 
96 COMMENCEMENT OF WAR. 
 
 manifest violation of the Law of Nations. It appears 
 that the British Ambassador, by order of his Go- 
 vernment, had demanded his passports and left Paris 
 on the 12 th of May, the British Government had 
 issued Letters of Marque and Eeprisal on the 1 6th of 
 May, and his Britannic Majesty had sent a message 
 to Parliament on the 1 8th of May : on the other 
 hand, the French Ambassador had left Dover on the 
 1 8th of May, and the First Consul had sent a mes- 
 sage to the Senate on the 20th of May, announcing 
 that the negotiations with Great Britain were broken 
 off, and that France was ready for the combat if she 
 was attacked ^l It can hardly be disputed, that under 
 these circumstances the capture of the French mer- 
 chant vessels by the British frigates, which took place 
 on the 20th of May, was an act of War lawfully com- 
 menced. It is also clear that the commencement of 
 actual hostilities without any formal Declaration of 
 War on either side was contemplated • by the French 
 Government, for the French Minister of Marine had 
 already issued Letters of Marque against Great Bri- 
 tain^' on the 2 1st of May, before the French Govern- 
 ment received the announcement of the capture of the 
 French vessels by the British frigates. Great Britain 
 had by her own act undoubtedly given rise to a state 
 
 ^^ Les negotiations sent inter- for distribution. The letters 
 
 rompues, et nous sommes prSts were to be sent in blank, so that 
 
 k combattre, si nous sommes at- no time might be lost in doing 
 
 taquds. Message au Sdnat 30 all the damage possible to Eng- 
 
 Floreal an. xi. (20 May 1803.) lish commerce. Ces lettres 
 
 — Correspondence de Napoleon, seront donndes en blanc, pour 
 
 VIII. p. 320. qu'ils puissent ^tre I, m^me de 
 
 ^' There is a letter of 2 1 May profiter de toutes les pccasions, 
 
 1803 from the First Consul to et de ne perdre aucun moment 
 
 the Contre-Amiral Decres, Min- pour faire au commerce Anglais 
 
 ister of Marine and of Com- tout le tort possible. Corre- 
 
 merce, requesting him to send spondence de Napoleon, VIII. 
 
 twenty-four letters of marque to p. 321. 
 various French General Officers 
 
COMMENCEMENT OP WAR. 97 
 
 of war between the two Nations on the 20th of May, 
 and the First Consul was entitled to use the Eight 
 of a belligerent Power towards British subjects after 
 the capture of the French merchant vessels, but not 
 in the way of extraordinary Reprisals, such as he di- 
 rected to be executed throughout the Italian Re- 
 public^®, as well as throughout France, inasmuch as 
 the act of the British Government involved neither 
 in form nor in substance any departure from the 
 practice, which had been observed in previous wars 
 between Great Britain and France ^^ M. Thiers ^° 
 has represented the First Consul to have originally 
 intended to arrest all the English indiscriminately, 
 but to have given way to the urgent remonstrances 
 of the Minister Cambacerfes, and to have so far 
 modified his original purpose, as only to order the 
 arrest of such British subjects as were serving in the 
 Militia ^\ or held some commission from the British 
 Government. But this statement of M. Thiers is 
 
 ^* Toutes les Marchandises First Consul, and pointed out to 
 
 Anglaises qui se trouveront dans him that there were women and 
 
 la Rdpublique Italienne seront childreu and old men and mer- 
 
 confisquees au profit de la Kd- chants amongst them, and that 
 
 publique, et tous les Anglais qui many of them had remained in 
 
 s'y trouveront, sdront arrdt^s et Paris, trusting to tlie express 
 
 constitufe prisonniers de guerre, assurances of the Minister of 
 
 (Letter of the First Consul to Foreign Affairs, that they would 
 
 Citizen Marescalchi, Minister of be in perfect security. 
 
 Foreign Affairs for the Italian '" Histoire du Consulat et de 
 
 Republic, 2 Prairial an. XI. (22 I'Empire, Tom. IV. p. 348. 
 
 May 1803.) Correspondence de '^ The Duchesse d'Abrantes 
 
 Napoleon, Tom. VIII. p. 322. represents Napoleon to have 
 
 "' Madame la Duchesse d'A- yielded to the remonstrances of 
 
 brantes, in her Memoirs of Na- Cambac^rfes, so far as to allow 
 
 poleon, (Tom. VI. p. 403.) nar- the English, who were arrested, 
 
 rates the particulars of the in- to be at large on their parole in 
 
 terview between the First Consul the towns, to which they were 
 
 and her husband, General Juriot, confined as prisoners ; and when 
 
 when the First Consul ordered Junot expressed by his looks his 
 
 General Junot to arrest all the surprise at Napoleon declaring 
 
 English without any exception, that he would use his Eight 
 
 The latter remonstrated with the against them, as Prisoners of 
 PART II. , H 
 
98 COMMENCEMENT OP WAR; 
 
 not consistent with the language of the Ordinance 
 itself, or with the facts which attended its execution ; 
 for the orders, issued under the hand of the First 
 Consul himself, and which are to be found amongst 
 his published correspondence, were to arrest all 
 English subjects without any distinction ; and ten 
 thousand British subjects of all classes indiscrimi- 
 nately were seized and detained as prisoners of war, 
 many of whom were even thrown into prison, from 
 which they were not liberated until the allied ar- 
 mies entered France in 1814. The conduct of the 
 French Consul on this occasion must be regarded as 
 altogether exceptional to the modern practice of 
 Nations. Repiisals for the capture of the French 
 vessels was the colourable pretext for his measures, 
 but they were in reality prompted by the exag- 
 gerated, if not false, reports of the French police, 
 that the British subjects, who had been allowed to 
 remain in Paris, were' plotting against the French 
 ConsuP^. An American jurist, in commenting upon 
 the Ordinance of the First Cor.sul, observes that the 
 Law of Retaliation would hardly seem to require, or 
 even to justify, a resort to means so unusual and 
 odious, although within the extreme hmits fixed by 
 the ancient and severer rules 'of war'^. 
 
 § 52. "Although," writes Kliiber, "the Natural 
 Law of Nations does not forbid us to use force 
 against the Subjects of an Enemy-Sovereign, wherever 
 they may be found, yet the usage of war, as estab- 
 lished in Europe, restricts the exercise of this Na- 
 tural Eight in regard to those Subjects, who cannot 
 be regarded personally as having taken any part in 
 
 War, Napoleon exclaimed, Oui, ''' Memoires de Madame la 
 
 prisonniers de la guerre. Ne font Duchesse d'Abrantes, vol. I. 
 
 ils pas partie des milices du Eoy- p. 406. 
 
 aume? Memoires de Madame la ^^ Halleck's International Law, 
 
 Duchesse d'Abrantes, p. 410. p. 362. 
 
COMMENCEMENT OP WAE. 99 
 
 the offence whicli has given rise to war, nor as 
 taking any part in hostilities/'' Accordingly it is 
 very rare that any measures of rigour are employed 
 against the latter class of Enemy-Subjects beyond 
 what the necessities of war require in order to prevent 
 them ranging themselves on the enemy's side, and 
 augmenting his active force. In accordance with Modem 
 these principles, the subjects of a sovereign, who has nouo^de- 
 become an enemy, are permitted freely to return to *X-ecte™^* 
 their country after a certain delay, and sometimes 
 they are permitted by a belligerent Power to con- 
 tinue altogether in its territory without molesta- 
 tion^*. Heffter to the same purport writes, "that 
 Enemy-Subjects, who are found within the territoiy 
 of a belligerent Power at the commencement of war, 
 ought to be allowed an internal of time to depart. 
 Circumstances nevertheless may render a temporary 
 detention of them necessary, in order to prevent them 
 communicating to their fellow countrymen the plans of 
 the belligerent^^" Lord Stowell, in commenting upon 
 the modifying iniluence which the practice of Nations 
 has exercised on the Natural Eight of belligerents, 
 observes, " that on mere general principles it is lawful 
 to destroy yoiir enemy, and mere general principles 
 make no great difference as to the manner in which 
 this is to be effected ; but the conventional law of 
 mankind, which is evidenced in their practice, does 
 make a distinction, and allows some and prohibits 
 other modes of destruction ; and a belligerent is boimd 
 to confine himself to those modes, which the common 
 practice of mankind has employed, and to relinquish 
 those which the same practice has not brought within 
 the ordinary exercise of wai', however sanctioned by 
 its principles and purposes'^." It may be said in like 
 
 °' Kliiber, § 246, 247. '^ Heffter, § 126. ii. 
 
 "^ The Fladoyen, i Ch. Bob. p. 140. 
 
 H 2 
 
100 COMMENCEMENT OF WAR. 
 
 manner that the exercise of the Eight of a belligerent 
 Power at the commencement of war to seize as prison- 
 ers of war all Enemy-Subjects within its territory, 
 although it may have been in ancient times conform- 
 able to the practice of Nations, and in restraint of the 
 Natural Eight of a belligerent to put his enemies to 
 death, has undergone further restraint, with the in- 
 creased intercourse of Nations in time of peace ; and 
 that such Eight may not be exercised in the present 
 day by any belHgerent Power without an odious de- 
 viation from a milder practice, to which all belligerents 
 are bound in good faith to conform themselves. 
 
 ^53. The exercise of the Eight of a belligerent 
 Power to seize and confiscate all enemy's goods found 
 within its territory at the commencement of war, has 
 likewise undergone considerable modification ; as it is 
 not the practice to seize and confiscate the goods of 
 an enemy which are on land, nor the debts contracted 
 Debts due by the belligerent Power or by its Subjects with 
 subjects, the enemy before war broke out. " Between debts 
 contracted under the faith of laws, and property 
 acquired in the course of trade, reason draws no dis- 
 tinction ; a,nd although, in practice, vessels with their 
 cargoes found in port at the declaration of war may 
 have been seized, it is not believed 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 is the language of a most 
 eminent American Jurist, Chief-Justice MarshalP'. 
 
 § 54. Mr. Justice Story, on the other hand, seems to 
 impugn the suggestion that the exercise of the right 
 of seizure and confiscation has become modified by 
 usage, although he admits that the exception made 
 by Vattel, namely, that the Sovereign in declaring 
 war can neither detain the persons nor the property 
 
 " Brown v. the United States, 8 Cranch, p. 123. 
 
COMMENCEMENT OF WAE. 101 
 
 of those subjects of tlie enemy, who are within his 
 dominions at the time of the declaration, because 
 they come into them upon the public faith ^^ "is 
 highly reasonable in itself, as confined to the pro- 
 perty of persons who are within the country." But 
 even limited as it is, he says, it does not seem fol- 
 lowed in practice ; and Bynkershoek is an authority 
 the other way^^ But Mr. Justice Story, in illus- Opinion of 
 trating the exercise of hostile Eight, the summum jus, story. 
 in such matters, does not allege any other instances 
 than those in which enemy-vessels and cargoes found 
 afloat in the ports of a belligerent at the commence- 
 ment of war have been embargoed, and ultimately 
 confiscated as prize of war. " Of the Eight of a State 
 to seize vessels and cargoes found in her ports on the 
 breaking out of war, I do not find," he says, " any 
 denial in authorities which are entitled to much 
 weight ; and I therefore consider the rule of the 
 Law of Nations to be,, that every such exercise of 
 authority is lawful, and rests on the sound discretion 
 of the Sovereign." It will be seen then that Mr. 
 Justice Story maintains in practice nothing beyond 
 the limited exercise of hostile Eight in regard to 
 enemy's property, which may be afloat in the ports of 
 a belligerent Nation at the commencement of war, 
 and in the exercise of which Right, as perfectly lawful 
 under the Admiralty jurisdiction, all jurists concur. 
 But when Mr. Justice Story goes further, and holds 
 that a belligerent Power may lawfully authorise the 
 confiscation of enemy's property, whenever by the 
 rigour of the Law of Nations it may be rightfully 
 seized ; and that however odious it may be deemed 
 in modern times, a belligerent Power has the Eight 
 to confiscate all debts due from its own subjects to 
 
 ^ Vattel, Droit des Gens, '' Bynkershoek, Qusest. Jiir. 
 
 L. IIL c. ly. § 63. Pub. L. I. c. 11, iii, vii. 
 
102 COMMENCEMENT OP WAE. 
 
 enemy-subjects, it becomes necessary to distinguish 
 between the existence of a Eight, which by the rigour 
 of the Law of Nations is inherent in the Sovereign 
 Power of every independent State, and the exercise 
 of that Eight as it is controlled by the usage of Na- 
 tions. There may be a warrant of Natural Right 
 for the Executive Government of every belligerent 
 State to confiscate enemy's property, in whatever form 
 it may be, if it is found in a place which is subject 
 to its sovereignty; and yet there may be a restraint 
 imposed by the usage of Nations upon a belHgerent 
 State exercising its extreme Eight of Sovereignty 
 in certain cases, which restraint it cannot disregard 
 consistently with good faith. 
 
 The rules of law, which Courts are bound to admini- 
 ster, are not always identical with the rules of conduct, 
 which Nations are bound to observe in their inter- 
 coxurse with one another. The functions of the judi- 
 ciary body in every State are defined by the Sovereign 
 Power of the State, in regard to the law which they 
 are called upon to administer : so likewise the judicial 
 tribunals may be limited and controlled in their field 
 of view by the executive authority, or by the terri- 
 torial legislature ; and it is not within the province 
 of the judiciary body to criticise or call in question 
 the good faith of the State, if it has authorised it 
 to administer the summum jus of belligerents. But 
 as between Nations Good Faith must be upheld at 
 the sacrifice of absolute Eight ; and if it should be 
 inconsistent with International Good Faith for a 
 State to exercise the summum jus of a belhgerent 
 in certain matters, it would be against the modern 
 Law of Nations for a State to authorise its Courts to 
 administer the summum jus of a belligerent in such 
 matters. Mr. Justice Story seems to consider, that 
 foreign Nations, with whom there is not a treaty to 
 
COMMENCEMENT OF WAR. 103 
 
 the contrary, could only complain of such, an act 
 as a violation of the modern policy; but this matter 
 seems to rest upon more solid foundations than those 
 of mere policy. Mr. Justice Story holds, and in this 
 respect he has the concurrence of all jurists, that if 
 a Nation has stipiilated ia a treaty of commerce 
 "with another Nation that, if war should break out 
 between them, they will mutually refrain from exer- 
 cising their extreme Eights as belligerents in certain 
 matters, either Nation v/ould have just ground of 
 complaint, if the other should not conform its conduct 
 to the treaty stipulations ; but in maintaining this 
 position Mr. Justice Story concedes the whole ques- 
 tion, and upholds the obhgation of Good Faith at 
 the sacrifice of Absolute Eight ; for war terminates, 
 or at least suspends, the obligations of commercial 
 treaties, as such, and no obligation remains after the 
 breaking out of war, but that of Good Faith, to bar 
 the exercise of all the Eights on the part of Nations, 
 which a State of War gives rise to. Treaty stipula- 
 tions in such matters only serve to give greater 
 precision to the obligations of Good Faith ; but they 
 are not necessary to create those obligations, which 
 may arise, and will be equally binding without any 
 written specification of them*'. A specific contract 
 in fact differs only from an impUed contract in the 
 mode of proof*'. 
 
 ^55. The Eight of a belligerent Power to confiscate 
 debts contracted by itself or by its Subjects in time of 
 peace with individuals, who by the breaking out of 
 war have become clothed with an enemy-character, 
 
 *° The case of Brown v. the chusetts. The Emulous, i Galli- 
 United States, 8 Cranch, p. 121, son, p. 136. 
 was an appeal to the Supreme *^ Chief-Justice Erie, in Ken- 
 Court of the United States, from nedy v. Broun, Queen's Bench, 
 a judgment of Mr. Justice Story Jan. 16, 1863. 
 in the Circuit Court of Massa- 
 
104 COMMENCEMENT OF WAE. 
 
 rests very much upon the same principle, as the right 
 of confiscating the property of enemy-subjects which 
 is found in the country of a belUgerent at the com- 
 
 Chanoeiior mencement of war. Mr. Chancellor Kent however con- 
 siders that the objection to the right of confiscation 
 in the case of debts is much stronger than the objec- 
 tion to the right of confiscating the tangible property 
 of an enemy. It may be conceded that if the ex- 
 treme right of a belligerent is to be exercised against 
 an enemy, the latter is in strict right absolutely at 
 the mercy of his adversarj^ ; and no limits can be set 
 to the exercise of the swmmum jus, than those which 
 compassion for the vanquished may suggest. But 
 war is not carried on in this spirit between Christian 
 Nations. It has been the constant effort of the wise 
 and the good amongst statesmen, whose more especial 
 province it has been to regulate the intercourse of 
 Commonwealths, to mitigate the exercise of hostile 
 Eight between Nations ; and wheresoever the practice 
 of Nations has, under their influence, restrained the 
 exercise of the summum jus, individual Nations can- 
 not revive its exercise wdthout a violation of good 
 
 Vattei. faith. Yattel, who considers that the summum jus 
 of a belligerent warrants the confiscation of debts due 
 to his adversary, says, " At present, a regard to the 
 advantages and safety of commerce has induced all 
 the Sovereigns of Europe to act with less rigour in 
 the subject of confiscating debts due from their 
 subjects to an enemy. And as the custom has been 
 generally received, the Sovereign who should act con- 
 trary to it Avould violate public faith ; for strangers 
 have trusted his subjects only from a firm persuasion 
 
 'h'o^k^'^' *^^* *^® general custom would be observed*^." Bjm- 
 kershoek is the only jurist of eminence who holds it 
 to be a matter of Common Eight for a belligerent 
 Droit des Gens, Lib. III. c. v. § ^^. 
 
 Vi 
 
COMMENCEMENT OF WAR. 105 
 
 Sovereign to confiscate upon the outbreak of war 
 the debts due from himself or his Subjects to the 
 Enemy. There are however passages in Grotius and 
 Puffendorf, which are frequently cited as being in 
 accordance with Bynkershoek's views, but these pas- 
 sages, if carefully examined, will be found to bear 
 upon another subject — namely, the right of a belH- 
 gerent, who is in possession of an enemy's country 
 by Right of Conquest, to appropriate to himself the 
 debts due from neutral Nations to the Enemy whom 
 he has conquered, as well as the tangible property of 
 the Enemy. The instance which is given by both 
 those writers is that of Alexander the Great, who by 
 conqifest had become master of the City and State of 
 Thebes, and thereupon remitted to the Thessalians a 
 debt due from them to the Thebans. In this case the 
 conqueror in the war considered himself to have suc- 
 ceeded, by Right of Conquest, to the title of the con- 
 quered State to exact or remit the debt due to it 
 from the Thessalians. Now Grotius holds this trans- 
 action to have been well founded in Right, on the 
 ground of the absohite conquest and subjection of the 
 City and State of Thebes : " Nam qui dominus est 
 personarum, idem et rerum est, et juris omnis quod 
 personse competit*^." But it is one thing to claim 
 dominion over incorporeal Rights which are annexed 
 to corporeal things, such as cities or countries, by 
 reason of such corporeal things being reduced into 
 our possession by conquest, and another thing to 
 claim dominion over incorporeal Rights belonging to 
 persons, more especially when such persons have not 
 been made captive. 
 
 ^56. It is a weU understood position of Law, that 
 if a subject of any commonwealth be taken by an 
 
 ^^ L. III. c. vm. tit. iv. § 2. nee in potestate habet, qui nou 
 Qui jjossidetur, non possidet sibi, est suae potestatis. 
 
lOG COMMENCEMENT OF WAR. 
 
 enemy, his goods, which were not taken with hiin, 
 
 are not acquired by tlie conqueror, but fall to him 
 
 who would have been his heir at law, if he had died 
 
 Judgment a natural death". "How then," asks Lord Ellen- 
 
 Eiien- borough, " can things belonging to a person who has 
 
 WoW^b' '" ^'^^ ^®^^ made captive, be legally acquired by an 
 
 Oxhoim. enemy, who is not a conqueror either as to the person 
 
 or the thing V 
 
 Lord EUenborough, on the occasion of making the 
 above observation, was delivering the judgment of 
 the Court of Queen's Bench *^ (anno 1817,) in a suit 
 brought by a British subject against a Danish subject 
 for a debt, which the latter alleged to have been con- 
 fiscated by the Danish Government under an •Ordi- 
 nance issued by it at the commencement of war with 
 Great Britain in 1807. On this occasion Lord Ellen- 
 borougli said that the Court had been unable to dis- 
 cover that there ever was a time when it was the 
 general practice of Nations to confiscate debts ; that, 
 although Bynkershoek had cited some instances of 
 such confiscations in the sixteenth and seventeenth 
 centuries, and there was a solitary decision about the 
 middle of the sixteenth century by a Court in Paris 
 against a Fleming, who was suing a Frenchman to 
 recover from him a debt which he had paid into the 
 French Treasury in obedience to a French decree 
 during war between the two Nations, yet there was 
 not a single instance of such a confiscation to be found 
 for something more than a century, whilst the right 
 was not recognised by Grotius, and was impugned by 
 PufiFendorf and others. The Court accordingly held 
 that, as the Danish Ordinance was not conformable 
 to the usage of Nations, it was not bound to pay 
 regard to it. Lord Alvanley, in the case of Furtado 
 
 " Puffendorf, L. VIII. c. 6. « Wolff v. Oxholm, 6 Maule 
 
 § 22. and Selwyn, p. 92. 
 
COMMENCEMENT OF WAR. 107 
 
 V. Eogerg, 3 Bosanqnet and Puller, p. 191, said, 
 "With respect to the argument, that all contracts 
 made with the enemy accrue to the benefit of the 
 King during war, and that he may enforce payment 
 of any debt due to an alien enemy from any of his 
 subjects, we think it is not entitled to much weight. 
 Such a course of proceeding never has been adopted, 
 nor is it probable that it ever will be adopted, as well 
 from the difficulties attending it, as from the disincli- 
 nation to put in force the Prerogative." It is worthy 
 of remark that even Bynkershoek *^ admits that there 
 were doubts in his time whether the incorporeal rights 
 of an enemv could be confiscated bv a bellifrerent ; 
 _and he cites an instance of the States General (6 July 
 1673,) refusing to pay regard to an Ordinance of 
 the Freiich King, which confiscated certain debts due 
 from French subjects to subjects of the States General. 
 Mr. Justice Story is therefore not strictly warranted 
 in affirming that down to the year 1737*'' it may be 
 considered as the opinion of jurists, that the right of 
 a belligerent to confiscate debts due to his enemy 
 at the commencement of war was unquestionable. 
 This eminent jurist does not in either of his elabo- 
 rate judgments*® take any notice of the decision of 
 the Court of King's Bench at Westminster in Woltf 
 V. Oxholm. Mr. Chancellor Kent, on the other hand, 
 refers to that judgment in a note, and admits that 
 the weight of modern authority and of argument is 
 against the claim of Right on the part of a belligerent 
 
 *^ De incorporalibus tamen, ut Qusestiones Juris Publici ; but 
 
 «unt actiones et credita, dubi- Mr. Wheaton aptly remarks that 
 
 tari video, et dubitasse, quin et Bynkershoek adduces no prece- 
 
 aliquando contradixisse nostros dent later than the year 1667, 
 
 ordines. Quaest. Jur. Publici, seventy years before the publica- 
 
 L. I. c. VII. tion of his work. 
 
 *' Mr. Justice Story adopts the *^ The Emulous, i Gallison, 
 
 year 1737 as being the date of p. 563. Brown v. the United 
 
 the publication of Bynkershoek's States,.8 Oranch, p. 121. 
 
108 COMMENCEMENT OF WAR. 
 
 Sovereign to confiscate the debts and funds of the Sub- 
 jects of the Enemy during war. " This right," he goes 
 on to say, " was admitted by the American Courts 
 to exist as a settled and decided Eight stricto jure, 
 though at the same time it was considered to be the 
 universal practice to forbear to seize and confiscate 
 debts and credits ; we may therefore lay it down," he 
 says, " as a principle of public law, so far as the same 
 is understood and declared by the highest judicial 
 authorities in the United States, that it rests on the 
 discretion of the legislative of the Union, by a special 
 law for that purpose, to confiscate debts contracted 
 by our citizens and due to the enemy ; but, as it is 
 asserted by the same authority, this Eight is contrary 
 ter universal practice, and it may therefore well be 
 considered as a naked and impolitic Eight, condemned 
 by the enlightened conscience and judgment of modern 
 Wheaton. times*^" Mr. Wheaton^" questions the soundness of 
 the judgment of the Court of Queen's Bench in Wolff 
 V. Oxholm ; but he admits that the Eight only exists 
 theoretically, and is seldom or never practically 
 exerted. Emdrigon, Kliiber, Chitty, Manning, and 
 Phillimore, concur in holding that the modem Law 
 of Nations repudiates the confiscation of debts due to 
 an enemy at the outbreak of war ; and it is beyond 
 controversy, that if a Sovereign Power should, in the 
 present day, exercise the extreme Eight of a belli- 
 -,- gerent in confiscating debts due from its Subjects to 
 Enemy- Subjects, other Nations would be justified by 
 the modern usage in refusing to recognise such an 
 avoidance of the contract in regard to their own 
 Subjects. 
 
 ^57. War, however, whilst it does not avoid a 
 contract which was originally valid, suspends the 
 
 " Commentaries, Tom. I. p. 65. 
 '" Elements, Pt. IV. c. i. § 12. 
 
COMMENCEMENT OF WAE. 109 
 
 remedy for the non-observance of it, until peace has 
 been restored. It is the doctrine of all the writers 
 of authority on the Law of Nations, and a rule of the 
 maritime ordinances of all the great Powers of Eu- 
 rope, that War puts an end to all commerce between 
 the subjects of adverse belligerent Powers ; and this 
 doctrine is in conformity with the universal and im- 
 memorial usage of civilised Nations. All contracts Suspension 
 
 .. - ° . •11 1 • ofcommer- 
 
 accordmgly made with the enemy during war are dai con- 
 legally void ; that is, Courts of Law will not give 
 effect to them. But the same necessity which pre- 
 cludes a belligerent from allowing his subjects to 
 enter into contracts with the enemy during war, 
 authorises him to forbid his subjects to fulfil their 
 contracts made before war, until the necessity of 
 weakening the enemy, by cutting off" his supplies, 
 shall have passed away upon the cessation of war. 
 It is a principle of law, says Lord StowelP', that 
 during a State of War there is a total inability to 
 sustain any contract by an appeal to the tribunals 
 of the one country on the part of the inhabitants of 
 the other. In the law of almost every country, the 
 character of an alien enemy carries with it a dis- 
 ability to sue or to sustain in the language of civilians 
 a persona standi in judicio. The peculiar law of 
 our own country applies this principle with great 
 ligour. The same principle is received in our Courts 
 of the Law of Nations : they are so far British 
 Courts, that no man can sue therein, who is a subject 
 of the enemy, unless under particular circumstances, 
 that pro hdc vice discharge him of the character of 
 an enemy ; such as his coming under a flag of truce, 
 a cartel, a pass, or some other act of pubL'c authority, 
 that puts him in the King's peace pro hdc vice. 
 But otherwise he is totally exlex. But the right of 
 " The Hoop, I Robinson, p. 201. 
 
110 COMMENCEMENT OF WAR. 
 
 an alien to enforce a contract, which is suspended 
 whilst he is an alien enemy, will revive as soon as 
 he is again clothed with the character of an alien 
 friend. Such is the doctrine maintained by the 
 English Courts both of Law and of Equity. The 
 Lord Chancellor Eldon^^ in admitting a debt to be 
 proved on behalf of an ahen enemy against the 
 bankrupt estate of an English merchant, said, " If this 
 had been a debt arising from a contract entered into 
 with an alien enemy during war, it could not pos- 
 sibly stand, for the contract would be void : but if 
 the two Nations were at peace at the date of the 
 contract, though from the time of war taking place 
 the creditor could not sue, yet the contract being 
 originally good, upon the return of peace the right 
 would revive. It would be contrary to justice, 
 therefore, to confiscate this dividend. Though the 
 right to recover is suspended, that is no reason why 
 the fund should be " divided amongst the creditors." 
 Such also, says Mr. Wheaton^^, is the law and prac- 
 tice of the United States. The debts due by Ame- 
 rican citizens to British subjects before the war of 
 the Eevolution, and not actually confiscated, were 
 judicially considered as revived, together with the 
 right to sue for their recovery, on the restoration of 
 peace between the two countries. 
 Debts due §58. The Eight of confiscating the public debts 
 ^^e^y. of a State, if war breaks out between that State 
 «overt:ign. ^nd the count) y, of which the creditors of the State 
 are subjects, deserves a separate consideration. The 
 question arose for the first time, as a great question 
 of Public Law, upon the occasion of the King of 
 Prussia, by way of retorsion for the capture of 
 Prussian vessels by Biitish cruisers, attaching certain 
 
 ^^ Ex parte Bousmaker, 13 "*' Elements, Part IV. c. i. 
 
 Vesey, p. 71. § 12. 
 
COMMENCEMENT OP WAR. Ill 
 
 capital funds, which his Majesty had undertaken 
 to reimburse to the subjects of Great Britain in 
 virtue of the Treaties of Breslau (ii June 1742^*) 
 and of Dresden (25 Dec. 1745^^), with the view of 
 indemnifying his own subjects out of those funds. 
 Under those treaties the King of Prussia had en- 
 gaged himself to the Empress Maria Theresa to pay 
 off more than a million of money, which had been 
 lent by British subjects to the Emperor Charles VI. 
 upon the mortgage of the Duchies of Silesia, which 
 were ceded by those treaties to Prussia, and of which 
 the possession was guaranteed to Prussia by Great 
 Britain under the Treaty of Dresden. The consider- ConJuct of 
 ation for Prussia undertaking to discharge the debt legTiTto" 
 contracted by the Emperor, was the cession of the ^eSiiesian 
 Duchies of Silesia ; and Prussia was in possession of 
 those Duchies at the time when the King of Prussia . 
 proposed to confiscate all the debt due to British 
 subjects. But the King of Prussia had undertaken 
 to pay the money selon le contrat, and the English 
 jurists contended in the memorable reply '^^ pre- 
 sented by the Duke of Newcastle, in answer to 
 Mr. Michell's memorial on behalf of his Prussian 
 Majesty, that the late Emperor could not have seized * 
 the money as reprisals, or even in case of open war 
 between the two Nations, because his faith was en- 
 gaged to pay it without any delay, demur, deduction, or 
 abatement whatsoever. " It will not be easy to find," 
 they say, "an instance where a person has thought fit 
 
 '* Wenck, Codex Jur. Gent. I. citor General, haa been pro- 
 
 p. 1739. nounced by Vattel (L. II. c. 7. 
 
 ^ Ibid. II. p. 195. § 84. N. ed. 1758) to be un 
 
 ^' This reply, which was drawn excellent moroeau de droit des 
 
 up by Sir George Lee, Judge of Gens, and by Montesquieu (Let- 
 
 the Prerogative Court, Dr. Paul, tres Persanes, L. XIV.) une 
 
 his Majesty's Advocate General, r^ponse sans r^plique. It will 
 
 Sir Dudley Eyder, Attorney be found in the Collectanea Ju- 
 
 General, and Mr. Murray, Soli- ridica, vol. i. p. 129. 
 
112 COMMENCEMENT OF WAR, 
 
 to make reprisals 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 honour, because 
 a Prince cannot be compelled, like other men, in an 
 adverse way by a Court of Justice. So scrupulously 
 did England, France, and Spain, adhere to this pub- 
 lic faith, that even during the war they suffered no 
 inquiry to be made, whether any part of the public 
 debts was due to the subjects of the enemy, though 
 it is certain many English had money in the French 
 Funds, and many French had money in ours." Vat- 
 tel, writing almost immediately after the publication 
 of the British Eeply, says, " The State does not so 
 much as touch the sums which it owes to the Enemy : 
 money lent to the Public is everywhere exempt from 
 .confiscation and seizure in time of war^''." It is obvious 
 that it would be contrary to natural justice for a 
 State to reap the benefit of a loan, of which it retains 
 possession, and at the same time to refuse to pay the 
 equivalent for that benefit, which it pledged its faith 
 to pay when it accepted the benefit. It is not like 
 the case in which a State has undertaken to grant a 
 • favour to the subject of a friendly Power, the con- 
 tinued enjoyment of which may be reasonably taken 
 to be conditional on the continuance of friendship 
 between the two States. 
 Conduct of The payment of a moiety of the Eussian-Dutch Loan 
 tlirinre- is au instaucc of an obligation undertaken by Great 
 Kufsiln-''^ Britain for a permanent equivalent, in consideration 
 Dutch of HoUand agreeing that Great Britain should retain 
 certain Dutch colonies and dependencies, of which 
 Great Britain was in possession at the conclusion of 
 
 " L. III. ch. 5. § 77. L'Etat les fonds confids au public sont 
 ne touclie par meme aux sorames exempts de confiscation et de 
 qu'il doit aux Ennemis ; partout saisie en cas de Guerre. 
 
COMMENCEMENT OP WAR. 113 
 
 the war in 1 814. Great Britain took upon herself the 
 payment of a moiety of a certain loan contracted in 
 Holland by Eussia during the war. It was further 
 recited in the fifth Article of the Convention of 
 London ^^ (19 May 1815), that "it was understood 
 and agreed between the high contracting parties, 
 (Great Britain, the Netherlands, and Eussia,) that 
 the payments on the part of the King of the Nether- 
 lands and the King of Great Britain should cease and 
 determine, (such payments being payments of an 
 annual interest of five per cent., together with a 
 sinking fund of one per cent.) if the possession and 
 sovereignty of the Belgic Provinces should at any 
 time pass or be severed from the dominion of the 
 King of the Netherlands at any time before the com- 
 plete liquidation of the same : and that it was also 
 understood and agreed between the high contracting 
 parties, that the payments on the part of their Ma- 
 jesties the King of the Netherlands and the King of 
 Great Britain, as aforesaid, should not be interrupted 
 in the event of a war ^breaking out between any of 
 the three high contracting parties ; the Government 
 of his Majesty the Emperor of All the Eussias being 
 formally bound to his creditors by a similar agree- 
 ment.'' Upon the separation of the Belgic Provinces 
 from the Kingdom of Holland in 1831, Great Britain 
 entered into a new Convention with Eussia, con- 
 ceiving that though the event had happened, which, 
 according to the letter of the Convention of 18 15, 
 released Great Britain as weU. as Holland from the 
 obligation of continuing to pay off" her portion of 
 the loan. Great Britain was still bound, according to 
 the spirit of that Convention, which was made on 
 her part in consideration of the general arrange- 
 ments of the Congress of Vienna, to adhere to her 
 
 ^^ Martens, N. K 11. p. 290. 
 PART II. I 
 
114 COMMENCEMENT OP WAE. 
 
 engagements. A new Convention between Kussia 
 and Great Britain was accordingly executed, (London, 
 1 6 Nov. 1831^^) whereby the King of Great Bri- 
 tain undertook to recommend to the British Parlia- 
 ment that it should enable him to continue the pay- 
 ments stipulated in the Convention of the 19th of 
 May, 1 815, conformably to the manner and until the 
 liqiiidation of the sum therein specified. Notwith- 
 standing that open war arose between Great. Britain 
 and Eussia in 1854, Great Britain never faltered in 
 her good faith in the matter of the understanding 
 between herself and the other two Powers, as set out 
 in the fifth Article of the Convention ; and the 
 interest and instalments of the loan have been 
 regularly voted withoiit the slightest interruption 
 by the British Parliament and paid by the British 
 Government to the agents of the Eussian Government. 
 Further, when a motion was made by Lord Dudley 
 Stuart in the House of Commons in the month of 
 August 1854, during the war with Eussia, that 
 Great Britain should renounce her obligation to 
 make any further payments of the loan upon the 
 ground that Eussia had violated the general arrange- 
 ments of the Congress of Vienna, the motion .was 
 rejected on this, amongst other grounds, that " Great 
 Britain, being at war with Eussia, was bound by a 
 regard to National Honour to be more than ever 
 jealous of afibrding the slightest ground for the 
 accusation, that she wished to repudiate debts justly 
 contracted with the Power, which was for the time 
 her Enemy^" 
 rf™nemy- ^59' '^^^ practice of seizing and confiscating the 
 property yessels and cargoes of Enemy-Subjects which may be 
 in the within the ports of a belligerent at the commence- 
 beiiigerent. ^ent of War, is a tradition of the Admiralty jurisdic- 
 *» Martens, N. E. IX. p. 542. Hertslet, IV. p. 367. 
 
COMMENCEMENT OF WAK. 115 
 
 tion exercised in common by Nations over all vessels 
 and their cargoes, -whicli may be in creeks or havens 
 accessible to tidal waters. Mr. Justice Story, in 
 discussing the right of confiscating enemy-property, 
 distinguishes between property which may be water- 
 borne, and property which is on the land, and inclines 
 to hold that, whilst the former may be proceeded 
 against as prize under the Admiralty jurisdiction, 
 the latter, if liable to seizure and condemnation at all 
 in the Courts of the belhgerent Power, would have 
 to be proceeded against in the manner applicable to 
 Municipal confiscations*"'. 
 
 It would seem that the Admiralty, which is an 
 Institution of the Law of Nations, exercises an origi- 
 nal jurisdiction exclusive of every other Judicature 
 in matters of prize ; and that the Admiralty has from 
 time immemorial exercised its prize jurisdiction over 
 vessels and their cargoes, which are afloat in ports 
 and harbours, equally as over those which may be on 
 the High Seas ; and that Municipal Courts, as such, 
 do not enquire into a question of prize or no prize, 
 which has been decided by the Admiralty®^ By the 
 Law of Nations property, which is afloat on tidal 
 waters within a port or harbour, is not subject to 
 the Municipal Law of a State in the same exclusive 
 manner, as property which is upon the land. Being 
 therefore not subject to the exclusive control of the 
 Sovereign of the territory, it is not within his pro- 
 tection in the same absolute manner as property on 
 the land ; and Nations have not been accustomed to 
 regard it as an act of bad faith, if a belligerent Sove- 
 reign at the commencement of war should have seized 
 all enemy-vessels, which were afloat within his ports. 
 This distinction between the concurretit jurisdiction, 
 
 "o Brown v. the United States, 8 Cranch, 139. 
 "' Le Caux v. Eden. Douglas, p. 614. 
 I 2 
 
116 COMMENCEMENT OP WAR. 
 
 which all Nations exercise over vessels and cargoes 
 which are afloat within the flux and reflux of" the tide, 
 and the excZttsive jurisdiction, which each individual 
 Nation exercises over all persons and things which 
 have been landed on its soil, may serve to explain in 
 , some respects the difierence in the treatment, which 
 enemy-property afloat has in practice undergone at 
 the commencement of war, as contrasted with enemy- 
 property which has been landed and remains on land. 
 The circumstance that the cognisance of all seizures 
 of vessels and their cargoes when afloat, as prize of 
 war, belongs to the Admiralty jurisdiction, is evi- 
 dence of the high antiquity of the practice of such 
 seizures. The maintenance of this practice is be- 
 coming more open to question, as being scarcely 
 reconcilable with that good faith, upon which the 
 enlarged commercial intercourse of Nations pro- 
 ceeds. 
 Conduct of § 60. We find, accordingly, that the Queen of 
 Powerslt Great Britain, upon the breaking out of war with 
 menoetoeut ■^^^'^^^ in 1 854, in Ordering an Embargo to be laid 
 of the war upou all Russian vessels that should thereafter enter 
 Russia in any British port, harbour, or roadstead, being de- 
 ^^^'^' sirous to lessen as much as possible the evils of war, 
 directed by an Order of the same date*'^, " that Russian 
 merchant vessels, in any ports or places within her 
 Majesty's dominions, should be allowed six weeks for 
 .loading their cargoes and departing from such ports 
 and places ; and further, shoiild not be molested, if 
 met at sea by any British cruiser." Great Britain 
 went even further in moderating the exercise of belh- 
 gerent Eight, by directing that " any Russian vessel 
 which should have sailed from a foreign port, prior 
 to the date of her Majesty's Order, bound to any 
 
 °^ Orders in Council of 29 second sujjplement to the Lon- 
 March 1854, published in the don Gazette of 29 March 1854. 
 
COMMENCEMENT OF WAR. 117 
 
 port or place of her Majesty's dominions, should be 
 permitted to enter such port or place, and to dis- 
 charge her cargo, and afterwards forthwith to depart 
 without molestation ; and that any such vessel, if 
 met at sea by a British cruiser, should be permitted 
 to continue her voyage to any port not blockaded." 
 The conduct of the Empei*or of the French was dis- 
 tinguished by the same mildness towards Eussian 
 merchants trading in the French dominions ; and 
 the Emperor of All the Kussias reciprocated the Russian 
 treatment, which Eussian subjects had experienced city!^™ 
 in the British and French ports, by proclaiming a 
 similar indulgence to British and French merchants 
 trading in the ports of the Eussian Empire. The 
 conduct of the belligerent Powers on this occasion 
 marks an epoch in the practice of Nations in regard 
 to the exercise of belligerent Eight at the immediate 
 outbreak of war. There are not found in the Treaties 
 of Commerce ^^, which existed between Eussia on the 
 one hand and France and Great Britain respectively 
 on the other hand, any stipulations which provide 
 that enemy-merchants shall be treated with forbear- 
 ance on the outbreak of war. It has been therefore 
 upon the promptings of good faith, that Great 
 Britain and France have set the example on this oc- 
 casion of renouncing the exercise of belligerent Eight 
 in seizing and confiscating the vessels and cargoes 
 of Enemy-Subjects, which were in their ports at the 
 commencement of war. It must be observed, how- 
 ever, that the war on this occasion, which Great 
 Britain and France held themselves compelled to 
 declare against the Emperor of AH the Eussias, was 
 
 ^' Treaty of Commerce be- Commerce between Eussia and 
 
 tween Eussia -'and Great Brifcaia France (i6 September 1846). 
 
 (11 January 1843). Martens, Martens, N. E. G^n. IX. p. 335. 
 N. E. G^n. V. p. 8. Treaty of 
 
118 COMMENCEMENT OF WAR. 
 
 a war undertaken not for the redress of injuries re- 
 ceived by the Subjects of either of those Powers, but 
 for the protection of the dominions of their Ally, the 
 Sultan of the Ottoman Empire, against the encroach- 
 ments and unprovoked aggression of the Emperor of 
 All the Kussias. It was not a war, therefore, in 
 which Eeprisals against the property of Kussian Sub- 
 jects would have been permissible by the practice of 
 Nations, before war had been commenced. The pre- 
 cedent therefore does not apply to cases in which 
 there has been a denial of redress for injuries re- 
 ceived, and in which, by the practice of Nations, 
 the Subjects of the State, that has inflicted injury 
 upon the Subjects of another State, are liable to 
 have their ships and cargoes seized and confiscated 
 for the indemnification of the injured parties before 
 war is declared. 
 imraova- ^ gj. With regard to immovable property, such 
 pertyof as land and houses, Bynkershoek "*, who is the 
 JratTwithin most strenuous advocate of belligerent Right, whilst 
 tor 'of a stating that a belligerent Power, on general prin- 
 beiiigerent. ciples, is entitled to confiscate any real property 
 which an Enemy-Subject may possess within its terri- 
 tory, admits that the practice throughout Europe 
 has been to sequestrate the profits only during the 
 war, and to reinstate the owner in his property on 
 the return of peace. VatteP^ to the same effect says, 
 that " he who declares war does not confiscate the 
 immovable property possessed in his country by his 
 Enemy's Subjects. By permitting them to purchase 
 and possess such property, he has in this respect 
 admitted them into the number of his own Subjects. 
 But the income may be sequestrated, in order to 
 prevent its being remitted to the enemy's country." 
 
 «* Bynkershoek, Quaest. Jur. »= Droit des Gens, L. III. c. 5. 
 
 Publ. L. I. c. 7. § 76. 
 
CHAPTER IV. 
 
 EIGHTS OP A BELLIGERENT WITHIN THE TEREITORY 
 OF AN ENEMY. 
 
 General Eight of a Belligerent against Enemy's property — 
 Kegulated exercise of that Eight — Eight within Enemy's territory 
 — All movable property within it booty of war — Military con- 
 tributions in lieu of booty — Destruction of military stores and 
 ; f provisions — Devastation of crops — Immovable property of enemy- 
 subjects — National Domain of an Enemy — State Papers and Public 
 Archives — Public Libraries and Museums — Eestitution of the 
 works of Art collected in the Gallery of the Louvre in 1815 — 
 Opinion of the Duke of Wellington — Wheaton's view — Decision of 
 a British Prize Court — Destruction of the Capitol at "Washington 
 in 1 8 1 4, on the ground of retaliation — Property water-borne in an 
 enemy's port — Distinction between booty of war and prize of war — 
 Court of Chivalry — Jurisdiction of High Court of Admiralty ex- 
 tended in certain cases over booty of war. 
 
 5 62. Wak. belnof a contention by force with the General 
 object either of redressing injury which has been Belligerent 
 inflicted, or of preventing injury which is threatened, H^p^ 
 every Nation, which carries on a just war, has a property, 
 right to take possession of the property of its Enemy, 
 either by way of satisfaction for past injury, or by 
 way of security against future injury. " By Na- 
 tural Law," says Grotius\ " we acquire in a just war 
 such things as are equivalent to that which is due 
 to us, and which we cannot obtain in any other 
 
 ^ L. III. c. 6. § I. 
 
120 EIGHTS OP A BELLIGEIiENT 
 
 manner, or such things as inflict _ on the oflFending 
 party a loss, which is within the fair limit of punish- 
 ment." "A State," says VatteP, "taking up arms 
 in a just cause, has a double right against the 
 Enemy, i. It has a right to obtain possession of 
 the property withheld by the Enemy, to which must 
 be added the expenses incurred in the pursuit of 
 that object, the charges of the war, and the reparation 
 of the damages ; for if it were obliged to bear those 
 expenses, it would not fully recover its property or 
 obtain its due. 2. It has a right to weaken its 
 Enemy, in order to render him unable to maintain 
 his unjust violence ; a right to deprive him of the 
 means of resistance. Hence, as from this source, 
 originate all the rights, which war gives us over the 
 property of an enemy. On certain occasions this 
 right of punishing an enemy produces new rights 
 over the things which belong to him, as it does over 
 his person." 
 Regulated S 6 ^ It is lawful, therefore, for a belligerent Power 
 
 exercise of J "-' ' ' o _ 
 
 that right, to appropriate to itself the property of its adver- 
 sary to such an extent, as may be requisite to pro- 
 vide for itself reasonable satisfaction for past injuries, 
 and reasonable security against future injury. The 
 Eight to Security wiU further authorise a belligerent 
 to inflict upon an enemy a loss, with the object of 
 chastising him for his injustice or violence and at 
 the same time furnishing an example to deter others 
 from similar acts of injustice or violence. With 
 this view an enemy may be lawfully deprived of 
 his possessions, or of anything which is calculated to 
 give him strength and ability to make war. But 
 it is not every war that affords just ground for 
 inflicting punishment on an enemy. In cases which 
 admit of doubt, each party is candid and sincere 
 
 ^ Droit des Gens, L. III. c. 9. § 160. 
 
WITHIN THE TEKEITORY OF AN ENEMY. 121 
 
 in his contention. The arms of each party are to be 
 accounted equally lawful whilst the contest is un- 
 decided; and after the cause has been decided by 
 the event of the war against one of the parties, if 
 the vanquished party has observed moderation in 
 the prosecution of his asserted Eight, he is entitled 
 rather to compassion than to resentment at the 
 hands of the conqueror. The only circumstance, 
 therefore, which justifies a belligerent in punishing 
 a vanquished enemy is, either the evident injustice 
 of the latter in taking up arms, or his departure 
 from the received practice of Nations in the conduct 
 of the war. Kegular war, as to its effects, is to be 
 accounted just on both sides ; and the Eights founded 
 on a state of war do not externally and between 
 mankind depend upon the justice of the cause, but 
 upon the legality of the means in themselves^. If a 
 helligerent accordingly observes all the rules of re- 
 gular war, his adversary is not entitled to complain 
 of him as a violator of the Law of Nations in his 
 conduct of the war. Either belligerent has equal 
 pretensions to justice; and neither party has any 
 other resource, when an appeal has been made to 
 arms, than victory or an accommodation. In every 
 case, however, if an enemy has no plausible pretext 
 for taking up arms, or if he conducts his resistance 
 in any manner which should offend against the prac- 
 tice of Nations, he makes himself liable to punish- 
 ment ; but even then the victorious party ought not 
 to inflict upon him a punishment beyond that, which 
 his own security or the general safety requires. 
 Cicero* condemns the conduct of his countrymen in 
 destroying Corinth to avenge the indignities shown 
 to the Eoman Envoys, inasmuch as Eome was able 
 to assert the dignity of her Ambassadors without 
 
 ' Vattel, L. III. c. 12. § 190. * Cic. de Officiis, L. I. c 11. 
 
122 EIGHTS OF A BELLIGERENT 
 
 having recourse to a measure of such extreme 
 rigour*^. 
 Eight § 64. As the object of war is to bring about a 
 
 enemy's just peace, a belligerent Nation is justified in in- 
 temtory. yading the territory of the Enemy, and in seizing 
 its goods, its towns, and its provinces, in order to 
 bring it to reasonable conditions, and to. compel it 
 to acquiesce in an equitable and firm peace*. With 
 this view a belligerent Nation may take possession 
 of the property of the Enemy io an extent far beyond 
 what would be a just indemnification for any injury, 
 which it may have suffered, with the design of re- 
 storing the surplus by a treaty of peace. 
 
 A belligerent Nation, in taking possession of the 
 property of the Enemy, acquires possession of the 
 Eights, which are incident to that property : for in- 
 stance, if a belligerent Nation takes possession of an 
 Enemy's territory, it takes possession not merely of 
 the soil and the movable property upon it, but of 
 the Sovereignty over it, and may exercise the latter 
 during such time as it remains in possession of the 
 territory. 
 Movable With regard to the property which is found upon 
 booty'of ^^he Enemy's territory, all movable property which 
 belongs to Enemy-Subjects is booty (butin) of war, 
 and passes with the territory into the possession of 
 the belligerent ; for the actual owners of the property 
 are not distinguishable, as individuals, from the body 
 of the Enemy-Nation, and the actual captors are the 
 trustees of a belligerent Nation in making capture. 
 The rule which governs all captures is expressed by 
 the maxim, Parta hello ceduni reipuhlicce'' . "As 
 the towns and land taken from the Enemy," writes 
 
 ° Grotius, L. III. c. 12. 'TheElsebe. 5 Oh. Eobinson, 
 
 § ii. 3. p. 181. 
 
 " Vattel, L. III. c. 9. § 163. 
 
 war. 
 
WITHIN THE TERRITORY OF AN ENEMY. 123 
 
 VatteP, "are called conquests, all movable pro- 
 perty taken from the Enemy comes under the de- 
 nomination of booty. This booty naturally belongs 
 to the Sovereign making war equally as the con- 
 quests, for he alone has such claims against the 
 hostile Nation, as warrant him in seizing the pro- 
 perty and converting it to his own use. His soldiers, 
 and even his auxiliaries, are only instruments which 
 he employs in asserting his right." All the mov- 
 able property, accordingly, of a vanquished enemy, 
 is of strict right at the mercy of the conqueror ; 
 but this strict right is in practice only enforced on 
 the part of the conqueror, where the Eight of Re- 
 sistance has been maintained to the uttermost by 
 the vanquished party, as for instance where a town 
 has been besieged, and has been formally summoned 
 to surrender on terms, and has refused to surrender, 
 and has been subsequently taken by assault. In 
 such a case the conqueror is justified by the extreme 
 resistance of the adversary in exercising his extreme 
 Eight of Conquest, and in seizing, as booty of war, all 
 the movable property of the enemy. It is customary 
 indeed for the Sovereign, or the authority which re- 
 presents the Sovereign Power of the Nation, to grant 
 to its army a share of the booty taken on such occa- 
 sions. The mode, however, in which such booty is 
 to be shared amongst its army depends upon the 
 pleasure of the Sovereign Power ^. In some cases it 
 is customary to give up the whole of the booty to 
 the troops which have taken it ; as for instance, 
 where it is the immediate result of a pitched battle, 
 or where a fortified camp or town has been taken 
 by storm : in such cases the actual captors are 
 allowed to gather freely the spoils of their victory. 
 
 « L. III. c. 9. § 165. Kliiber, " Grotius, L, III. c. 6. § 13. 
 
 § 253. Vattel, III. c. 9. § 164. 
 
124 EIGHTS OF A BELLIGERENT 
 
 On the other hand, where the booty is the ultimate 
 result of a general campaign, it is usual for the 
 Sovereign Power to distribute it amongst all the 
 divisions of the army, which has been engaged in 
 the combined operations of the campaign^". 
 
 In cases, however, where the Enemy has sur- 
 rendered upon terms, it is now the practice among 
 Christian Nations for the Sovereign Power not to 
 seize and confiscate, as booty of war, the private 
 Military property of individual citizens, but either to content 
 tions in itsclf with making prize of all the public property 
 bootyf <^f *1^® Enemy-Nation, which is of a movable cha- 
 racter, such as jewels, or treasure, or instruments of 
 war, or military stores ; or in case it should assert 
 its Right of Conquest over the private property of 
 enemy-citizens, to limit itself to levying upon them 
 a Contribution of money or provisions, in considera- 
 tion for which their actual property is guaranteed 
 from pillage. But the commander of a victorious 
 army must, under such circumstances, be moderate 
 in his demand of Contributions, if he wishes to escape 
 the reproach of inhumanity and greediness^^ 
 
 § 65. The exercise of the Natural Eight of a bellige- 
 rent to ravage the Enemy's territory, with the excep- 
 tion of those cases in which the conduct of the Enemy 
 has merited special chastisement, is governed by the 
 maxim that nothing is allowable against an enemy 
 but what is necessary, and nothing is necessary which 
 does not tend to procure victory and bring the war 
 to a conclusion. All damage therefore which is done 
 to an enemy without any corresponding advantage 
 accruing to the belligerent is an abuse of the Natural 
 Eight of the latter. Thus indeed a belligerent is 
 entitled to capture all the property of an enemy 
 
 ^'' The Army of the Deccan. 2 Knapp'e Reports, p. 114. 
 " Vattel, L. III. c. 9. § 165. 
 
WITHIN THE TEEEITORY OF AN ENEMY. 125 
 
 which is calculated to enable him the better to carry- 
 on hostilities, and if he cannot carry it away con- 
 veniently, to destroy it. A belligerent, for example, Destruc- 
 may destroy all existing stores of provisions and^jj^j"^ 
 forage, which he cannot conveniently carry away, stores and 
 and may even destroy the standing crops in order 
 to deprive his enemy of immediate subsistence and 
 so reduce him to surrender. But a belligerent will 
 not be justified in cutting down the oHve trees, and 
 rooting up the vines ; for that is to inflict desolation 
 upon a country for many years to come, and the 
 belligerent cannot derive any corresponding advan- 
 tage therefrom^^. When the French armies desolated Devaeta- 
 with fire and sword the Palatinate in 1674, and again *'^°p°^ 
 in 1689, there was a general outcry throughout Europe 
 against such a mode of carrying on war ; and when the 
 French Minister Lou vols alleged that the object in 
 view was to cover the French frontier against the inva- 
 sion of the Enemy, the advantage which France derived 
 from the act was universally held to be inadequate to 
 the suffering inflicted, and the act itself to be there- 
 fore unjustifiable. A belligerent Prince who should, in 
 the present day, without necessity, ravage an Enemy's 
 country with fire and sword, and render it unhabitable, 
 in order to make it serve as a barrier against the 
 advance of the Enemy, would justly be regarded as a 
 modern Attila. The necessity of war has occasionally 
 justified Princes in laying waste their own provinces 
 in order to raise a barrier against an enemy, whom 
 they could not otherwise hope to check. For in- 
 stance, Peter the Great laid waste an extent of 
 eighty leagues of his own Empire with a view to check 
 the advance of the troops of Charles XII. of Sweden. 
 The Swedes were accordingly worn down with want 
 and fatigue in their advance, and the victory of 
 
 '^ Vattel, L. III. c. 9. § 166. 
 
126 EIGHTS OP A BELLIGEEENT 
 
 Pultowa was gained by the C^ar as the result of the 
 sacrifice. There may be cases, therefore, when neces- 
 sity will justify similar extremities in an Enemy's 
 country; but such instances will be of rare occurrence, 
 and may be regarded as exceptional, 
 immova- ^ 66. With regard to the immovable property of 
 perty of enemy-subjects, there was a time when the lands of 
 Jecfte!^'™^' enemy-subjects were confiscated by the victor, just as 
 the right of the victor over the person of a prisoner 
 of war was absolute and unlimited ^^ But the right 
 of a victor to use his prisoners of war as slaves has 
 ceased to be exercised since the middle of the seven- 
 teenth century^* ; and it may be said to have become 
 the universal practice of Christian Powers, since 
 the Treaty of Munster, (30 Jan. 1648,)^' to release 
 all prisoners at the end of a war without ransom '^. 
 So likewise the landed and immovable property of 
 private individuals is in general by the positive law 
 of Nations not liable to confiscation by a victorious 
 Enemy ^'. A victorious Nation on the other hand enters 
 upon the pubhc rights of the vanquished Nation, and 
 the National domain and the National treasure pass 
 to the victor^^ He may dispose of the National domain 
 at the risk of the purchaser, in case the vanquished 
 Nation should recover possession of its dominions ; 
 for it is only by a treaty of peace, or by the entire 
 
 ^^ Vattel, L. III. c. 7. § I. French and Eatovian Eepublics 
 
 " At the commencement of on the other, that the prisoners 
 
 the seventeenth century we find on both sides should be released 
 
 many treaties of peace, in which without ransom. This provision 
 
 it was stipulated that prisoners may have been rendered neces- 
 
 of war should not be sent to the eaiy by the previous conclusion 
 
 galleys. of a cartel for the ransom of 
 
 ^° Dumont, Trait^s, Tom. VI. prisoners at fixed money prices. 
 Pt. I. p. 434. " Manning, c. 8. p. 162. 
 
 " There was a special pro- " Vattel, L. III. c. 12. § 200. 
 
 vision in the Treaty of Amiens Martens, Precis, § 280. Kluber, 
 
 (1802) concluded between Great §256. Wheaton, Pt. IV. c. 11. 
 
 Britain on the one hand, and the § 5. 
 
WITHIN THE TEREITOEY OF AN ENEMY. 127 
 
 submission of arid extinction of the vanquished Nation, 
 that the acquisition of its pubhc domain by the victor 
 is consummated, and his proprietary, right made per- 
 fect. A neutral Power cannot lawfully step in and pur- 
 chase a conquered country, while the war continues ; 
 for it is inconsistent with neutrality for him to furnish 
 a victorious belligerent with money to enable him 
 to prolong the war ; and if he should take possession 
 of his purchase and maintain it against its original 
 owner, he would be aiding his adversary. Thus the 
 King of Prussia became a party with the enemies 
 of Sweden by accepting Stettin from the hands of the 
 King of Poland and the Czar of Russia'^ under the 
 Convention of Schwedt (6 October 1713,) after they 
 had captured it from the Swedes, and by consentijig 
 to hold it as sequestrator, until peace should be con- 
 cluded. The conduct of the King of Prussia, which 
 was inconsistent with a just neutrality, involved him, 
 not long after he had so taken possession of Stettin, 
 in hostilities with Sweden. But when a conquered 
 Nation has by a definitive treaty of peace 'ceded a 
 country to the conqueror, the former has relinquished 
 all right to it, and the new occupant has an indefeas- 
 ible title to it, which he may transfer to a third party. 
 A victorious Nation, in acquiring the sovereignty de 
 facto over a country, from which it has expelled its 
 adversary, does not acquire any other rights than those 
 which belonged to the expelled Sovereign ; and to 
 those, such as they are with all their liniitations and 
 modifications, he succeeds by Eight of War. It is ac- 
 cordingly usual in treaties of peace by which a terri- 
 tory, which has been occupied by a victorious Nation, 
 is formally ceded to it, for the vanquished Power to 
 stipulate that the inhabitants shall retain all their 
 
 '' Vattel, L. III. c. 13. § 198. Schoell, Histoire Ahrigie des 
 Traitfes de Paix, Tom. IV. p. Z13. 
 
128 .RIGHTS OF A BELLIGERENT 
 
 liberties and immunities ; and as those liberties and 
 immunities are the creatures of civil law, it is not im- 
 common to stipulate that the civil law of the con- 
 quered people shall be maintained, the victor being 
 at liberty to introduce his own criminal law. Thus 
 when the Dutch Colony of Cape Town surrendered 
 to the British fleet in 1795, it was stipulated in the 
 articles of Capitulation that the Dutch Law should 
 continue to furnish the rules for interpreting all civil 
 contracts and obligations ; in other words, that the 
 proprietary rights of the inhabitants should be regu- 
 lated by the same law as heretofore. 
 
 § 67. There is a class of movable property belong- 
 ing to an Enemy which is exempt from capture and 
 confiscation by a belligerent Power, such as State 
 state papers, public archives, judicial and legal records, 
 Pubtic ''"'^ l^J^d titles, &c. Such property is regarded as ad- 
 Archives. heiiug to the Sovereignty of the country, and pass- 
 ing with it, and is as it were an appurtenance of the 
 National domain. When a belligerent Nation takes 
 possession of an Enemy's country, it sequesters the 
 rents of the immovable domain, but it cannot right- 
 fully alienate the domain itself. It is not until peace 
 has been concluded, and the conqueror's title has 
 been recognised by the vanquished, that the public 
 domain becomes at the absolute disposal of the con- 
 queror. So likewise with regard to all movable 
 articles, which appertain to the Government of a 
 country, and over which the Sovereign for the pur- 
 pose of government has full dominion, they are at 
 the absolute disposal of the conqueror for the purpose 
 of government, whilst he is in possession of the 
 country, but in practice they are not booty of war. 
 They are in the nature of public proofs or evidences 
 of Eights ; and as in the case of private debts, the 
 mere fact of the conqueror possessing himself of the 
 
WITHIN THE TERRITORY OF AN ENEMY. 129 
 
 documents relating to incorporeal Eights, does not 
 give to him the possession of the Eights them- 
 selves ; so the possession of public documents is a 
 possession barren of fruit to the conqueror, for his 
 rights, as derived from force of arms, are simply those 
 of de facto possession. A belligerent who should 
 permit his troops to plunder or destroy the public 
 archives of the Enemy Nation, or who should cap- 
 ture and carry away, as booty of war, State papers or 
 judicial and legal records, would carry on war in 
 a manner not sanctioned by the modern practice of 
 Nations. The plunder and destruction of public ar- 
 chives cannot in any way profit a belligerent, or pro- 
 piote the true object of war. On the contrary, their 
 plunder and destruction is calculated to exasperate 
 an Enemy Nation, as being an unnecessary injury 
 inflicted upon it ; whilst the loss of public documents, 
 which are the basis and evidence of private property, 
 may work infinite prejudice to innocent parties. For 
 the same reason it would be an act of wanton bar- 
 barism for a belligerent, who is compelled to evacuate 
 an enemy's country, to carry away the public archives, 
 and to attempt to sever them from the Sovereignty. 
 
 5 68. With regard to Public Libraries and CoHec- pubUc Li- 
 tions of works of Art, such as pictures, statues, and M^Sms. 
 other forms of sculpture, there is not the same 
 agreement amongst text-writers, that a belHgerent 
 is restrained by practice from seizing and carrying 
 them away as booty of Var. All writers indeed are 
 of accord, that to destroy such works wantonly 
 would be to violate the modern usage of war ^* ; 
 but they do not agree in holding that it is incon- 
 sistent with the usage of war to carry off such 
 works as booty. The French armies, in the wars 
 
 " Kent, Commentaries, Vol. I. p. 93. Kluber, § 253. Vatte 
 
 L. in. c. 3. §168. 
 
 PART II. K 
 
130 EIGHTS OF A BELLIGERENT 
 
 wMch attended the Revolution of 1789, carried off 
 all the finest works of genius and taste which they 
 found in Italy, Holland, and other enemy-countries, 
 and which' were of a movable character. In some 
 cases they obtained them by means of forced Contri- 
 butions, in other cases by express Conventions with 
 the conquered States. Upon the victorious entry of 
 the Allied Powers into Paris in 181 5, they found 
 those treasures of Art collected together in the vari- 
 ous galleries of the Louvre and other Museums.- It 
 appears from a note delivered in by Viscount Castle- 
 reagh to the Ministers of the Allied Powers, and 
 placed upon the Protocols of Paris (11 Sept. 
 1 81 5), that the Pope, the Grand Duke of Tuscany, 
 the King of the Netherlands, and other Sovereigns, 
 " claimed through the intervention of the High Allied 
 The Gal- Powers, the restoration of the statues, pictures, and 
 Louvre*in Other works of Art, of which their respective States 
 '^'s- had been successively and systematically stripped by 
 the late Revolutionary Government of France, con- 
 trary to every principle of justice and to the usage 
 of modern warfare^"." Lord Castlereagh, on this 
 occasion, placed on record the opinion of Great 
 Britain, that works of Art have been invariably re- 
 spected by modern conquerors, as inseparable from 
 the countries to which they respectively belonged; 
 and that to tear them away from the territories to 
 which they appertained was a reproach to the Nation, 
 which had adopted such a 'principle of war. The 
 French Commissioners on the other hand, who con- 
 cluded the military Convention under which the 
 Allies took possession of Paris, appear to have con- 
 sidered that the Allies might with justice claim to 
 exercise their right, as belligerents, to strip in the 
 same manner the galleries of Paris of their spoils, as 
 ^° Martens, Nouveau R^cueil, T. II. p. 632. 
 
WITHIN THE TEERITORY OP AN ENEMY. 131 
 
 the French armies had exercised their right of 
 spohation in the countries which they had overrun ; 
 for they proposed to introduce into the Convention 
 an article, which should secure to France the trea- 
 sures of Art which she had amassed. But Prince 
 Blucher would not assent to it on behalf of Prussia, 
 and the Duke of Wellington rejected it in the in- 
 terest of the other Powers. The Duke of Wellington Opinion of 
 
 „ . . 1 1 A IT T • 1 the Duke 
 
 was 01 opinion " that the Allies having the contents of Weiiing- 
 of the Museum justly in their power, could not do*""" 
 otherwise than restore them to the countries from 
 which, contrary to the practice of civilised warfare, 
 they had been torn during the disastrous period of 
 the French Revolution and the tyranny of Bona- 
 parte^-^." The Allied Powers acted upon this view 
 of the Eights of War, and their conduct may be re- 
 garded as a practical affirmation on their part of the 
 principle, that Public Collections of works of Art are 
 not booty of war according to the modem usage of 
 civilised Nations. American writers on Public Law 
 are not altogether of accord with European pub- 
 licists on this subject. Mr. Wheaton does not pro- 
 nounce any decided opinion, but is content to quote 
 a speech of Sir. Samuel Bomilly in the House of 
 Commons on 20th Feb. 1815, expressive of his dis- 
 satisfaction with the conduct of the Allied Powers 
 in 1815^^ as not altogether consistent with justice. 
 The tendency however of Mr. Wheaton's remarks is 
 in favour of the milder practice ^^. General Halleck 
 on the other hand maintains that an impartial judge 
 must conclude, on a careful examination of the 
 circumstances connected with the formation and 
 
 ^1 Despatch of the Duke of IV. c. 2. § 6. 
 
 Wellington to Viscount Castle- ^' Hansard's Parliamentary De- 
 
 reagh. Paris, Sept. 23, 18 15. bates, Feb. 20, 1815. Life of 
 
 Martens, N. E. II. p. 642. Romilly, Vol. II. p. 404, and Hal- 
 
 '"'• Wheaton, Elements, Part leck,InternationalLaw,c.i9.§io. 
 
 K 2 
 
132 RIGHTS OF A BELLIGERENT 
 
 spoliation of the rich Museum of the Louvre, either 
 that such works of Art are legitimate trophies of 
 war, or that the conduct of the Allied Powers in 1 8 1 5 
 was in direct violation of the Law of Nations. It 
 is impossible, he says, to avoid one or the other con- 
 Decision of elusion. A British Court of Prize has however 
 Prize administered in the case of American interests the 
 °"''*^' Law of Nations in the same hberal spirit, in which 
 Lord Castlereagh expressed the feeling of the British 
 Government. In the case of a collection of Italian 
 paintings and prints captured by a British vessel 
 during the war of 181 2, on their passage from Italy 
 to the United States, the learned Judge (Sir Alex- 
 ander Croke)^* of the Vice- Admiralty Court at 
 Halifax, directed them to be restored to the Academy 
 of Arts in Philadelphia, on the ground that the Arts 
 and Sciences are admitted amongst all civiHsed 
 Nations to form an exception to the severe rights 
 of war, and to be entitled to favour and protection. 
 They are considered not as the peculium of this or 
 that Nation, but as the property of mankind at large, 
 and as belonging to the Oommon interests of the 
 whole species ; and that the restitution of such 
 property to the claimants would be in conformity 
 with the Law of Nations, as practised by all civilised 
 countries." 
 Edifices ^ ^9' '^^^ modom practice of warfare exempts 
 
 from wanton destruction Public Edifices, which do 
 honour to human society and do not increase the 
 enemy's strength, such as religious edifices, public 
 monuments, repositories of art and science, hospitals, 
 and charitable institutions ; in a word, all public 
 structures devoted exclusively to civil purposes.^' 
 
 " The Marquis de Somerueles. '^^ Vattel, L. III. c. 9. § 168. 
 
 Stewart's Vice-Admiralty Ee- Grotius, L. III. c. 12. § ii. 3. 
 ports, p. 482 (21 April 1813). 
 
WITHIN THE TERRITORY OF AN ENEMY. 133 
 
 There may be cases in which the destruction of* such 
 buildings may be the accidental or necessary result 
 of military operations. But it is usual even in siege 
 operations for the beleaguering party to avoid direct- 
 ing the fire of his artillery against the churches and 
 hospitals of the besieged town. Amongst heathen 
 Nations what were called res sacroe were not exempt 
 from capture and confiscation ; but the contention of 
 the worshippers of Heathen Deities was supposed 
 to involve a conflict between the Deities them- 
 selves ; or in cases where the belligerent parties 
 worshipped the same Deities in common, the Deities 
 were held to have abandoned the temples of the 
 vanquished Nation at the moment when victory 
 declared itself in favour of the adverse party. 
 Cicero has well expressed the sentiment of the 
 heathen world, when he says that victory made all 
 the sacred things of the Syracusans profane^®. But 
 a Christian Enemy in the present day respects the 
 mosques of the followers of Mahomet and the 
 temples of the votaries of Buddha, as edifices 
 of religion, equally with the churches of the be- 
 lievers in Christ, in which he himself worships. So 
 likewise with regard to public edifices of a civil 
 character, if modern usage has sanctioned their de- 
 struction without necessity, it has been by way of 
 vindictive Retorsion or Reprisals. Thus, when thei?estruc. 
 British forces in 1814 destroyed the Capitol, thecapitout 
 President's house, and other pubhc edifices at Wash- toiTin'^^" 
 ington, the justification of the act was rested by the '^'4- 
 British Admiral on the ground of retaliation for 
 the wanton destruction committed by the troops of 
 the United States in Upper Canada. The corre- 
 spondence between Mr. Secretary Munroe^^ and 
 
 ^' Cicer. Orat. in Verrera 4. III. pp. 693, 694. Wheaton's 
 " American State Papers, T. Elements, part IV. c. 2. § 6. 
 
134 RIGHTS OF A BELLIGERENT 
 
 Admiral Cochrane on this subject, is interesting and 
 instructive, for it shows that both parties considered 
 such acts of devastation as abnormal, and as in- 
 volving a departure from the ordinary practice of 
 civilised warfare. It is to be regretted that Great 
 Britain retaliated in kind on this occasion, for the lex 
 talionis is not the rule of modern warfare ; and if 
 one of the belligerent parties should have placed 
 itself in the wrong by having recourse to exceptional 
 measures, the balance cannot be redressed- in the 
 right manner by the adversary having recourse to 
 identical measures, and so placing himself in pari 
 delicto. When Prince Blucher proposed to blow up 
 the Bridge of Jena, and to overthrow the Column 
 of Austerlitz upon the Allied Powers entering Paris, 
 he sought to retaliate upon the French Nation the 
 acts of wanton destruction and desolation, which 
 they had inflicted upon the Prussian Nation ; but the 
 Allied Powers wisely and prudently withstood Prince 
 Arch of Bluchers desire. An example of a wiser practice 
 was shown by the Emperor Francis of Austria m 
 regard to the Arch of the Simplon, which Napoleon 
 had erected in Milan to commemorate ■ his victories 
 over the Austrians. The history of those victories 
 was given in a series of has reliefs, the last of which 
 represented Napoleon dictating peace to the Emperor 
 Francis in Vienna. The Emperor Francis directed 
 the historical series of has reliefs to be completed, 
 and opposite to the bas relief representing the Em- 
 peror Napoleon dictating peace to the Austrians at 
 Vienna, the Arch at present exhibits a bas relief 
 representing Napoleon's subsequent abdication at 
 Fontainebleau. 
 Property § 70. There is a class of' movable property be- 
 bome in an longing to an Enemy, which whether it be of a 
 poXf^ public or private nature, is invariably treated as 
 
WITHIN THE TERRITORY OF AN ENEMY. 135 
 
 booty of war, if it is found within the territory of 
 the Enemy. Whatever moderation may be exercised 
 towards private property on land by a victorious 
 belligerent, the extreme right of seizure and confisca- 
 tion is exercised by him against the shipping which 
 may be found within an enemy's ports. M. de Haute- 
 feuille observes, in explanation of the exercise of 
 the extreme Eight of a belligerent in this particular, 
 that mariners are the hardiest and most courageous 
 portion of the population of a country, and that ships 
 are calculated to become instruments of warfare, or 
 at least to serve the purposes of war. The capture 
 and destruction of such property has accordingly 
 a direct tendency to impair the military power of 
 the enemy and to reduce him to the necessity of 
 making peace. It would be therefore a questionable 
 act of humanity to proscribe the destruction of it. 
 The same reason however does not tell so forcibly 
 in support of the capture and confiscation of the 
 cargoes, which are afloat in ports and are the property 
 of private citizens. The explanation of the difference 
 in the practice of belligerents in confiscating private 
 property which is afloat, whilst the private property 
 of Enemy-Subjects on land is spared, may be sought 
 in the fact, that such property is at the time of 
 capture actually employed in promoting the Enemy's 
 commerce and navigation, which are justly regarded 
 as the sources and sinews of his naval power, and 
 that the destruction of the latter can only be brought 
 about effectually by the capture and confiscation of 
 such private property, seeing that the State rarely, 
 if ever, embarks in enterprises of commerce^®. It is 
 upon similar considerations that a cargo belonging 
 to enemies and found afloat in the port of a belli- 
 gerent Nation at the breaking out of war is confiscable 
 2' Wheaton, Elements, part IV. c. 2. § 7. 
 
136 EIGHTS OF A BELLIGERENT 
 
 jure belli, whilst an enemy's property on land is not, 
 according to the modern practice, liable to confiscation. 
 DiBtinotion § yi. With regard to enemy's property captured 
 booty and on land, and which is properly termed hooty of war, 
 ^"^^' a different Forum exercises jurisdiction over it from 
 that which decides upon all questions of captures at 
 sea, which are properly termed prize of war. The 
 latter has devolved to the Courts of Admiralty, 
 by virtue of the jurisdiction exercised in olden times 
 by the Lord Admiral of the Fleet, whilst the former 
 appertains to that branch of the military jurisdiction 
 exercised by the Commander-in-Chief of an Army in 
 the field. Courts of Admiralty accordingly take no 
 cognisance of questions of booty. In very early 
 times in England, causes respecting booty were 
 determined in the Court of Chivalry, before the 
 Constable and the Marshal of the King. Lord Hale^' 
 observes that in matters civil, for which there is 
 no remedy by the Common Law, the military juris- 
 diction continues as well after the war as during 
 the time of it ; for that part of the jurisdiction of 
 the Constable and the Marshal stands still, notwith- 
 standing the war determines, as concerning right of 
 prisoners and booty, military contracts, &c. We find 
 Court of accordingly that the Court of Chivalry took- cogni- 
 '^*'^" sance of goods taken beyond the seas, of prisoners, 
 of hostages, of ransom, &c.; and the statute of 13 
 Eichard IL c. 2, in limiting its jurisdiction to 
 contracts and things touching war which cannot be 
 determined by the Common Law, directed its proceed- 
 ings to be governed by the laws and customs of war. 
 After the ofl&ce of Lord High Constable of England 
 ceased in the thirteenth year of Henry VIII. the 
 jurisdiction of the Court of Chivalry came to be 
 
 '^ DePrserogativa Regis, c. 12. tion of Courts. Rymer, Feed. 
 § 3. Crompton on the Jurisdic- VIII. p. zii and 423. 
 
WITHIN THE TBERITOEY OP AN ENEMY. l37 
 
 disputed on the grounds that the Earl Marshal 
 alone was not competent to hold the Court, and it 
 seenls ultimately to have fallen into desuetude^". 
 The last case heard before it was that of Sir Henry 
 Blunt in 1737^^ The modern practice in England 
 in respect of the distribution of booty of war, is 
 for the Crown to i'efer the claims of those, who 
 petition for a share of the distribution, to the Lords 
 of the Treasury, who under the advice of the Law 
 Officers of the Crown, settle a scheme of distribution 
 for the approval and sanction of the Crown itselP^j 
 as aU acquisitions of war belong of Right to the 
 Crown, 'parta hello cedunt reipuhliccB^^. A Statute, 
 which was passed in 1840'^ extends the jurisdiction Extension 
 of the High Court of Admiralty of England to aU Admiralty 
 matters and questions concerning booty of war or the ^on^cvtr 
 distribution thereof, which it shall please the Crown, i^ooty. 
 by the advice of the Privy Council, to refer to the 
 judgment of that Court ; and in all matters so 
 referred the Court is to proceed as in cases of prize 
 of war, and the judgment of the Court therein is to 
 be binding upon all parties concerned. The High 
 Court of Admiralty may accordingly under this 
 Statute, exercise a jurisdiction in cases of booty, 
 apart from, but analogous to, its jurisdiction in ques- 
 tions of prize, with this difference however, that ' 
 whilst it has a customary jurisdiction over aU ques- 
 tions of prize, it can only exercise its statutory juris- 
 diction over such questions of booty, as the Crown, 
 with the advice of the Privy Council, may be pleased 
 to refer to its judgment. 
 
 *' Lindo V. Rodney-j i Doug- 2 Knapp, p. io6. Buenos Ayres, 
 
 lasj p. 593. The Army of the i Dodsoiij p. 2S. Elphinstolie «. 
 
 Deccan, 2 Knapp, p. 149; Bedreechund, i Knapp, p. 360. 
 
 "1 Sir H. Blunt's case, i '' The Elsebe, 5 Ch. Rob. 
 
 Atkyns, p. 296. p. 181. 
 
 '2 The Army of the Deccan, '■* 3 and 4 Vict. c. 65. § 22. 
 
CHAPTER V. 
 
 EIGHT OF A BELLIGERENT ON THE HIGH SEAS. 
 
 The Maritime intercourse of Nations subject to special rules in 
 time of War— Object of war — Enemy's property on the High 
 Seas — Institution of the Office of Admiral — Establishment of an 
 Admiralty Jurisdiction of Nations — Order of Prize Proceedings 
 recognised by Treaties — The Judgments of the Sea — The Customs 
 of the Sea — General Rule amongst Nations down to the middle of 
 the Sixteenth Century to distinguish the Ship from the Cargo — 
 Ebglement of Francis I. of France in 1543 — Edict of 1584— 
 French doctrine of Hostile Infection— Ordonnance de la Marine 
 of 1 68 1 — Spanish Ordenanza de Corso of 1718- — French Itegle- 
 ment of 1778 — Law of the French Prize Courts down to 1854 — 
 Sir William Grant — Rule of the United States of America — 
 Wheaton — Chancellor Kent — Bynkershoek — Freight of enemy's 
 goods upon capture payable to neutral shipowners — Measure of 
 freight — The Grand Pensionary de Witt, founder of the doctrine of 
 Free Ships, Free Goods — Treaty of Paris of 1646 — Dutch Treaties 
 with Spain and Portugal — British Treaties with Portugal and the 
 States General— Treaties of Utrecht in 17 13 — Armed Neutrality 
 of 1780 — Four systems of Maritime Prize Law — The Natural 
 system of the Consolat del Mar — The French- system of the Ship 
 and Cargo mutually infecting each other — The Dutch system of 
 the Cargo following the character of the Ship — The System of the 
 Congress of Paris as embodied in its Declaration of 16 April 1856, 
 that the Neutral Flag covers the Cargo — Adhesion of all the 
 European Powers to it, with the exception of Spain — Spain and 
 MeSdco have adopted the principles embodied in the last three 
 articles of the Declaration, as part of their own legislation — The 
 United States of America have declared their intention to observe 
 the three last articles — Accession of the South American States 
 
EIGHT OF A BELLIGERENT ON THE HIGH SEAS. 139 
 
 to the Declaration of Paris— Protocol: No. 24. annexed to that 
 Declaration— Territorial Theory of Hiibner — Doctrine of Martens 
 — Bynkershoek's and Lampredi's Objections — Manning's Kefutation 
 of Hubner's Theory — The Passport, the true criterion of a ship's 
 national character — The Sea Letter — It is conclusive of the national 
 character of a merchant ship — Belligerent right of visitation and 
 search — Case of the Swedish Convoy — Vattel — Chancellor Kent — 
 Convention of the Baltic Powers in 1801 — Wheaton — Eight of 
 Approach — Kegulation of the right of visitation and search — Rule 
 of an Affirming Gun — Lampredi's view — Mr. Justice' Story's 
 opinion — General Halleck — Sir Kobert Phillimore — Heffter — 
 Treaty of the Pyrenees — Practice of Nations as to ship's pa2>ers — 
 Builder's Contract or Bill of Sale — Certificate of Registry, if 
 required by Municipal Law — Necessary cargo-papers — Ship's 
 manifest and bills of lading — Charter-party — Absence of ship's 
 papers or of cargo papers justifies the detention of a vesse^ for 
 enquiry — Eight of Detention — Neutral merchant vessel may not 
 sail under convoy — Chancellor Kent — Wheaton — A neutral mer- 
 chant may not embark his goods in an armed ship of the enemy, 
 according to the judgment of the British Prize Courts — The Prize 
 Courts of the United States in conffict with British Prize Courts 
 on this subject. 
 
 § 72. The open Sea is not capable of being Maritime 
 reduced into the possession of any Nation, and S nationsr 
 accordingly can never become part of the territory 
 of a Nation. There is therefore no juridical objec- 
 tion ratione loci to a Nation freely prosecuting its 
 Eight by force against another Nation upon the 
 open Sea. On the other hand, aU Nations are en- 
 titled to the free use of the open Sea for the 
 purposes of innocent Navigation; and no Nation 
 can claim with reason to prosecute its Eight by 
 force against another Nation upon the open Sea in 
 such a manner, as to interfere with the innocent 
 Navigation of it by other Nations, which are not 
 parties to the contention. It is obvious, however, 
 when two Nations are contending by force in the 
 prosecution of Eight, that their relations, as belli- 
 gerents, will differ essentially from the relations of 
 
war. 
 
 140 EIGHT OF A BELLIGEEBIirT 
 
 Nations which are a£ peace with one another ; and 
 in order that the Navigation of the open Sea by- 
 other Nations at such a time should have an in- 
 nocent character, it must be so conducted as not to 
 1vork any prejudice to the contention of either belH- 
 gerent, as such. The conditions, therefore, under 
 which Nations may innocently navigate the open 
 Sea in time of war, will differ very materially from 
 the conditions under which they may so navigate 
 it in time of peace ; and although there may be no 
 conflict of principle between those conditions, the 
 reason of the thing suggests that the maritime inter- 
 course of Nations in time of war will be governed 
 by very different rules from those which prevail in 
 time of peace, 
 objeotof ^73. The primary object of War being the re- 
 paration of damages. War for the most part imphes 
 Keprisals against the property of an enemy. But 
 War differs so far from Eeprisals, that whereas the 
 latter are grantable against the ships and goods 
 of an enemy ad damni dati modum et damnorum 
 consequendorum causa^ and all Eeprisals, as dis- 
 tinguished from War, cease, when full satisfaction 
 has been obtained ; War, on the other hand, may 
 contemplate, in addition to redress, the punishment 
 of injustice or violence, and the taking of security 
 against future injury, by depriving an enemy of 
 some part of his property or possessions. Again 
 War may be undertaken to prevent injustice or 
 violence ; in which case there will be no place for 
 Eeprisals as such, but the belligerent wUl be entitled 
 of Natural Eight to deprive his enemy of everything 
 which tends to augment his strength and to enable 
 him to do injustice or violence. Every belligerent 
 endeavours to accomplish this object in the manner 
 most suitable to himself; and whenever an oppor- 
 
ON THE HIGH SEAS. 141 
 
 tunity presents itself, he takes possession of the 
 property of his enemy and confiscates it to his own 
 use, thereby diminishing his enemy's power to carry 
 on the war, whilst he secures at the same time to 
 himself an equivalent for the expenses and losses 
 incurred in the prosecution of it\ The movable 
 property equally with the houses and lands of an 
 Enemy-Nation is accordingly liable to be taken by 
 a belligerent and confiscated to his own use, not 
 merely when such movable property is found within 
 the territory of an enemy, but when it is found on Enemy's 
 the High Seas, there being no juridical impediment on the high 
 ratione loci to a belligerent seizing the property of ^^*^" 
 his enemy in a place which is nullius territorium. 
 If a belligerent cruiser accordingly meets a mer- 
 chant vessel on the open Sea, and the vessel or its 
 cargo belongs to an enemy, it is consistent with the 
 primary object of all war, that the belligerent should 
 do justice to himself by taking possession of his 
 enemy's property and converting it to his own use. 
 Property so taken by a belligerent from an enemy 
 on the high sea is termed prize (prise) of war, 
 whilst property taken from an enemy on land is 
 termed booty (butin) of war^. No juridical difficulty 
 can arise, when the property of an enemy found on 
 the high sea is not mixed up with the property of 
 a neutral ; but it may happen in the case of a ship 
 and its cargo, that the ship itself is the property of 
 several owners, one or more of whom are the subjects 
 of a Neutral Power ; or the vessel may be the pro- 
 perty of a neutral merchant and the cargo the property 
 of an enemy ; or the vessel may be enemy's property, 
 and the cargo neutral property ; or the cargo may be 
 
 ' Vattel, L. III. c. i6i. the Low -German word Bute, 
 
 " The French word Butin is Cf. Dictionaire de Trevoux. 
 supposed to he a diminutive of 
 
142 RIGHT OF A BELLIGERENT 
 
 owned in part by an enemy and in part by a neutral. 
 When movable property is found in the territory 
 of an enemy, the locus in quo determines the right 
 of a belligerent to take possession of it, for every- 
 thing which is in the territory of an enemy is prima 
 facie appurtenant to his territory, Quicquid est in 
 territorio est de territorio ; but as the open Sea 
 cannot become the territory of any Nation, no similar 
 rule can determine the right of a belligerent to take 
 possession of a ship or its cargo on the open Sea, 
 and the ownership of the property thus becomes the 
 test of its liability to make good the damages and 
 expenses of the belligerent, and of his right to take 
 possession of it. 
 The office ^ y^. If -^ve go back to the early Laws of the 
 " Sea, we find the juridical distinction taken between 
 armed vessels and merchant vessels. An armed 
 ship might be simply navigating the high sea or 
 cruising (en course). If an armed ship was cruising, 
 she was engaged in making reprisals or in making 
 war, the expression originally made use of in Letters 
 of Marque being the same as in the ancient formulary 
 of declaring war, which enjoins all subjects courir 
 sus d I'ennemi. But this expression was borrowed 
 from an earlier state of things, when the police of 
 the High Seas was maintained by voluntary asso- 
 ciations amongst merchants. In the state of wild 
 anarchy, to which the navigation of the High Seas 
 was subject after the breaking up of the Koman 
 Empire, when the Norman sea-rovers infested the 
 North Sea and the Baltic, and the Saracens and 
 Greeks covered the Mediterranean Sea with piratical 
 vessels, every merchant ship navigating the High; 
 Seas with a valuable cargo was liable to pillage. It 
 was in vain for the plundered trader to prefer his 
 complaint to the Sovereign of the country, from 
 
ON THE HIGH SEAS. 143 
 
 ■which the piratical vessels had been fitted out ; the 
 Sovereign was either too feeble to do justice upon 
 the criminals, or was conniving at their crimes. 
 Merchants accordingly were obliged to associate 
 themselves together for mutual protection ; and their 
 vessels sailed forth iji fleets, of which a chief was 
 elected, called the Admiral. The rule of these Asso- 
 ciations was in the first place mutual defence, and 
 secondly joint participation in all prize, which might 
 be made in the conduct of such mutual defence. Every 
 vessel of a fleet was bound to obey the Admiral, 
 not merely as a leader in battle, but as a judge in 
 dividing the prize made from the enemy ; and the 
 usages of such Associations in their expeditions 
 against pirates, for they fitted out at times fleets of 
 armed vessels expressly to cruise after pirates {per 
 la guerra del corso), came by degrees to be the 
 usages of Nations in their warfare on the High Seas. 
 Such a result seems to have been brought about in 
 this manner. Independent Princes were fain to enlist 
 into their service the armed fleets of these voluntary- 
 Associations, when the occasion presented itself of 
 attacking an enemy by sea, or the necessity arose of 
 defending themselves against any attack by .sea. 
 Thus there was a mercantile Association at Pisa, 
 called the Umili, which was constituted after the 
 likeness of an independent State ^, waging war and 
 making conquests with a military marine of its own. 
 It lent its powerful aid to the Princes of Austria in 
 A.'D. n88, and obtained from them in return special 
 privileges for the Company*. But in enlisting the 
 
 ' The British Bast India right of making war and peace. 
 Company was a striking instance * Muratori Antiq. Ital. Medii 
 
 in modern times of a voluntary Mvi, Tom. II. col. 910 at seq. 
 
 association of merchants exer- Pardessus,Tom. II. Introduction, 
 
 cising, amongst other attributes p. 127. 
 of an independent State, the 
 
144 RIGHT OF A BELLIGERENT 
 
 services of the armed fleets of this and other Mer- 
 chant-Associations, Sovereign Princes found it both 
 necessary and expedient to allovp them to observe 
 the rules to which they had been accustomed to 
 conform themselves, in the conduct of their own 
 maritime expeditions, more particularly as those rules 
 were based for the most part upon principles of 
 Natural Eight ; and thus the sanction of Nations, 
 as such, was given by degrees to the maritime 
 usages of these Merchant-Associations, and so they 
 became the Customary Law of the Sea. 
 
 § 75. The necessity for these voluntary Associa- 
 tions of merchants continuing to maintain the police 
 of the High Seas by armed fleets, equipped at their 
 Admiralty owu cost, and subjcct to an Admiralty jurisdiction 
 tion of " of their own, ceased by degrees, according as Sove- 
 Nations. j-gig^ Princcs took upon themselves the duty of 
 exercising a Supreme Admiralty jurisdiction, which 
 in the course of the thirteenth century came to be 
 considered amongst the leading States of Europe to 
 be a Prerogative of Sovereign Power. In the four- 
 teenth century we find a custom growing up for 
 Sovereign Princes to restrain their Subjects from 
 doing justice to themselves on the High Seas, unless 
 there should have been previously granted to them 
 Letters of Marque and Beprisal ; and in the fifteenth 
 century it may be said to have become established 
 Law, as between Nations, that an armed cruiser 
 should be furnished with Letters of Marque or with 
 Letters Patent under the seal of a Sovereign Prince 
 in the nature of a Commission, in order that it should 
 be entitled of Eight to make Eeprisals or War. The 
 terms upon which these Letters of Eeprisal and Com- 
 missions to make War were grantable, required, that 
 whatever was taken by an armed cruiser should 
 be brought to open judgment in the Admiral-Court, 
 
ON THE HIGH SEAS. 145 
 
 and thus the Admiral-Court came to be an Inter- 
 national Court of Prize, and the rules which had 
 been adopted for the regulation of maritime warfare, 
 whilst it was carried on by the voluntary Associa- 
 tions of merchants under the control of an Elective 
 Admiral, came to be the rules of maritime warfare be- 
 tween Nations, and the Law, which the High Courts 
 of Admiralty administered in questions of Prize taken 
 upon the High Seas. The process of these Courts 
 was framed after the best models which the Koman 
 Law afforded ; and the regulations for prize pro- order of 
 ceedings of the- fifteenth century are identical with ce^Ungr 
 the practice of the present time. The observance 
 of one uniform system amongst Nations was con- 
 firmed by treaties, the articles of which were of a 
 declaratory character ; and amongst these the Treaty 
 of Boulogne ^ concluded between Charles VIII of 
 France and Henry VII of England, on 24 May 
 1497, is most deserving of notice, as being a com- 
 plete exposition of the prize proceedings of those 
 times®. 
 
 ^76. One of the most ancient collections of the Customs of 
 Customs of the Sea' is contained in the Book of the * ^ ^^" 
 
 ^ Robinson, Collectanea Mari- written on paper of the four- 
 
 tima, p. 83. Dumont, Trait^s, teentli century. There is a 
 
 Tom. III. Part I. p. 376. certificate in the later of the 
 
 •^ The tenth article of this two MSS. attested by the Scribe 
 
 treaty provides, that the Muni- of the Consulate of the Sea at 
 
 cipal Courts shall be restrained Barcelona, and verifying its 
 
 from interfering with the free contents. The Bibliothfeque Na- 
 
 action of the Admiralty Court tionale also possesses the only 
 
 in matters of prize. known copy of the Editio Prin- 
 
 ' The two most ancient known ceps of " Lo Libre de Consolat 
 
 MSS. of the Customs of the Sea del Mar,'' which is also in the 
 
 are preserved in the Bibliothfeque Catalan tongue, and was printed 
 
 Nationale in Paris. They are in Barcelona in 1494. A full 
 
 in the ancient Catalan tongue, account of the Barcelonese MSS. 
 
 and the earlier part of one of and of the Editio Princeps of 
 
 them is in a handwriting of the 1494 is given in the Introduc- 
 
 fourteenth century, and it is- tion to the Black Book of the 
 
 PART II. L 
 
140 
 
 RIGHT OF A BELLIQEKENT 
 
 Consulate of the Sea, which was compiled, in the 
 fourteenth and fifteenth centuries for the use of the 
 Consuls of the Sea at Barcelona. The Judgments of 
 the Sea', or as they are more commonly designated 
 the Judgments of Oleron, are of an earlier date, as 
 there are historical traces of them in the middle of 
 the thirteenth century, if there is not historical 
 certainty of their having been compiled in the latter 
 part of the twelfth century. 
 
 The Judgments of the Sea, however, are concerned 
 only with matters of trade in time of peace, whereas 
 the Customs of the Sea contain several chapters, that 
 tteat of qviestions between the armed vessels of 
 belligerents and the trading Vessels of neutrals ^ as 
 well as of questions arising between the owners of 
 
 Admiralty. Appendix, Vol. III. 
 
 P- 34- 
 
 ' The two earliest known MSS. 
 of the Judgments of the Sea are 
 preserved in the Archives of the 
 Guildhall of the City of London. 
 They are in the Anglo-Norman 
 tongue, written on parchment, 
 and in an early handwriting of 
 the fourteenth century .~ The 
 text of both these MSS. consists 
 of twenty-four articles, which 
 are identical with the articles of 
 the Laws of Oleron, that form 
 part of, the text of the Black 
 Book of the Admiralty. A Casti- 
 lian version of these Judgments 
 tinder the title of "El Fuero 
 de Layron" exists in a MS. of 
 the fifteenth century, preserved 
 in the Libl-ary of the Escurial 
 ill Spain, from which it appears 
 that the fiftll part of the Siete 
 Partidas of Alphonso X of Castile, 
 which was completed in 1266, 
 was framed upon the model of 
 these Judgments. Many writers 
 of eminence have been misled 
 
 by Cleirac's work on " Les Us et 
 Coustuhies de la Mer," to con- 
 found the ancient Judgments of 
 the Sea with a version of them, 
 consisting of forty-six articles, 
 which was published for the 
 first time in the early part of 
 the sixteenth century by Pierre 
 Garcie, alias Ferrande, in Le 
 Grant Routier de la Mer, and 
 which Garcie professed himself 
 to have extracted " du trfes utill 
 et profittable RooUe Dolayron," 
 and under that misapprehensioli 
 they have erroneously assigned 
 to the JudgmeUts of the Sea an 
 origin comparatively modern and 
 more recent than that .of the 
 Book of the Consulate of the 
 Sea. 
 
 * Ch. 231. Of a merchant ship 
 taken by an armed ship. Ch. 243. 
 If a ship of merchandise meets 
 with a ship of an enemy. Ch. 
 245. Of a ship captured and 
 recaptured. Black Book of the 
 Admiralty, Appendix, Yol. III. 
 PP- 539, 601, 611. 
 
ON THE HIGH SEAS. 147 
 
 ships and the owners of cargoes, incidental to the 
 exercise of the Rights of War by belligerents on the 
 High Seas. These Customs of the Sea were an 
 important branch of the Law, which the Consuls of 
 the Sea were directed under Eoyal Ordinances, issued 
 on several occasions in the earlier part of the four- 
 teenth century, to administer in the various maritime 
 Courts within the dominions of the Kings of Aragon, 
 and they are of much higher antiquity than the Book 
 of the Consulate itself, in which they have been 
 handed down to our time, precisely as the Laws of 
 Oleron are of much higher antiquity than the Black 
 Book of the Admiralty of England, in which they 
 are inserted. We may account for the appearance 
 amongst these Customs of several chapters on ques- 
 tions appertaining to maritime warfare by the two- 
 fold consideration, — first, that the system of main- 
 taining the peace of the high seas against piratical 
 vessels by cruisers fitted out by voluntary associations 
 of merchants was first organised effectively in the 
 maritime cities on the shores of the Mediterranean, 
 and secondly, that there was a permanent State of 
 War upon the waters of the Mediterranean between 
 the Christian and the Saracen corsairs®, the conduct 
 of which it had been found exj)edient by both parties 
 to place under some regulations. Thus Fanucci^" 
 cites an example of a date as early as a.d. i 164, from 
 which it would appear that the Eight of Visitation 
 and Search was recognised at that time both by 
 Christian and by Mahommedan Powers, as a belli- 
 
 ' The term Corsair was ori- Christian traders, 
 ginally applied as a generic term ^° The documents cited by 
 to any vessel fitted out per la Fanueci are referred to in Par- 
 guerra del corso. In later times dessus, Lois Maritimes, Tom. 11. 
 its use has been confined to Introduction, p. 122. The chap- 
 vessels engaged in predatory ters on Cruisers of War are in- 
 warfare, such as was waged by serted in Tom. V. p. 396. 
 the Barbary Corsairs against all 
 
 L 2 
 
148 EIGHT OF A BELLIGEEENT 
 
 gerent Eight in regard to Neutrals ; and we find in 
 the chapters on Cruisers of War which are inserted in 
 the Book of the Constilate, immediately after the 
 Customs of the Sea, as well as in other Sea-Laws of 
 the fourteenth century, express regulations as to the 
 incidents of battle with Saracen enemies. 
 Distinction §77- Lookiug then to the Customs of the Sea, as 
 from 'cargo, containing the traditions of the early jurisprudence 
 of the Middle Ages in regard to belligerent and 
 neutral rights on the High Seas, we find that in the 
 fourteenth century, in order to reconcile the free 
 action of a belligerent against the property of an 
 enemy with the respect due to the property of a 
 Neutral Subject, a rule had become established under 
 which neutral property, although laden on board of 
 an enemy's ship, was not subject to confiscation upon 
 the capture of the ship ; and reciprocally a neutral 
 ship laden with enemy's goods was to be restored to 
 its owner, upon the delivery of its cargo to the belli- 
 gerent captor. As the primary object of war is to 
 work Corrective Justice by exacting compensation for 
 damage which has been inflicted, the mode by which 
 a belligerent Power brings about this result is by 
 seizing the goods not only of the actual wrong-doer, 
 if they can be met with at sea, but also the goods of 
 other subjects of the Sovereign Prince, who, as such, 
 ought to control the conduct of the actual wrong-doer 
 and constrain him to make reparation ; and thereupon 
 either detaining them as a security until justice is 
 done, or confiscating them as an equivalent for the 
 loss which has been sustained. The action of a belli- 
 gerent, accordingly, in seizing ships" or their cargoes 
 on the High Seas, should in reason and justice be 
 
 " Statute of Marseilles, L. II. recipiendi quod suum est, atque 
 c. 30. Cf. Ducange, Glossarium, ob id manum injiciendi in bona 
 vox Laudum,, which signifies Jus vel corpus debitoris. 
 
ON THE HIGH SEAS. 149 
 
 confined to the property of enemies. It will there- 
 fore not excite surprise to find that the Common 
 Law of the Sea in matters of prize in the fourteenth 
 century, as it did not proceed upon any principles 
 of Empire, but was framed upon considerations 
 of Corrective Justice, was so far consistent with 
 Natural Eight (suum cuique), that neutral property 
 was sacred upon the common highway of Nations, 
 whilst enemy's property, wheresoever found, was 
 good prize. The recognition of this principle may 
 be traced back to the thirteenth century, as it is 
 found to be the basis of a compact between the city 
 of Pisa and the city of Aries, a.d. 1221^^. In the 
 course of the next century, to which the compilation 
 of the Customs of the Sea may be referred, we find 
 the same principle embodied in treaties which Edward 
 III of England concluded, on the one hand with 
 the maritime cities of Biscaye and Castile A.D. 
 1 351, and on the other hand with the towns of 
 PortugaP^ A.D. 1353; and thus the Customs of 
 the Mediterranean Sea. came to extend themselves 
 amongst the merchants and mariners of the Western 
 and Northern Seas. In the following century the 
 Duchy of Burgundy a.d. 1406^*, the City of Genoa 
 A.D. 1462 ^^ the Duchy of Brittany A.D. 1468^^ and 
 the Duchy of Austria a.d. 1495", entered formally 
 into the same system of prize law by treaties con- 
 cluded with England ; and the general practice of 
 European Nations in the fifteenth century may be 
 said to have been uniform in this matter, and so to 
 have continued until the middle of the sixteenth 
 century, when Francis I of France, avowedly with 
 the object of checking neutral frauds, directed the 
 
 '2 Muratori Antiquitates Ita- " Ibid. IV. Part I. p. 3. 
 
 licse Medii ^vi, L. IV. col. 398. '' Ibid. V. ?art II. p. 92. 
 
 '^ Kymer, Foedera, Tom. in. '" Ibid. V. Part II. p. 161. 
 
 Part I. p. 71 and 88. " Ibid. V. Part IV. p. 85. 
 
150 RIGHT OF A BELLIGBEENT 
 
 Efegiement Admiralty of Fitince, by the Efeglement of a,d. 1543, 
 '^^' to condemn the goods of a friend found on board the 
 ship of an enemy, and the ship of a friend, if it should 
 be found laden with enemy's goods. 
 
 § 78. The practice which France has pursued since 
 
 the Eeglement of 1543 has been subject to fluctua- 
 
 Edictof tions. An Edict of Henry III (a.d. 1584) laid down 
 
 '^ '^' the same rule for the French Prize Courts which had 
 
 been promulgated by Francis I, proceeding upon the 
 
 principle of hostile infection, as expressed by the 
 
 maxim of " Eobe d'ennemi confisque celle d'ami." 
 
 This maxim had been justified by the celebrated 
 
 French jurist Mornac, upon a suggested analogy with 
 
 a provision of the Homan Civil Law", according to 
 
 which a vehicle carrying prohibited goods was liable 
 
 French to confiscation with the goods themselves. In 1650 
 
 hostile in- the doctrinc of hostile infection was so far relaxed, 
 
 feotion. ^YiQ,t -whilst oncmy's property was to be confiscated, 
 
 the goods of friends were to be restored to them ; 
 
 Ordon- but the famous Ordonnance de la Marine of Louis 
 
 Marine of" XIV, A.D. i68i'^ revived all the severity of the 
 
 1681. earlier Begulations of 1543 an4 1584. Spain, under 
 
 the sceptre of the House of Bourbon, followed in the 
 
 Spanish wake of France, and by Article IX of her Ordenanza 
 
 diCorsoofdi Oorso, A.D. i/iS, adopted the provisions of the 
 
 1718. Ordinance of Louis XIV^". It was not until a.d. 
 
 1744 that some relaxation in the severity of the 
 
 Ordinance of Louis XIV was introduced by an Order 
 
 in Councils directing that whilst enemy's goods 
 
 should be confiscable on board of a neutral vessel, 
 
 the vessel itself should be restored to its owners; 
 
 " I>olniims navis si illicite ^' Lebeau, Code des Prises, 
 
 aliquid in navi vel ipse, vel Tom. I. p. 80. 
 
 vectores imposuerint, navis quo- '■"' D'Abreu, Prises Maritimes, 
 
 que fisco vindicatur. Dig. L. c. 9. § 13. 
 
 XXXIX. Tit, IV. c. 2. § 2. ■"■ Lebeau, Tom. I. p. 471. 
 
ON THE HIGH SEAS. 151 
 
 but this order, says Valin^^, was only made from a 
 reference to particular treaties, and in order to give 
 effect to treaty-engagements with particular Powers. 
 The doctrine of hostile infection was at last definitively 
 set aside by the Rfeglement of 26 July 1778^^ under French 
 which, whilst neutral ships carrying contraband ofoff^j-™.^" 
 war destined for the enemy were not to be confis^ 
 cated unless three fourths of their cargo were con- 
 traband, privateers were forbidden to seize and 
 detain neutral vessels, unless they were destined to 
 a blockaded or besieged place ^*. The Conseil des 
 Prises in France has interpreted this Reglement to 
 imply the principle of Free Ships, Free Goods; 
 and although its operation was suspended for a 
 short time by the Law of 29 Mvose of the year VI 
 of the Eepublic^^ whereby a vessel was held to 
 have a friendly or hostile character according as 
 the cargo on board of it belonged to a friend or an 
 enemy, it was once more revived by the Decree of 
 22 Frimaire, of the year VIII of the Republic ^^ and 
 it may be considered to have been the Law of the Law of the 
 French Prize Courts down to the breaking out of the p^^e^ 
 war against Russia in 1854. An eminent English ^°"'^- 
 Judge (Sir WilHam Grant) in delivering the judgment 
 of the Lords of Appeal in Prize Causes in i8qi, 
 upon an incidental question arising in the case of a 
 vessel warranted Swedish property (Sweden being 
 then neutral in the war between Great Britain and 
 
 ^^ Valin, Ordon. de la Marine, was to be paid on the goods 
 
 L. III. Tit. IX. Art. VII. taken out of them. 
 
 ^^ Lebeau, Code des Prises, ^^ Lebeau, Code des Prises, 
 
 Tom. II. p. 38. Martens, Rdcueil, Tom. III. p. 475. L'dtat des 
 
 Tom. III. p. 19. navires, en ce qui concerne leur 
 
 ^* By the Ordinance of 1780 charactere de neutre ou d' en- 
 Spain declared that enemy's pro- nemi, sera d^termin^ par leur 
 perty should be taken out of cargaison. 
 neutral ships, and the ships be ^'^ Ibid. p. 615. 
 allowed to go free, whilst freight 
 
152 EIGHT OF A BELLIGEKENT 
 
 France), which had been confiscated by a French 
 tribunal in the Isle of France, as enemy's property, 
 under the French Ordinance of 1778, observed, in 
 reference to the various French Ordinances in matters 
 of prize, that when Louis XIY published his famous 
 Ordinance of 1681, "nobody thought that he was 
 undertaking to legislate for Europe, merely because 
 he collected together and reduced into the shape of 
 an ordinance the principles of marine law, as then 
 understood and received in France. I say, as under- 
 stood in France ; for although the Law of Nations 
 ought to be the same in every country, yet as the 
 tribunals which administer the Law are wholly in- 
 dependent of each other, it is impossible that some 
 differences shall not take place in the manner of in- 
 terpreting and administering it in different countries, 
 which acknowledge its authority. Whatever may 
 have been attempted, it was not at the period now 
 referred to supposed, that one State could make or 
 alter the Law of Nations ; but it was judged con- 
 venient to establish certain principles of decision, 
 partly for the purpose of giving an uniform rule to 
 the Courts, and partly for the purpose of apprising 
 Neutrals what that rule was." The same learned 
 Judge, in commenting upon the administration of 
 the law of Prize by the French Courts under the 
 direction of these Ordinances, observes " that they 
 have not taken them as positive laws binding upon 
 Neutrals, but they refer to them as establishing 
 legitimate presumptions, from which they are war- 
 ranted to draw the conclusion, which it is necessary 
 for them to arrive at, before they are entitled to pro- 
 nounce a sentence of condemnation^'." 
 
 § 79. The Eule of the Consolat del Mar has 
 
 ■' Marshall 'on Insurance, Vol. I. p. 423. 
 
ON THE HIGH SEAS. 153 
 
 been explicitly incorporated into tlie jurisprudence 
 of the United States, and declared by the Supreme United 
 Court to be a correct exposition of the Usage of America. 
 Nations. "The rule/' says Chief-Justice Marshall, 
 " that the goods of an enemy, found in the vessel of 
 a friend, are prize of war, and that the goods of a 
 friend, found in the vessel of an enemy, are to be 
 restored, is believed to be a part of the original 
 Law of Nations, as generally, perhaps universally, 
 acknowledged. This rule is founded on the simple 
 and intelligible principle, that war gives a full right 
 to capture the goods of an enemy, but gives no right 
 to capture the goods of a friend. In the practical 
 exposition of this principle, so as to form the rule, 
 the propositions that the neutral flag constitutes no 
 protection to enemy's property, and that the belli- 
 gerent flag communicates no hostile character to 
 neutral property, are necessarily admitted. The cha- 
 racter of the property, taken distinctly and separately 
 from other considerations, depends in no degree upon 
 the character of the vehicle in which it is carried^^" 
 To the same effect Mr. Wheaton observes, " Whatever wheaton. 
 may be the true original abstract principle of National 
 Law on this subject, it is undeniable that the constant 
 usage and practice of belligerent Nations from the 
 earliest times have subjected enemy's goods in neu- 
 tral vessels to capture and condemnation, as prize 
 of war. This constant and universal usage has only 
 been interrupted by treaty-stipulations, forming a 
 temporary conventional law between the parties to 
 such stipulations^^." Chancellor Kent, in like man- ChanoeUor 
 ner, affirms it to be " a well settled principle of the 
 Law of Nations, that neutral ships do not afford pro- 
 tection to enemy's property, and it may be seized if 
 
 '^ The Nereide, 9 Cranch's ^' Elements of International 
 
 (American) Reports, p. 418. Law, Part IV. c. 3. § 19. 
 
154 KIGHT OF A BELLIGERENT 
 
 found on board of a neutral vessel beyond the limit 
 of the neutral jurisdiction^"." " It is also a principle 
 of the Law of Nations relative to neutral rights, that 
 the effects of neutrals found on board of enemy'p 
 vessels shall be free ; and it is a right as fuUy and 
 firmly settled as the other, though, like that, it is 
 often changed by positive agreement. The principle 
 is to be foxmd in the Consolato del Mare^\ and the 
 property of the Neutral is to be restored without 
 any compensation for detention and the other in- 
 conveniences incident to the capture. The former 
 Ordinances of France of 1543, 1584, and 168 1, 
 declared such goods to be lawful prize ; and Valin^^ 
 justifies the Ordinances on the ground that the 
 Neutral, by putting his property on board of an 
 enemy's vessel, favours the enemy's commerce, and 
 agrees to abide the fate of the vessel. But it is 
 fully and satisfactorily shown, by the whole current 
 of modern authority, that the Neutral has a perfect 
 right to avail himself of the vessel of his friend to 
 Bynker- transport his property ; and Bynkershoek has de- 
 voted an entire chapter to the vindication of the 
 justice and equity of this right ^^" 
 
 § 80. The Common Law of Nations, which de- 
 clares the property of an enemy found on the High 
 Seas in the vessel of a friend to be good prize of 
 war, provides at the same time that the friendly 
 shipowner shall not suffer any prejudice by reason 
 of a belligerent doing justice to himself by confis- 
 
 ^ ComnMntaries on American ^ Qusestiones Juris Publioi, 
 
 Law, Tom. I. § 124. L. I. c. 14. Eatione consulta, 
 
 ^^ Chancellor Kent refers to non sum qui videam, cur non 
 
 the Italian translation of the liceat capere res hostiles, quamvis 
 
 Consolat del Mar. in ^avi arnica repertas, id enira 
 
 ^^ Comm. sur I'Ordonnance eapio quod hostis est, quodque 
 
 de la Marine, L. III. Tit. IX. jure belli victori cadit. Kent's 
 
 Des Prises, Art. VII. Commentaries, Tom. I. p. 128. 
 
 shoek. 
 
ON THE HIGH SEAS, 155 
 
 eating the property of his enemy. If a friendly Freight 
 shipowner is simply the carrier of enemy's property IZtli *" 
 on the High Seas, and does not seek in any way to ^^^p^ 
 
 J ^ m • J J owners. 
 
 evade or baffle enquiry on the part of a belligerent 
 cruiser with a view to screen the cargo from capture, 
 his conduct is not inconsistent with neutrality; and 
 reason suggests that the neutral carrier, in case the 
 cargo should be confiscated by the belligerent, should 
 not incur any loss by reason of the voyage, which was 
 in its inception perfectly innocent, being prematurely 
 terminated in the interest of the belligerent. If a 
 belligerent cruiser accordingly arrests the voyage of 
 a neutral merchant vessel on the High Seas, and 
 claims to have the cargo, as being the property of 
 an enemy, delivered up to him or carried into port, 
 as the case may be, the belligerent is bound to pay 
 the neutral shipowner an adequate freight for the 
 carriage of the cargo. The belligerent has no cause 
 of grievance against the neutral shipowner as long as 
 the conduct of the latter is perfectly impartial : 
 under such circumstances his rights, as a belligerent, 
 are solely against his enemy; and if he takes pos- 
 session of his enemy's property jure helli, he takes it 
 under no better conditions than those under which 
 the enemy can himself claim it, namely, with the 
 lien of the freight upon it. A distinction however 
 has been so far made in favour of the belligerent, 
 that he is not burdened with an unreasonable prce- 
 mium upon ,a voyage evidently hazardous, although 
 such prcemium may not have been inequitable as 
 between the enemy-shipper and the neutral ship- 
 owner. Considerations of various kinds may have Measure of 
 influenced the parties to the contract of affreight- ^'^ 
 ment, and may have rendered a contract for an 
 advanced rate of freight real and fair between 
 those parties ; but the freight, as a burden upon the 
 
156 EIGHT OF A BELLIGERENT 
 
 belligerent captors, does not come loaded with those 
 considerations. The captor is bound indeed to pay 
 an adequate remuneration for the carriage of the 
 cargo, of which he has taken possession by virtue 
 of the right, which a state of war confers upon him, 
 as against his enemy ; but the charter-party is not 
 the measure by which the captor is always bound, 
 even where its terms are not colourable nor liable 
 to any imputation of fraud. For instance, the trade 
 may be subject to 'extraordinary risk and hazard 
 from its connection with the events of war and the 
 activity and success of the belligerent cruisers ; and 
 it would be unreasonable for the captof to be called 
 upon to make good an undertaking to pay an extra- 
 ordinary premium, the specific pnrpose of which was 
 to encourage the neutral shipowner to use his best 
 •efforts to defeat the captor's vigilance. The rate of 
 freight given for the carriage of similar goods under 
 ordinary circumstances is the standard, by which 
 the liabilities of the belligerent captor towards the 
 neutral shipowner are to be measured^^. 
 
 § 8 1. The Conventional Law of Europe down to 
 the commencement of the seventeenth century seems 
 to have been almost uno tenore confirmatory of the 
 rule of the Consolat del Mar, that enemy's goods 
 found on board of a neutral vessel were good prize. 
 GrandPen- Jt is to the Grand Pensionary De Witt that the in- 
 
 sionary De _ . • . t n i t -r-n 
 
 Witt. troduction oi the prmciple of the neutral JBlag cover- 
 ing the Cargo is due ; and the treaty by which that 
 statesman laid the foundation of the novel doctrine 
 of Free Ship, Free Goods, was the Treaty of Paris'*, 
 concluded on i8 April 1646, between Holland and 
 France, whereby Louis XIV agreed that for four 
 
 '' Vattel, Droit des Gens, p. 82- 
 L. III. c. 7. § 115, 116. The =« Dumont, Traitds, Tom. VI. 
 
 Twilling Riget, 5 Kobinson, Pait I. p. 342. 
 
ON THE HIGH SEAS. 157 
 
 years Dutcli vessels laden with enemy's property, 
 not contraband of war, should with their cargoes be 
 exempt from capture. The language of this treaty^' Treaty of 
 would seem to support the construction put upon it 1646. 
 by De Witt, that it provided for the perfect free- 
 dom of the Dutch carrying trade ; but De Witt 
 found to his surprise that the French interpreted 
 the Treaty merely to provide for the temporary 
 suspension of the Ordomiance of King Henry III 
 (a. D. 1584), according to which enemy's goods 
 forming part of the cargo of a neutral vessel in- 
 fected the remainder of the cargo and the vessel 
 itself, and led to the condemnation of both, as good 
 prize. In the course of a few years the Dutch Dutch 
 obtained the assent of Spain (a. D. 1650) and of 
 Portugal (a. d. 1661), to the provision that the goods 
 of an enemy found on board of a neutral vessel 
 should be free, whilst the goods of a neutral found 
 on board of an enemy's vessel were to be good 
 prize. In 1662 (27 April) the Dutch succeeded in 
 inducing the French to enter into a Treaty of iden- 
 tical import with the Treaties which they had pre- 
 viously concluded with Spain and with Portugal. 
 England had meanwhile entered into similar engage- 
 ments with Portugal in 1654^^, and she conceded the British 
 same privilege to the Dutch in 1667, as the price of ^^^^^ ' 
 an alliance between the States General and England 
 against France. This privilege was renewed in the 
 following year at Breda, and again in the Treaty of 
 Commerce concluded at London in 1674^^, and the 
 
 ^^ Art. I. En telle sorte que et Idgumes appartenans aux en- 
 
 les Navires, qui trafiqueront avec nemis, sauf et excepts toutefois 
 
 la Patente de TAmiral des Pro- les marchandises de contrebande. 
 vinces TJnies . . . seront libres et ^ Dumont, Tom. VI. Part II. 
 
 rendront aussi toute leur' charge p. 84. 
 
 libre, bien qu'il est dedans de la '' Ibid. Tom. VIII. Part I. 
 
 Marchandise, m^me des grains p. 49. 
 
158 RIGHT OP A BELLIGEEENT 
 
 relations between Holland and England continued 
 to be so far exceptional to tbe Common Law of the 
 Sea down to 1756, when on the refusal of the States 
 General to fulfil certain stipulations of the Treaty of 
 1678, England declared that she would not recog- 
 nise any longer this treaty privilege in favour of 
 the Dutch. In 1667^* England admitted the prin- 
 ciple of Free Ship, Free Goods, into a treaty 
 concluded with Spain, and in 1677 into a treaty 
 concluded with France. The same principle was also 
 Treaties ofrecogniscd iu the Treaties of Utrecht (a.d. 1713) as 
 between France and Great Britain, France and the 
 United Provinces, Spain and Great Britain, Spain 
 and the United Provinces. Denmark, Sweden, and 
 Eussia, had severally entered into special treaty- 
 engagements with various Powers prior to the 
 Armed Armed Neutrality of 17^0, which comprised amongst 
 ofT78o.^''' its principles that of Free Ship, Free Goods, but 
 not the correlative principle of Enemy Ship, Enemy 
 Goods. Prussia had, on the other hand, admitted 
 both principles into a treaty concluded with Sweden 
 in 1762, and she acceded to the Armed Neutrality on* 
 8 May 178 1. The Eoman Emperor of the Germans 
 had likewise admitted both principles into a treaty 
 concluded with Spain in 1725^®; and he entered 
 into a treaty with Eussia on 10 July 1781, which 
 recognised the principle of Free Ship, Free Goods. 
 The King of the Two Sicilies acceded to the Armed 
 Neutrality on 10 Feb. 1783, but the action of the 
 Northern Confederacy was suspended by the General 
 Peace concluded in that year. The convenience of the 
 principle, that the neutral Flag covers the Cargo, 
 had thus been very generally recognised by the Na- 
 tions of Europe prior to the war of the first French 
 
 ^'^ Annual Eegister, A.D. 1780, ■'" Dumont, Tom. VIII. Part 
 
 p. 61. II. p. 115. 
 
ON THE HIGH SEAS; 159 
 
 Revolution ; since which event several of the Euro- 
 pean Powers have eiitered into treaty- engagements 
 in affirmance of this principle, not merely with 
 various European Powers, but with the United 
 States of America, and with several independent 
 States of the South American Continent. Mean- 
 while the rtile of the Oonsolat del Mar has been 
 held to constitute the Common Law of the Sea, 
 and Nations have acted upon it as such, when no 
 treaty-engagements*' have bound them to observe 
 a contrary practice* 
 
 § 82. It would appear from the above survey that 
 there are three distinct Systems of law in regard to 
 the exercise of Belligerent Eight upon the High 
 Seas, which have found favour from time to time 
 with particular Nations, and which are departures 
 from the system of the middle ages, or as it may be 
 conveniently termed, the Rule of the Oonsolat del Four sys- 
 Mar. The latter system may be justly said to rest Maritime 
 upon principles of Natural Right, and has commended ■'^*^" 
 itself to general acceptation as being in conformity 
 with the great maxim of all justice, " suum cuique*\" 
 The formula which expresses it, may be thus 
 stated : — 
 
 Enemy Ship, Enemy or Neutral Goods. 
 Neutral Ship, Neutral or Enemy Goods. 
 
 In other words, there is no implied connection be-TheCon- 
 tween the character of the ship and the character Mare. 
 of the cargo ; and the immunity of neutral property 
 from capture, whether it be the ship itself or the 
 cargo laden in the ship, is consistent with the con- 
 fiscation of enemy's property. The belligerent's right 
 
 *" A very complete review of taries on the Law of Nations, 
 
 the treaties on the principle of pp. 224-280. 
 
 Free Ship, Free Goods, will be " Heffter, § 162. 
 found in Manning's Gommen- 
 
160 EIGHT OF A BELLIGERENT 
 
 of prize under this system is restricted to the pro- 
 perty of his enemy ; and whilst' his enemy's property 
 in any form on the High Seas is good prize, neutral 
 property in any form is entitled to pass free. 
 TheFrench '§83. The first Systematic departure from tlie Rule 
 ystem. ^£ ^-j^^ Consolat del Mar was made by France. The 
 Ordinance of Charles II (17 December 1400)^^ which 
 is the earliest extant French Ordinance, had forbidden 
 the Admiral to condemn any ship or merchandise 
 which did not belong to an enemy; and a similar 
 injunction is found in the Rfeglement of 1517*^; but 
 the E^glement of Francis I (a.d. 1543)** declared 
 a neutral ship carrying enemy's goods, and neutral 
 goods found on board an enemy's ship, to be good 
 prize. This R^glement proceeds upon the principle 
 of enemy's property infecting neutral property; and 
 the formula expressing it may be thus stated : — 
 
 Enemy Ship, Enemy Goods. 
 Enemy Goods, Enemy Ship. 
 
 The same principle is affirmed by the Edict of Henry 
 III (a.d. 1584)**. Sir Leoline Jenkins, writing in 
 1668*% seems to doubt whether these Ordinances 
 were ever acted upon in the French Courts of Prize, 
 " the design of the first publishing of them being," 
 in his opinion, " only in terrorem for the purpose 
 of putting an end to neutral frauds in concealing 
 enemy's interests." There is no doubt, however, 
 that this principle was embodied in the Famous 
 Ordonnance de la Marine of Louis XIV (a.d. 1681)^'', 
 which formed the Rule of the French Admiralty 
 Courts down to 1744, and that those Courts only 
 allowed of any relaxation in this rule in cases where 
 
 *^ Lebeau, Code des Prises, *' Lebeau, Tom. I. p. 19. 
 
 Tom. I. p. I. " Life of Sir Leoline Jenkins, 
 
 ^'Ibid. p. 5. Vol. in. p. 720. 
 
 " Ibid. p. 9. " Lebeau, Tom. I. p. 80. 
 
OK THE HIGH SEAS. 161 
 
 France had entered into particular treaty-engage- 
 ments of an exceptional character. 
 
 § 84. The second systematic departure from the The Dutch 
 Rule of the Consolat del Mar was brought about by ^^ ^"" 
 the Dutch in the interest of the Neutral Shipowner, 
 but at the expense of the Neutral Merchant. It 
 proceeds upon the principle that the ship and her 
 cargo are not severable in interest, and that the 
 hostile or neutral character of the ship shall alone 
 be regarded in determining the question as to the 
 cargo being prize or no prize. The formula ex- 
 pressing this rule may be stated as foUows : — 
 
 Free Ship, Free Goods. 
 Enemy Ship, Enemy Goods. 
 
 According to this rule the goods of a neutral found 
 on board the ship of an enemy are good prize, whilst 
 the goods of an enemy found on board the vessel of 
 a neutral are exempt from confiscation. Grotius, in 
 commenting on the maxim of " Enemy Ship, Enemy 
 Goods," most appositely remarks, that "in order 
 that a thing may become ours by the Eight of War, 
 it is requisite that it should have belonged to the ' 
 Enemy. The things which are in the hands of our 
 enemy, as for example in his towns, or under his 
 protection, but of which the owners are neither the 
 subjects of our enemy, nor actuated by hostile in- 
 tentions towards us, cannot be acquired by war*^." 
 He further goes on to say, " wherefore what is said, 
 that goods foimd in enemy's ships are to be regarded 
 as enemy's property, ought not to be accepted as a 
 settled rule of the Law of Nations, but as raising 
 a certain presumption, which may be rebutted by 
 vahd proofs to the contrary ; and so it was of olden 
 time adjudged by a full Senate, when war was raging 
 
 *» De Jure Belli et Pacis, L. III. c. 6. Tit. 5. 
 PART II. M 
 
162 EIGHT OF A BELLIGERENT 
 
 with the Hanse Towns in 1338, and that judgment 
 has become Law*"." 
 
 § 85. The third systematic departure from the 
 Eule of the Consolat del Mar has been made with 
 the general consent of all the European Powers, 
 with the exception of Spain. It proceeds upon the 
 principle which was affirmed by the Armed Neutrality 
 of the Baltic Powers in 1780®", when it declared, 
 that "the property of the subjects of Belligerent 
 Powers shotild be free, if found on board of neutral 
 vessels, with the exception of contraband of war ;" 
 but it leaves untouched the immunity, which neutral 
 merchandise enjoys under the Common Law of Na- 
 tions, although it be found on board of an enemy's 
 vessel. The Declaration of Maritime Law made by 
 the Plenipotentiaries of the Seven Powers assembled 
 Deciara- in Consfress at Paris on 16 April i8'^6^\ sanctions 
 
 tion of ^, .° . , , 1 T n i i 
 
 Paris of the principle, that the neutral nag covers the vessel 
 and its cargo, although the latter may be enemy's 
 property, provided that it be not contraband of war. 
 " Le pavilion neutre couvre la marchandise ennemie, 
 ^ I'exception de la contrebande de guerre." By this 
 declaration the Seven Powers have bound themselves 
 in regard to one another not to act upon the Eule of 
 the Consolat del Mar, under which enemy's property 
 is good prize, if found on board a neutral vessel. 
 There is, however, nothing in this departure from 
 the rule of the Common Law, which is contrary to 
 Natural Eight. The doctrine of "Free Ship, Free 
 Goods," taken absolutely and disconnected from the 
 correlative doctrine of " Enemy Ship, Enemy Goods," 
 implies nothing more, than that the Belligerent has 
 consented to waive the exercise of his Natural Eight 
 
 «» De Jure Belli et Pacis, L. p. 158. 
 III. c. 6. Tit. 6. " Martens, N. K. Gdn^ral, T. 
 
 ^^ Martens, Rdcueil, T. III. XV. p. 792. 
 
 1856. 
 
ON THE HIGH SEAS. 163 
 
 to take possession of the property of Ms enemy, if 
 it should be found on board of a neutral ship. On 
 the other hand the Declaration of the Congress of 
 Paris has affirmed the Eule of the Consolat del Mar 
 in regard to the immunity of neutral property found 
 on board of an enemy's ship, provided it be not 
 contraband of war. "La marchandise neutre, k 
 r exception de la contrebande de guerre, n'est pas 
 saisissable sous pavilion ennemi." The Declaration 
 of Paris may therefore be regarded as a step in a 
 perfectly safe direction, involving no vicious principle 
 at variance with Natural Eight. Mr. Wheaton^^ 
 has well observed, antecedently to the Declaration 
 of Paris, that the principle of " Free Ship, Free 
 Goods," is perfectly reconcilable with the Kule of 
 the Consolat del Mar as to neutral goods beiug 
 free, although found on board of an enemy's ship. 
 Speaking of the stipulation that neutral bottoms shall 
 make neutral goods, he remarks that it is a concession 
 made by the belligerent to the neutral, and gives to 
 the neutral flag a capacity not given to it by the 
 primitive Law of Nations. On the other hand, the 
 stipulation subjecting neutral property found in the 
 vessel of an enemy to confiscation, as prize of war, 
 is a concession made by the neutral to the belligerent, 
 and takes from the neutral a privilege he possessed 
 under the Law of Nations ; but neither reason nor 
 usage renders these two concessions so indissoluble, 
 that the one cannot exist without the other ^^" 
 
 § 86. It was recited in the Declaration of Paris®* 
 (i6 April 1856) that the principles of Maritime Law, 
 
 *^ Elements of International is as follows. " Considering that 
 
 Law, Pt. IV. c. 3. § 22. maritime law in time of war has 
 
 ^' Cf. the Nereide, 9 Cranch's long Been the subject of deplor- 
 
 Eeports, p. 419. able disputes; 
 
 ** The Text of the Declaration That the uncertainty of the law 
 
 M 2 
 
164 
 
 EIGHT OP A BELLIGERENT 
 
 adopted by the parties to that Declaration, should 
 not be obligatory upon any States which should not 
 accede to that Declaration ; and further, that the 
 Governments of the States, which had joined in the 
 Declaration, should bring it to the knowledge of the 
 States, which had not taken part in the Congress 
 of Paris, and invite them to accede to it. In conse- 
 quence of such invitation all the European Powers, 
 with the exception of Spain, have acceded to the 
 four articles of the Declaration^®. Amongst the 
 
 and of the duties in such a matter 
 gives rise to differences of opi- 
 nion between neutrals and belli- 
 gerents, which occasion serious 
 difficulties and even conflicts ; 
 
 That it is consequently advan- 
 tageous to establish an uniform 
 doctrine on so important a point ; 
 
 That the Plenipotentiaries as- 
 sembled in Congress at Paris 
 cannot better respond to the in- 
 tentions by which their Govern- 
 ments are animated, than by 
 seeking to introduce into inter- 
 national relations fixed principles 
 in this respect. 
 
 The above-mentioned pleni- 
 potentiaries (of Great Britain, 
 Austria, France, Prussia, Russia, 
 Sardinia, and Turkey, assembled 
 in Congress at Paris April i6, 
 1 856) being duly authorised, re- 
 solved to concert amongst them- 
 selves as to the means of attaining 
 this object, and having come to 
 an agreement, have adopted the 
 following solemn declaration : — 
 
 1 . Privateering is and remains 
 abolished. 
 
 2. The neutral flag covers 
 enemy's goods, with the ex- 
 ception of contraband of 
 war. 
 
 3. Neutral goods, with the 
 
 exception of contraband of 
 war, are not liable to capture 
 under an enemy's flag. 
 4. Blockades, in order to be 
 binding, must be effective ; 
 that is to say, maintained by 
 a force sufficient really to 
 prevent access to the coast 
 of the enemy." Parliamen- 
 tary Paper, 1856. 
 ^^ A list of those Powers, 
 which had acceded up to 1858, 
 will be found in Martens, N. E. 
 G&. Tom. XVI. p. 641. But a 
 more complete list is set out in 
 the instructions sent from the 
 Foreign Office by Earl Russell to 
 Lord Lyons at Washington on 
 18 May 1 86 1, which were laid 
 before the Congress of the United 
 States in the month of November 
 1 86 1, with the President's Mes- 
 sage, and subsequently presented 
 to both Houses of Parliament in 
 1862 as Papers, North America, 
 No. 2, p. III. The latter list is 
 as follows : Baden, Bavaria, Bel- 
 gium, Bremen, Brazil, Duchy of 
 Brunswick, Chili, the Argentine 
 Confederation, the Germanic Con- 
 federation, Denmark, the two 
 Sicilies, the Republic of the 
 Equator, the Eoman States, 
 Greece, Guatemala, Hayti, Ham- 
 
ON THE HIGH SEAS. . 165 
 
 States of the Western Hemisphere, the Argentine 
 Confederation, Brazil, Chili, Ecuador, New Granada, 
 Guatemala, Hayti, Peru, and Uruguay, have given 
 in their adhesion to all the articles. Mexico, on the Mexicoand 
 other hand, following the example of Spain, has an- ^^™' 
 nounced her intention of adopting, as part of her 
 own legislation, the principles embodied in the last 
 three articles, but has declined to accede to the Decla- 
 ration itself, on account of the first article, which 
 declares Privateering: to be abolished. The United united 
 
 o PA • ^ • • •! Ill States and 
 
 otates 01 America have in a similar manner declared Confede- 
 their intention of observing the last three articles, of America. 
 and they intimated their willingness to accede to the 
 Declaration itself, if the other Powers would agree to 
 adopt an additional provision, to the effect " that the 
 private property of the subjects or citizens of a 
 belligerent on the High Seas shall be exempted from 
 seizure by the public armed vessels of the other 
 belligerent, except it be contraband;" This proposal 
 is sometimes called the Marcy amendment, having 
 been made by Mr. Marcy, Secretary of State, to Presi- 
 dent Pierce. It was withdrawn on the accession of 
 President Buchanan to ofSce in 1857. The result is, 
 that the exercise of belligerent Eight upon; the High 
 Seas on the part of those Powers, which are parties 
 to the Declaration of Paris, is governed, as respects 
 one another, by the principles affirmed in that 
 Declaration, but as respects the United States of 
 America, and Spain, and Mexico, by the Common 
 
 burg, Hanover, the two Hesses, temlDerg,AnliaU-D'essau,Modena, 
 
 Lubeck, Mecklenburg - Strelitz, New Granada, Uruguay. This is 
 
 Mecklenburg-Scbwerin, Nassau, probably the same list, which was 
 
 Oldenburg, Parma, Holland, Peru, put forth by the French Govern- 
 
 Portugal, Saxony, Saxe-AIten- ment in a Memorandum from the 
 
 burg, Saxe-Coburg-Gotha, Saxe- Ministerof Foreign Affairs, dated 
 
 Meiningen, Saxe-Weimar, Swe- 12 June 1858. 
 den, Switzerland, Tuscany, Wur- 
 
166 EIGHT OF A BELLIGEEBNT 
 
 Law of Nations, unless there be any preexisting 
 treaty-engagenaents with those Powers to the con- 
 trary. The plenipotentiaries of the Powers assembled 
 in Congress at Paris on the day on which the Decla- 
 Protocoi ration was signed, placed on record in a ProtocoP^ 
 °' ^'*' of that date their agreement, that neither the original 
 parties to the Declaration, nor the Powers that should 
 accede to it, can enter thereafter into any arrange- 
 ment in regard to the application of Maritime Law 
 in time of war, which does not at the same time rest 
 upon the four principles which are the subject of the 
 Declaration. 
 Territorial ^87. Hubnor, in his work upon the seizure of 
 hXiict'! neutral ships published in 1759, had advocated the 
 adoption of the principle of Free Ship Free Goods, 
 concurrently with the maintenance of the rule of the 
 Consolat del Mar, that neutral merchandise should 
 be exempt from capture, although found on board 
 an enemy's vessel. His argument in support of the 
 former principle rested upon two propositions, that 
 neutral ships are neutral territory ^^ within which 
 
 ^° Protocol No. 24. " Sur la retro-actif, ne saurait invalider 
 
 proposition de M. le Comte les Conventions ant^rieures." 
 
 Walewski et reconnoissant qu'il Martens, N. R. G^n. T. XV. 
 
 est de I'intdret commun de main- p. 768. 
 
 tenir I'indiyisibilitd des quatre °' " Or les Vaisseaux neutres 
 
 principes mentionn^s k la 1)6- sent sans contredit des lieux 
 
 claration sign^e en ce jour, MM. neutres ; d'oii il s'ensuit que 
 
 les Pldnipotentiaires conviennent quand ils seraient incontestable- 
 
 que les Puissances, qui I'ont sig- ment charges pour le compte de 
 
 n^e, ou celles qui y auront acc^d^, I'ennemi, les belligdrans n'ont 
 
 ne pourront entrer k I'avenir sur aucun droit de les inquidter au 
 
 I'application du droit maritime sujetdeleurs cargaisons,puisqu'il 
 
 en temps de guerre, en aucun ar- revient au mSme d'enlever des 
 
 rangement qui ne repose k la fois effets d'un navire heutre, ou de 
 
 sur lesquatre principes objetde la les enlever sur un territoire neu- 
 
 dite Ddolaration. Sur une obser- tre." De la Saisie des Batimens 
 
 ration faite par MM. les Pl^nipo- neutres ou du Droit qu'ont les 
 
 tentiaires de la Russie, le Congres Nations bellig^rantes d'arr^ter les 
 
 reconnait que la prdsente rdso- navires des peuples neutres. La 
 
 lution, ne pouvant avoir d'effet Haye, 1759. 
 
ON THE HIGH SEAS. 167 
 
 enemy's property is sacred, and that commerce 
 ought to be as free to neutrals in time of war as 
 in time of peace, seeing that neutrals are not parties 
 to the contention. In the same spirit Kltiber ^* and Kiuber. 
 Martens ^^ both rest the principle of Free Ship Free 
 Goods upon the territoriality of merchant vessels on 
 the high seas. The former writer says, " Upon the 
 ocean, every ship is considered extraterritorial in re- 
 gard to all foreign Nations. A merchant-vessel ought 
 to be considered as a floating colony of its State. In 
 consequence, no belligerent Power ought to allow 
 itself to visit a neutral ship, nor to confiscate enemy's 
 goods which are on board of it, much less to appro- 
 priate to itself the ship by reason of the cargo 
 belonging to an enemy. It is this principle which 
 is expressed by the maxim of law, the neutral flag 
 covers the cargo {die neutrale Flagge deckt die Warre) ; 
 in other words, the neutral vessel renders the cargo 
 neutral. It is the same with goods laden on board 
 an enemy's vessel, which a belligerent has not any 
 more the right to confiscate, than if he found them 
 on the continental territory of an enemy." Martens, Doctrine of 
 with a like view, observes, " There is no doubt that 
 a belligerent Power may confiscate enemy's sliips 
 with enemy's cargoes ; but whilst war does not 
 authorise hostilities in a neutral place, it would seem 
 that the Law of Nature forbids us to capture enemy's 
 goods of an innocent character, which are found on 
 board of a neutral ship, and much more to confis- 
 cate the ship ; and as war does not authorise us to 
 appropriate the goods of the subjects of a State 
 with which we are at peace, although found in an 
 enemy's country, it is equally forbidden us to con- 
 fiscate a neutral cargo found in an enemy's vessel; 
 
 ^^ Droit des Gens, Part II. ^^ Precis de Droit des Gens, 
 
 Tit. I. 0. 2. § 299. L. VIII. c. 7. § 316. 
 
168 EIGHT OF A BELLIGERENT 
 
 accbrdingly the Law of Nature will suffice to establish 
 the principle that the flag protects the cargo {frey 
 schiff frey gut), but never confiscates it {verfallenes 
 schiff macht nicht verfallenes gut). " It must be 
 admitted," he goes on to say, " that an opinion con- 
 trary to the first of these principles, namely, that 
 according to the law of Nature regard should be 
 had to the property of the cargo rather than to that 
 of the ship, does not want specious arguments to 
 support it, and that a simple theory will never 
 suffice to make persons agree upon a point, in re- 
 gard to which their interests are not the same." Of 
 the above writers Kluber is the most logical in his 
 conclusions, as he denies to a belligerent any Eight 
 of Visit and Search, which would be a necessary con- 
 sequence of admitting a neutral ship to all the privi- 
 leges of neutral territory. Martens, on the other 
 hand, does not claim immunity under the law of 
 Nature for enemy's cargo on board a neutral ship, 
 except it be of an innocent character ; but it must 
 not be forgotten that the inviolability of neutral ter- 
 ritory is something absolute, and is communicated to 
 everything within it, whether it be suitable or not to 
 belligerent purposes. Martens also admits the Eight 
 of Visit to be a Natural Eight of beUigerents, on the 
 ground that the neutral merchant flag is not suflS- 
 cient proof that the vessel is not an enemy vessel ; 
 but the Eight of Visit on the part of a belligerent 
 is inconsistent with the sacred character of neutral 
 territory, more particularly as the object of the visit 
 of a merchant ship by a belligerent is to examine 
 the ship's papers, and to ascertain thereby whether 
 the owners of the ship are friends or enemies, in- 
 dependently of the question whether the vessel law- 
 fully sails under a neutral flag. 
 Bynker- ^ 88. Bynkcrshoek had anticipated the territorial 
 
ON THE HIGH SEAS. 169 
 
 theory of Hiibner in discussing the right of a belli- 
 gerent to take possession of enemy's goods on board 
 of a neutral ship, and had shown its inconsistency 
 with the belligerent Eight of Visit. " Velim anim- 
 advertes eatenus licitum esse amicam navem sis- 
 tere, ut non ex fallaci forte aplustri, sed ex ipsis 
 instrumentis"" in navi repertis constet navem ami- 
 cam esse. Si id constet, dimittam ; si hostilem esse 
 constiterit, occupabo, Quod si liceat, ut omni jure 
 licet, et perpetuo observatur, licebit quoque instru- 
 menta, quae ad merces pertinent, excutere, et inde 
 discere, an quae hostium bona in navi lateant, et 
 si lateant, quidni ea jure belli occupem." Lam- Lampredi. 
 predi^\ writing subsequently to the appearance of 
 Hiibner 's work, contravenes the fiction of a ship 
 being part of the territory of a State, as altogether 
 untenable. In effect, he says, it is not true to say 
 that men who navigate the High Seas, that is who 
 find themselves in a place which is not subject to 
 the jurisdiction of any Nation, can be regarded as 
 upon the territory of the Nation whose flag they 
 carry, as Hiibner has erroneously pretended. The 
 flag, when it is accompanied by sea-papers, only 
 serves to make known to what Nation the crew 
 and the ship belong, that they have set out from 
 a certain port with permission to navigate the Sea, 
 and to hoist the flag which they carry. With regard 
 to other persons who may be on board, they have no 
 other laws to observe than those of natural justice 
 and of the poKce established by the Sovereign Power 
 of the Nation, as well for the maintenance of good 
 order on board, as for the conduct to be observed in 
 regard to vessels which they may meet with upon 
 
 *" Qusest. Juris Publici, L. en temps de Guerre, traduit par 
 I. c. 14. J. Peuchet, Paris, an. X. (1862), 
 
 ^^ Du Commerce desNeutres, p. 139. Part I. § ro. 
 
170 EiaHT OF A BELLIGERENT 
 
 the Sea. Two vessels whicli meet imder such like 
 circumstances, resemble two carriages which happen 
 to meet in a desert place, which is not in the occupa- 
 tion of any Nation. It would be very absurd for the 
 owner of one of them to pretend that his carriage 
 is the territory of his State, because he has hoisted 
 upon it the flag of his State. The pretension of a 
 marine carriage (voiture de mer) is not less ridi- 
 culous, when, having hoisted the flag of a Nation, 
 the owner of the carriage claims that it should be 
 regarded as forming part of the Nation's territory, 
 and as such should be inviolable. The persons 
 of the individuals, who are on board of a vessel 
 on the High Seas, deserve to be respected beyond 
 doubt, and they ought not to be troubled or arrested, 
 not because they are upon a territory, but by reason 
 of Natural Eight, which constitutes them free and 
 independent of every other person but their lawful 
 Sovereign. Although it may be perfectly true that 
 violence and injustice exercised on the High Seas 
 against the subjects of a State ought to lead, and 
 does in fact lead, their Sovereign to demand redress 
 even by force of arms, he does not however do so 
 because his territory is violated, but from the general 
 obligation under which he is placed to defend his 
 Subjects from all violence, in whatever place they 
 may be, and to obtain reparation for any damage 
 which they may have suffered." 
 
 § 89. The principle of territoriality has been ably 
 discussed by an English writer. " It remains," says 
 Manning. Mr. Manning, " to consider one more position, which 
 has been much relied on by writers, who have 
 claimed that the flag of a neutral shall protect the 
 goods of a belHgerent. The argument is based on 
 the fact, that a belligerent has no right to capture 
 the property of his enemy, when in the territory of 
 
ON THE HIGH SEAS. 171 
 
 a neutral. It is asserted that a ship is part of the 
 territory of the State, to which she belongs ; and 
 that goods on board a neutral ship are therefore as 
 exempt from capture, as if they were actually in the 
 neutral country itself. 
 
 " To argue that a neutral ship is neutral territory ^ 
 is a fiction so palpable, that it appears surprising 
 that it should ever have been insisted on as a tenable 
 position, especially as only one argument is adduced 
 in support of this territoriality of ships at sea. The 
 jurisdiction of the State to which a ship belongs 
 extends to the cognisance of acts committed in that 
 ship at sea ; and it is argued that this continuance 
 of jurisdiction proves that a ship at sea is part of 
 the territory to which she belongs. This deduction 
 seems, in the first place, farfetched and too flimsy to 
 be made the basis of any serious conclusion. But 
 more than this, it meets with contradictions on its 
 own terms. A ship, say the assertors of this pro- 
 position, is part of the State to which she belongs, 
 as is evident, because at sea she is subject to its 
 jurisdiction. Now no Nation has jurisdiction over 
 the territory of another Natjon. But as soon as a 
 merchant ship comes into the harbour of a State 
 to which she does not belong, she becomes subject 
 to the jurisdiction of this latter State. This shows 
 that a merchant ship cannot be considered as part 
 of the territory of a State ; for if she possesses this 
 ■character at any time, she must possess it at all 
 times. The fact of a ship at sea being subject to 
 the jurisdiction of the State, under whose flag she 
 sails, is a most reasonable and advantageous regula- 
 tion : if not amenable to the jurisdiction of their 
 own State, to whom would the crews of ships at 
 sea be answerable 1 and if they were amenable to 
 no tribunal, the sea would be a place where every 
 
172 EIGHT OF A BELLIGERENT 
 
 crime might be committed with impunity. But it 
 is difficult to imagine how it can be deduced as 
 a consequence from this, that a ship is part of the 
 territory of her State. The fiction is completely 
 destroyed by the disproof above alleged, but other 
 reasons combine to show how little tenable is this 
 position. If a ship be part of the territory of the 
 State of which her owners are citizens, it cannot 
 be allowed to take from her Contraband of war 
 going to an enemy, because such capture would 
 not be permitted, if the Contraband goods were 
 lying in neutral territory. Again, if neutral ships 
 carry the soldiers of our enemy, it would not be 
 allowable to make them prisoners, because we must 
 not attack the territory of a neutral. Either the 
 argument is worth nothing at aU, or it holds to this 
 extent, which is a reductio ad absurdum. To escape 
 contradiction, the Eight of Search and of seizing con- 
 traband goods must be denied, if the right to protect 
 enemy's goods be claimed on this ground *l" Mr. 
 Manning might have gone even further in tracing . 
 out the necessary consequences of the territorial 
 theory, and have added that the right of blockade 
 must also be denied, if neutral ships partake of the 
 inviolable character of neutral territory. 
 
 § 90. If we look to the origin of the Mercantile 
 Flag, it would appear to be a regulation of the 
 municipal Law of individual States, and not to be an 
 The Pass- institution of the general Maritime Law. The Pass- 
 Sea-Letter. Port or the Sea-Lstter, as the case may be, is the 
 formal voucher of the ship's National Character. 
 The Passport purports to be a Requisition on the 
 part of the Government of a State to suffer the 
 vessel to pass freely with her company, passengers, 
 
 "* Manning's Commentaries on the Law of Nations, c. vi. § i- 
 p. 209. 
 
ON THE HIGH SEAS. 
 
 173 
 
 goods, and merchandise, without any hinderance, 
 seizure, or molestation, as being owned by citizens 
 or subjects of such State ^^ "The first paper," says 
 Sir W. Scott, " which we usually look for, as proof of 
 property, is the Pass"*." The same learned Judge 
 elsewhere observes "^ " It is a known and well estab- 
 Ushed rule with respect to a vessel, that if she is 
 navigating under the Pass of a foreign country, she 
 is considered as bearing the national character of that 
 Nation under whose Pass she sails. She makes a 
 part of its navigation, and is in every respect Hable 
 to be considered as a vessel of that country." The 
 Pass or Sea-Letter was, until very recent times, in- 
 dispensable for the security of a neutral ship from 
 molestation by belligerent cruisers, and it was the 
 
 °^ The best account of the 
 Passport is given by D'Abreu 
 (Part I. c. 2), who justly ob- 
 serves that it covers sometimes 
 the cargo as well as the ship, but 
 that it invariably names the ship, 
 its build, the captain, and his re- 
 sidence. D'Abveu also gives an 
 account of the Sea-Letter, which 
 he describes as being in the same 
 form as the Pass. The difference 
 between them would seem to 
 consist in this, that whilst the 
 Pass is issued in the name of a 
 Sovereign Power or State, the 
 Sea-Letter is issued in the name 
 of the Civil Authorities of the 
 port from which the vessel is 
 fitted out. The form of a Sea- 
 Letter is annexed to the Treaty 
 of the Pyrenees (a. d. 1659), 
 under which it was provided that 
 Free Ships should make Free 
 Goods. It is termed "Literse 
 Salvi Conductus," and the force 
 and effect of it is thus described in 
 the XVIIth Article of the Treaty 
 itself : " Ex quibus non solum 
 
 de suis mercibus impositis, sed 
 etiam de loco domicilii et habi- 
 tationis, ut et de nomine tam 
 Domini et Magistri navis, quam 
 navigii ipsius constare queat : 
 quo per duo hsecce media cog- 
 noscatur, an merces vehant de 
 Contrehande, et sufficienter tam 
 de qualitate, quam de Domino et 
 Magistro dicti navigii constet. 
 His Uteris salvi conductus et cer- 
 tificationibus plena fides habebi- 
 tur." In the Treaty of Copen- 
 hagen concluded 11 July 1670, 
 between Great Britain and Den- 
 mark, the Sea-Letter is termed 
 a Certificate ; and it is provided 
 that the ships of either Con- 
 federate shall carry Letters of 
 Passport and a Certificate, of 
 which the forms are set forth in 
 the body of the treaty. This Sea- 
 Letter or Certificate extended to 
 the cargo. 
 
 «« The Hoop, I Ch. Kob. p. 
 130. 
 
 "5 The Vigilantia, i Ch. Bob. 
 p. 13. 
 
174 EIGHT OP A BELLIGERENT 
 
 only paper to which any respect was paid by the 
 Corsairs of the Barbary States, as warranting the 
 vessel to be within the protection of their respective 
 treaty-engagements with the European Powers ^^ 
 If a vessel be furnished with a Pass or Sea-Letter, it 
 is immaterial whether she has any mercantile Flag 
 on board or not. The latter by itself is not a 
 criterion of the national character of the owners of 
 the vessel. By an early Statute of the City of 
 Lubeck^'' (a. d. 1299), every citizen of Lubeck, who 
 was master (patron) of a ship, was bound to hoist 
 the flag of Lubeck, under pain of a fine of three 
 marks of silver for the benefit of the Senators and 
 the City of Lubeck. A similar regulation had been 
 made by the City of Hamburg {mutatis mutandis) 
 with regard to masters of vessels who were citizens 
 of Hamburg, (a. d. 1270.) On the other hand, by 
 a Statute of the City of Marseilles, of still earlier 
 date, between 1253 and 1255, we find it provided 
 that every ship belonging to men of Marseilles shall 
 be bound to hoist on the ship the flag of the com- 
 munity of Marseilles with a cross extended aloft; 
 and that no citizens of Marseilles who are owners 
 (domini) of ships may or ought to hoist on their 
 ships, within the port of Marseilles or elsewhere, any 
 arms or any flag of another civic community, but 
 only the flag of the community of Marseilles, except 
 in the land of Syria, in which those citizens of 
 Marseilles, who have special privileges in that 
 
 "' An account of the Medi- sous peine d'une amende de trois 
 
 terranean Passes will be found in marcs d'argents au profit de MM. 
 
 Reeves's History of the Law of les s^nateurs et de la ville de 
 
 Shipping, Pt. III. p. 423. Lubeck, a moins qu'il n'en soit 
 
 " Pardessus, Lois Maritimes, emp6ch^ par des obstacles deforce 
 
 Tom. III. p. 411. Tout patron, majeure, ou par des dangers aux 
 
 bourgeois de Lubeck, sera tenu quels sa personne ou son navire 
 
 d'arborer le pavilion Lubeckois, seroieot exposes. 
 
ON THE HIGH SEAS. 175 
 
 country distinct from the other citizens, may hoist 
 another flag on their ships, provided also that they 
 likewise hoist always the flag of the community of 
 Marseilles ^^ It would thus appear that the Mer- 
 cantile Flag was originally of ambiguous import, 
 inasmuch as it might denote either the National 
 character of the Master or patron''^ of the ship, .or 
 the National character of the owner of the ship ; 
 but that the Pass or Sea-Letter was always a 
 criterion of ownership, that is, whether the ship 
 was the property of an enemy or friend. Hence 
 Bynkershoek justifies the Right of a belligerent 
 cruiser to visit a neutral ship, in order that it may 
 be estabHshed from the ship's papers, as distinguished 
 from her flag, that she is neutral property. But the 
 legal incidents of ownership, as regards a ship, are 
 quite irreconcilable with the theory of a ship being 
 the territory of the Nation whose flag she carries. 
 By the general Maritime Law a ship is capable of 
 being owned in shares, and there is nothing in the 
 Law Maritime which precludes a ship from being 
 owned in shares by citizens of difierent States. 
 Again, although it may be sometimes the policy of a 
 State to exclude foreigners altogether from the right 
 of owning any part of a vessel entitled by the 
 municipal law of that State to hoist its Mercantile 
 Flag, still that is not the invariable rule, and the 
 actionaries or part-owners of a merchant ship are in 
 sorne cases permitted by the municipal law of a State 
 to be citizens of different countries. In such a case, 
 however, a belligerent cruiser is entitled to look at the 
 
 *^ Pardessus, Lois Maritimes, for a long voyage ; but persons 
 
 Tom. IV. p. 272. commanding trading barques, or 
 
 ?' Bm^rigon, in his Treatise on merchant vessels not making long 
 
 Insurances, c. 7. §. 5, says, " They voyages, are entitled on the ocean 
 
 also call captain him who com- jwasfers, and in the Mediterranean 
 
 mands a merchantvessel intended patrons." 
 
176 EIGHT OF A BELLIGEEENT 
 
 Pass or Sea-Letter of the ship, and Courts of Prize 
 have held the ship to be bound by the character im- 
 posed upon it by the authority of the Government 
 from which the Pass or Sea-Letter has issued'". 
 
 § 91. In the sight of a belligerent a merchant 
 vessel is regarded simply as a vehicle conveying 
 goods over sea to or from a market. Accordingly, 
 under the Common Law of Nations, if the vehicle 
 and goods should happen to be enemy's property, 
 the belligerent takes possession of them jure belli ; 
 if on the other hand the ship should belong to a 
 friend, and the cargo should be enemy's property, 
 the belligerent reheves the carrier of his charge, 
 indemnifying him at the same time for the carriage 
 of the goods. If again the ship should belong to 
 an enemy, and the cargo should be neutral property, 
 the belligerent takes possession of the ship, whilst 
 he restores the cargo to the neutral merchant. 
 Further, both the ship and cargo may be the pro- 
 perty of neutrals, whilst their destination is the 
 port of an enemy; in which case a belligerent has 
 a right to prohibit the conveyance of the goods to 
 their destination, if their safe arrival is likely to 
 be prejudicial to his success, and under certain 
 circumstances he is entitled to seize and confiscate 
 them. On the other hand, a neutral merchant is 
 entitled to transport his merchandise over sea to a 
 neutral port, in time of war, free from any inter- 
 ference on the part of a belligerent, beyond that, 
 which may be necessary to assure the belhgerent 
 of the innocent character of the voyage. For the 
 purpose, however, of such assurance, a belligerent 
 has a right to visit a merchant vessel on the High 
 Seas, with the object of ascertaining who may be its 
 
 '" The Vreede Scholtys, cited in a note to the Vrow Eh'zabeth, 
 5 Ch. Eob. p. 5. 
 
ON THE HIGH SEAS. 177 
 
 owner and what may be its destination, and of 
 searcMng it with the object of ascertaining the na- 
 ture and ownership of its cargo. "The Eight ofBigttof 
 visiting and searching merchant ships on the High andSearch. 
 Seas/' observes Lord Stowell, in the well-known case 
 of the Swedish Convoy, "whatever be the ships, 
 whatever be the cargoes, whatever be the destina- 
 tions, is an incontestable Eight of the lawfully com- 
 missioned ship of a belHgerent Nation ; because till 
 they are visited and searched it does not appear 
 what the ships, or the cargoes, or the destinations 
 are ; and it is for the purpose of ascertaining these 
 points that the necessity of this Right of Visitation 
 and Search exists. This Eight is so clear in principle, 
 that no man can deny it who admits the Eight of 
 maritime capture, because if you are not at liberty 
 to ascertain by sufficient enquiry whether there is 
 property which can be legally captured, it is im- 
 possible to capture. Even those who contend forTheSwed- 
 this inadmissible rule, that free ships make free'^ °"^°^' 
 goods, must admit the exercise of this right at least, 
 for the purpose of ascertaining whether the ships 
 are free ships or not. The right is equally clear in 
 practice, for the practice is uniform and universal 
 upon the subject '^^." "We cannot prevent the 
 carriage of contraband goods," says VatteF*, " with- Vattei. 
 out searching neutral vessels that we meet at sea ; 
 we have, therefore, a right to search them. "In 
 order to enforce the rights of belligerent Nations 
 against the delinquencies of neutrals, and to ascer- 
 tain the real as well as the assumed character of 
 all vessels on the High Seas, the Law of Nations 
 arms them with the practical power of visitation 
 
 '' TheMaria, i Robinson, p. 36. §114- Martens, Precis, L. VIII. 
 '* Droit des Gens, L. III. c. 7. c. 7. § 321. 
 
 PART II, N 
 
178 RIGHT OF A BELLIGERENT 
 
 Chancellor and Search." Such is the language of Mr. Chan- 
 cellor Kenf^ who goes on to say, " Neutral Nations , 
 have frequently been disposed to question and resist 
 the exercise of this Eight. This was particularly 
 the case with the Baltic Confederacy during the 
 American war, and with the Convention of the 
 
 ofTe bIi" ^a^^^ic Powers in 1801. The Eight of Search was 
 
 tic Powers, denied, and the flag of the State was declared to be 
 a substitute for all documentary and other proof, 
 and to exclude all right of search. Those Powers 
 armed for the purpose of defending their neutral 
 pretensions ; and England did not hesitate to con- 
 sider it as an attempt to introduce by force a new 
 code of maritime law, inconsistent with her belli- 
 gerent rights and hostile to her interests, and one 
 which would go to extinguish the right of mari- 
 time capture. The attempt was speedily frustrated 
 and abandoned, and the Eight of Search has, since 
 that time, been considered incontrovertible." Mr. 
 
 Wheaton. Wheatou'® coincidos in this opinion, when he says 
 the Eight of Visitation and Search of neutral vessels 
 at sea is a belligerent right, essential to the exercise 
 of the right of capturing enemy's property contra- 
 band of war, and vessels committing a breach of 
 blockade. Even if the right of capturing enemy's 
 property at sea be ever so strictly limited, and the 
 rule of freQ ship free ^goods be adopted, the Eight 
 of Visitation and Search is essential, in order to 
 determine whether the ships themselves are neu- 
 tral, and documented as such, according to the Law 
 of Nations and Treaties ; for, as Bynkershoek" ob- 
 serves, "it is lawful to detain a neutral vessel in 
 order to ascertain, not by the flag merely, which 
 
 '^ Commentaries on American '^ Qusestiones Jur. Publ. L. I. 
 
 Law, Tom. I. p. 153. c. 14. 
 
 '" Elements, Pt. IV. c. 3. § 29. 
 
OK THE HIGH SEAS. 179 
 
 may be fraudulently assumed, but by the documents 
 themselves on board, whether she is really neutral." 
 Indeed, it seems that the practice of maritime cap- 
 tures could not exist without it. Accordingly the 
 text writers generally concur in recognising the 
 existence of this Right™. 
 
 f 92. The Eight of Approach on the High Seas, Right of 
 in time of war, may be distinguished from- the Eight 
 of Visitation and Search. Upon the general question 
 of the Right of Approach on the High Seas, it may 
 be justly said that no vessel has any exclusive Eight 
 to the use of the ocean beyond that extent of it, 
 which the vessel physically occupies, and which is 
 essential for her movements. Merchant ships, ac- 
 cordingly, are in the habit of approaching one an- 
 other within such limits as are consistent with the 
 safety of navigation, either with a view to ascertain 
 the name and character of strangers, or to procure 
 information or assistance. With respect to ships of 
 war sailing under the authority of their Govern- 
 ment to maintain the general police of the High 
 Seas and to arrest pirates and other public offenders, 
 there is no reason why they may not approach any 
 vessel descried at sea for the purpose of ascer- 
 taining its real character. Such a right seems in- 
 dispensable for the fair and discreet exercise of their 
 authority ; and the use of it cannot be justly deemed 
 indicative of any design to insult or injure those 
 whom they approach, or to impede them in their 
 lawful commerce. On the other hand, it is as clear, 
 that no ship is under such circumstances bound to 
 lie by, or wait the approach of any other ship. She 
 is at full liberty to pursue her own voyage in her 
 own way, and to use all necessary precautions to 
 
 '^ Martens, Precis, L. VIII. Du Commerce des Neutres, § 12. 
 "■ 1- § 317 ^i"l 321- Lampredi, 
 
 N 2 
 
180 RIGHT OP A BELLIGERENT 
 
 avoid any suspected sinister enterprise or hostUe 
 attack. She has a right to consult her own safety; 
 but at the same time she must take care not to 
 violate the rights of others. ' She may use any pre- 
 cautions dictated by the prudence or fears of hei* 
 oiBcers, either in regard to delay or in regard to 
 the progress and course of her voyage ; but she is 
 not at liberty to inflict injuries upon other inno- 
 cent parties, simply because of conjectural dangers. 
 These principles seem to be the natural result of the 
 common duties and rights of Nations navigating 
 the ocean in time of peace. Such a state of things 
 carries with it very different obligations and re- 
 sponsibilities from those which belong to public war, 
 and is not to be confounded with it''*. 
 
 § 93. It is obvious that the Right of Approach 
 in time of war will be subject to diflferent considera- 
 tions from those, which govern that Eight in time of 
 peace. As resistance on the part of a neutral vessel 
 to the Eight of Visitation and Search, when sought 
 to be exercised by a lawfully commissioned belli- 
 gerent cruiser, entails, as a penalty, the condemnation 
 of the ship and cargo by a Court of Prize, it is due 
 to the owners of the neutral vessel and her cargo, 
 that the belligerent cruiser shall so conduct herself, 
 as to leave no doubt in the mind of the master and 
 crew of the neutral vessel of the lawful character 
 of the cruiser, when she approaches for the purpose 
 Reflation of visitiug the neutral vessel. With this object the 
 Yi^&ln regulation of the exercise of the Eight of Visita- 
 and Search. ^JQjj gj^^ Search has been frequently the subject of 
 treaty-engagements between the European Powers. 
 Lampredi has observed, that as it is an usage of long 
 standing for captains of vessels, whether merchant 
 
 ■" The Mariana Flora, 1 1 Wheaton, p. 43. 
 
^ ON THE HIGH SEAS. 181 
 
 or armed vessels, to hoist any flag which they think 
 most suitable with the object of deceiving or sur- 
 prising other vessels and approaching sufficiently 
 near to prevent their escape, the master of a 
 neutral merchant ship cannot with reason be re- 
 quired to stop the course of his vessel upon the 
 mere display of a belligerent flag on board another 
 vessel, inasmuch as he might thereby expose his 
 vessel to be captured by a pirate. Accordingly 
 the neutral master has a right to be assured of the 
 just claim of an armed vessel to visit his ship and 
 cargo, before he can be liable to any penalty for 
 attempting to escape^". On the other hand, it is 
 an universally received maxim that whoever claims 
 to exercise a right against any person, must com- 
 mence by proving that he is entitled to the right. 
 There being then two rights at issue, neither of 
 which can be safely abandoned without on the 
 one hand impairing too much the efficient action 
 of a belligerent cruiser, and on the other hand en- 
 dangering too much the safety of the neutral mer- 
 chant vessel, it has been from time to time the 
 object of various European Powers to come to an 
 understanding with one another as to the forms, 
 under which the Eight of Visitation and Search 
 should be exercised by belligerent cruisers, so as to 
 relieve, as far as the nature of the subject would 
 allow, the masters of neutral ships from all peril 
 in obeying the summons of a belligerent cruiser. 
 Lampredi^^ considers that it is no longer a matter 
 of mere Conventional law, but may be regarded as 
 ah estabHshed usage, that the flag of a belligerent Rule of an 
 cruiser must immediately, after it has been hoisted gun.""'"^ 
 as a signal for a merchant vessel to shorten sail, 
 
 ^" San Juan Baptista, 5 Ch. '* Du Commerce des Neutres, 
 
 Eob. p. 34. § 12. 
 
182 RIGHT OF A BELLIGEEEKT 
 
 be affirmed by a gun fired with blank' cartridge, 
 and further that the cruiser must at such time not 
 approach the merchant vessel so close as to .cause 
 the latter to apprehend any but peaceful intentions 
 on its part. Upon the merchant vessel shortening 
 sail, the cruiser is entitled to send a boat's crew on 
 board of her to examine her papers, and if necessary 
 to search her cargo, and the master of the merchant 
 vessel is bound to submit all his papers to examina- 
 tion, and to permit his cargo to be overhauled. 
 
 Mr. Justice Mr. Justice Story is disposed not to admit that 
 °^' there exists any universal rule or obligation of an 
 affirming gun. " It may be," he observes, " the law 
 of the maritime states of the European continent, 
 founded in their own usages or positive regulations. 
 But it does not hence follow that it is binding on 
 
 General all othcr Nations**^." General HaUeck, formerly Sec- 
 retary of State for California, in his work on Inter- 
 national Law, published at San Francisco in 1861, 
 observes, that " the usual mode, adopted by most of 
 the Maritime Powers of Europe, of summoning a 
 neutral to undergo Visitation, is the firing of a cannon 
 on the part of the belligerent. This is called by the 
 French semonce, coup d' assurance, and by the Enghsh 
 affirming gun. It is undoubtedly the duty of the 
 neutral to obey such a summons, but there is no 
 positive obligation on the beUigerent to fire such an 
 affirming gun ; for its use is by no means universal. 
 Moreover any other method, as hailiag by signals, &a 
 of summoning a neutral to submit to an examina- 
 tion, may be equally as effective and binding as the 
 affirming gun, if the summons is actually communi- 
 cated to and understood by the neutral. The means 
 used are not essential, but the fact of a summons 
 actually communicated is necessary to acquit the 
 *^ The Mariana Flora, 1 1 Wheaton, p. 50. 
 
ON THE HIGH SEAS. 183 
 
 visiting vessel of all damages, which may result to 
 the neutral disobeying it^^" On the other hand, 
 Sir E. PhiUimore seems to consider that the received ^;^.,?°''^'^ 
 
 Phillimore. 
 
 mode of summoning the neutral to undergo Visita- 
 tion is by the firing of a cannon shot on the part 
 of the belligerent, and that it is the distance at 
 which this shot shall be fired, which has been the 
 subject of particular conventions'*. M. Heffter'^ ob- Heffter. 
 serves that the ei^ercise of the Eight of Visitation 
 has been more especially regulated by the Treaty of 
 the Pyrenees'®, of which the dispositions in this 
 matter have become in S9me manner the Maritime 
 Law of Europe. Upon a careful review of the 
 practice of the European Powers in modem times, 
 it would appear that no neutral merchant ship is 
 bound to shorten sail, unless the belligerent cruiser 
 fires a gun to warn her of her intention to visit her. 
 Whether the gun shall be fired before the cruiser 
 displays her flag, or immediately after she has shown 
 her colours, may be immaterial. The two conditions 
 which ought to be fuMlled by the belligerent cruiser, 
 in justice to the master of the neutral merchant 
 vessel, before the latter can be held to act in con- 
 travention of any belligerent right, are that the true 
 character of the cruiser herself shall be jnade known 
 to him by the exhibition of her military flag, and that 
 her intention to visit the merchant vessgl in virtue 
 of her belligerent right shall be notified to him by 
 the firing of a gun. If the neutral ship should have 
 sailed prior to hostilities, and her master and crew 
 should be in perfect ignorance of the ei^istence of 
 war, and consequently unconscious that they have 
 any neutral duties to perform, a mere attempt to 
 
 s'* Chap. XXV. On Visitatiop recht, § 169. 
 and Search, § 15. "^ Dwmont, Tom, VI. Part ii. 
 
 '* Commentaries, Vol.'III.§ 333. p. 264. Schmauss, Corp. Jur. 
 
 '* Das Europaische Volker- Gent. p. 683. 
 
184 EIGHT OF A BELLIGERENT 
 
 escape on their part from an armed ship, which 
 proves herself afterwards to be a belligerent cruiser, 
 will not be a breach of neutral obligations^. 
 
 of the^ ^ 94 ■ By Article XVII of the Treaty of the Pyrenees 
 
 Pyrenees. (7 Nov. 1 659), which is Considered to embody the 
 common Law of Nations on the subject, the object of 
 the Eight of Visit is explained to be the inspection 
 of the ship's Pass or Sea Letter, whereby the nature 
 of her cargo, and likewise the domicil and residence 
 and names of her master and of her owner, as well 
 as the nationality of the vessel herself, may be ascer- 
 
 sHip's tained. The practice of Nations in resrard to a ship's 
 Pass has undergone some modification. Where treaties 
 exist in regard to the exhibition of a Pass or Sea 
 Letter, such ships only as are furnished with the speci- 
 fied Pass or Sea Letter are entitled to the treaty-privi- 
 leges, whatever they may be. In other cases the Pass 
 is not in the present day an indispensable document, if 
 there are other papers on board, which satisfactorily 
 establish the character, property, and destination of 
 the ship and cargo. Amongst them the most im- 
 
 Buiider's portant is the Builder's Contract, or the Bill of Sale 
 
 Contract or. ,it'i t ^ i • 
 
 BaiofSaie. m caso the ship has ever changed owners; and m 
 addition the Certificate of Eegistry, if the municipal 
 law of the port, from which the ship hails, requires 
 that she should be registered. If these two papers 
 are on board and their bona fides is not impeached, 
 the proof of the property as regards the ship will be 
 sufficiently complete, so far as documentary evidence 
 
 Cargo of is concerned. With regard to the cargo, if the ship is 
 
 papers. ^ general ship, her Manifest and the Bills of Lading 
 are the best evidence of both the ownership and the 
 destination of the cargo. If on the other hand the 
 
 Charter vossel should be chartered, the Charter-Party should 
 also be on board ; but the absence of the Charter- 
 '' San Juan Baptista, 5 Ch. Bob. p. 35. 
 
ON THE HIGH SEAS. 185 
 
 Party will not justify the condemnation of the ship, 
 any more than the absence of the Invoice of the 
 goods ; but the non-production of any Ship's Paper, 
 which is in strict law documentary evidence in 
 regard either to the ship herself or to the cargo, 
 win justify the sending the vessel into port for 
 enquiry ^^, in order that the master may account 
 satisfactorily before a Court of Prize for the absence 
 of the missing document. 
 
 § 95. The Eight of Detention for enquiry is a Eight of 
 corollary to the Right of Visitation and Search. If ^ ®" ^^ ' 
 the commander of a belhgerent ship of war, having 
 examined the papers found on board a merchant 
 vessel, shall perceive just and sufficient reasons for 
 detaining her in order to proceed to a further ex- 
 amination, he may order a prize crew to go on 
 board of her and conduct her to the nearest and most 
 convenient port belonging to his Nation, subject 
 to a full responsibility in costs and damages, if this 
 should have been done without just and sufficient 
 cause in the opinion of a duly constituted Court of 
 Prize. " It is a rule of law,'' says Lord Stowell, 
 " that the neutral vessel shall submit to the enquiry- 
 proposed, looking with confidence to those tribunals, 
 whose noblest office (and I hope not the least accept- 
 able) is to relieve by compensation inconveniences of 
 this kind, if they have happened through accident or 
 error, and to redress by compensation and punish- 
 ment injuries that have been committed by design ^^." 
 
 '^ D'Abreu specifies nine Charte-partie. 8. Les Connois- 
 
 papers which should be on board semens. 9. LaFacture. He does 
 
 a ship in order that her papers not include La R61e d'Equipage 
 
 should be regular, i. Le Pass- amongst the requisite papers, 
 
 port. 2. Les Lettres de Mer. which Kluber however enume- 
 
 3. Le Journal. 4. Le Certificat rates. Cf. Kluber, Droit des Gens, 
 
 de Sant^. 5. L'Appartenance ou § 294. 
 
 Propri^td de Navire. 6. L'Inven- ^' The Maria, i Ch. Eob. 374. 
 taire des jMarchandises. 7. La 
 
186 RIGHT OF A BELLIGERENT 
 
 I 96. Every belligerent Cruiser lias a right to 
 insist on verifying the neutral- character of every ship 
 which it meets with on the High Seas, and which 
 cai-ries a neutral flag ; and it is a clear maxim of 
 law, that " a neutral vessel is bound in relation to 
 her commerce to submit to the belligerent Eight 
 Neutral ^f Search." A neutral merchant accordingly cannot 
 
 may not /» 1 • i 1 t i • 
 
 sail under adopt any measures, of which the direct object is to 
 
 convoy, -^i^hdraw his commerce on the High Seas from the 
 free exercise of the Eight of Search on the part of 
 any belligerent cruiser. It is not competent there- 
 fore for a neutral merchant to exempt his vessel from 
 the belligerent Eight of Search by placing it under 
 the Convoy of a neutral or enemy man-of-war*'. " The 
 very fact of sailing under the protection ot a belli- 
 gerent or neutral convoy," says Mr. Chancellor Kent'^ 
 
 ^^anoeiior « ig ^ violation of neutrality." Mr. Wheaton to a 
 similar effect, in discussing the Danish captures under 
 the ordinance of 1810, asks, "Why was it that navi- 
 gating under the convoy of a neutral ship of war 
 was deemed a conclusive cause of condemnation? 
 It was because it tended to impede and defeat the 
 
 Wheaton. belligerent Eight of Search ; to render every attempt 
 to exercise this lawful Eight a contest of violence ; 
 to disturb the peace of the world, and to withdraw 
 from the proper Forum the determination of such 
 controversies by forcibly preventing the exercise of 
 its jurisdiction^^." Actual resistance on the part of 
 the convoying man-of-war is not necessary to estab- 
 lish the unneutral character of the act of a merchant 
 vessel sailing under its protection, Lord Stowell in 
 commenting on the suggestion that the intention 
 to resist the Eight of Search was never carried into 
 
 "" Mr. Justice Story in the 154. 
 Nereide, 9 Cranoh, p. 438. ^^ Elements of International 
 
 °^ Commentaries, Tom. I. p. Law, Part IV. c. 3. p. 597. 
 
ON THE HIGH SEAS. 187 
 
 effect by a neutral vessel whicli had sailed under con- 
 voy of a man-of-war, observes that "the intention 
 is unchangeable, and being so, I do not see the 
 person who could fairly contradict me, if I were to 
 assert that the delivery and acceptance of such in- 
 structions and the sailing under them were sufficient 
 to complete the act of hostility ^^/' 
 
 § gj. It is not by the Common Law of Nations a 
 ground for confiscating the goods of a neutral mer- 
 chant, that they have been shipped on board an 
 enemy merchant vessel, even if the master of the 
 enemy vessel should resist the exercise of the Eight 
 of Search on the part of a belligerent cruiser. The 
 forcible resistance of the master of an enemy mer- 
 chant vessel is nothing more than the hostile act of 
 a person who is entitled to commit acts of hostility ; 
 and there is nothing per se unneutral in the conduct of 
 the merchant who has embarked his goods on board 
 of an unarmed vessel, which is enemy's property. 
 It is a proceeding which is more likely to be attended 
 with inconvenience to the merchant, than if he had 
 embarked his goods on board a neutral vessel, in- 
 asmuch as the enemy vessel is liable to be captured 
 by the belligerent, in which case the merchandise 
 may undergo a change of destination, and fail to reach 
 its intended market. That circumstance however is 
 for the consideration of the neutral merchant, who 
 cannot be presumed to contemplate resistance. " If 
 a neutral master," says Sir Wilham Scott ^*, " attempts British 
 a rescue, he violates a duty which is imposed upon q'^^^^ 
 him by the Law of Nations, to submit to come in 
 for enquiry, as to the property of the ship or cargo ; 
 and if he violates that, obligation by a recurrence 
 to force, the consequence will undoubtedly reach the 
 
 »= The Maria, i Ch. Eob. "' The Catherina Elizabeth, 
 
 p. 376. 5 Ch. Eob. p. 232. 
 
188 RIGHT OF A BELLIGERENT 
 
 property of his owner®^, and it would, I think, extend 
 also to the confiscation of the whole cargo entrusted 
 to his care, and thus fraudulently attempted to he 
 withdrawn from the Eights of Wai^®. With an enemy- 
 master the case is very different. No duty is violated 
 by such an act on his part, — lupum aurihus teneo, — 
 and if he can withdraw himself he has §, right to do 
 so." On the other hand, if a neutral merchant should 
 ship his goods on board an armed ship belonging to 
 Neutral the enemy. Lord Stowell has held that such an act 
 dise in an bctrays an intention on the part of the merchant to 
 o™he ^^^ "withdraw his goods from visitation and search, for it 
 enemy. ig a presumptio juris et de jure that an armed ship 
 will resist visitation and search. If a merchant ac- 
 cordingly has placed his goods under the protection 
 of a belhgerent force, he must be taken to intend to 
 receive the protection of it in such manner and under 
 such circumstances as the belligerent may choose to 
 apply it^' ; in other words, he abandons the protection 
 of Neutrahty, and must for the time be regarded as 
 adhering to the Enemy. 
 Prize The Supreme Court of the United States has held 
 
 the"united ^^^'^ there is no valid distinction of Right between 
 states. lY^Q act of a neutral merchant who loads his goods 
 on board an enemy merchant ship, and the act of 
 a neutral merchant who ships his goods in an armed 
 vessel belonging to the Enemy. The opinion of Chief- 
 Justice Marshall, who with the majority of the Court 
 decided in the case of the Nereide^^ "that a neutral 
 merchant had a right to charter and lade his goods 
 
 "* The Despatch, 3 Ch. Eob. "' The Fanny, i Dodson, p. 
 
 p. 278. 443. 
 
 96 
 
 The Washington, 2 Acton, ' "^ g Cranch, p. 388. This 
 
 p. 30. n. The Franklin, 2 Ac- decision took place in February 
 
 ton, p. 109. The Short Staple v. Term, 18 15, and was nearly con- 
 
 the United States, 9 Cranch, temporaneouswithLordStowell's 
 
 P' 55- judgment in the Fanny. 
 
ON THE HIGH SEAS. 189 
 
 on board a belligerent armed vessel without forfeiting 
 his neutral character," is entitled to great weight, not 
 merely from the authority .which attaches to the 
 opinions of that eminent Judge, but also from the 
 sohdity of the reasoning upon which his judgment in 
 that case proceeded. But the opinion of Mr. Justice 
 Story was the other way, and coincided with the view 
 of Lord Stowell. The Supreme Court of the United 
 States,, in February Term 1818, maintained the same 
 view in the case of the Atalanta^" as it had pre- 
 viously maintained in the Nereide ; so that the de- 
 cisions of the highest tribunal in the United States 
 is on this point in direct conflict with the judgment 
 of the English High Court of Admiralty. 
 
 ^° 3 Wheaton, p. 241, 
 
CHAPTER VI. 
 
 ON BLOCKADE. 
 
 Ancient practice of prohibiting all trade with the enemy — Object 
 of a blockade — Penalties for the violation of a blockade — Regulated 
 exercise of the Right of blockade — Legal reqifirements of a bind- 
 ing blockade — Declaration of the Congress of Paris — Characteristics 
 of an effective blockade — Knowledge* on the part of the Master 
 of a vessel — Constructive Warning — Public Notification — General 
 Notoriety — Notification dispensing with actual warning must accord 
 ■with the fact of a blockade — Practice of the French Prize Courts — 
 Practice of the United States Prize Courts — Violation of a blockade 
 — Equity of British Prize Courts — Favourable construction of Li- 
 censes — Breach of blockade by egress — Egress lawful in certain 
 cases — Duration of delietwra after egress — Effect of fraud in egress 
 — Cargo not always condemned with the ship — Extent of coast 
 which may be placed under blockade — Limited operation of a 
 blockade — Effect of a blockade on Licenses — Effect of Licenses on 
 a blockade. 
 
 Ancient §9^- The practice of a belligerent Power prohibit- 
 proMKtin°g™g ^^ ^^^^^ '^'^'^^ ^^ Enemy is of very ancient date, 
 all trade We have records of such a practice as early as the 
 
 with the I f , 1 1 ■ -1 
 
 enemy. Commencement ot the thirteenth century ^ It seems 
 to have been usual in that and the next following 
 century for belligerent Powers on the outbreak of 
 war to issue proclamations, warning aU persons not 
 to attempt to import victuals or other merchandise 
 
 ' Proclamation of Henry III. Tom. I. p. 440. Eobinson's Col- 
 anno 1223. Rymer's Foedera, lectanea Maritima, p. 158. 
 
ON BLOCKADE. 191 
 
 into the Enemy's territory, and thereupon to arrest 
 and confiscate the vessels and merchandise of any 
 who might contravene such warning, as the pro- 
 perty of parties adhering to the Enemy ^. 
 
 The States General of Holland appear to have 
 maintained this practice without any dispute on the 
 part of other Nations as late as the latter part of 
 the sixteenth century ; but it came to be questioned 
 towards the end of the seventeenth century as an 
 immoderate exercise of belligerent Eight, since which 
 time it has been generally reprobated and disclaimed, 
 and may now be regarded as fallen into desuetude. , 
 On the other hand, the practice of intercepting all 
 merchant vessels trading with the Enemy's ports by 
 means of armed vessels cruising off the Enemy's coast 
 is as ancient as war itself. Lord Stowell, who was 
 always extremely reluctant to apply in its full rigour 
 the European Law of Nations to subjects of the 
 Ottoman Porte, considered the Law of Blockade to 
 be an exception^, on the ground that a blockade was 
 one of the most universal and simple operations of 
 war in all ages and countries, excepting such as were 
 nearly savage. " It must not be understood by them," 
 he says, " that if an European army or fleet is block- 
 ading a town or port, they are at liberty to trade 
 with that port. If that could be maintained, it would 
 render the operation of a blockade perfectly nugatory. 
 They in common with all other Nations must be sub- 
 ject to this first and elementary principle of blockade, 
 that persons are not to carry into the blockaded port 
 suppHes of any kind. It is not a new operation of 
 war ; it is almost as old and as general as war itself. 
 
 2 Letter of Edward II of III. p. 880. 
 
 England to Philip V of France. ^ The Kinders Kinder, 2 Ch. 
 
 Tanquam dictis inimicis adhse- Eob. p. 89. 
 rentes. Rymer's Foedera, Tom. 
 
192 ON BLOCKADE. 
 
 The subjects of the Barbary States could not be 
 ignorant of the general rules applying to a blockaded 
 place, so far as concerns the interests and duties of 
 neutrals*." 
 h''' k'V^ * ^99. The object of a blockade is to reduce the enemy 
 to surrender by cutting off his supplies of every kind. 
 War being a contention by force in the prosecution 
 of Eight, the primary object of war is to constrain 
 the wrong-doing Nation to desist from doing wrong, 
 and to make compensation for past injury. With this 
 object, it is lawful for a belligerent to seize the pro- 
 perty of an enemy as a pledge of redress for the past, 
 and of good conduct for the future ; and if the Enemy 
 resist, to use force ; and if it should be necessary in 
 self defence, even to take away an enemy's life. The 
 intercepting all supphes going to an enemy is a 
 milder alternative, the immediate effect of such a 
 measure being to constrain the Enemy to submit by 
 the inconvenience, to which the failure of his supplies 
 will expose him. Blockade is thus a more lenient 
 proceeding in the conduct of a war, than actual as- 
 sault. The latter involves the necessary sacrifice of 
 human life, and by the destruction of property which 
 it entails, may risk to destroy the means whereby 
 compensation may be made by the Enemy for past 
 injury. The former gives to the Enemy the option 
 of being spared the effusion of human blood, whilst 
 the belhgerent at the same time refrains from de- 
 stroying property. As between belhgerent parties 
 the establishment of a blockade is thus obviously not 
 an improper use of superior force, and as the intro- 
 duction of supplies by neutral merchants into a 
 blockaded port must necessarily tend to frustrate the 
 purpose of the belligerent party, which is to reduce 
 
 • The Hurtige Hane, 3 Ch. Rob. p. 325. 
 
OH BLOCKADE. 193 
 
 the Enemy to terms by cutting off his supplies, it 
 would be evidently to the prejudice of the just right 
 of a belligerent that a merchant shoiild attempt to 
 introduce any supplies into a place, which is block- 
 aded. A belligerent Power will accordingly be enti- 
 tled to prevent the introduction of any such supphes ; 
 and if a merchant persists after notice in attempting 
 to introduce them, the belligerent may seize and 
 confiscate them. " If the supplies sent," says Grotius, 
 " hinder the execution of my design, and the sender 
 might have known as much, as if I have besieged a 
 towri or blocked up a port, and thereupon I presently 
 expect a surrender or a peace, that sender is obliged 
 to make me satisfaction for the damage that I suffer 
 on his account, as much as he that shall take a 
 prisoner out of custody that was committed for a just 
 debt, or help him to make his escape, in order to 
 cheat me J and proportionably to my loss I may seize 
 his goods, and take them as my own, for recovering 
 what he owes me'. Two conditions, it will be ob- 
 served, are implied by Grotius in the case as thus 
 stated, namely, actual measures on the part of the 
 belligerent to stop all supplies being furnished to 
 his enemy, and a knowledge of that fact on the 
 part of the neutral merchant. 
 
 § lOO. Blockade being thus a lawful means of con- Penalties 
 straining an enemy to submit to terms, and recourse lation of a 
 to a blockade being sometimes necessary, when the ^i°''''^'^^- 
 enemy is by position inaccessible to direct assault, 
 it foUows that it is inconsistent with Neutrality for 
 any third party to interfere with the operations of 
 
 ' Quod si juris mei executio- deditio, aut pax expectabatur, 
 
 nem rerum subvectio impedierit, tenebitur ille mijbi de damiio 
 
 idque scire potuerit qui advexit, culpa dato. De Jure Belli, 
 
 ut si oppidum obsessum tene- L. III. c. i. § v. 3. 
 bam, si portus clauses, et jam 
 
 PART II. O 
 
194 ON BLOCKADE. 
 
 a blockade, and by introducing supplies into the 
 blockaded place to hazard the defeat of the object, 
 which the Belligerent Power has in view in resorting 
 to such a measure. An attempt to relieve the neces- 
 sities of an enemy, who is shut up in a place invested 
 by a belligerent, is so clear an interference with the 
 just operations of war, that the party so acting may 
 with reason be treated as ]pro hdc vice adhering to 
 the enemy. Grotius says, with special reference to 
 the introduction of supplies into a blockaded place, 
 that " if my enemy's injustice towards me be evident, 
 the neutral who aids him in his unjust war will be 
 guilty not only of a civil, but of a criminal offence, 
 and may be punished accordingly®." Bynkershoek' 
 says, that " to carry supplies to a besieged enemy has 
 been always a capital offence in friends, equally as in 
 subjects, after notice given to them, and sometimes 
 even without notice ; and further, that if the suppHes 
 be intercepted by the beUigerent, he may not only 
 confiscate them, but inflict corporal, if not capital, 
 punishment upon those who seek to introduce them." 
 VatteP writes, "All comnierce with a besieged town 
 is absolutely prohibited. If I lay siege to a place, 
 or even simply blockade it, I have a right to hinder 
 any one from entering it, and to treat as an enemy 
 whosoever attempts to enter the place, or carry any- 
 thing to the besieged parties, without my leave ; for 
 he opposes my undertaking, and may contribute to 
 the miscarriage of it, and thus involve me in all the 
 misfortunes of an unsuccessful war." The practice of 
 Nations in the earliest times sanctioned the enforce- 
 ment of the severest penalties against all merchants, 
 who should attempt to enter any port, which had 
 
 " De Jure Belli, L. III. c. i. ^ ^^.^^^ ^^^ q^^^_ j^ jjj ^ ^_ 
 
 § 3. §117. 
 
 '' Qusest. Jur. Publ. L. I. c. 1 1. 
 
ON BLOCKADE. 195 
 
 been placed under blockade by a belligerent Power. 
 King Demetrius hanged up the master and pilot 
 of a vessel carrying provisions to Athens at a time 
 when he was on the point of 'reducing that city by 
 famine^. So Pompey the Great, during the war 
 against Mithridates, set guards at the mouth of the 
 Bosphorus, to observe if any sailed into the Bos- 
 phorus ; and whosoever were captured, were put to 
 death ^''. Such extreme penalties, however, may be 
 regarded as having long since fallen into desuetude, 
 although there are modern publicists who maintain 
 the absolute Eight of a belligerent to have recourse 
 to them. Thus Martens" says, that " a belligerent 
 may forbid aU commerce with a place which he is be- 
 sieging or blockading, and the approaches to which 
 he can occupy ; and in every case he may confiscate 
 the goods and ships of those, who attempt to trade 
 with the enemy in spite of notice to abstain from so 
 doing, arid even inflict personal penalties and death 
 upon them." So Heflfber^^ says, " The seizure of the 
 ship and cargo and their confiscation, whatever be the 
 nature of the cargo or the character of its owners, 
 constitute the penal sanction of the prohibition issued 
 by the belligerent. The captain and his accomplices 
 may also be subjected to severe penalties. The actual 
 usage of Nations is in general accordance as to this 
 principle ; but the application of it has given rise 
 to numerous complications and ardent disputes." 
 
 § loi. It has been observed that the ancient usage Regulated 
 of belligerents to forbid by Proclamation all trade of thT^ 
 with, the enemy, and to confiscate the property of gj^^^^^^ 
 parties contravening their Proclamation, was success- 
 fully impugned in the seventeenth century, as an 
 
 ° Plutarch, in Demetrio. § 3 ' 4- 
 
 ^° Plutarch, in Poinpeio. ^^ Das Europaische Volker- 
 
 " Prdcis du Droit des Gens, recht, § 154. 
 
 O 2 
 
196 ON BLOCKADE. 
 
 immoderate and unreasonable exercise of belligerent 
 Force, and may now be regarded as having no 
 sanction from the modern practice of European 
 Nations. We may trace back to the same century 
 the first systematic attempt to regulate the belli- 
 gerent Eight of Blockade, which originated with 
 the Dutch. 
 
 The States General of the United Provinces, pro- 
 ceeding upon the advice of their Courts of Admiralty, 
 issued an Ordinance on 26 June 1630, the object of 
 which was to regulate the blockade of the Ports of 
 Flanders, then in possession of the Spanish Crown. 
 The purport of the first article of that Ordinance 
 was, that neutral vessels found coming out of or 
 entering into enemies' ports in Flanders, or so near 
 to them that their intention to enter them was 
 beyond all doubt, should be confiscated with their 
 cargoes by sentence of the said Courts, "inasmuch 
 as their High Mightinesses heep the said ports con- 
 tinually blockaded by their vessels of war at an 
 excessive charge to the State, in order to hinder 
 all transport to and commerce with the enemy ; and 
 because those ports and places ai'e reputed to be 
 besieged, which has been from all time an ancient 
 usage after the example of all Kings, Princes, 
 Powers, and other Republics, which have exercised 
 the same Right on similar occasions ^^." 
 
 It will be seen that this Ordinance contemplates 
 that three things shall be proved before the Courts 
 of Admiralty: (i) the existence of a blockade de 
 facto; (2) the reputation of such a blockade;, and 
 (3) an undoubted intention to violate the blockade. 
 These three conditions are in perfect accordance 
 
 " Eobinson'sCollectaneaMari- the Hurtige Hane, 3 Ch. Rob. 
 tima, p. 158. These Ordinances p. 327. 
 are also set forth in a note to 
 
ON BLOCKADE. 197 
 
 with those laid down by Lord Stowell (12 Dec. 
 1798'*) in the case of the Betsey, and which have 
 been approved by the Lords of Appeal in Prize 
 Causes. "On the question of blockade," he says, 
 "three things must be proved: ist, the existence 
 of an actual blockade ; 2d, the knowledge of the 
 party ; 3d, some act of violation either by going in 
 or coming out with a cargo laden after the com- 
 mencement of the blockade." 
 
 § 102. The point therefore which first requires to Legal re- 
 be considered is, what constitutes an actual blockade. ofTbM- ^ 
 It was one of the objects of the Armed Neutrality ^^1^^^°°^' 
 of 1780 to establish a more precise rule than had 
 hitherto prevailed for determining that a port was 
 actually under blockade, so as to impose upon neutral 
 merchants an obligation to abstain from trading with 
 that port ^®. In pursuance of that object the Empress 
 of Russia communicated to the various European 
 Powers a Declaration of the principles of the Armed 
 Neutrality comprised in four propositions, the fourth 
 of which was to the effect that, " in order to deter- 
 mine what characterises a blockaded port, that term 
 shall only be applied to a port, where, from the ar- 
 rangement made by the attacking Power with vessels 
 stationed off the port and sufficiently near, there is 
 evident danger in entering the port"." Great Britain 
 acceded to this definition of a blockaded port in her 
 Convention with Eussia on 17 Jan. iBoi^^ and the 
 principles generally affirmed by the European Powers 
 
 ^* The Betsey, i Ch. Eob. p. on n'accord cette denomination 
 
 93. The Mercurius, i Ch. Eob. qu'a celui, ou il y a, par la dis- 
 
 p. 82. position de la Puissance qui 
 
 ^^ Declaration of 28 Feb. I'attaque avec des vaisseaux ar- 
 
 1780. Martens, Edcueil, Tom, r^t^s et suffisamment proches, un 
 
 III. p. 158. danger Evident d'entrer. 
 
 " Que pour determiner ce " Martens, Rdcueil, T. VII. 
 
 qui caract^rise un port bloqud, p. 260, 
 
of Paris. 
 
 198 ON BLOCKADE. 
 
 during the present century may be said to be in 
 harmony with it. Thus at the outset of the war 
 with Eussia in 1854, Fra:nce and England may be 
 considered to have affirmed the same principle, which 
 was maintained by the Armed Neutrality, when they 
 declared their intention " to maintain the right of 
 a belligerent to prevent neutrals from breaking any 
 effective blockade, which may be established with an 
 adequate force against the enemy's ports, harbours, 
 or coasts." Upon the conclusion of peace with Eussia 
 the subject of Belligerent Blockade came under the 
 consideration of the Powers assembled at Paris in 
 Deciaxa- the Conffress of 1856, when it was agreed to remove 
 
 tionoethe =" , i i i i • i ■ 
 
 Congress all Uncertainty amongst themselves by declaring their 
 view of the Law Maritime on this subject, and by 
 inviting all other Nations to accede to a common 
 Declaration. The proposition which was accordingly 
 adopted by the Congress was to this effect : " Block- 
 ades, in order to be binding, must be effective, that 
 is to say, maintained by a force sufficient really to 
 prevent access to the coast of the enemy ^^." 
 
 § 103. If it be assumed, that there is now an 
 estabHshed Concert amongst the European Powers 
 with the exception of Spain ^^ on the subject of 
 a binding Blockade, and that the business of Euro- 
 pean Courts of Prize in the majority of cases will 
 henceforth be to ascertain whether an asserted 
 Blockade is maintained in a manner which satisfies 
 the Declaration of the Congress of Paris, it will be 
 of importance to consider what is the meaning to 
 
 '' Les blocus, pour ^tre obli- is taken from a paper presented 
 
 gatoires, doivent ^tre effectifs, to both Houses of Parliament in 
 
 c'est-k-dire, maintenus par une 1856. 
 
 force suffisante pour interdire ^^ Spain has not acceded 
 
 rdellement I'accfes du littoral de hitherto to the Declaration of 
 
 Tennemi. Martens, N. B,. Gen. Paris. 
 XV. p. 792. The English text 
 
OK BLOCKADE. 199 
 
 be fairly attached to the words " sufficient really to 
 prevent access to the coast of the enemy," and whether Character- 
 there are any judicial decisions which will guide us effective 
 in arriving at a just interpretation of those words, '^^°°^^^- 
 An analogous question came under the consideration 
 of the High Court of Admiralty of England in the 
 case of the Franciska^" (25 Jan. 1855), when Dr. 
 Lushington was called upon to determine, whether 
 the blockade imposed upon the port of Eiga was an 
 Effective Blockade. That learned Judge, after ob- 
 serving that all definitions are and must be from 
 the nature of blockades loose and uncertain, goes 
 on to say, "The maintenance of a blockade must 
 always be a question of degree — of the degree of 
 danger attending ships going into or leaving a block- 
 aded port. Nothing is further from my intention 
 nor indeed more opposed to my notions of the Law 
 of Nations than any relaxation of the rule, that a 
 blockade must be sufficiently maintained : but it is 
 perfectly obvious, that no force could bar the en- 
 trance to absolute certainty ; that vessels may get 
 in and get out during the night, or fogs, or violent 
 winds, or occasional .absence ; that it is most difficult 
 to judge from numbers alone. Hence I believe that 
 in every case the enquiry has been, whether the 
 force was competent and present, and if so, the per- 
 formance of the duty was presumed ; and I think I 
 may safely assert, that in no case was a blockade 
 held to be void, when the blockading force was on 
 the spot or near thereto, on the ground of vessels 
 entering into or escaping from the port, where such 
 ingress or egress did not take place with the consent 
 of the blockading squadron." 
 
 The circumstance of one or two vessels being 
 
 ^ The Tranciska. Spiuks, Ecclesiastical and Admiralty Re- 
 ports, II. p. 128. 
 
200 ON BLOCKADE. 
 
 successful in eluding the vigilance of a blockading 
 squadron has never hitherto been held sufficient to 
 rebut the presumption of law arising from the fact, 
 that a squadron adequate in point of numbers to 
 command all the approaches to a fort has been 
 stationed before it, nor has tbe accidental absence 
 of a blockading squadron from its cruising ground 
 from stress of weather ever been adjudged to work 
 a legal suspension of an actual Blockade. Lord 
 Stowell has observed that when a squadron is 
 driven off by accidents of weather, which must have 
 entered into the contemplation of the belhgerent 
 imposing the blockade, there is no reason to sup- 
 pose that such a circumstance would create a change 
 of system, since it could not be expected that any 
 blockade would continue for many months without 
 being liable to such temporary interruptions ^\ But 
 when a blockading squadron is driven off by a 
 superior force, a new course of events may arise, 
 which may tend to a very different disposition of 
 the blockading force, and which introduces a very 
 different train of presumptions in favour of the 
 ordinary freedom of commercial, speculations. In 
 such a case the neutral merchant is not bound to 
 foresee or conjecture, that the blockade will be re- 
 sumed^^. So if a blockading squadron should be 
 despatched upon an expedition elsewhere, leaving 
 only a small force to continue the blockade and to 
 apprise vessels of its existence, such a measure has 
 been held to be insufl&cient to maintain the block- 
 ade, as it is the duty of the blockading Power to 
 keep such a force on the ground, as would be of 
 itself sufficient to enforce the blockade. The Lords 
 of Appeal held in the case of an alleged breach of 
 
 21 The Columbia, i Ch. Rob. ^^ The Hoffnung, Schmidt, 
 
 p. 156. 6 Ch. Rob. p. 117. 
 
ON BLOCKADE. 201 
 
 the blockade of the island of Martinique, that the 
 omission to keep a number of vessels on the different 
 stations, so communicating with each other as to be 
 able to intercept all vessels attempting to enter the 
 ports of the island, was a neglect which necessarily 
 led neutral vessels to believe that those ports might 
 be entered without incurring any risk^^ The pe- 
 riodical appearance of a vessel of war in the offing 
 could not be supposed to be a continuation of a 
 blockade, which had been previously maintained by 
 a number of vessels, and with such rigour that no 
 vessel whatever had been able to enter the island 
 during its continuance. On the other hand, Sir W. 
 Grant held that under particular circumstances a 
 single vessel may be adequate to maintain the block- 
 ade of one port and cooperate with other vessels at 
 the same time in the blockade of another neighbour- 
 ing port^*; and likewise that the temporary absence 
 of the blockading vessels from their station, whilst 
 employed in chasing suspicious vessels, was no inter- 
 ruption of the blockade^®. 
 
 § 104. The second question which demands con- Knowledge 
 sideration, is what shall be taken to establish aofthe^''*' 
 knowledge of the blockade on the part of the master master of 
 
 o r n vessel 
 
 of a vessel attempting to enter or come out of a dispenses 
 blockaded port. It is obvious that, as all questions warning, 
 of International Eight presume good Faith, a know- 
 ledge of the fact of a blockade, howsoever acquired, 
 will preclude a neutral master from any claim to 
 receive a direct warning from the blockading squad- 
 ron^®, even if the vessel should have sailed from the 
 port, where she had shipped her cargo, without a 
 
 =>' The Nancy, Hurd. i Acton, '^ The Eagle, i Acton, p. 
 
 p. 58. 65- 
 
 ^*' The Nancy, Woodberry. ^* TheFranciska. Spinks,Bccl. 
 
 Ibid. p. 63. andAdmiraltyEeportSjII.p. 113. 
 
202 ON BLOCKADE. 
 
 knowledge of the blockade. Thus by Article XVIII 
 of- the Treaty of Commerce between Great Britain 
 and the United States of America^' (19 Nov. 1794) it 
 was provided that " Whereas it frequently happens 
 that vessels sail for a port or place belonging to an 
 enemy, without knowing that the place is either 
 besieged, blockaded, or invested, it is agreed that 
 every vessel so circumstanced may be turned away 
 from such port or place, but she shall not be de- 
 tained, nor her cargo, if not contraband, confiscated, 
 unless after notice." Lord Stowell was called upon 
 to interpret this Treaty in dealing with the case of 
 an American vessel taken in a voyage from Hamburg 
 to Amsterdam, which latter port was under blockade. 
 It appeared that the vessel had sailed from America 
 with innocent intentions on the part of the owners, 
 for it was not known at that time in America, that 
 Amsterdam was in a state of investment. It was 
 therefore contended on behalf of the owners, that 
 under the Treaty with Great Britain, the vessel 
 could not be confiscated for breach of blockade, unless 
 she had attempted to enter the port of Amsterdam 
 after notice that it was under blockade. "It has 
 been said," observed Lord Stowell, in the course of 
 his judgment, " that by the American Treaty, there 
 must be previous warning. Certainly where vessels 
 sail without a knowledge of the blockade, a notice 
 is necessary ; but if you can affect them with know- 
 ledge of that fact, a warning then becomes an idle 
 ceremony, of no use, and therefore not to be re- 
 quired^^ The Master, the Consignees, and all per- 
 sons intrusted with the management of the vessel, 
 appear to have been sufficiently informed of this 
 
 '" Martens, R^cueil, V. p. 676. Newport Insurance Company, 4 
 ^' The Columbia, i Ch. Rob. Cranch, p. 185. 
 p. 154. Fitzsimmons v. The 
 
ON BLOCKADE. 203 
 
 blockade, and therefore they are not in the situation 
 which the Treaty supposes ". The Lords of Appeal 
 have on a recent occasion affirmed Lord Stowell's 
 view with this caution, that there must be no reason- 
 able doubt of the fact, from which the knowledge of 
 the master is to be presumed. "While their Lord- 
 ships," they said, "are quite prepared to hold that 
 the existence and extent of a blockade may be so 
 well and so generally known, that knowledge of it 
 in an individual may be presumed without distinct 
 proof of personal knowledge, and that knowledge so 
 acqiiired may supply the place of a direct com- 
 munication from the blockading squadron ; yet the 
 fact, with notice of which the individual is to be fixed, 
 must be one which admits of no reasonable dotibt. 
 Any communication which brings it to the knowledge 
 of the party, to use the language of Lord Stowell in 
 the RoUa (6 Ch. E^ob. p. 367) in a way which could 
 leave no donbt in his mind as to the authenticity 
 of the information, will be binding on him^^." 
 
 § 105. But there are cases in which no actual Construct- 
 proof may be forthcoming from the ship's papers ^^^ "° ^°*' 
 or otherwise against the Master and crew of a 
 neutral vessel of their personal knowledge of the 
 fact of a blockade, and yet there may be established 
 against them a constructive knowledge, which will 
 preclude them from setting up in their defence per- 
 sonal ignorance. Thus it has been held by the 
 British Prize Courts, that where there has been a 
 public Notification of a blockade from the Grovern- 
 ment of a belligerent to a neutral State, all the 
 subjects of the latter must after a reasonable time^" 
 be supposed to be cognisant of the blockade. To 
 
 '" Northcote v Douglas (The ^^ The Neptunus, 2 Ch. Eob. 
 
 Pranciska). 10 Moore's P. C. Re- p. iii. The Spes and Irene, 
 ports, p. 58. 5 Ch. Rob. p. 'jg. 
 
204 ON BLOCKADE. 
 
 allow individuals to plead ignorance of a blockade, 
 which had been notified to their Government, would 
 Notlaoa entirely defeat the object of the Notification. " The 
 tion. effect of a Notification to any foreign Government," 
 says Lord Stowell", "would clearly be to include 
 all the individuals of that Nation : it would be the 
 most nugatory thing in the world, if individuals 
 were allowed to plead their ignorance of it. It is 
 the duty of foreign Governments to communicate the 
 information to their Subjects, whose interests they 
 are bound to protect. I shall hold, therefore, that a 
 neutral master can never be heard to aver against a 
 Notification of a blockade, that he is ignorant of it." 
 Such being the Law of the English Admiralty Courts 
 in regard to the Subjects of States, to which a direct 
 Notification of a blockade has been addressed, those 
 Courts have further held that the Notification of a 
 blockade from the Government of a State made to 
 the principal States of Europe, will in time affect the 
 rest, not so much proprio vigore, as in the way of 
 General evidence against them. The general notoriety of a 
 blockade will therefore be presumed after it has 
 been publicly notified and de facto maintained for 
 a considerable time ; and the English Prize Courts 
 have held, that it would be a fraudulent omission 
 on the part of a neutral master not to take notice of 
 a matter, which was a subject of general notoriety 
 in the port where he shipped his cargo, although it 
 might not have been formally notified to his own 
 Government. It was amongst the points insisted 
 upon by the States General in their Ordinance of 
 26 June 1630, that the ports of Flanders were not 
 merely blockaded de facto, but were reputed to be 
 under blockade by the Dutch fleets. The necessity 
 therefore of giving notice on the spot to vessels 
 ^' The Adelaide, 2 Ch. Rob. p. 1 1 1 in notis. 
 
 !Notoriety. 
 
ON BLOCKADE. 205 
 
 entering a blockaded port, before they can be justly 
 made liable to the consequences of breaking the 
 blockade, does not arise, when the blockade has 
 been notified in a public and solemn manner by a De- 
 claration on the part of the executive G-ovemment 
 to foreign Powers. Where, on the other hand, the 
 blockade is established by the commander of a 
 squadron without any public Notification on the part 
 of his Government, the notoriety of the fact of an 
 actual blockade will not be presumed against the 
 master of a neutral vessel, so as to disentitle him 
 from the benefit of an actual notice from the block- 
 ading force on his arrival in the neighbourhood of 
 the blockaded port. Thus the instructions trans- 
 mitted by the Lords of the Admiralty on 8 January 
 1804 to Commodore Hood in regard to the blockade 
 of the islands of Martinique and Guadaloupe were, 
 that he was 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 capture vessels bound to such ports, unless they 
 shall previously .have been warned not to enter 
 them^l It is otherwise however with vessels coming 
 out of a blockaded port. There no notice is neces- 
 sary, after the blockade has existed de facto for any 
 length of timej the continued fact is itself a suffi- 
 cient notice, as it is impossible for those within to 
 be ignorant of the forcible suspension of their com- 
 merce. The notoriety of the thing in this case 
 supersedes the necessity of particular notice to each 
 ship^^. 
 
 f 106. M. Hautefeuille^* discusses the blockade S^/TheFactof 
 notification and the blockade hy notoriety, as if musra*- ^ 
 
 cord with 
 '2 Tutela, 6 Ch. Eob. p. 179. '* Des Droits des Nations ff--^°*'^- 
 
 ^' The Vrow Judith, i Ch. Neutres, Tit. IX. c. g. § i. and 
 Kob. p. 153. 2. 
 
206 ON BLOCKADE. 
 
 they were varieties of jpaper blockades or fictitious 
 blockades ; but such is not the meaning of those 
 terms as employed in the English Courts of Admi- 
 ralty. The Lords of Appeal in Prize cases have 
 long since held that a proclamation of blockade is 
 not in itself sufficient to constitute a legal blockade^^ 
 Thus the West India islands were declared under 
 blockade by Admiral Jarvis, but the Lords held that 
 as the fact did not support the declaration,- a blockade 
 could not be deemed legally to exist ^^ ; and on a 
 recent ■ occasion during the Eussian War (30 Nov. 
 1855) the Judicial Committee of the Privy Council 
 held that the notice of a blockade must not be more 
 extensive than the blockade itself, otherwise the 
 neutral will be at liberty to disregard such notice, 
 and will not be liable to the penalties attending a 
 breach of blockade for afterwards attempting to 
 enter the port which is really blockaded^'. To the 
 same effect Lord Stowell has observed, " There are 
 two sorts of blockade ; one by the simple fact only ; 
 the other by notification, accompanied with the fact^^" 
 It would be an error to suppose that the British 
 Courts of Admiralty admit that the mere Notifica- 
 tion of a blockade is sufficient to constitute a legal 
 blockade : there must be likewise a blockade de facto 
 at the time of Notification, otherwise the Notification 
 will not have any legal effect. Such was the view 
 of the British Government, as expressed by them in 
 a note communicated to the Government of the 
 United States of America in 1807, by its Minister, 
 Mr. Forster, on the subject of the blockade of 1806 
 and 1807. "Great Britain," they said, "has never 
 
 '5 The Betsey, i Ch. Rob. Franciska), 10 Moore, P. C. Ee- 
 
 P- 95- ports, p. 59. 
 
 '' The Mercurius, i Ch. Rob. ^8 rpj^^ Neptunus, i Ch. Rob. 
 
 p. 83. p. 171. 
 
 ^^ Northcote v. Douglas (The 
 
ON BLOCKADE. 207 
 
 contested, that according to the customary Law of 
 Nations every blockade, in order that it should be 
 justified, ought to be maiutained by a sufiicient 
 force, and should place in danger every vessel that 
 shall attempt to evade it. It was in accordance 
 with this principle that the blockade of 1806 was 
 not notified to foreign Powers by Mr. Fox, until 
 after he had been convinced by a Eeport from the 
 Board of Admiralty, that the Admiralty had adopted 
 and would employ every means to watch the coast 
 from Brest to the Elbe, and to place this blockade 
 really in execution. The blockade therefore of the 
 month of May 1806, was full and legitimate in its 
 origin, since it was maintained not merely in inten- 
 tion, but in yac^ by a sufficient force^"." 
 
 ^107. The substantial difference which the British Practice of 
 Courts make between a blockade which has been Courts as 
 notified to neutral G-overnments, and a blockade *° "°*'°^' 
 which has not been so notified, is, that vessels in the 
 former case are not entitled to a direct warning from 
 the blockading squadron, before they can be captured 
 as Prize of War for violating the blockade. On the 
 other hand, the French Courts are more lenient on 
 the subject of direct warning ; for the practice of 
 the French Government*" is to instruct their cruisers 
 to give actual notice on the spot to all parties at- 
 tempting for the first time to enter, a port which has 
 
 '' A French version of this *" The ancient practice was 
 note, of which the above is a more rigorous, if we may judge 
 translation, is given by M. Haute- from the Ebglement of 26 July 
 feuille, Tom. II. p. 257. The 1778, (Lebeau, Tom. II. p. 58.) 
 same doctrine was maintained under which French privateers 
 in a note from Lords Holland were authorised to capture all 
 and Auckland, the British Pleni- neutral vessels, " qui porteroient 
 potentiaries, addressed to Messrs. des secours S, des places bloqu6es, 
 Monroe and Pinckney, the United investles, ou assiegdes," no men- 
 States' Commissioners, 3 1 Dec. tion being made of a preliminary 
 1806. Papers presented to Par- warning, 
 liament in 1808. 
 
208 ON BLOCKADE. 
 
 been placed under blockade, even where the blockade 
 itself has been a subject of diplomatic Notification to 
 neutral States. Such was the substance of the in- 
 structions given to the French cruisers both in 1827 
 and in 1830, when they established a blockade of the 
 ports of the Regency of Algiers. Such also was the 
 purport of the instructions contained in the Letter 
 of Count Mole of 20th October 1838, which he ad- 
 dressed to the French Minister of Marine for the in- 
 formation of the commander of the French squadron 
 then blockading the ports of Mexico*^. M. Mole, in 
 a despatch of 17th of May 1838, in reference to the 
 blockade of the ports of the Argentine Eepublic, has 
 stated very clearly the principles upon which the 
 French Courts of Prize proceed : " Tout blocus pour 
 etre valable envers les neutres, doit leur avoir 6te 
 notifie et etre effectif. 
 
 " Un navire, se pr^sentant devant un pour bloque 
 avant d' avoir eu connoissance de blocus, doit d'abord 
 en etre averti, et la notification doit en etre faite par 
 ^crit, et sur son rdle d'^quipage. Mais cet avis ayant 
 ^te donne, et cette formality ayant ete remplie, s'il 
 persiste k entrer dans le port, ou s'il vient k s'y pre- 
 senter de nouveau, le commandant du blocus a le 
 droit de I'arreter^^." 
 
 In accordance with the above rules, we find the 
 French Courts of Prize deciding on 21 Dec. 1847, in 
 the case of La Louisa^, captured in the waters of 
 the Eiver Plata, that it was not sufficient that the 
 blockade should have been notified to foreign Powers: 
 it was necessary that the ship itself should have 
 notice of the existence and extent of the blockade, 
 
 *' This letter is given in ex- ^ Pistoye et Duverdy, Traits 
 
 tenso by M. Ortolan, in his Di- des Prises Maritimes, Tom. I, 
 
 plomatie de la Mer, Tom. II. p. 382. 
 
 p. 304. *3 Ibid. p. 382. 
 
ON BLOCKADE. 209 
 
 and that the notice should be entered on the ship's 
 log before she could be captured and condemned 
 as prize of war for violation of the blockade. On 
 the other hand, the same Courts on 4 March 1830 
 condemned the vessel La Carolina*'*, as good prize, 
 seeing that there had been an effective blockade of 
 the ports of the Regency of Algiers established since 
 the month of May 1827 in virtue of orders trans- 
 mitted from the French Government ; and that the 
 master of the Carolina had been warned of the ex- 
 istence of the blockade some days before the capture 
 of his vessel, and a notice to that effect had, been 
 entered in the log of the vessel ; and that after 
 this direct warning, he had attempted to break the 
 blockade, and enter the port of Oran." 
 
 § 108. The doctrine of the British Courts of Prize, Practice of 
 that due notice of a blockade may be received con- states 
 structively, has been adopted by the jurists of the ^ notict! 
 United States of America. Thus Chancellor Kent 
 writes*^ : " It is absolutely necessary that the neutral 
 should have had due notice of the blockade, in 
 order to affect him with the penal consequences of 
 a violation of it. This information may be com- 
 municated to him in two ways ; either actually by 
 a formal notice from the blockading Power, or con- 
 structively by notice to his Government, or by the 
 notoriety of the fact. It is immaterial in what way 
 the neutral comes to the knowledge of the blockade. 
 If the blockade actually exists, and he has knowledge 
 of it, he is bound not to violate it. A notice to a 
 foreign Government is a notice to all the individuals 
 of that Nation, and they are not permitted to aver 
 ignorance of it, because it is the duty of the neutral 
 Government to communicate the Notice to its people. 
 
 " Pistoye et Duverdy, Prises *^ CommeiAaries on American 
 Maritimes, Tom. I. p. 381. Law, Tom. I. p. 147. 
 
 PART II. P 
 
210 ON BLOCKADE. 
 
 In the case of a blockade without regular notice, 
 notice in fact is generally requisite ; and there is this 
 difference between a blockade regularly notified, and 
 one without such notice, that in the former case the 
 act of sailing for the blockaded place with an intent 
 to evade it, or to enter contingently, amounts, from 
 the very commencement of the voyage, to a breach 
 of the blockade ; for the port is to be considered as 
 closed up, until the blockade be formally revoked, 
 or actually raised ; whereas in the latter case of a 
 blockade de facto, the ignorance of the party as to 
 its continuance may be received as an excuse for 
 sailing to the blockaded place, on a doubtful and 
 provisional destination^^. The question of notice is 
 a question of evidence to be determined by the facts 
 applicable to the case. The notoriety of a blockade 
 is of itself sufficient notice of it to vessels lying 
 within the blockaded port*^" 
 Violation ^ 109. The third question to be considered is what 
 ade. ''''"'''" conduct renders a neutral vessel liable to capture 
 and condemnation for violating a blockade. By 
 the second article of the Ordinance of the States 
 General of the United Provinces, issued on 26 June 
 1630, already referred to, it was provided " that neu- 
 tral vessels and their cargoes should be confiscated, 
 when it shall be found from their cargo-papers or 
 other documents that they have been laden in the 
 blockaded ports, or are destined to go to such ports, 
 although they should be found at such a distance 
 from them, that they might possibly change their 
 voyage and intention. This rule being founded on 
 the fact that they have already embarked upon an 
 illicit enterprise and put it in train of execution, al- 
 though they have not completed it nor brought it to 
 
 '° The- Columbia, i Ch. Eob, « The Neptunus, 2 Ch. Eob. 
 P- 130- p. no. 
 
ON BLOCKADE. 211 
 
 the last point of perfection, the only exception to it 
 can be permitted, when the masters and owners of 
 such vessels can duly show, that they have desisted 
 of their own accord from their enterprise and illicit 
 voyage, before any vessel of war came in sight of 
 them or gave chase to them*^." The English and 
 American Courts of Prize proceed in the present day 
 upon the principles maintained by the States General 
 in regard to vessels, which have once set sail with 
 an intention to enter a port known to the masters 
 of such vessels to be under blockade. " It has been 
 said," observed Lord Stowell*^, " that the vessel had 
 not arrived, that the offence was not actually com- 
 mitted, but rested in intention only. On this point 
 I am clearly of opinion that the sailing with an in- 
 tention of evading the blockade of the Texel was 
 beginning to execute that intention ; and is an overt 
 act constituting the offence. From that moment the 
 blockade is fraudulently evaded." In commenting 
 upon this and other judgments of the English Courts, 
 that eminent American Judge, Chief- Justice Marshall, 
 has observed, "Neither the Law of Nations nor the 
 Treaty (between the United States and Great Britain) 
 admits of the condemnation of the neutral vessel for 
 the intention to enter a blockaded port, unconnected 
 with any fact. Sailing for a blockaded port, know- 
 ing it to be blockaded, has been in some English 
 cases construed into an attempt to enter that port, 
 and has therefore been adjudged a breach of the 
 blockade from the departure of the vessel. Without 
 giving any opinion on that point, it may be observed 
 that in such cases the fact of sailing is coupled with 
 the intention, and the sentence of condemnation is 
 
 ^^Eobinson's Collectanea Ma- " The Columbia, i Ch. Eob 
 ritima, p. 165. Bynkershoek, p. 155. Cf. Madeiros v. Hill 
 Qu. Jur. Publ. L. I. c. II. 8 Bingham, p. 231. 
 
 P 2 
 
212 ON BLOCKADE, 
 
 founded on an actual breach of the blockade^"." 
 The same learned Judge in another case" observed 
 that " sailing from Tobago to Cura^oa, knowing 
 Cura9oa to be blockaded, would have incurred the 
 risk of breaking the blockade ; but saOing for that 
 port without such knowledge did not incur it." 
 
 The rule of the English Courts in considering 
 the act of sailing for a blockaded port to be in 
 law- an attempt to enter it, is a peremptory rule in 
 the case of a blockade, which has been notified by 
 the belligerent Government to neutral Governments, 
 inasmuch as, in the case of a blockade which has 
 been publicly notified, the parties despatching the 
 ship are not entitled to presume that the blockade 
 has been raised, unless the revocation of the blockade 
 has also been publicly notified'^. 
 Equity of ^ jjq. A Certain equity has been administered by 
 Prize the English Prize Courts towards vessels which 
 have been despatched from a port very distant from 
 the blockaded port. Thus Lord Stowell held that 
 American vessels were entitled to the benefit of 
 a contingent destination to be ascertained and ren- 
 dered definite by the information, which they should 
 receive in Europe. " It must be inferred," he says, 
 "and indeed admitted, that the Notification of the 
 blockade of Havre had been received in America. 
 To all general rules of observance of a blockade duly 
 imposed, the subjects of America are undoubtedly 
 bound equally with those of other countries. At 
 the same time, looking to the great distance at which 
 they are placed, and being unwilling to press with any 
 
 ^"Fitzsimmonsv. The Newport p. 446. Kent's Commentaries, 
 
 Insurance Company, 4 Cranch, Tom. I. p. 150. 
 
 P- 185- '^ The Vrow Johanna, 4 Ch. 
 
 *^ Yeatonv. Fry, 5 Cranch, p. Eob. p. 109. 
 335. Cf, Tlie Nereide, 9 Cranch, 
 
 Courts. 
 
ON BLOCKADE. 213 
 
 degree of hardship on the fair convenience of com- 
 merce, the Court has held, even when the blockade 
 of a port in Europe has been notified in America, 
 that the merchants of that country might still clear 
 out conditionally for the blockaded port, on the 
 supposition that before the arrival of the vessel a 
 relaxation might have taken place. But as to the 
 line of caution to be observed in this state of un- 
 certainty, the Court has always expected that the 
 enquiry should be made at some of the British ports 
 in the Channel. It could not be, that ships should 
 be permitted to resort to the ports of the blockaded 
 country for the information, since every one must 
 perceive that such a liberty would place it in the 
 power of the enemy to determine the continuance of 
 the blockade. The ports of the blockading country 
 are certainly the proper ports for enquiry ; and it 
 would not be too much to expect, that this precaution 
 should be noted in the papers, and that it should be 
 most explicitly enjoined on the master and super- 
 cargo in their instructions to obtain the information, 
 which might be necessary to fix the destination, at 
 some of the British ports in the OhanneP^." 
 
 In another case^* Lord Stowell declared it "to be a 
 measure of necessary caution and of preventive legal 
 policy to hold the rule general against the hberty 
 of enquiring at the very mouth of the blockaded 
 port, as such a liberty would amount in practice to 
 an universal license to enter, and on being prevented 
 to claim the liberty to go elsewhere." On the other 
 hand, the Lords of Appeal in. Prize Causes have ruled 
 that it was not a necessary ground for condemnation, 
 that the captain of an American vessel had instruc- 
 
 «3The Shepherdess, 5 Ch. Rob. " The Spes and Irene, 5 Ch. 
 
 p. 265. The Betsey, i Ch. Eob. Rob. p. 81. Cf. The Posten, i Ch. 
 p. 335. Rob. note, p. 336. 
 
214 ON BLOCKADE. 
 
 tions to make enquiry of the cruising vessels off tlie 
 Eyder respecting the existence of the blockade of 
 the Kiver Elbe^^ and that he had not, in fact, made 
 enquiry during the prosecution of his voyage up 
 the Channel in some British Port. They have also 
 ruled that the captain of an American vessel might 
 be instructed to go to Heligoland for a pilot, and 
 there make enquiry if the blockade of the Weser 
 was raised, without thereby exposing his vessel to 
 condemnation for violation of the blockade. But the 
 Lords of Appeal have held in all such cases that, in 
 order to entitle the claimants to the favourable con- 
 sideration of the Prize Tribunal, the strictest proof 
 of bond fides is required, as the presumption of law 
 in the absence of such proof would be adverse to 
 the claimant of the ship and cargo ^''. 
 
 § III. After the blockade of a port has once been 
 established, every neutral vessel, the master of which 
 voluntarily attempts to enter the port with his vessel 
 either in ballast, or in cargo, without a license from 
 the Government of the blockading Power, is liable to 
 capture and condemnation for breach of the blockade. 
 A Hcense, however, which is expressed in general 
 Favour- tcrms, to authorisc a ship to sail from any port in the 
 etniotion of Baltic with a cargo, will not authorise the same vessel 
 to sail from' a blockaded port with a cargo taken in 
 there. To exempt a blockaded port from the re- 
 strictions incident to a state of blockade it must be 
 specially designated with such an exemption in the 
 license ; otherwise a blockaded port will be taken as 
 an exception to the general description in the license^'. 
 Licenses however are to be favourably regarded ; and 
 it imports the honour and good faith of a Government 
 
 "= The Little William, Acton, ^' The Byfield, Edwards, p. 
 
 p. 141- 188. 
 
 ^ The Dispatch, Ibid. p. 163. 
 
,0N BLOCKADE. 215 
 
 which grants them, not to press the letter of them too 
 rigorously. Thus a license to go to the ports of the 
 Ylie, Embden, Rotterdam, or elsewhere, was granted 
 by the British Government to an American vessel, 
 which on arriving at Falmouth had found that the 
 port of Amsterdam was under blockade. It was held 
 by Lord StowelP® that the license must be taken to 
 include Amsterdam, as being one of the ports of the 
 Vlie. So a license granted to import Spanish wool 
 from Holland, dated on the day of the date of the 
 Notification of the blockade of Holland, was inter- 
 preted to give the parties the full benefit of importing 
 such articles without molestation from the blockading 
 squadron^". If however the master of a neutral 
 vessel should have been involuntarily driven to enter 
 a blockaded port by stress of weather, or want of 
 provisions^", or need of water, or by some other im^ 
 perative and overruling necessity, such necessity 
 will excuse him from the charge of violating the 
 blockade, if his vessel should be captured. But it 
 will not be sufficient for him in such a case to 
 show that there were existing and adequate causes 
 to explain the circumstance of his vessel seeking 
 refuge in the blockaded port ; it must be estabhshed 
 beyond a doubt, that the vessel under the circum- 
 stances could not have proceeded without hazard to 
 any other port than the blockaded port^S in other 
 words, that the necessity was imperative. 
 
 § 112. A vessel coming out of a blockaded port is Breach of 
 prima fade liable to seizure, and if the cargo has i,y ^ * ^ 
 been taken on board since the commencement of the 
 
 58 The Juno, 2 Ch. Eob. p. p. 27. 
 
 116. ^^ The Hurtige Hane, 2 Ch. 
 
 '"The Hoffnung, 2 Ch. Eob. Rob. p. 127. The Arthur, Ed- 
 
 p. 162. wards, p. 263. The Charlotta, 
 
 «" The Fortuna, 6 Ch. Rob. Ibid. p. 232. 
 
216 ON BLOCKADE. 
 
 blockade, both ship and cargo will be liable to con" 
 demnation^l "A blockade," sayS Lord Stowell, "is 
 just as much violated by a vessel passing outwards 
 as inwards. A blockade is a sort of oircumvallation 
 round a place, by which all foreign connection and 
 correspondence is, as far as human force can effect it, 
 to be entirely cut off. It is intended to suspend the 
 entire commerce of the place, and a neutral is no 
 more at liberty to assist the traffic of exportation 
 than of importation. The utmost that can be allowed 
 to a neutral vessel, is, that having already taken on 
 board a cargo, before the blockade begins, she may 
 be at liberty to retire with it. But it must be con- 
 sidered as a rule, which this Court means to apply, 
 that a neutral ship, departing, can only take away 
 a cargo hond fide purchased and delivered before the 
 commencement of the blockade. If she afterwards 
 takes on board a cargo, it is a fraudulent act and 
 a violation of the blockade®^" The United States' 
 Courts have held the same doctrine®*. Further, it is 
 not necessary, that the whole of the cargo should be 
 laden on board after the blockade has commenced, in 
 order to render the departure of the vessel from the 
 blockaded port an unlawful 'act. When any portion 
 of the cargo has been taken on board after the exist- 
 ence of the blockade is known in the port, the act 
 of egress is treated as a fraud against the right of 
 the belligerent. This rule of the Prize Courts is 
 founded on the principle, that the interposition of a 
 neutral in any way to assist in exporting goods from 
 an enemy's port, after a blockade of that port has 
 been established, tends directly to relieve the enemy 
 
 "^ The Frederick Molke, i Ch. wards, p. 33. 
 
 Eob. p. 86. '^ Qliveira v. Union Insurance 
 
 "^ The Vrow Judith, i Ch. Company, 3 Wheaton, p. 183. 
 Rob. p. 152. The Comet, Ed- 
 
ON BLOCKADE. 217 
 
 from the distress which the blockade was intended to 
 create, and that the continuing to take in cargo, 
 after the time when the master of the neutral vessel 
 was bound to .take notice of the blockade, is in- 
 consistent with good faith towards the blockading 
 power ®^ 
 
 ^113. It has beien already observed that neutral Egress 
 vessels, which have entered an enemy's port before certain " 
 that port has been placed under blockade, may come °^^^' 
 out in ballast without violating the blockade, for their 
 egress under those conditions cannot in any way pre- 
 judice the blockading power *^; and neutral vessels 
 may also come out of a blockaded port without vio- 
 lating the blockade, if they have been compelled to 
 enter it, after the blockade has been established, from 
 stress of weather or other imperative necessity. Neu- 
 tral vessels are also at liberty to come out without 
 molestation, if they have entered the port under the 
 authority of a license from the Grovernment of the 
 blockading Power ; for such license to enter the port 
 implies a permission to come out of it^'^. Again, a 
 neutral vessel does not violate a blockade by reship- 
 ping and bringing out of a blockaded port goods 
 which have been sent into the port before the block- 
 ade by a neutral merchant for sale, and which have 
 been found unsaleable, and are hond fide withdrawn 
 by the owner^^. Again, a neutral vessel may take on 
 board, and bring out after the commencement of a 
 blockade a cargo, which has been purchased by a 
 neutral merchant from the enemy during the block- 
 ade, if there be a well-founded expectation of an 
 immediate war between the country of the neutral 
 
 «^ The Calypso, 2 Ch. Rob. '''' The Charlotta, Edwards, 
 
 p. 298. _ p. 252. 
 
 "' The Juno, 2 Ch. Rob. '^ The Juffrow Maria Schrce- 
 
 p. 119. der, in notis, 4 Ch. Rob. p. 89. 
 
218 ON BLOCKADE. 
 
 merchant and that to which the blockaded port be- 
 longs, and consequently the danger of the seizure and 
 confiscation of the property in port is imminent ^^ 
 Again if a neutral ship, arriving at jbhe mouth of a 
 blockaded port in ignorance of the blockade, is suf- 
 fered to pass into the port, she may freely come out 
 in ballast, for she has entered the port under an 
 implied permission which fully protects her egress™. 
 Or if a vessel, of which the master has sailed with 
 a knowledge of a blockade, is directly permitted by 
 the blockading squadron to enter a blockaded port", 
 or having been informed by a cruiser of the belli- 
 gerent Power that the blockade has been raised, 
 thereupon makes her way without molestation into 
 the blockaded port, the vessel is entitled to free 
 egress from the same porf^. In the case of the Eose 
 in Bloom '^, Lord Stowell intimated, that if a vessel, 
 sailing out of a blockaded port of France under 
 American colours, had been employed by the Ame- 
 rican Consul resident in the port for the sole purpose 
 of taking home distressed American seamen, who had 
 been thrown out of employment and detained in the 
 ports of France by the violence of the ruling Power 
 there, she would have been entitled to a very favour- 
 able consideration from the blockading Power, whose 
 Courts of Prize, from motives of humanity, might 
 reasonably allow such a case to be an exception to 
 the general rule. 
 Duration § 1 1 4- If ^ neutral vessel has violated a blockade 
 of dezictom jjjy egress, she is regarded as still in delicto until she 
 egress. j^as reached her port of destination, and has completed 
 
 ™ The Drie Vrienden, i Dod- Vrow Barbara, ibid, in notis, p. 
 
 son, p. 269. 158. 
 
 'o The Christina Margaretta, '^ rjij^g Neptunus, 2 Ch. Eob. 
 
 6 Ch. Rob. p. 63. p. 1 10. 
 
 " The Jufirow Maria Sehroe- '' The Rose in Bloom, i Dod- 
 der, 3 Ch. Rob. p. 149. The son, p. 58. 
 
ON BLOCKADE. 219 
 
 her voyage ^^ Thus we find it directed by the third 
 article of the Ordinance of the States General of 
 26 June 1630, above referred to, that "vessels re- 
 turning from the ports of Flanders, with the ex- 
 ception of such as have been driven into them by an 
 extreme necessity, although they should be met with 
 at a great distance from those ports by vessels of the 
 State without having been previously pursued by 
 any of the blockading fleet, shall be confiscated, be- 
 cause such vessels are held to have been taken in the 
 fact as long as they have not completed their voyage, 
 and have not arrived in some port which is free or 
 belonging to a neutral Prince. Such vessels indeed 
 with their cargoes shall not be Hable to be confiscated, 
 if they shall have arrived in any such port as spe- 
 cified, unless they have been pursued in coming out 
 of the ports of Flanders by some vessel of war, and 
 have taken refuge in such port, not being their own 
 port nor the port of their destination, and shall have 
 ventured out to sea again and been captured on the 
 high seas." Bynkershoek''^, in commenting on this 
 Ordinance of the States General observes, that the 
 exception in favour of a vessel which has arrived at 
 her own port, if it is intended to distinguish such a 
 port from her port of destination, is not reasonable. 
 " A British vessel," he says, " which has come out of 
 a blockaded port of Flanders, destined to a Danish 
 port, and having taken refuge from the pursuit of 
 the blockading squadron in a British port, afterwards 
 ventures out to sea and pursues her original destina- 
 tion to a Danish port, appears to be still in itinere et 
 ipso actu." He is therefore disposed to construe the 
 Dutch Ordinance, as granting the exemption to vessels 
 
 '* The Weelvaart Van Pillaw, " Qusestiones Jur. Publ. L. I. 
 
 2 Ch. Rob. p. 128. The General c. 11. 
 Hamilton, 6 Ch. Rob. p. 61. 
 
220 ON BLOCKADE. 
 
 which had arrived in their own port as the terminus 
 of their voyage ; and he cites a decision of the Ad- 
 miralty Court of Zealand (27 Jan. 1631) in regard 
 to a vessel which had been purchased by a Scotchman 
 in the port of Dunkirk, which was at such time 
 under blockade, and which escaped out of Dunkirk 
 and took refuge from pursuit in the port of Yar- 
 mouth, which was not her actual port of destination. 
 On venturing out of Yarmouth in prosecution of her 
 original voyage the vessel was captured on the High 
 Seas by a Dutch cruiser, a ad was condemned as good 
 prize to the captors. So likewise Lord Stowell, in 
 dealing vsdth the case of a Prussian, ship which had 
 escaped out of the port of Amsterdam, then under 
 blockade, and had been captured by a British cruiser 
 off Dungeness, observed that, if the principle is sound 
 that a neutral vessel is not at liberty to come out of 
 a blockaded port with a cargo, he knew no other 
 natural termination of the offence but the end of 
 the voyage. "It would be ridiculous to say, If 
 you can get past the blockading force, you are 
 free : this would be a most absurd application of 
 the principle. If that is sound, it must be carried 
 to the extent that I have mentioned, for I see no 
 other point at which it can be terminated. Being 
 of opinion that the principle is sound, I shall hold 
 that if a ship, that has broken a blockade, is taken 
 in any part of that voyage, she is taken in delicto, 
 and is subject to confiscation^"." Lord StoweU has 
 further laid it down, that a vessel which has com- 
 mitted a breach of blockade by egress, shall not have 
 her offence purged by being driven by stress of 
 weather into a port, which is not her port of destina- 
 tion. Such an accident, he says, is not entitled to 
 
 '' The Weelvaart Van Pillaw, 2 Ch. Rob. p. 130. 
 
ON BLOCKADE. 221 
 
 be considered as any discontinuance of the voyage, 
 or as a defeasance of the penalty which has been 
 incurred''''. 
 
 §115. An exception to the rule, that the offence Effect of 
 of violating a blockade by egress is purged upon the f"*"*^ '" 
 arrival of the vessel at her port of destination, was 
 made by Lord Stowell in a case which was altogether 
 novel, but of which the importance was considerable, 
 when viewed in the extent of the consequences to 
 which it might lead. A neutral vessel was blockaded 
 in the port of Eotterdam, and could only come out 
 under the indulgence of a British Order in Council, 
 which made an exception in favour of vessels bound 
 to a neutral port. She came out in cargo with an 
 ostensible destination to the neutral port of Smyrna, 
 but on her voyage she put into Alicant in Spain 
 under pretext of requiring repairs ; and then having 
 sold her cargo, took on board a return cargo for 
 Copenhagen. She was captured by a British cruiser 
 on her return voyage, and the ship and cargo were 
 condemned as prize to the captor. Lord Stowell, in 
 considering this case, observed, that " she was in fact 
 blockaded in the port of Eotterdam, and could not 
 come out with a cargo, unless going to a neutral 
 port. The permission to go to a neutral port, if 
 accepted, implies a contract that that destination 
 shall be bondjide pursued. The vessel avails herself 
 of the indulgence, and comes out with a professed 
 intention of acting conformably to the Order. But 
 the fact turns out, that she deposits her cargo in a 
 port, to which she would not have been permitted to 
 go, if the real intention of the voyage had been dis- 
 closed. This is unquestionably an act of perfidy; and 
 I ask by what means can the Order be maintained, 
 
 " The General Hamilton, 6 Ch. Kob. p. 62. 
 
222 ON BLOCKADE. 
 
 or such conduct be repressed, unless by the applica- 
 tion of the penalty to the subsequent voyage. Until 
 the vessel had actually entered an interdicted port, 
 nothing appeared whether she was in delicto or not. 
 Cruisers see nothing ; she goes in, and then the 
 offence is consummated, and the intention is for the 
 first time declared. It is not till the vessel comes out 
 again, that any opportunity is afforded of vindicating 
 the law, and of enforcing the restriction of this 
 Order'^l" This case may be regarded as analogous in 
 some respects to a breach of blockade by ingress, in 
 which there is no opportunity of enforcing a penalty 
 until the offending vessel ventures out again to sea. 
 There is however one case in which the offence of 
 entering a blockaded port may be purged before the 
 vessel comes out, and in which likewise the penalty 
 of violating a blockade by egress may be determined, 
 before the offending vessel has reached her port of 
 destination. This case arises, whenever the blockade 
 itself is raised. Lord Stowell observed, in the case 
 of the Lisette, that he knew of no case in which a 
 vessel had been condemned, which had been seized 
 for the breach of a bygone blockade. The same rea- 
 son for rigour in such a case no longer exists, because, 
 the blockade being gone, the necessity of applying 
 the penalty to prevent future transgression cannot 
 continue. When the blockade is raised, a veil is 
 thrown over everything that has been done, and the 
 vessel is no longer taken in delicto''^. 
 Cargo not S 1 1 6. It is a general rule that both ship and. cargo 
 
 always piipt • 
 
 condemned are coufiscable for the breach of a blockade, and the 
 
 Si\p. ^ presumption of law is that the violation of a blockade 
 
 is intended for the benefit of the cargo as well as of 
 
 the ship, and takes place with the. sanction of the 
 
 '5 The Christianberg, 6 Ch. '" The Lisette, 6 Ch. Rob. 
 
 Eob. p. 381. p. 392. 
 
ON BLOCKADE. 223 
 
 owners of both.^"- This presumption, unless it be 
 rebutted by documents found on board of the ship 
 when captured, is a prcBSumptio juris et de jure, 
 which excludes all other evidence to the contrary. 
 In cases where the ship and cargo belong to the same 
 ' individuals, it is obvious that no difficulty can arise, 
 for the act of the master, as the legal agent of the 
 owner of the ship, will affect his principal to the ex- 
 tent of the whole of his property concerned in the 
 transaction". On the other hand, where the ship and 
 the cargo are the properties of different individuals, 
 the reasonable conclusion is, that the master of the 
 ship does not hazard the interests of his vessel ex- 
 cept in the service of the cargo. There is a necessary 
 presumption also in such cases, that this is done with 
 the cognisance and at the instigation of the owner of 
 the cargo ®^. But it may happen that the fact of a 
 blockade is known to the master of a ship, but not to 
 the owner of the cargo ; as for instance, a vessel may 
 have begun her voyage when the blockade of her 
 port of destination did not exist, or when it was 
 unknown to the owners of the cargo ; and it may 
 happen that the master, having been informed of the 
 blockade during his voyage, or having been warned 
 off at the entrance of the blockaded port, has per- 
 sisted in pursuing his course to his original destina- 
 tion. In such a case no question of fact can arise, 
 whether the owner of the cargo was consentient to 
 •the breach of the blockade^^ Other cases may be 
 supposed ; as for instance where a vessel has been 
 despatched in ballast to fetch a cargo from a port, 
 which is placed under blockade after she has entered 
 
 ^ The Alexander, 4 Ch. Eob. «' The Adonis, 5 Ch. Rob. 
 
 p. 93. p. 261. The Alexander, 4 Ch. 
 
 «i The Columbia, i Ch. Rob. Rob. p. 93. 
 p. 154, affirmed on appeal, 12 *^ The Adonis, 5 Ch. Eob. 
 
 August 1801. p. 262. 
 
224 ON BLOCKADE. 
 
 the port, and the owner of the cargo has no oppor- 
 tunity of ascertaining the fact of the blockade, so as 
 to countermand the shipment of his cargo! *. In such 
 a case. Lord Stowell has observed, that it would be 
 hard to bind the owners of the cargo by the act of 
 her agents in the blockaded port, as they do not 
 stand in the same situation as other agents. They 
 have not only a distinct, but even an opposite interest 
 from that of their principal, namely, to fulfil the 
 commission at aU risks as rapidly as possible, for 
 their own private advantage and for the public 
 interests of their country, at such a time under 
 particular pressure as to the exportation of its pro- 
 duce. This may be fairly allowed to impose a strong 
 obhgation on the candour of the Court not to hold 
 an employer too strictly bound on mere general 
 principles by an agent, who may be actuated by 
 interests different from those of his principal 
 Extent of ^ 117. There is no limit to the extent of coast 
 maybe aloug which the blockade of an enemy's ports may 
 under^ be extended, short of the natural limit of a force 
 blockade, adequate to maintain the blockade really and 
 effectively. The British Government in 1806 de- 
 clared the ports of the Continent of Europe, from 
 Brest to the Kiver Elbe, to be under blockade. In 
 the circular note bearing date 16 May 1806, and 
 addressed to the Ministers of Neutral Governments 
 then resident in London, Mr. Fox, the British Secre- 
 tary of State for Foreign Affairs, announced "that a- 
 consideration of the novel method, adopted by the 
 enemy for the interruption of British commerce, had 
 determined the British Government to issue orders 
 for placing in a state of blockade all the coasts, rivers, 
 
 "* The Neptuuus, 3 Ch. Eob. p. 177. The Adelaide, Ibid. p. 
 p. 173. 281. 
 
 «= The Neptunus, 3 Ch. Rob. 
 
ON BLOCKADE. 225 
 
 and ports, from the Elbe to Brest inclusively, and 
 that these rivers and ports were accordingly to be 
 considered as actually blockaded ^^." On this occasion 
 the British Government maintained that the blockade 
 was not notified to Foreign Governments, until the 
 necessary measures had been adopted by the British 
 Admiralty to make the blockade effective^'', and that 
 the blockade itself was maintained by a force suffi- 
 cient to make the entrance into the ports along the 
 line of coast, included within the limits of the block- 
 ade, manifestly dangerous. If it be assumed, as a 
 matter of fact, that these conditions were fulfilled, 
 there can be no doubt that the lawfulness of the 
 blockade was not in any way affected by the great 
 extent of coast over which it was maintained. In 
 the war carried on by the United States of America 
 against Mexico in 1846, all the ports, harbours, 
 bays, outlets, and inlets, on the West Coast of Mexico 
 south of San Diego, were declared by Commodore 
 Stockton to be under blockade. The United States 
 Government on this occasion, in reply to the sug- 
 gestions of the British Government that such a pro- 
 ceeding savoured of a paper blockade, did not express 
 any doubts of their Bight to maintain so extensive 
 a blockade ; but they stated that under Commodore 
 Stockton's general Notification no port on the West 
 Coast, was regarded as blockaded, unless there was 
 a sufficient force to maintain it, actually present, or 
 temporally driven from such actual presence by stress 
 of weather, intending to return ^^ In the war de- 
 
 *« Cf. Manning's Law of Na- ^' Note from Mr, Buchanan, 
 
 tions, p. 332. of 29 December 1846, to Sir 
 
 *' Note presented by M. ¥ots^ Richard Pakenham, with its en- 
 ter, the British Minister, to the closure. Correspondence with 
 United States Government, in the United States Government 
 1807. Hautefeuille, Des Nations respecting blockade, presented to 
 Neutres, Tom. II. p. 257. Parliament by command of her 
 
 PART II. Q 
 
226 ON BLOCKADE. 
 
 clared on 28 March 1854, by the three Allied Powers, 
 Great Britain, France, and the Ottoman Porte, against 
 Russia, the combined fleets of Great Britain and 
 France established a blockade of the whole of the 
 Kussian Ports in the Baltic and in the Gulfs of 
 Finland and Bothnia. So likewise in the late war 
 which was carried on by the ■ Government of the 
 United States of America against the States which 
 seceded from the Federal Union in 1861, and formed 
 themselves into a Confederation of States under the 
 name of the Confederate States of America, the 
 Government of the United States established a 
 blockade of the whole of the ports on the seaboard 
 of the Confederate States, .and this blockade was en- 
 forced against all neutral vessels approaching that 
 seaboard with the same rigour, as the blockade of a 
 single port is entitled to be enforced under the Law 
 of Nations. 
 
 On the other hand the penalties for breach of a 
 blockade can only be applied to vessels engaged in 
 trade with the ports of the blockaded coast. They 
 cannot be extended to vessels carrying cargoes to 
 ports, which are connected by an inland water-com- 
 munication with the blockaded ports, nor to vessels 
 carrying cargoes to ports, from which the cargoes are 
 to be dispatched over land to the blockaded ports ^. 
 Thus Lord Stowell held that there would be no 
 breach of the blockade of Amsterdam committed by' 
 a vessel carrying to Rotterdam or to Embden goods, 
 which had an ulterior destination to Amsterdam by 
 land or by an interior canal navigation. A block- 
 ading squadron can only apply its force to a block- 
 aded port from the side of the sea. The internal 
 
 Majesty, 1861. Rob.p.83. TheFrauMargarefcha, 
 
 8= The Ocean, 3 Ch. Bob. p. 6 Cli. Rob. p. 92. 
 298. The Jonge Pieter, 4 Ch. 
 
OK BLOCKADE. 227 
 
 communications of a country are out of its reach, 
 and in no way subject to its operation. 
 
 § 1 1 8. It is competent for a belligerent Power to Limited 
 limit the operation of a blockade, provided that the of rtiock- 
 limitation applies to all neutral Nations in an equal ^^■ 
 manner. Thus the Commanders of the French and 
 British fleets established a blockade of the mouths 
 of the Danube, with the object of preventing sup- 
 pUes being carried to any Russian port on that 
 river. They accordingly forbade the vessels of aU 
 neutral Nations from entering the river. 
 
 Nous sousignes, vice-amiraux, commandant en chef les 
 forces navales eombinees de France et d'Angleterre dans la 
 Mer Noire, deelarons par la presente, au nom de nos gou- 
 vernements respectifs, et portons a la connoissance de tous 
 ceux que la chose peut interesser, que nous 'avons etabli le 
 bloeus effectif du Danube, afin d'arreter tout transport 
 d'approvisionnements aux armees Russes. 
 
 Sont comprises dans ce bloeus toutes celles des embou- 
 chures du Danube, qui communiquent avec la Mer Noire, et 
 avertissons, par les presentes, tout batiment de toute Nation, 
 qu'ils ne pourront entrer dans ce fleuve jusqu'k nouvel ordre. 
 
 Le Vice-Amiral, command- Le Vice-Amiral, command- 
 ant en chef I'escadre ant en chef I'escadre 
 franpaise, britannique, 
 
 Hamelin. G. W. D. DuNDASi'o. 
 
 Fait a Baltchik i Juin, 1854. 
 
 Again, on the occasion of Great Britain establish- 
 ing a blockade of the ports of the continent of 
 Europe from Brest to the river Elbe, that blockade 
 was to be limited in its effect by a division of the 
 hne of coast into two parts, of which the part from 
 Ostend to the river Seine was to be considered as 
 under the most rigorous blockade, while the rest of 
 the line was allowed to be open to the navigation 
 
 ^ Sammlung Officieller Ac- ahrt und Handel in Kriegszeiten, 
 tenstucke in Bezug auf Schiff- V. p. 13. Hamburg, 1854. 
 
 Q 2 
 
228 ON BLOCKADE. 
 
 of neutral vessels laden with other goods than con- 
 traband of war or enemy's property, as long as those 
 vessels had not been laden at a port belonging to 
 or occupied by the enemies of Great Britain, or on 
 the other hand were not proceeding to such port 
 from the blockaded line, and provided those vessels 
 had not previously violated the blockade®^. This 
 order was further restricted on 15 Sept. 1806 by a 
 Notification, that the blockade was raised on that 
 part of the line, which extended from the Elbe to 
 the Ems inclusively. 
 Effect of a S ng. It was observed by Lord Stowell in the 
 
 blockade -n n -n ^ t i • 
 
 on Uoenses. isyficld that a license expressed m general terms, 
 which purports to authorise a vessel to carry a cargo 
 into or out of any of the enemy's ports, wiU not 
 authorise her to enter or come out of an enemy's 
 port, which is under blockade. In order that a 
 blockaded port should be exempted from the re- 
 strictions, which are incident to a state of blockade, 
 it must be specially designated with such exemption 
 in the license, otherwise a blockaded port shall be 
 taken to be an exception to the general description 
 in the license^l This dictum of Lord Stowell seems 
 rather to conflict with the view taken by him at an 
 earlier period in the case of the Hof&iung'^, when he 
 held, that when a license had been granted to certain 
 vessels, pursuant to a Power given to his Majesty 
 in Council under an Act of ParHament, to import 
 Spanish wool from ports of Holland, it operated to 
 protect the parties acting under it from the effects 
 of a blockade, which had been notified on the same 
 day on which the license was granted. "I think," 
 
 91 
 
 Manning's Law of Nations, "^ The Hoffnung, 2 Ch. Eob. 
 
 P- 332. p. 162. 20 Aug. 1799. The 
 
 ^2 The Byfield, Edwards, p. Juno, 2 Ch. Eob. p. 116. 
 188. 9 Dec. 1809. 
 
ON BLOCKADE. 229 
 
 he says on this occasion, "that I am bound to 
 presume that it was intended the parties should 
 have the full benefit of importing these articles 
 without molestation from a blockade, which could 
 not be unknown to the great Personage, under 
 whose authority, and in whose name this -license 
 issued. I add further, that I think this license 
 bears very materially on some other licenses which 
 had been previously granted ; for when I see that 
 the blockade was not considered as a ground for 
 withholding those licenses, I am led to suppose 
 that it was not intended to have the effect of 
 suspending the operation of such as had been al- 
 ready granted." Sir Alexander Croke, the learned 
 Judge of the Vice-Admiralty Court of Halifax, 
 in considering the mutual bearing of these two 
 judgments of Lord Stowell upon each other, con- 
 cluded that the dictum of Lord Stowell in the 
 Byfield must be construed in connection with the 
 particulars of the case, and that all, which Lord 
 Stowell decided in that case was, that as the Byfield 
 was lying in an open port of the enemy at the 
 time the hcense was granted to it, the -subsequent 
 transaction within a blockaded port, which it was 
 sought to protect by the license, was not in con- 
 templation, when the application for the license was 
 made, and therefore the intention of the Govern- 
 ment, which issued the license, to protect the 
 transaction could not be presumed. Sir Alexander 
 Grant accordingly held, that the judicial opinion 
 expressed by Lord Stowell in the Hoffnung remains 
 untouched by his decision in the Byfield ; and that 
 notwithstanding there is no express provision in a 
 license or in a blockading order to that effect, yet 
 whenever it appears to have been the intention of 
 his Majest}' or of those who exercise his authority, 
 
230 ON BLOCKADE. 
 
 that the permission given by a license should not" 
 be suspended by an order of blockade, it is not 
 affected by a blockade^*. To the same purport the 
 Lords of Appeal in Prize Cases (the Judicial Com- 
 mittee of the Privy Council) decided in the case 
 of the Franciska (30 Nov. 1855) that the Order in 
 Council of 29 March 1854, under which "Eussian 
 merchant vessels in any ports or places of her 
 Majesty's dominions should be allowed, until the 
 loth day of May next, six weeks from the date 
 hereof, for loading their cargoes and departing from 
 such ports or places ; and that such Eussian mer- 
 chant vessels, if met at sea by any of her Majesty's 
 ships, should be permitted to continue their voyage, 
 if on examination of their papers it should appear 
 that their cargoes were taken on board before the 
 expiration of the above term : Provided that nothing 
 therein contained should extend or be taken to ex- 
 tend to Eussian vessels having on board any officer 
 in the military or naval service of the enemy, or 
 any article prohibited or contraband of war, or any 
 despatch of or to the Eussian Government," gave 
 to all Eussian vessels which did not come within 
 any of the specified exceptions, fuU liberty to sail 
 in security to their port of destination, although 
 such port might be in a state of blockade^l 
 Effect of § 120. By the Law of Nations, "a belh'gerent may 
 aWockade. i^ot coucede to another belligerent, or take for himself, 
 the right of carrying on commercial intercourse pro- 
 hibited to neutral Nations ; and therefore no blockade 
 can be legitimate that admits to either belligerent a 
 
 °* The Orion, Stewart's Re- trade afforded a presumption of 
 
 ports, p. 506. In this case Sir such being the intention of the 
 
 A. Croke held that a license license. 
 
 to an enemy protected him in "^ The Franciska, 10 Moore, 
 
 egress from a port subsequently P. C. p. 55. 
 blockaded, as the nature of the 
 
ON BLOCKADE. 231 
 
 freedom of commerce denied to the subjects of States 
 not engaged in the war. The foundation of this 
 principle is clear, and is rooted in justice ; for inter- 
 ference with neutral commerce at all is only justified 
 by the right which war confers of molesting the 
 enemy, all relations in the nature of trade being by 
 war itself suspended ^^." Such is the forcible lan- 
 guage of Dr. Lnshiagton in the case of the Franciska. 
 To this principle the Lords of Appeal (the Judicial 
 Committee) gave their full adhesion, and in applying 
 it to the state of things arising out of the British 
 orders in Council, issued at the commencement of the 
 war with Eussia, under which free ingress into Kus- 
 sian ports for a certain time was granted to Russian 
 vessels sailing from ports in the British dominions, 
 and free egress from Russian ports for a certain time 
 was granted to Russian vessels bound with cargoes 
 to British ports, they held that during such interval 
 of time, as was covered by these Orders in Council, 
 no valid blockade of the Russian ports in the Baltic 
 could be established by the British fleet. It is 
 obvious that so long as enemy-vessels are allowed 
 by a belligerent Power freely to enter or to come 
 out of enemy-ports, the condition of things, which 
 alone authorises a belHgerent to interfere at all 
 with the trade of neutrals does not exist, namely, 
 the necessity of interdicting all communication by 
 way of trade with the ports in question, in order 
 to compel the enemy to submission. In arriving at 
 the conclusion, that the British Orders in Council 
 issued on this occasion, granting for six weeks to 
 enemy vessels free access to their ports of desti- 
 nation, forbade the establishment of any blockade 
 of the Baltic ports during such time by British 
 
 ^' The Franciska, Spinks's Eccl. and Adm. Keports, II. p. 135. 
 
232 ON BLOCKADE. 
 
 vessels to the prejudice of neutral commerce, the 
 Lords of Appeal made a distinction which is worthy 
 of notice : " No doubt," they said, " ships of one 
 belhgerent at the outbreak of war, found in the 
 ports of another, into which they have entered for 
 peaceful purposes, with the expectation of the con- 
 tinuance of peace, form an exceptional class which 
 has a strong claim to an indulgent exercise of thd 
 right of capture ; and an express permission to 
 such ships to enter their port of destination, 
 though blockaded, might perhaps not affect the 
 vahdlty of the blockade. It might fall within the 
 class of cases alluded to by the learned Judge of 
 the Court below, of license granted in particular 
 cases upon special grounds. Such a case is very 
 distinguishable from one where a belligerent, with a 
 view to the interests of his own commerce, permits 
 enemies' ships to bring him cargoes from their 
 own ports, though he at the same time insists on 
 a blockade of such ports against neutrals ''."' 
 
 ^ 10 Moore, P. C. p. 56. 
 
CHAPTER VII. 
 
 CONTRABAND OF WAR. 
 
 Origin of the term Contraband — Application of the term to 
 international trade — Treaty of Southampton of 1625 — First Pro- 
 clamation of King Charles I. — Second Proclamation of 1626 — 
 Earliest Catalogue in extenso — Zouch on Fetial Law — Queen 
 Elizabeth and the Envoy from Poland — Queen Elizabeth and the 
 Hanse Towns — Albericus Gentilis — Kliiber — Heffter— Early Con- 
 ventions in restraint of neutral trade with an enemy's country — 
 Placaarts of the States General in the sixteenth century — Practice 
 of European Powers at the end of the sixteenth century — Practice 
 of the seventeenth century — Doctrine of Grotius as to Contraband 
 of war — Treaty of Westminster of 1654 — Treaty of Paris of 1655 
 — Treaty of the Pyrenees of 1659 — Treaty of Whitehall of 1661 — 
 Treaties of Breda and Madrid of 1677 — Treaty of St. Germain-en- 
 Laye of 1677 — Treaty of Whitehall of 1689— Opinion of Sir Leo- 
 line Jenkins — Treaty of Utrecht of 17 13 — British Treaty-engage- 
 ments — Concurrence of European Nations as to certain articles — 
 Bynkershoek's view— Vattel — Italian and Spanish Jurists — French 
 Jurists^Practice of British Prize Courts — Practical difficulty of 
 specifying articles conditionally contraband — General doctrine of 
 British Prize Tribunals — British Treaty with United States of 1796 
 — Treaty Eight of Preemption — Treaty of Westminster of 1656 — 
 Treaty of Whitehall of 1661 — Treaty of Orebro of 1812 — Treaty of 
 Up sal 1654— Equity as to conditional contraband — Ships under cir- 
 cumstances contraband of war — Transport, not sale, of merchandise 
 penal by the Law of Nations — Treaty -engagements between Prussia 
 and the United States of America — Belligerents may not interfere 
 with trade within the jurisdiction of a neutral State. 
 
 §121. Contraband is a term of positive law, and Origm of 
 in its primary- sense denotes something prohibited centra-" 
 
 band. 
 
234 CONTRABAND OF WAE. 
 
 by Ban, or Edict. The word is probably of Italian 
 origin, [Contrahlando'^,) as tbe earliest document in 
 which any trace of it is extant is an Italian Charter 
 of A. D. 1445 ^ in which the Latin equivalent Contra- 
 bannum is used in relation to a trade prohibited by 
 the Sovereign Power of a State to its citizens in 
 time of peace. The term is not employed by Grotius, 
 the first edition of whose work^, De Jure Belli et 
 Pacis, was published in 1625 ; but it occurs in a 
 Treaty of offensive and defensive alliance concluded 
 at Soiithampton in that year, (17 Sept. 1625,) be- 
 tween King Charles 1 of England and the United 
 Provinces of the Low Countries ; from the language 
 of which it would seem that the term Contraband 
 had at that time a recognised acceptation amongst 
 Nations, in reference to a branch of maritime trade, 
 which was prohibited to merchants in time of war. 
 " Toutes marchandises de contrebande, comme sont 
 munitions de bouche, et de guerre, navires, armes, 
 voiles, cordages, or, argent, cuivre, fer, plomb, et 
 semblables, de quelque part qu'on les voudra porter 
 en Espagne, et aux autres pays de I'obeissance du dit 
 Eoy d' Espagne et de ses adherens, seront de bonne 
 prise avec les navires et hommes qu'ils porteront." 
 Art. XX.* 
 Appiioa- §122. It would be a difficult task in the present 
 term°to in- day to determine with precision the circumstances 
 trade*'""*' uudcr which the word Contraband, which was ori- 
 
 ^ The Spanish phrase is, not occur in the Guidon de la 
 
 ' Meroaderias de contravando.' Mer, the author of which is un- 
 
 D' Abreu, c. 1 1 . known ; but the compilation of 
 
 " Item quod non permittant which work M. Pardessus has, 
 
 committentes contrabannum die- with great probability, assigned 
 
 ti salis, vel aliarum rerum in to the latter part of the six- 
 
 •dictis locis tuto et secure per- teenth century, 
 manere. Ducange, Gloss, vox * Dumont, Trait^s, Tom. V. 
 
 Contrabannum. Part II. p. 480. 
 
 ' The word Contraband does 
 
CONTRABAND OF WAR. 235 
 
 ginally a term of municipal law, came to be applied 
 to a trade in certain articles .carried on by the sub- 
 jects of a Neutral Power with the ports of a belli- 
 gerent State ; and whether the use of the term in the 
 Treaty of Southampton^ was suggested by the fact, 
 that belligerent Powers had been long accustomed at 
 the outset of war to forbid, by Declaratiens® formally 
 communicated to neutral Powers, all trade with the 
 ports of their enemies in certain articles of merchan- 
 dise ; or that Neutral Powers were beginning, in pur- 
 suance of treaty-engagements to prohibit their own 
 subjects by public Proclamation from transporting 
 over sea certain articles of merchandise in time of 
 war to the ports of belligerent States. The more 
 probable opinion would seem to be, that the various 
 Treaties, which were concluded amongst the maritime 
 Powers of Euj-ope on the subject of Contraband of 
 War in the first half of the seventeenth century, 
 were entered into with the object of regulating an 
 acknowledged Right on the part of every belHgerent 
 State to interfere with the trade of neutral subjects 
 to the enemy's ports, and of restraining the exercise 
 of that Eight within just limits ; and that the en- 
 gagements on the part of neutral States not to permit 
 their Subjects to transport over sea certain articles 
 of merchandise to the enemy's country were auxihary 
 to that object. That the term Contraband, as em- Treaty of 
 ployed in the Treaty of Southampton, was intended tonof*628. 
 to denote articles of merchandise forbidden under the 
 Proclamation of a belligerent Power to be carried 
 to an enemy's ports, may fairly be inferred from 
 
 ^ This seems to be the earliest and 1597- Grotius enumerates 
 
 treaty in which the phrase ' Mar- various instances of similar de- 
 
 chandises de contrebande' occurs, clarations on the part of other 
 
 * Instances of such declara- Powers in a note appended to 
 
 tionsonthe part of England will Lib. III. c. i. § 5. i. De Jure 
 
 be found in Camden, anno 1591 Belli et Pacis. 
 
236 CONTRABAND OF WAB. 
 
 the fact, that a Proclamation was issued by King 
 Charles I. on 31 Dec. 1625, shortly after the signature 
 of that Treaty, which in accordance with its provi- 
 sions purported "to declare that aU ships carrying 
 corn or other victuals, or any munition of war, to 
 or for the King of Spain or any of his subjects, 
 shall and ought to be esteemed as lawful prize." 
 First Pro- ^ 1 23. It was recited in this Proclamation "that 
 n /yw °" whilst the King of Spain continued in terms and 
 Charles I. gourses of hostility, it was neither agreeable with 
 the rules of pohcy or Law of Nations to permit the 
 said King of Spain or his subjects to be furnished 
 or supplied with corn, victuals, arms, or provisions 
 for his shipping, navy, oi' army, if the same can be 
 prevented. The King accordingly, with the advice 
 of his Privy Council, formally notified to all manner 
 of persons of aU conditions, that shall, send or carry 
 into Spain, Portugal, Burgundy, or any other the 
 said King of Spain's countries, or dominions, any 
 manner of grain or other victuals, or any manner of 
 provisions to serve to build, furnish, or arm, any 
 ships of war, or any kind of munition for the war, 
 or materials for the same, being not of the nature 
 of mere merchandise, that, as it is lawful for his 
 Majesty, being a Monarch and Prince Sovereign, and 
 as other kings in like cases have already used to do, 
 he will not only authorise his own admirals and 
 captains of his own ships of war, serving on the 
 seas, but will also allow and approve all other his 
 subjects to arm their ships at their will, and with 
 them to impeach and arrest all ships that shall sail, 
 either out of the East ports, or out of the Low 
 Countries, or from any other ports, with intention 
 to pass Spain, Portugal, Burgundy, or any other the 
 King of Spain's countries or dominions, or to any 
 the King of Spain's ships, being on the seas, having 
 
CONTRABAND OF WAR. 237 
 
 on board any such grain, victuals, or provisions of 
 war, or furniture for shipping, or materials for the 
 same ; and the same to bring into the next good 
 port, there to be ordered as goods duly forfeited for 
 the benefit of his Majesty, where his Majesty's 
 ships shall arrest the same, and to the benefit of 
 such others, as being not in his Majesty's wages 
 shall by their travel and adventure have stayed 
 and arrested such ships and goods prohibited''." 
 
 In the following year (4 March 1626) a second Second 
 Proclamation' of a more special character was pub-tionof 
 lished by the same Monarch, entitled " a Proclama- ' ^ ' 
 tion to prevent the furnishing the King of Spain 
 and his subjects with provisions for shipping, or 
 munition for the war, and with Victuals." The pur- 
 port of the previous proclamation having been recited 
 in the preamble, the second proclamation goes on 
 to declare that "his Majesty intending to remove 
 all pretext of ignorance or other exception which 
 may be taken against the proceedings of his judges 
 and officers, with any the subjects of his friends, 
 confederates, or allies, who shall hereafter offend in 
 the premises, has thought fit, by these presents to 
 -make further declaration, as well of the species or 
 kinds of the things so prohibited as of the penalties 
 to be suffered by the parties delinquent in supplying 
 the enemies with the same prohibited things. Con- 
 cerning therefore those kinds wherewith his Majesty 
 may not suffer his said enemies to be furnished, his 
 Majesty does by these presents publish and notify, 
 that he holdeth these things following to be of that 
 quality and condition, videlicet, ' ordinance, armes of 
 
 ' It appears under this pro- whicli was contraband of war. 
 clamation that private ships ^ Eymer,Foedera, Tom. XVIII. 
 
 equally with public ships of war p. 856. Robinson's Collectanea 
 
 were authorised to capture neu- Maritima, p. 63. 
 tral vessels carrying merchandise, 
 
238 
 
 CONTKABAND OP WAE. 
 
 all sortes, powder, shott, match, brimstone, copper, 
 iron, cordage of all kindes, hempe, saile, canvas, danuce 
 pouldavis, cables, anchors, mastes, rafters, boate oars, 
 balcks, capraves, deale board, clap board, pipe staves, 
 and vessels, and vessel staffe, pitch, tarr, rosen, 
 okam, corne, graine, and victualls of aU sortes, aU 
 provisions of shipping, and all munition of warr, or of 
 provisions for the same, according to former declara- 
 tions and acts of State, made in this behalfe in the 
 time of Queen Elizabeth, of famous memorie.' " This 
 Earliest is probablj the earHest catalogue in extenso of 
 inmtam. articles of merchandise deemed contraband of war®, 
 for it does not clearly appear that the articles pro- 
 hibited had been specifically set forth in the former 
 declarations of Queen Elizabeth. On the contrary, 
 it seems probable, from the writings of Dr. Zouch^" 
 and Albericus Gen tills ^^, that the judgments of the 
 
 ^ The earlier treaties of 1604, 
 1614, 1615, which are to be 
 found in Dumont's Trait^s, Tom. 
 V. do not specify in detail the ar- 
 ticles of merchandise prohibited 
 to be carried to enemy's ports. 
 
 ^'' Dr. Zouoh, in his Treatise 
 on Fetial Law, first published in 
 1634, refers to several disputes 
 on the subject of contraband of 
 war between Queen Elizabeth 
 and Foreign Princes, and amongst 
 others, to the dispute with 
 Spain as to tobacco being an 
 article of provision, and conse- 
 quently contraband of war. The 
 Spanish Prize Courts declared 
 tobacco to be an article of pro- 
 vision, and accordingly confis- 
 cated a British ship which was 
 carrying a cargo of tobacco to 
 the Low Countries ; whereupon 
 Queen Elizabeth granted Letters 
 of Keprisal to the owners of the 
 ship and cargo against the com- 
 
 merce of Spain. Pars IL § 8. 
 
 *^ Albericus Gentilis, in his 
 Advocationes Hispanicse, c. 20, 
 discusses the case of a British 
 ship laden with a general cargo 
 and some gunpowder sailing to 
 Constantinople, under a license 
 from Queen Elizabeth, which had 
 been captured by the Knights of 
 Malta, as carrying munitions of 
 war to an infidel nation contrary 
 to the prohibition of the Canon 
 Law. GrentiUs points out that 
 infidels, as such, could not be 
 I'egarded as enemies in the sense 
 in which it was forbidden by the 
 Law of Nations to carry muni- 
 tions of war to an enemy, and 
 observes that the Canon Law did 
 not furnish any rule for such 
 matters in England. "Etiam 
 licita ad Turcos fieri per placita 
 Eeginee Elizabethse. Has patrias 
 leges norunt Angli, quas se- 
 quuntur ; alias et canonicas illas 
 
CONTEABAND OF WAR. 239 
 
 Admiralty Courts in the reign of that Queen had 
 first contributed to give precision to the catalogue 
 of bona prohibita. What was the penalty of carrying 
 such prohibited goods is thus set forth in the sequel 
 of King Charles's second Proclamation : "And there- 
 fore, if any person whatsoever, after three months 
 from the publication of these presents, shall by any 
 of his Majesty's own ships, or the ships of any of his 
 subjects authorised to that effect, be taken sailing 
 towards the places aforesaid, having on board any 
 of the things aforesaid, or returning thence in the 
 same voyage, having vented or disposed of the said 
 prohibited goods, his Majesty will hold both the 
 ships and goods so taken for lawful prize, and cause 
 them to be ordered as duly forfeited, whereby as his 
 Majesty doth put in practice no innovation, since 
 the same course has been held, and the same penal- 
 ties have been heretofore inflicted by other States 
 and Princes, upon the like occasions, and avowed 
 and maintained by public writings and apologies so 
 now his Majesty is in a manner enforced thereto by 
 proclamations set forth by the King of Spain and the 
 Archduchess, in which the same and greater severity 
 is professed against those, that shall carry or have 
 carried without Kmitation the like commodities into 
 these his Majesty's dominions^l" It would appear 
 from both the above proclamations, that the usage 
 of Princes was relied upon in evidence of the Right 
 of a belligerent to impose penalties on neutral mer- 
 chants for giving aid to an enemy by carrying 
 munitions of war to his ships or his dominions. It 
 will be important therefore to consider what that 
 usage of Princes was at the commencement of the 
 seventeenth century. 
 
 non norunt, quse exulant etiam p. 856. Eobinson's Collectanea 
 ex Anglia." Maritima, p. 63. 
 
 ^2 Eymer, Foedera,Tom. XVIII. 
 
Polish En- 
 voy. 
 
 240 CONTRABAND OF WAB. 
 
 Zouchon ^ 124. Dr. Zouch, in his treatise of Fetial Law", 
 aw. p^]3jjgjjg(j in the earher part of the seventeenth cen- 
 tury, in discussing the question whether it is lawful 
 to intercept the goods of friends on their way to an 
 enemy, "An res amicorum ad hostes transeuntes 
 intercipere liceat?" gives the substance of an inter- 
 view, which is also narrated by Camden", between 
 Queen the Ambassador of Sigismund King of Poland, and 
 and the Queou Elizabeth of England, when the former com- 
 plained with great vehemence, on behalf of the King 
 his master, of a violation of the Law of Nations, by 
 her Majesty prohibiting Polish merchants from car- 
 rying their goods to Spanish ports, and thereupon 
 demanded both the restitution of such goods as had 
 been captured by British cruisers, and for the future 
 perfect freedom of navigation to Spain. Queen Eli- 
 zabeth having first administered to the Ambassador 
 the well-known rebuke, that she had been greatly 
 deceived, for that she had expected an Ambassador 
 and found a Herald ^^, went on to say, "As regards the 
 Law of Nations, you ought to know, that when war 
 has broken out between kings, it is lawful for either 
 party to intercept any aid or supplies which are sent 
 to the other, and to provide that no harm shall accrue 
 therefrom to himself This, we tell you, is according 
 to the Law of Nature and of Nations, and has not 
 been done by us alone, but by the kings of Poland and 
 of Sweden in their wars against the Muscovites ^V 
 
 ^' Juris et Judicii Petialis sive reges bello, licere uni parti auxilia 
 
 juris inter Gentes et quaestionum vel subsidia ad alteram partem 
 
 de eodem explicatio. Oxon. 1 634. miasa intercipere et providere, ne 
 
 ^* Camdeni Hist. Eliz. anno damniquicquamindesibiaccidat. 
 
 1597- Hoc nos dicimus Naturae et Gen- 
 
 '° Quam decepta fui ! Lega- tium juri esse consentaneum et 
 
 turn expectavi, Heraldum inveni. non a nobis solum, sed etiam a 
 
 Zouch, p. 128. Polonise Sueciseque regibus facti- 
 
 ^^ Quod tu jus gentium prse- tatum in bellis quae cum Musco- 
 
 tendis, scire debes, exorto inter vitis gesserunt. P. 128. 
 
CONTEABAND OP WAE. 241 
 
 It appears from the annals of the reign of this Queen 
 that she justified on several occasions the capture of 
 the ships and merchandise of neutrals on their way 
 to an enemy's country, on the ground that it was 
 allowable by the laws of war to capture such ships 
 and their cargoes. One of the most remarkable of 
 these instances arose upon the capture of a fleet of 
 sixty vessels belonging to the Hanse Towns (anno 
 1589), which were carrying corn and naval munitions 
 to Spain. The Hanse Confederation alleged that Q"een 
 
 ,1 ^ , • 1 • 1 ■ ■ ^ Elizabeth 
 
 the capture oi their ships and cargoes^ was m viola^ and the 
 tion of their ancient privileges. Queen EHzabeth Tow'ns. 
 in reply observed, that the com on board their vessels 
 was justly confiscated, for that she had forewarned 
 them not to carry any supplies to one, who had 
 declared himself to be so notorious an enemy of 
 her kingdom. Besides, in the diplomas of privileges 
 granted to the Hanse merchants by her predecessors, 
 it was specially provided that they should not carry 
 merchandise to the notorious enemies of her kingdom. 
 That they had been previously warned by Royal 
 Letters under her hand and by the Alderman of the 
 Hanse Confederation, resident in. London, not to carry 
 corn or other military or naval munitions to Spain 
 or Portugal, and that by disregarding the prohibition 
 and the warning, they were the authors of their own 
 loss. That unless the Hanse Confederation had sup- 
 plied the King of Spain with victuals and other 
 munitions of war, he could not have kept up hos- 
 tilities and prevented peace being restored to Europe, 
 and that by the supplies furnished by them the 
 King of Spain was rendered more able to carry 
 on the war against England and Wales, and to 
 attempt to subjugate both countries and reduce them 
 to a province of Spain. Nor was the proceeding on 
 the part of the English Crown by any means novel, 
 
 PART II. R 
 
242 CONTRABAND OF WAK. 
 
 since there had been numerous instances in which 
 the merchants of the Hanse League, as well as the 
 merchants of other countries, had been prohibited 
 in like manner from trading with the enemy by 
 various European powers, and there were prece- 
 dents of the Hanse League, when engaged in war, 
 imposing like prohibitions upon the subjects of 
 neutral states^''. 
 Frenoii It would also appear from the language of a 
 
 0/1543"°^ very early French Ordinance" (a.d. 1543), that in 
 the sixteenth century the French King claimed to 
 exercise the right of preventing munitions of war 
 being transported to the enemy's country in the ships 
 of neutrals, irrespective of any treaty obligation upon 
 the part of such neutrals to refrain from such com- 
 merce, for he expressly authorises and permits his 
 subjects to capture such munitions of war, and bring 
 them into his ports, there to be adjudged prize to 
 the captors. "Mais pourront nozdits alUez et con- 
 federez faire leiu- traficque par mer dedons navires 
 qui soient de leur obeissance et sujection, et par leurs 
 gens et subjects, sans y accueillir nos ennemis et adver- 
 saires ; lesquels biens et marchandises ainsi charg^es 
 ils pourront mener et conduire ou bon leur semblera, 
 pourveu que ce ne soyent munitions de guerre dont 
 ils vousissent fortifier nozdits ennemis ; auquel cas 
 nous avons permis et permettons k nos dits subjects 
 les prendre et amener k nos ports et havres, et les 
 
 " This Reply is set forth in contents show how much its pur- 
 
 extenso in a letter of 2 July 1599, port has been misrepresented by 
 
 addressed by Mr. Secretary Cecil many writers, who have spoken 
 
 to Sir Henry Nevile, the English of it as an attempt to reduce 
 
 Ambassador at Paris, which is Spain by famine. Of. Causes 
 
 found in "Winwood's Memorials, C^ldbres du Droit des Gens, par 
 
 vol. i. p. 57. It is worthy of le Baron Charles de Martens, II. 
 
 perusal as containing a full ex- p. 334. 
 
 position of the English view of '* Lebeau, Code des Prises, 
 
 the law in such matters, and its Tom. I. p. 17. 
 
CONTRABAND OP WAR. 243 
 
 dites munitions retenir selon restimation raisonnable, 
 qui en sera faite par nostre dit admiral ou son 
 lieutenant." 
 
 ^125. It seems to have been the established usage ^sage of 
 of Europe in the middle of the sixteenth century for the six- 
 belligerent Powers to prohibit all merchants from car- tury!'^ ''^"" 
 fying munitions of war to the ships or dominions of 
 their enemies, and to confiscate all vessels laden with 
 such munitions, if taken on the High Seas on their 
 way to the enemy's country. Albericus Gentilis, in Aibericus 
 discussing the lawfulness of the capture of an English 
 ship, taken by Sardinian and Maltese cruisers on a 
 voyage to Constantinople with a general cargo in- 
 cluding some barrels of gunpowder, and which was in 
 judgment before a Spanish Court of Admiralty, ob- 
 serves, that " the capture was justifiable by the Civil 
 Law, by the Canon Law, by the Law of Nations, and 
 by Conventions between England and Spain ^^." Thus 
 the Civil Law had made it a capital offence for any 
 one to supply Barbarians with oil, wine, or any 
 munition of war ^. The Canon Law had similarlv 
 forbidden all Christians to supply any munitions, of 
 war to the Saracens*^ The practice of England on 
 the other hand, in regard to the merchants of the 
 Hanse Towns, in not permitting them to carry pro- 
 visions to Spain, was evidence of the Law of Na- 
 tions^^, whilst the Treaty of 1604 concluded between 
 Philip III of Spain, the Archduke Albert and his 
 wife Isabella, and James I of England, bound each 
 of the contracting parties not to supply or consent 
 
 '° Hispanicse Advocatibnes, L. Greg.IX.L.Y. Tit.VI.c. 12 anno 
 
 I. c. 20. 1 190. Concil. Lateran. IV. anno 
 
 2" Cod. L. IV. Tit. XLI. Quae 12 15. (Innocent III.) Extravag. 
 
 res exportari non debeant, c. i Joann. XXII. Tit. VIII. (anno 
 
 and 2. I ji6.)Bulla Coense Domini, c. 7. 
 
 '^ Concil. Lateran. III. anno ^^ Albericus Gentilis, de Jure 
 
 1 1 79. (Alexander III.) Decretal. Belli, c. 21. 
 
 R 2 
 
244 CONTEABAND OF WAR. 
 
 to its subjects supplying to the enemies of the others 
 any soldiers, provisions, money, instruments or mu- 
 nitions of war, or warlike aid of any kind whatso- 
 ever ^^ Most writers refer the origin of belligerent 
 prohibitions against the trade of neutrals with the 
 enemy to the Confederation of the Hanse Towns ; 
 and after the subject of Contraband of War came 
 to be formally regulated by international compacts, 
 the Hanse Towns were amongst the foremost of the 
 Maritime Powers to enter into Conventions with 
 other Powers. 
 
 f 126. Certain writers^* have contended that the 
 whole law of Contraband of War rests upon Conven- 
 tions, and that there is no Common Law of Nations 
 
 Kifiber. in such matters. " In the absence of treaties," says 
 Kluber, " the Natural Eight of Nations, which estab- 
 lishes complete liberty of commerce, is in force, and 
 
 Heffier. all merchandise ought to be presumed free." Heffter 
 with justice combats this view as being at variance 
 with historical truth, and observes that the declara- 
 tions of the Armed Confederations of the Baltic Powers 
 in 1782, and in 1801, contain nothing in support of 
 this theory : on the contrary those Powers were not 
 opposed to the principle of "contraband of war," 
 but only to the arbitrary application of it ; and they 
 advocated a common agreement amongst Nations as 
 
 ^^ Item quod neutra partium ilium ad bellum confovenduro 
 
 prsBstabitnecprsestariperaliquos hostibus, inimicis, ac Eebellibus 
 
 suos vassallos subditos incolasve alterius partis, cujuscunquegene- 
 
 consentiet auxilium, favorem, vel ris sint, tam invadentibus Eegna, 
 
 consilium direote nee per indi- patrias ac dominia alterius, quam 
 
 rectum, tam per terram quam se subtrabentibus ab obedientia 
 
 per mare et aquas dulces, nee et dominie alterius. Dumont, 
 
 subministrabit nee subministrari Traitds, Tom. V. Pars 11. p. 32. 
 consentiet per dictos vassallos, ^ Lebeau, Code des Prises, 
 
 incolasve et subditos Eegnorum Tom. I. p. 15. Joufiroy, Droit 
 
 suorum, milites, commeatus, pe- Maritime, p. 3. Kluber, Droit 
 
 cunias, instrumenta bellica, mu- des Gens, § 288. 
 nitiones,vel aliquodvis aliud aux- 
 
CONTRABAND OF WAR. 245 
 
 to details. If the facts of history may be appealed 
 to in elucidation of the controversy, it would appear 
 that the Nations of Europe claimed in the sixteenth 
 century to capture on the High Seas jure belli the 
 vessels and goods of the subjects of neutral Powers, 
 which were on their way to an enemy's ports, on one 
 or other of these grou.nds^®, either that the trade was 
 in contravention of some treaty-engagement with the 
 neutral Power, whereby it had bound itself not to 
 give aid or to consent to its subjects giving aid to 
 the enemy of the belhgerent, or that the belligerent 
 had prohibited the trade by an express notice to the 
 neutral, that under the particular circumstances of 
 the war certain articles could not be considered in the 
 nature of mere merchandise, being things required 
 by the enemy to enable him to maintain hostilities. 
 It had been usual from a very early period to in- 
 troduce a clause into treaties, whereby either of the 
 contracting parties bound itself not to give aid to Early Cou- 
 the enemies of the other. Thus in one of the earliest restraint "* 
 Treaties between England and France (a.d. 1303), it°^^«"t'^ai 
 was provided : " Item. Accorde est que I'un ne 
 receptera ne soustendra ne confortera, ne sera con- 
 fort, ne ayde aus ennemis de I'autre ; ne ne souffera 
 qu'ils aient confort, secours ne ayde, soit de gent 
 d'armes, ou de vitailles ou d'autres choses queles 
 qu'eles soient, de ses terres ne de son poiar^^." But 
 even in such cases discussions sometimes arose as to 
 the meaning of the word ayde, which was used in the 
 treaties, whether or not it extended to any goods which 
 were merchandise of usual traffic to other countries. 
 Thus in the discussions between Sir Ealph Sadler, 
 
 ^^ Pactis enim Principes ssepe Qusest. Jur. Publ. L. I. c. 10. 
 id egerunt in casum belli, ssepe ^^ Eymer, Fcedera, Tom. II. 
 
 etiam edictis contra quoscunque, p. 927. 
 flagrantejambello. Bynkershoek, 
 
246 CONTRABAND OP WAE. 
 
 tlie Envoy of King Henry VIII, and the Government 
 of Scotland (a. d. 1543), respecting the detention of 
 some Scotch vessels by the Enghsh Government, it 
 was contended on behalf of the English Crown, that 
 as the vessels were carrying victuals to French 
 ports, it was a breach of treaty, for that the Scotch 
 were bound not to minister any kind of aid to the 
 enemies of England. To which the Scotch Govern- 
 ment made answer, that there was no other cargo 
 on board those said vessels than fish, which was a 
 common article of traffic between the two countries 
 in time of peace, and that they could not perceive by 
 the treaties, that merchants being subjects of either 
 realm might not use their accustomed traffic with 
 such merchandise, as they have been in use to trans- 
 port to other countries. The English Envoy replied, 
 that "fish could not but be deemed to be victuals, 
 and being laden in the said ships to be transported 
 to France, which was in open hostility with England, 
 was a certain kind of aid ministered to the enemies 
 of England, and therefore a lawful and just cause to 
 stay the said ships ^''." Thus much for Treaty-Engage- 
 ments in restraint of the freedom of neutral trade in 
 time of war. On the other hand, Albericus GentiUs^^ 
 lays great stress on the fact, that Queen Elizabeth 
 had notified to the Hanse Confederation not to carry 
 provisions into Spain, before she captured their 
 vessels ; and the Protestants are represented by De 
 Thou to have repHed to the complaints of the Portu- 
 guese, by reason of twenty-five Portuguese vessels 
 having been captured, bound with cargoes of corn 
 to Spanish ports, "Jure belli tales spoliari naves, 
 quippe rem edictis et constitutionibus regiis pro- 
 
 " Sir Ealph Sadler's Letters ^^ Hispanicse Advocationes, L. 
 
 and Negotiations in Scotland, I. c. 20. p. 92. 
 P- 381. 
 
CONTRABAND OP WAE. 247 
 
 hibitam esse^l" The Eight of a belligerent Power Hacaarta 
 to prohibit by notice or proclamation the trade ofsJtetoe- 
 neutrals with the enemy's country was so absolutely ^Xen^th 
 maintained in practice, that we find the States century. 
 General of the Low Provinces, during their war 
 with Spain in 1599, issuing a Placaart, which they 
 made known to all Kings and Nations, whereby they 
 forbade all merchants to carry to the Spaniards pro- 
 visions or any other goods whatsoever, under the 
 penalty of being treated as enemies^". The historian 
 informs us that King Henry IV of France directed 
 his subjects to submit to this Placaart for six months, 
 and that the other Powers of Europe passed it over 
 in silence. But it would appear from a letter of 
 Sir Henry Nevile to Mr. Secretary Cecil, that the 
 English Government held this Placaart of the States 
 General to be "an effect of great necessity, which 
 had no law^\" 
 
 § 127. The general practice of Belligerents, as P^otice of 
 gathered from the Placaarts and Ordinances issued Powers at 
 by various Powers in the latter part of the sixteenth sixte^^h^ 
 and in the early part of the seventeenth century, century. 
 shows that Belligerent States held themselves en- 
 titled of Bight, if they considered it to be necessary 
 to secure a successful issue to the war in which they 
 were engaged, to interdict neutrals from furnishing 
 any supplies to their enemy. This practice had the 
 support of Publicists, who held that the Eight of the 
 Belligerent in such a case was a Natural Right of a 
 public character, which must prevail over the pri- 
 
 '' Loccenius, De Jur. Mari- niam ferre : si qui secus fecerint, 
 
 timo, L. I. c. 9. Thuani His- ut hostibus faventes, vice hostium 
 
 toria, L. 64. futures. 
 
 '" Grotius, Hist, de Eebus '^ This Letter bears date, 
 
 Belgicis, L. VIII. Per edictum Paris, 15 May 1599, O. S., and 
 
 vetant populos quoscunque alios is found in Winwood's Memo- 
 
 commeatus resve alias in Hispa- rials, Vol. I. p. 23. 
 
248 CONTRABAND OF WAR. 
 
 vate right of a merchant to carry on his trade. "Jus 
 commerciorura eequum est," writes Albericus Gentilis, 
 " sed hoc aequius tuendse salutis ; est illud gentium 
 jus, hoc naturae est ; est illud privatorum, hoc est 
 regnorum ^^." These views of the Publicists of the 
 seventeenth century have been commented on by 
 Azuni and Lampredi. The former says, " Publicists 
 lay it dow-n as a principle, that a Nation has a com- 
 plete and perfect right to diminish indefinitely the 
 forces of its enemy, to frustrate all the means which 
 its enemy can employ to preserve or augment his 
 forces, and even to prevent any other Nation from 
 carrying on a commerce with its Enemy, which may 
 increase his resources or his means of attack and 
 defence ^^." Lampredi writes thus : " It is permitted 
 to friendly and neutral Nations to continue their 
 trade in its full extent : the only restriction which 
 war imposes upon their liberty in this respect is, that 
 they observe -strict impartiality between the belli- 
 gerents ; nevertheless a belligerent Nation may pre- 
 vent the Commerce of Neutrals with the Enemy, 
 from the moment that it considers it necessary for 
 its own safety to do so^*." This practice may be 
 said to have culminated in the Placaart of the States 
 General of 1 599, already referred to, by which they 
 prohibited neutral merchants from carrying any goods 
 whatever to Spanish ports ; in other words, by which 
 they placed all the ports of the King of Spain under 
 an Interdict. On the other hand, if a neutral Nation 
 did not acquiesce in the view of necessity, under 
 which the Belligerent claimed a right to act ia 
 capturing the vessels and goods of the subjects of 
 the neutral Nation, it was open to the latter to make 
 
 ^^ De Jure Belli, Comment. I. " Commerce des Neutres, c.i. 
 
 ^' Droit Maritime del'Europe, § 4. 
 T. II. c. 2. Art. 2. §6. 
 
CONTRABAND OF WAR. 249 
 
 Reprisals. Thus during the war between the States 
 General and Spain, a Spanish cruiser captured a 
 British vessel, which was bound to a Dutch port 
 with a cargo of tobacco. The Spanish captors on 
 this occasion maintained successfully before the 
 Spanish Prize Court, that tobacco was rightly to 
 be considered amongst victuals, inasmuch as by the 
 use of tobacco the consumption of victuals might be 
 prolonged. The English claimants on the other hand 
 contended in vain that tobacco was not a nutritive 
 plant, and that it had not been interdicted by the 
 express words of the Spanish Proclamation. The 
 judgment of the Prize Court was in favour of the 
 captors. The English owner therefore made com- 
 plaint to the King of England, who upon the advice 
 of his Council, granted to the owner letters of 
 Reprisal against the subjects of the King of Spain, 
 in order that he might make good his loss^^ 
 
 § 128. The application of the word Contraband for Practice of 
 the first time in the Treaty of Southampton (1625) teenTh cen- 
 to articles which neutrals might not rightfully carry *"^- 
 to an enemy's country in time of war, seems to be 
 confirmatory of the fact, that the Right of a Belli- 
 gerent to interdict by formal notice the trade of a 
 Neutral in certain articles with the Enemy's country 
 was fully recognised in the early part of the seven- 
 teenth century. King Charles I thought it right, in 
 pursuance of this Treaty, to issue a formal Catalogue 
 in extenso of the articles which he intended not to 
 allow to be carried to the enemies of England, for 
 England had previously maintained against Spain, 
 
 ^^ Processes in the Court of as contraband of war,inthetreaty 
 
 the Admiralty of England, cited between Charles II of England 
 
 in Zouch, de Judicio inter Gen- and the States General, (i Dec. 
 
 tes, §8. Part II. p. 132. Tobacco 1674). Dumont, VII. Pars. I. 
 
 is specified amongst the articles, p. 283. 
 which were not to be regarded 
 
250 CONTRABAND OF WAR. 
 
 that parity of reason was not sufficient to render 
 merchandise confiscable, unless it had been inter- 
 dicted by express words. During the period which 
 intervened between the conclusion of the Treaty of 
 Southampton in 1625, and the Treaty of the Pyrenees 
 in 1650, a great change seems to have come over the 
 opinions of Statesmen, or a great modification to have 
 taken place in the policy of the European Powers, in 
 regard to the trade of Neutrals in time of war. The 
 subject is too obscure to admit of a complete elucida- 
 tion. The probability is, that both suppositions are 
 correct, and that whilst the writings of Grotius had 
 contributed to mould the opinions of Statesmen into 
 a more reasonable form, the necessities of inter- 
 national commerce had compelled the European 
 Powers to modify their policy. 
 Doctrine ^isp. " There havc been formerly," says Grotius'", 
 aa 10*^0™- " and still are great disputes as to what may lawfully 
 traband of j^ ^j g ^ thoso who are not our enemies, nor are 
 
 war. ' 
 
 willihg to be thought so, and yet furnish our enemies 
 with supplies. This is a point which has been sharply 
 contested, both in ancient and in modern times, some 
 maintaining the extreme right of war, others the 
 liberty of commerce. In the first place, we must dis- 
 tinguish between the things themselves ; for there 
 are some things which are of use only in war, as 
 arms ; others which are of no use in war, but serve 
 only for pleasure ; others which are useful both in 
 war and in peace, as money, provisions, ships and 
 their appurtenances. Concerning the first kind, it 
 is true, what was said by Amalasuntha to Justinian, 
 that they are on the side of the enemy, who supply 
 him with things necessary for the war. As to the 
 second class of things, no complaint can be raised. 
 
 "= De Jure Belli et Pads, L. III. c. i. § 5. 
 
CONTRABAND OP WAR. 251 
 
 With regard to the third class, which are objects of 
 equivocal use, the circumstances of the war must be 
 considered ; for if I cannot protect myself unless I 
 intercept what is sent, necessity will give me a right 
 to intercept it, but under the obligation of restitution, 
 except there be cause to the contrary. But if the 
 supplying of the articles will impede the execution 
 of my design, and the party who transports them 
 might have known this fact ; as for instance, if I am 
 besieging a town, or blockading a port, and a sur- 
 render or a peace is daily expected : he will be liable 
 to me for damages, and his property may be taken 
 to satisfy the damages. If he has not done the 
 damage, but is only attempting to do it, his property 
 may be detained until he give security for the future ; 
 but if the injustice of my enemy be very clear, and 
 the supplies conveyed to him support him in his 
 unjust war, then shall the party who conveys them 
 to my enemy be not only liable to repair my loss, 
 but he may be treated as a criminal, as one who is 
 rescuing a notorious offender from impending judg- 
 ment ; and for this reason it will be lawful for me to 
 deal with him according to his offence, and for the 
 purpose of punishment I may deprive him of his 
 merchandise." 
 
 § 130. The Peace of Westphalia (a.d. 1648) having 
 secured the independence of the United Provinces 
 from all further dispute upon the part of Spain, and 
 the Navigation Act, which had been' passed by the 
 English Parliament under the Commonwealth in 
 i65i,being justly regarded by the Dutch as intended 
 to secure to British shipping a portion of the carry- 
 ing trade hitherto enjoyed exclusively by Holland, 
 we find that after these -events, a more lenient policy, 
 in reference to the trade of Neutrals in time of war, 
 began to find favour with the States General, owing, 
 
i654 
 
 252 CONTRABAND OF WAR. 
 
 as is most probable, to the counsels of the Grand 
 Pensionary John de Witt. Thus the States General 
 had concluded treaties with Sweden and with the 
 Hanse Towns in 1613, under which provisions were 
 to be regarded as prohibited merchandise during war. 
 They had also concluded in 1625 a treaty with Eng- 
 land, in which provisions were enumerated amongst 
 the articles described expressly as Contraband of War. 
 But on 6 April 1654 ^ treaty^'' was concluded at 
 Treaty of Westminster between the United Provinces and the 
 ster of Commonwealth of England, under the seventh article 
 of which it was agreed that "neither party should 
 supply to the enemies of the other any soldiers, arms, 
 munitions of war, or other prohibited goods, or any 
 money, provisions, or victuals, by sea or by land ; and 
 that all ships, arms, munitions of war, and prohibited 
 goods, also money .and provisions to whomsoever 
 belonging, which shall be supplied contrary to the 
 sense of this article, shall be confiscated : and that all 
 parties contravening this article, shall be adjudged 
 enemies of both countries, and be punished as such 
 in the country where they may be captured : with 
 regard, however, to the specification of what shall be 
 considered as prohibited or Contraband goods. Com- 
 missioners shall determine the matter at a convenient 
 time, without prejudice however to the provisions of 
 the article itself." The first observation which sug- 
 gests itself on reading the above article is, that 
 money and provisions are not enumerated amongst 
 goods considered as prohibited or Contraband, al- 
 though it is agreed that neither party shall supply 
 them to the enemies of the other. This departure 
 from precedent was most probably the result of the 
 influence of the Grand Pensionary De Witt, as he 
 
 3' Dumout, Traitds, Tom. VI. Part II. p. 74. 
 
CONTEABAlirD OF WAR. 253 
 
 had pronounced his opinion in the early part of this 
 year^^, that Neutrals were not prohibited by the Com- 
 mon Law of Nations from carrying corn to a belli- 
 gerent country. De Witt was himself an advocate 
 of the doctrine of Free Ships Free Goods, and was at 
 this time negotiating with France to obtain several 
 modifications of the severity of her Prize Oode^^. 
 France, on the other hand, as appears from Sir Henry 
 Nevile's negotiations^ in 1599, had been for some 
 time unwilling to consider corn as merchandise abso- 
 lutely prohibited in time of war to be imported into 
 the ports of a belligerent by neutral merchants. It 
 is not surprising therefore that France should be 
 found taking the lead amongst the European Powers 
 in adopting a more lenient rule than that, which the 
 Dutch and British negotiators had agreed upon in 
 the Treaty of Southampton (a.d. 1625), when they 
 declared provisions generally under, the title of 
 " munitions de bouche " to be contraband. We find 
 accordingly a treaty of commerce concluded between 
 Louis XIV and the Hanse Towns (Paris, 10 May Treaty of 
 1655), in which a catalogue of Contraband of War 16 "5^/ 
 was set forth, from which provisions were omitted. 
 This catalogue deserves notice, as upon its model, 
 with the omission of cordage and sail-cloth, almost 
 all the subsequent treaties on the subject of Con- 
 traband of War in the seventeenth century were 
 framed : — 
 
 Art. XI. Lesquelles marchandises de contrebande sont 
 entendues ^tre munitions de guerre, armes h, feu ; scavoir, 
 canons, mousquets, mortierSj bombes, petards, grenades, 
 
 ^^ A letter to that effect, ^' Lettres et Negotiations de 
 
 dated 14 Jan. 1654, is cited in a Jean de Witt, Tom. I. p. 108. 
 note to Vattel. Droit des Gens, *" Winwood's Memorials, Vol. 
 
 L. III. c. 6. § 112. I. P-23, 
 
254. CONTEABAND OF WAR. 
 
 saueisses, cercle, afiuts, fourchettes, bandoulieres, poudre, 
 mesche, salpestre et toutes autres sortes d'armes, eomme 
 pieques, espees, morions, casques, cuirasses, hallebardes, jave- 
 lotsj et autres armes servans k la guerre, ensemble des 
 chevaux, des cordages, et des toiles noyales, qui ne puissent 
 servir qu'a faire voiles ; pourront neammoins porter des bleds 
 et grains de toutes sortes, legumes et autres choses servans 
 a la vie, si ce n'est que les villes et places oil ils les trans- 
 porteront fussent attaquees par sa Majeste, et que volontaire- 
 ment ils les y transportassent sans y etre foreez par les 
 ennemis de sa Majesty et se servant par violence de leurs vais- 
 seaux trouvez dedans leurs Portes, ou ailleurs; auquel cas 
 pourront les Commandans des Vaisseaux de sa Majeste retenir 
 les dits grains et autres choses servans k la vie^ en payant 
 leur juste valeur, suivant I'estimation qui en sera faite^ sinon 
 et k faute d'estimation et de payement en deniers comptans, 
 les sujets desdites Villes Anseatiques pourront se retirer libre- 
 ment avec leurs vaisseaux et marchandises, si ce n'est qu^elles 
 fussent de la qualite de celles specifiees ey-dessus pour Stre de 
 contrebande". 
 
 Treaty of ^131. France having thus secured the consent of 
 renees of One of the Great Maritime Powers to the mitigation 
 ^^' of the more severe rule, which made provisions Con- 
 traband of War, came to an agreement with Spain on 
 the same subject under the Treaty of the Pyrenees, 
 A.D. 1659, which is most frequently referred to by 
 Publicists as furnishing the rule for determining what 
 is Contraband of War by the common consent of the 
 Nations of Europe. It may be justly said, that there 
 is no dispute amongst the Nations of Europe re- 
 specting the merchandise enumerated in the twelfth 
 article of this treaty being all unlawful merchan- 
 dise for neutral merchants to carry to an enemy's 
 country : — 
 
 AuT. XII. Sub hujusmodi mercibus prohibitis, sive de 
 Contre-bande, eomprehensse solummodo intelliguntur omnis 
 generis machinse ignivomae et alia hue pertinentia instru- 
 
 " Dumont, Trait^s, Tom. VI. Pt. II. p. 103. 
 
CONTEABAND OF WAR. 255 
 
 menta; verbi gratia, tormenta senea majora, sclopeta, mor- 
 taria, exostrae, gldhi incendiariij granatse, saucissse, coronae et 
 serta ignea, tormentorum bellicorum fulcimina Kgnea, sclope- 
 tariorum furcillse, coramina ad pulveris ac plumbi mensuras 
 reponendais apta, pulvis pyrus, funes incendiarii, sal nitrum, 
 glandes, longiores hastse, gladii^ cassides, galeae, loriese, bi- 
 pennes, sarissse, equi, ephippia, bulgse, quibus sclophi inse- 
 runtur, baltei, aliaque hujus farinse ad bellum spectantia. 
 
 The next following article of the treaty, which 
 excludes provisions from the list of Contraband of 
 War, may be considered to have the consent of all 
 the Nations of Europe, so far indeed as it recognises 
 the Right of a belligerent Power to confiscate the 
 merchandise enumerated, if it is being carried to 
 a blockaded port : — 
 
 Aet. XIII. Sub ejusmodi mereibus probibitis sive de Conire- 
 hande minima comprebenduntur tritieum, frumentum et alia 
 grana, legumina, olea, vina, sal ant generaliter alia uUa ; quae 
 aliae omnes res vendibiles atque merees, quae in praecedenti 
 articulo expressse non sunt, libertate fruuntur; eritque illo- 
 rum transportatio, etiam in ipsa loca Coronse Hispanicae 
 inimica, exeepta Lusitania, prout dictum fuit, et urbibus 
 locisque obsidione cinctis, circumclusis, aut invasis, permissa**. 
 
 ^^ Tlie Latin version of this baudriers, et autres assortisse- 
 
 Treatywill be foundinSchmauss, mens servans ^ I'usage de la 
 
 Corpus Jur. Gent. Academicum, Guerre. 
 
 p. 683 ; the French version is in Aet. XIII. Ne seront compris 
 
 Dumont, Traitds,Tom.VI.Pt.II. en ce genre de Marchandises- de 
 
 p. 266 : — Contrebande, les fromens, bleds, 
 
 Art. XII. En ce genre de mar- et autres grains, legumes, huiles, 
 
 chandisesde contrebande s'entend vin, sel, ny g^n^ralement tout ce 
 
 seulement estre comprises toutes qui appartient I, la nourriture et 
 
 sortes dArmes k feu, et autres sustentation de la vie ; mais de- 
 
 assortissemens d'icelles ; comme meureront libres, comme toutes 
 
 canons, mousquets, mortiers, pd- autres marflhandises et denr^es 
 
 tards, bombs, -grenades, saucisses, non comprises en I'article prlc6- 
 
 cerclespoissez,affusts,fourchettes, dent; et en sera le transport 
 
 bandoliferes, poudres,mesches, sal- permis, mesme aux lieux enne- 
 
 pestre,balles,picques, espies, mo- mis de la Couronne d'Espagne, 
 
 rions, casques; cuirasses, halle- sauf en Portugal, comme il a €i& 
 
 bardes, javelines, chevaux, selles dit, "et aux villes et places as- 
 
 de cheval, fourreaux de pistolets, siegdes, bloqu^es ou investies. 
 
256 
 
 CONTKABAND OF WAR. 
 
 § 132. The Dutch were not slow to follow the 
 example of the Hanse Towns, and of Spain, and in 
 1662 concluded a treaty at Paris, mth Louis XIV, 
 whereby they agreed to limit the catalogue of Con- 
 traband of War to the articles enumerated in the 
 Treaty of the Pyrenees. England and Sweden on 
 the other hand kept themselves aloof, as they had 
 
 wf^t''h°u ^S^^^^ ^y ^ treaty concluded at Whitehall on 2 1 Oct. 
 
 in 1661. 1 66 1, to maintain the more severe rule. It was pro- 
 vided by Art. XI of that Treaty, as follows : — 
 
 Cautum tantummodo sit interim ne merces uUse YOcatsB 
 contrabandse, et speeialiter nee peeunia nee commeatus, nee 
 arma, bombarda cum suis igniariis et aliis ad eas pertinentibus, 
 ignes missiles, pulvis tormentarius, fomites, alias lunten, globi, 
 euspides, enses, lancese, bastse, bipennes, tormenta, tubi cata- 
 pultarii, vulgo mortaria, inductiles sclopi, vulgo petardse, 
 glandes igniarise, missiles, vulgo granadse, furcae sclopetariae, 
 bandabers, salpetrse, selopeti, globuli seu pilse quae sclopetis 
 jaculantur, eassides, galese, tboraces loricatse, vulgo cuirasses, 
 et similia ai^maturas genera, milites, equi, omnia ad instruendos 
 equos necessaria, sclopetbecse, balthei et quaecunque alia bellica 
 instrumenta, uti nee naves bellicae et praesidiarise bostibus sup- 
 peditandse devebantur ad alterius bostes, sine perieulo, quod 
 prsedae cedant absque spe restitutionis. Neque con&ederato- 
 rum alteruter sinat ut suorum cujusquam oper^ bostes aut 
 perduelles alterius utantur, navesque vendantur, commodentur, 
 ullove modo usui sint alterutrius bostibus aut perduellibus, ad 
 ejus incommodum aut detrimentum ; alterutri autem confoede- 
 ratorum ejusve populo subditive cum alterius bostibus com- 
 mercium babere, iisque merces quaseunque (de quibus supra 
 exceptum non est,) advehere licebit, idque, sive ullo impe- 
 dimento, nisi iis in portubus^ locisque, qui ab altero obsidentur ; 
 quod si acciderit, vel obsessoribus bona sua divendere vel ad 
 alium quemvis portum non obsessum libera se conferre per- 
 missum est*^. 
 
 It will be observed, however,, that whilst these two 
 
 *' Dumont, Trait^s, Tom. VI. Pt. II. p. 385.. 
 
CONTRABAND OF WAR. 257 
 
 Powers agreed to consider money, provisions, and 
 ships, as prohibited articles, and so far in respect of 
 Contraband of War adhered to the stricter practice, 
 they proposed to adopt a more lenient rule in regard 
 to cargoes going to besieged and blockaded towns, as 
 instead of such cargoes, if captured on their way to 
 such towns, being subject to Confiscation, they were 
 made liable to Preemption only on the part of the 
 captors. The provisions of this Treaty were renewed 
 between Sweden and Great Britain in other treaties ' 
 of Commerce concluded respectively in 1664, 1665, 
 and 1666**. Sweden, however, in the year 1667 con- 
 cluded a treaty at the Hague (16 July 1667) with 
 the United Provinces, under which, in order to put 
 an end to all controversy as to what merchandise 
 should be regarded as Contraband of War, the two 
 Nations agreed to adopt the catalogue already re- 
 ferred to, as having been introduced by France into 
 her treaties with Spain and the United Provinces *^ 
 Great Britain very shortly afterwards, by the Treaty 
 of Breda (31 July 1667), entered into the same Treaties of 
 system of concert as to Contraband of War with the Madrid^n 
 United Provinces, having previously, by the Treaty ^^^^■ 
 of Peace and Commerce concluded with Spain at 
 Madrid on March 14, 1667, agreed with that Power 
 to adopt the rule of the Treaty of the Pyrenees. At Treaty of 
 last, by the Treaty of St. Germain en Laye (24 Feb. main?n 
 1677), Great Britain and France came to a common ^g^^"* 
 
 " The Treaties of 1664 and de Contrabanda oriri aliquando 
 
 1665 are referred to in the first possent, convenit utrinque, acpro 
 
 article oftheTreatyof 1 666. Du- re rata habitum est, hoc in nu- 
 
 mont, Trait^s, Tom. VI. Pt. III. mere duoi et censeri oportere 
 
 p. 83. arma quaevis ad vim tarn propul- 
 
 *** Art. III. Ut vero evitentur sandam quam inferendam apta, 
 
 penitusatque amoveanturcontro- prsesertim, &c. Schmauss, Corp. 
 
 versise et disceptationes, quae oh Jur. Gent. Acad. p. 891. 
 designandam jam dictam mercem 
 
 PAET II. S 
 
258 CONTRABAND OP WAR. 
 
 understanding on the subject of Contraband in these 
 terms : — 
 
 Item. L'on pourra faire trafic pendant la Guerre des memes 
 marchandises que Ton pent n^goeier en temps de Paix a la 
 reserve de celles de Contrebande, qui sont expliquees dans 
 I'article suivant. 
 
 Aet, III. Les marchandises defendues et de Contrebande 
 sont les canons et leurs assortimens, armes a feu, poudre, 
 meches, boulets, picques, epees, lances^ hallebardes, pertuis- 
 annes, bombes, mortiers, petards, grenades, fourehes de 
 mousquets, bandouli^res, salpStres, balles, casques, morions, 
 cuirasses, et autres armes semblables. Est eneore prohibe • » 
 sous le dit nom, le transport de gens de guerre, de ebevaux, 
 de harnois, de fourreaux de pistolets, de baudriers, et assorti- 
 mens faponnez et formez k Vusage de la guerre. 
 
 Akt. IV. Au nombre de marchandises de contrebande et 
 defendues ne sont comprises les marchandises suivantes: 
 spavoir, les etoffes et manufactures de laine, lin, soye, 
 eoton, et de quelque autre matiere que ce soit : toutes sortes 
 d'habits et vestemens, et les etoffes et sortes desquelles on 
 les fait, or et argent monnoye et non monnoye, estain, fer, 
 plomb, cuivre, charbon, blez, orges, et autres grains et 
 legumes, tabae, espieeries, chairs salees et fumees, poisson 
 sec et sale, fromage, beurre, biere, huile, vin, sucre, sels, et 
 tout ce qui appartient k la nourriture et sustentation de la vie. 
 Ne seront aussi compris dans les marchandises defendues, les 
 cotons, chanvres, lins, poix, cordages, voiles, anchres, mats, 
 planches, poultres et bois travaille de toutes espfeces d'arbres, 
 et qui pent servir k eonstruire des vaisseaux ou a les radouber ; 
 et demeureront les dites marchandises libres, de meme que 
 toutes les autres generalement qui ne sont comprises dans 
 I'article precedent. 
 
 Free traffic in all the above articles was secured 
 to the merchants of either Nation, not merely be- 
 tween neutral and enemy ports, but from one enemy 
 port to another enemy port. " Ne pourra neamrQoins 
 ledit transport etre fait aux villes et places assi%ees, 
 ou bloqu^es, ou investies *'." 
 
 « Dumont, Traitds, Tom. VII. Part I. p. 327. 
 
CONTRABAND OF WAR. 259 
 
 § 133. It will be convenient to notice in the pre- Treaty of 
 sent place the provisions of the Treaty of Whitehall of 1689? 
 (22 August 1689) concluded between Great Britain 
 and the United Provinces. Lord Liverpool*^ speaks 
 of it as a convention between the two allied Powers 
 " to prohibit totally the commerce of neutral Powers 
 with France ;" and Dr. Phillimore ^ condemns it as 
 an attempt to enforce a doctrine, that neutral States 
 are not entitled to carry on, upon their own account, 
 a trade with a belligerent. But this convention, if 
 carefully examined, will be found to be not an agree- 
 ment between the two Powers to revive the ancient 
 practice, which was fast falling into desuetude, of 
 forbidding by proclamation all commerce whatsoever 
 between neutral merchants and the ports of a belli- 
 gerent Power, but a compact between the two 
 Powers to establish a blockade of all the ports, har- 
 bours, and roadsteads, of the French King*", and 
 to notify their resolution to all neutral States. It 
 is not surprising that Puffendorf ^^ was of opinion 
 that this Convention was justifiable, for under the 
 more lenient practice of the present century a block- 
 ade of all the ports, harbours, and roadsteads of the 
 enemy has been maintained by Great Britain against 
 
 *' Discourse on the Conduct of autrement par sa dur^e estre tris 
 
 the Government of Great Britain nuisible, et causer une grande 
 
 in respect- to Neutral Nations, effusion du sang Chrestien, et 
 
 London, 1801, p. 37. sa dite Majesty de la Grande Bre- 
 
 ^* Phillimore's Commentaries tagne et les dits Seigneurs Estats 
 
 on International Law, Vol. IIL G^ndraux ayant pour mieux y 
 
 p. 238. parvenir ordonn^ I, leurs flottes 
 
 *' "II est n^cessaire qu'on em- de faire voile vers les Costes de 
 
 ploye toutes ses forces, et parti- 'Fra,nce,etdebloquer tousles Ports, 
 
 culiferement qu'on passe en sorte Havres et Hades dudit Roi trh 
 
 que tout commerce et trafficq Chritien." Dumont,Trait^s,Tom. 
 
 avec les sujets dudit Koi trfes VII. Part II. p. 238. 
 Chretien soiteffectivementrompu ^^ See a Letter of Puffendorf, 
 
 et interdit, pbur 6ter au dit Roi in Groningii Bibliotheca Uni- 
 
 et h ses sujets les moyens de versalis Librorum Juridiconjm, 
 
 fournir a une guerre, qui pourra p. 105. 
 
 S.2 
 
260 CONTRABAND OF WAR. 
 
 France, and by France and Great Britain against 
 Eussia, and by the United States of North America 
 against the Confederate States. Vattel", in com- 
 menting upon this Treaty, appears not to have fully 
 considered it in its bearing upon the practice of 
 blockade, as maintained by the States General in 
 their Resolutions of 26 June 1630^^, for he speaks 
 of it as if it were simply an agreement between the 
 two Powers to attack every ship bound to or coming 
 from any port of France, and to declare it lawful 
 prize ; and when he goes on to say that " Sweden 
 and Denmark, from whom some ships had been 
 taken, entered into a convention on 17 March 1693, 
 for the purpose of maintaining their rights and 
 procuring just satisfaction, and that Great Britain 
 and the States General, being convinced that the 
 complaints of the two Crowns were well founded, 
 did them justice ^^," he has not weighed carefully the 
 recitals in the Convention which was concluded be- 
 tween the two Baltic Powers on this occasion. It 
 would appear from these recitals that the special 
 grievances, of which the two Baltic Powers com- 
 plained, were not the capture and condemnation of 
 their vessels bound to or from the ports of the enemy, 
 but the capture of vessels under convoy, and the cap- 
 ture of vessels notwithstanding their passports were 
 in perfect order and in conformity with the treaty- 
 engagements between the two Baltic Powers and the 
 respective belligerent Powers. It may well have 
 been the fact that Great Britain and the United 
 Provinces, as belligerent allies, were guilty of a 
 breach of their treaty-engagements with the Baltic 
 Powers in the case of certain vessels, which had been 
 
 " Droit des Gens, L. III. c. 7. ritima, p. 158. 
 §112. ^' Dumont, Trait^s, Tom. VII. 
 
 *^ Robinson's Collectanea Ma- Part II. p. 325. 
 
CONTRABAND OF WAR. 261 
 
 captured and condemned contrary to their treaty- 
 engagements, and upon the complaint of the two 
 Crowns did them justice, without the alHed Powers 
 being open to the imputation, that, by attempting 
 to prevent all commerce with France, Great Britain 
 and Holland were guilty of a grievous violation of 
 International Law^*. 
 
 ^134. The state of the question as to Contraband Opinion of 
 of War at the conclusion of the seventeenth century j^nkiM™^ 
 had been relieved of much ambiguity by the treaties, 
 under which the various Powers of Europe, which 
 had any pretensions to be considered maritime 
 Powers, not merely placed on record their deliberate 
 recognition of a catalogue of contraband articles, but 
 agreed that all other merchandise not comprised in 
 that catalogue, as between the contracting parties, 
 might be freely transported to enemy-ports, except 
 when such ports were besieged or blockaded. We 
 find accordingly that when a Spanish privateer in 
 1674 seized a Swedish vessel bound to Rouen with 
 a cargo of pitch and tar, the property of a British 
 subject, and the Spanish Admiralty Court was pro- 
 ceeding to condemn the cargo as Contraband of War, 
 Spain being at such time at war with France, Sir 
 Leoline Jenkins gave his opinion to King Charles II, 
 that " there was no pretence to make pitch and tar 
 belonging to British subjects Contraband ; these 
 commodities, not being enumerated in the 24th 
 article of the Treaty made between Great Britain ' ' '^ 
 and Spain in 1667, are consequently declared not to 
 
 ^* The second article of the treated by the competent tri- 
 
 Treaty of Whitehall, whereby it bunals as prize of war, seems to 
 
 was agreed that all vessels cap- have been merely a Conventional 
 
 tured on their way to French affirmance of the doctrine, that 
 
 ports, and all vessels laden with the inception of a voyage to a 
 
 merchandise destined to Prance, blockaded port constituted a 
 
 wheresoever seized, should be breach of the blockade. 
 
262 CONTRABAND OF WAR. 
 
 be Contraband in the article next following." Sir 
 Leoline Jenkins tben proceeds to consider by what 
 law the question should be decided, in case the 
 benefit of the treaty- engagements between Great 
 Britain ^* and Spain could not be claimed in behalf 
 of British goods laden in a Swedish bottom ; and he 
 says, " These goods, if they be not made unfree by 
 being found in an unfree bottom, cannot be judged 
 by any other law but by the general Law of Nations; 
 and then I am humbly of opinion, that nothing 
 ought to be judged contraband by that Law in this 
 case, but what is directly and immediately subser- 
 vient to the uses of war, ex6ept in the case of 
 besieged places, or of a general notification made by 
 Spain to all the world, that they will condemn all 
 the pitch and tar they meet with." It would appear 
 from the above passage that the opinion of this 
 eminent civilian was, that there were three classes 
 of goods contraband by the Law of Nations, j. Goods 
 directly and immediately subservient to the purposes 
 of war, if they were being transported over sea 
 to any place within the dominions of the enemy : 
 2. Goods of all kinds, if they were being carried to 
 a besieged or blockaded town: 3. Goods which the 
 belligerent had, by public notice, forbidden all 
 merchants alike to carry to the enemy, and which, 
 notwithstanding such notice, were being transported 
 over sea to the enemy's country. 
 Treaty of § 1 35- The Treaty of Utrecht (ii April 1713) 
 1713. may be considered as the first great international 
 recognition of the more lenient practice, which had 
 been inaugurated by Spain and France at the Peace 
 of the Pyrenees, and to which Great Britain had 
 given in her complete adherence by the Treaty of 
 St. Germain en Laye. The provisions of the latter 
 
 ^ Life and Correspondence of Sir Leoline Jenkins, Vol. II. p. 751. 
 
CONTRABAND OF WAB. 263 
 
 Treaty having ceased to be operative by reason of the 
 war of the Spanish succession, the Dutch being in 
 that war the allies of Great Britain and of the Ger- 
 manic Empire and of Portugal, whilst Spain was the 
 ally of France, the links of the European Compact 
 upon the subject of Contraband of War required to 
 be reknit together upon the settlement of Peace. 
 Accordingly, amongst the numerous Treaties con- 
 cluded at tJtrecht on the part of France with the 
 Powers arrayed against her,. a Treaty of Navigation 
 and Commerce with England will be found, in which 
 the question of contraband and free goods was dealt 
 with in a still more explicit manner than in the pre- 
 vious Treaty of 1677 : — 
 
 Aet. XVIII. This liberty of Navigation and Commerce 
 shall extend to all tind of Merchandises, excepting those 
 only which follow in the next Article, and which are signified 
 by the name of Contraband. 
 
 Art. XIX. Under this name of Contraband or Prohibited 
 Goods, shall be comprehended Arms, great Guns, Bombs, 
 with their Fusees, and other things belonging to them, Fire 
 Balls, Gunpowder, Match, Cannon Ball, Pikes, Swords, 
 Lances, Spears, Halberds, Mortars, Petardes, Granadoes, 
 Saltpetre, Muskets, Musket Ball, Helmets, Head Pieces, 
 Breast Plates, Coats of Mail and the like kinds of Arms 
 proper for arming Soldiers, Musket rests. Belts, Horses with 
 their Furniture, and all other Warlike Instruments whatever. 
 
 Art. XX. These Merchandises which follow shall not be 
 reckoned among prohibited Goods, that is to say, all sorts of 
 Cloaths and all other Manufactures woven of any Wooll, 
 Flax, Silk, Cotton, or any other Materials whatever, all kinds 
 of Cloathes and Wearing Apparel, together with the Species 
 whereof they are used to be made, Gold and Silver as well 
 coined as uncoined. Tin, Iron, Lead, Copper, Brass, Coals ^^, 
 as also Wheat and Barley and any other kind of Corn, and 
 Pulse, Toiaacco, and likewise all manner of Spices, Salted and 
 Smoked Flesh, Salted Fish, Cheese and Butter, Beer, Oils, 
 Wines, Sugars, and all sorts of Salt, and in general all Pro- 
 
 '^ Carbones Focarii. Schmauss, Corp. Jur. Gent. Acad. p. 1344. 
 
264 CONTRABAND OP WAR, 
 
 visions which serve for the Nourishment of Mankind and the 
 Sustenance of Life. Furthermore all kinds of Cotton, Hemp, 
 .Flax, Tar, Pitch, Ropes, Cables, Sails, Sail Cloths, Anchors 
 and any parts of Anchors, all Ship Masts, Planks, Boards 
 and Beams of what Trees soever and all other things proper 
 either for Building or Repairing Ships, and all other Goods 
 whatever which have not been worked into the Form of any 
 Instrument or thing prepared for War by Land or by Sea, shall- 
 not be reputed Contraband, much less such as have been 
 already wrought and made up for any use, all which shall 
 wholly be reckoned among free Goods, as likewise all other 
 Merchandises and Things which are not comprehended and 
 particularly mentioned in the preceding Article, so that they 
 may be transported and carried in the freest manner by the. 
 Subjects of both Confederates even to. places belonging to an 
 Enemy, such Towns and Places being only excepted as are at 
 that time besieged, blocked up round about, or invested ®^- 
 
 British ^136. The provisions in the Treaty of Utrecht 
 
 gagements. 'Were renevsred almost in identical language in the 
 Treaty of Navigation and Commerce concluded be- 
 tween Great Britain and France at Versailles on 
 26 Sept. 1786*". The engagements however of this 
 Treaty were terminated by the war of the French 
 Kevolution, it being the rule of Great Britain to 
 regard all treaty-privileges as annulled by the out- 
 break of war between the contracting parties ; and 
 any difficulty in observing this rule, which might 
 have been raised by the dethronement of the Bourbon 
 Dynasty, was removed by the Decree of the French 
 Convention published on i March 1793, whereby it 
 declared that " aU treaties of alliance or of commerce 
 existing between the former French Government and 
 the Powers vdth whom the Eepublic is at war, are 
 annulled." No subsequent treaty on the subject of 
 
 °' This English version of the Uti-eclit, London, 1715. Vol. I. 
 
 Treaty of Commerce and Navi- p. 131. 
 
 gation is copied from the Com- " Martens, E^cueildeTrait^s, 
 
 pleat History of the Treaty of IV. p. 169. 
 
CONTRABAND OP WAE. 265 
 
 Contraband of War has ever been concluded between 
 France and Great Britain. With regard to Spain 
 and Great Britain, the Treaty of 1667 was confirmed 
 and inserted word for word in the Treaty of Naviga- 
 tion and Commerce signed at Utrecht 9 Dec. 1 7 1 3 ; 
 which was renewed and confirmed by the Treaty 
 of Versailles of 3 Sept. 1783; and by the first ad- 
 ditional article of the Treaty of Madrid, signed on 
 28 Aug. 18 1 4, all the Treaties of Commerce which 
 subsisted between the two Nations previously to the 
 year 1796 were ratified and confirmed^^. It would 
 appear therefore that the provisions of the 24th and 
 25th articles of the Treaty of 1667 as to contraband 
 and free merchandise are still in force ^^. With regard 
 to Sweden and Great Britain, the provisions of the 
 Treaty of Whitehall (21 Oct. 1661) are still in force, 
 having been renewed by the second article of the 
 Treaty of Orebro (18 July 1812'"). With regard to 
 Denmark and Great Britain, the Treaty of 1670 with 
 the explanatory article of 4 July 1780 as to con- 
 traband and free merchandise, was renewed by the 
 seventh article of the Treaty of Kiel (14 Jan. 18 14), 
 and is still in force "^ With regard to Portugal and 
 Great Britain, the Treaty of Rio Janeiro, 19 Feb. 
 1 8 10, appears to have been the first and last Treaty 
 in which the two Nations came to a common agree- 
 ment on the subject of Contraband. By this Treaty, 
 Great Britain and Portugal agreed to regard as 
 Contraband not merely the articles included in the 
 Catalogue of the Treaty of the Pyrenees, but ge- 
 nerally all other articles that may have been specified 
 
 °' Hertslet, Vol. II. p. 271. between Great Britain and Spain 
 
 Martens, N. K. IV. p. 123. on the subject of Contraband. 
 
 ^' Mr. Manning, in his Com- "" Hertslet's Treaties, Vol. IT. 
 
 mentaries on the Law of Na- p. 337. 
 tions, p. 305, considers that " Hertslet, Vol. I, p. 229. 
 
 there are no Treaties in force 
 
266 CONTRABAND OF WAK. 
 
 as Contraband in any former Treaties concluded by- 
 Great Britain or by Portugal witb other Powers : 
 but this Treaty ceased to be in vigour after 30 April 
 1836, by virtue of a notification made, on the part 
 of Great Britain, in pursuance of the provisions of 
 the 33rd article®^ and no provision has been made 
 on the subject of Contraband of War in the subse- 
 quent Treaty of Commerce concluded between Great 
 Britain and Portugal on 3 July 1842 ''I The Treaties 
 between Great Britain and the United Provinces 
 have not been renewed with the Netherlands, nor 
 have the Treaties on the subject of Contraband, 
 which formerly existed between Great Britain and 
 Eussia, been renewed, for all that was provided by 
 the Treaty of Peace between Great Britain and 
 Eussia, signed at Orebro^* on 18 July 181 2, was that 
 the relations of friendship and commerce between 
 the two countries shall be re-established on both 
 sides upon the footing of the most favoured Nations. 
 The Treaty of Orebro was determined by the war 
 of 1854-56 ; but there was a provision in the 32nd 
 article of the Treaty of Paris**^ (30 March 1856), 
 by which the commerce of the subjects of the con- 
 tracting parties was re-established on the footing 
 of the treaty-engagements in vigour before the war, 
 until they should be renewed or replaced by new 
 Acts, and the subjects of all the contracting parties 
 in all other matters were to be treated on the foot- 
 ing of the most favoured Nation"^. A subsequent 
 
 '^ Hertslet, IV. p. 362. V. Court of Admiralty in the case of 
 
 p. 413. the Quatre Frferes, 27 Nov. 1778 
 
 ^^ Ibid. VI. p. 598. (Hay and Marriott's Eeports, p. 
 
 "* Il)id. II. p. 128. Martens, 171), that the Treaty of Copen- 
 
 N. E. III. p. 226. hagen, Art. XL. (11 July 1670), 
 
 °^ Martens, N. R. Gr^n. XV. did not give to the Danes the 
 
 p. 780. privilege of Free Ship Tree 
 
 "" It was held by the English Cargo in time of war, which was 
 
OOKTRABANl) OP WAR, 267 
 
 Treaty^' of Commerce and Navigation between Great 
 Britain and Russia was signed at St. Petersburg on 
 2 Jan. 1858, which is silent on the subject of Con- 
 traband of War. 
 
 § 137. It deserves to be remarked, that the list of Concert of 
 contraband articles adopted in the Treaty of St. Natioiwas 
 Petersburg ^^, concluded between Eussia and Glreat ^°^?^[g'*"' 
 Britain on 20 June 1766, is less extensive than the 
 catalogue of the Treaty of the Pyrenees ; and thait 
 Russia, Spain, France, Prussia, Austria, Sweden, 
 Denmark, Holland, and Sardinia, have all at various 
 times concurred in declaring the articles included 
 in that list to be Contraband of War according to 
 Natural Law. The Hst is as follows : — 
 
 Art. XI.™ Tous les canons, mortiers, armes a feu, pistolets, 
 bombes, grenades, boulets, balles, fusilsj pierres a feu, meches, 
 poudre, salp^tre, souifre, cuirasses, piques, epees, ceinturons, 
 poches-a -cartouche, selles et brides, au-del&, de la quantite qui 
 pent etre necessaire -pour Tusage du vaisseau, ou au delk de 
 celle qui doit avoir cbaque homme servant sur le vaisseau ou 
 passager, sera reputes munitions ou provisions de guerre, efc 
 s'il s'en trouve, ils seront confisques selon les loix, comme 
 contrebande ou effets prohibes. Mais ni les vaisseaux, ni les 
 passagers, ni les autres marchandises, qui s'y trouveront en 
 
 granted by Great Britain to the less otherwise specified, be li- 
 
 Dutch in the Treaty of 1674. mited in its operation to com- ■ 
 
 The words of the 40th Article mercial privileges in time of 
 
 were, " If the Hollanders or any peace ; which seems to be a rea- 
 
 other Nation whatever have, or sonable construction of it. 
 
 shall obtain from his Majesty of ^' Martens, N. E. Gdn^ral, 
 
 Great Britain any better articles, XVI. p. 490. 
 
 agreements, exemptions, or pri- ^* Martens, K. I. p. 395. 
 
 vileges, than what are contained The provisions of this Treaty on 
 
 in this Treaty, the same like pri- the subject of Contraband were 
 
 vileges shall be granted to the renewed in the Treaty of 1797 
 
 King of Denmark and his sub- (Martens, R. VI. p. 362), and 
 
 jects also, in a most full and recognised in the Treaty of 180 1 
 
 effectual manner." According (Martens, E. VII. p. 262). 
 
 to this decision, "the most fa- ^' Martens, Rdcueil, I. p. 
 
 voured Nation clause" must, un- 395. 
 
268 CONTRABAND OP WAR. 
 
 meme tempsj ne seront point detenus, ni emp^ches de conti- 
 nuer leur voyage. 
 
 One result of the Armed Neutrality of 1 780 was 
 to lay the foundation of a Common Concert amongst 
 the Continental Powers on the subject of Contraband 
 of War, although such concert could only take effect 
 amongst the Powers which were parties to the Treaties 
 and Declarations™ ; for it was not attempted on occa- 
 sion of either of the Armed Neutralities of 1 780 or 
 1 800 to set aside the treaty-engagements as to Con- 
 traband of War, which existed between Great Britain 
 and the, Powers respectively which were parties to 
 either Armed Neutrality ; on the contrary, there were 
 express stipulations that in the matter of Con- 
 traband, each State should adhere to its existing 
 engagements with other States. It is consistent 
 therefore with the Custom of contracting, which pre- 
 vails amongst the European Powers, that the same 
 Nation should have different Conventions on the 
 subject of Contraband of War with different Nations. 
 " Hence it arises, that the catalogue of Contraband 
 has varied very much," as observed by Lord Stowell, 
 " and sometimes in such a manner as to make it very 
 difficult to assign the reason of the variations, owing 
 to particular circumstances, the history of which has 
 not accompanied the history of the decisions '^^'^ 
 Bynker- f 138. Reference has been already made to the 
 view. opinion of Grotius upon the question, what we may 
 lawfully do to those who are not our enemies and 
 yet supply our enemies with certain things '^^- Bynker- 
 shoek, in considering the same question at the interval 
 
 '" The Declarations of Prussia in Martens, III. p. 258. 
 
 on the subject of Contraband of " The Jonge Margaretha, 
 
 War will be found in Martens, i Ch. Eobinson, p. 192. 
 
 III. p. 247 ; and that of Austria " Supr. 128. 
 
CONTRABAND OF WAR. 269 
 
 of more than a century''^, questions the opinion of 
 Grotius, that there is "an intermediate class of 
 articles of promiscuous use, which a belligerent may 
 intercept on their way to his enemy, if he cannot 
 defend himself except by intercepting them, under 
 the obligation of making restitution," on the ground 
 that no belligerent can be expected to judge equitably 
 between himself and a neutral merchant as to the 
 existence of such necessity, as wiU warrant him in 
 intercepting' the goods of the latter, whilst the prac- 
 tice of Nations does not affirm any such distinction. 
 Bynkershoek contends that there is a Common Law 
 of Nations, founded upon reason and usage, and that 
 whilst reason suggests that we should be friends in 
 an equal manner to our friends, although they should 
 be enemies to each other, the Usage of Nations in 
 such matters may be gathered from the perpetual 
 tenor of the conventions and declarations of Sovereign 
 Princes. " Dixi," he says, " ex perpetua quodammodo 
 consuetudine, quia unum forte alterumve pactum, 
 quod a consuetudine recedit, jus gentium non mu- 
 tat^^" But Bynkershoek, in discussing the practice 
 of Holland, justifies an Edict of the States General, 
 pubHshed on 31 Dec. 1657, during a war with the 
 Portuguese ; by which, after forbidding articles Con- 
 traband of War to be carried to Portuguese ports, 
 they go on to prohibit ship timber and naval stores 
 being conveyed to Portugal, on the ground that they 
 had nothing to fear from the" Portuguese except by 
 sea, and that the Portuguese could not carry on the 
 war without supplies of ship timber. He justifies 
 with equal inconsistency analogous Edicts published 
 by the Dutch on 5 Dec. 1652 against the British, and 
 
 " Bynkershoek's Qusestiones Juris Publici were published in 
 
 1737- ^ ^ 
 
 " Qusestiones Juris Publici, L. I. c. 10. 
 
270 CONTRABAND OF WAR. 
 
 on 9 March 1689 against the French. He cites these 
 Edicts indeed as exceptions which prove the rule, on 
 the ground that the Dutch, having forbidden all 
 trade in Contraband of War generally, go on to forbid 
 these articles specially to be carried by neutrals to 
 the enemy's country. But in thus citing the practice 
 of the Dutch, he holds it to be lawful for a belli- 
 gerent under special circumstances to forbid other 
 articles, besides what are Contraband of War, to be 
 carried to the enemy; and he accordingly admits a 
 class of things, which if not at all times Contraband, 
 may become Contraband under circumstances. There 
 would thus seem to be no substantial difference 
 between the views of Bynkershoek and those which 
 Grotius advocated. 
 Vattei. f 139. VatteF®, on the other hand, having stated 
 
 that neutral Nations ought to enjoy perfect Hberty to 
 trade in ordinary goods which have no relation to 
 war, as the belligerent is not authorised by the care 
 of his own safety or the necessity of self-defence to 
 prevent the importation of such goods into the enemy's 
 country, goes on to say, that " commodities parti- 
 cularly useful in war, and the importation of which 
 to an enemy is prohibited, are called Contraband 
 goods. Such are arms, ammunition, timber for ship- 
 building, every kind of naval stores, horses, and raw 
 provisions in certain junctures, when we have hopes 
 of reducing the enemy by famine." It will be seen 
 from the above passage that Vattei holds that a 
 belligerent may rightfully prohibit a neutral to carry 
 to the enemy anything which may be useful to him 
 in war, and that all articles so prohibited become 
 Contraband of War. 
 Italian and § HO- Italian jurists, such as Lamprcdi and AzuDi, 
 juriatt! recognise no other source of law as to Contraband of 
 
 ^^ Droit des Gens, L. III. c. 7. § 112. 
 
CONTRABAND OF WAR. 271 
 
 War than the treaty-engagements of particular Na- 
 tions, coupled with the usage of other Nations con- 
 forming themselves by Comity to the practice of those 
 particular Nations under their treaty-engagements. 
 
 D'Abreu, on the other hand, and other Spanish 
 authors, agree that neutrals are prohibited by every 
 kind of law from carrying munitions of war to the 
 enemy's country, and that a belligerent does only 
 what is his Eight in capturing such articles on their 
 way to the enemy's ports ; but they hold that a neutral 
 may rightfully carry provisions to any but besieged 
 or blockaded places : and in support of this latter po- 
 sition D'Abreu refers to the Treaty of 1650 concluded 
 with the Dutch, the Treaty of 1667 concluded with 
 the English, and the Treaty of Commerce concluded 
 with the Emperor in 1725. "From what we have 
 said," he concludes, "it follows that a belligerent 
 may justly capture vessels which are conveying arms 
 and munitions of war to the enemy, and that those 
 vessels which convey provisions to them, ought to be 
 protected from violence, excepting when such pro- 
 visions are being conveyed to a besieged or blockaded 
 place ''^." 
 
 § 141. Valin, amongst the older French writers, Trench 
 holds that provisions are not Contraband of War by "" 
 the Law of Nations, except they are being carried to 
 besieged or blockaded places ; but he admits that naval 
 stores have by the usage of Nations come to be re- 
 garded as Contraband, and that munitions of war may 
 be rightfully captured by a belligerent under any cir- 
 cumstances, if they are being carried to the dominions 
 of the enemy. Amongst the more recent French 
 writers who have treated professedly of Neutral Com- 
 
 '* 'Tratado Juridioo - Politico his opinion as to provisions upon 
 sobre Pressas de Mar, cap. 11. the treaties between Spain and 
 § 15. D'Abreu expressly bases various European Powers. 
 
272 CONTRABAND OF WAR. 
 
 raerce iu time of war, M. de Hautefeuille occupies a 
 more advanced position than Valin was content to 
 take up, in restraining the exercise of belligerent 
 right, when he maintains that there is only one class 
 of articles which are properly Contraband of War ; 
 namely, objects which are both necessary and ex- 
 clusively useful for belligerent purposes, and which 
 are directly available for such purposes without under- 
 going any change. He excludes naval stores alto- 
 gether from the list of contraband '^\ M. Ortolan '*, 
 on the other hand, holds that munitions of war and 
 supplies of all sorts, which serve directly and exclu- 
 sively for the purposes of war, are absolutely and 
 necessarily Contraband of War, whilst other articles, 
 which are useful in peace but can also be adapted to 
 the purposes of war, may, under particular circum- 
 stances, be declared Contraband ; on the other hand 
 he maintains that provisions can never be considered 
 Contraband of War, unless they are being carried to 
 a blockaded place. With regard to the catalogue of 
 Contraband articles, M. Ortolan considers that the 
 list must necessarily vary with the application of 
 science to the purposes of war. In this respect he 
 agrees with Lord Erskine, who, in the course of 
 the debate in the House of Lords on the. Orders in 
 Council issued in 1808, observed, that the King may 
 make new declarations of Contraband, when articles 
 come into use as implements of war, which were be- 
 fore innocent ; this is not the exercise of discretion 
 over Contraband ; the Law of Nations prohibits 
 Contraband, and it is the usub hellici which, shifting 
 from time to time, make the law shift, with them™. 
 
 '' Des Droits et Des Devoirs c. 6. 
 des Nations Neutres, Tit. VIII. ''^ Lord Erskine's Speech on 
 
 § 5. Art. 4. March 8, 1808. 10 Cobbett's 
 
 '* DiplomatiedelaMer.L.III. Parliamentary Debates, p. 958' 
 
CONTRABAND OF WAR. 273 
 
 § 142. In the conflict of authority among text- Practice 
 "writers, and amidst the fluctuations of practice pnze 
 amongst Nations, the British Courts of Admiralty, '^°^'^^- 
 in adjudicating upon questions of Contraband of War, 
 have endeavoured, in cases where there have been no 
 treaty engagements on the subject, to pursue a system 
 which should recommend itself to the approval of 
 mankind by its accordance with Keason and by its 
 moderation. They have not hesitated to maintain the 
 doctrine of Conditional Contraband ; but they have 
 modified the penalty, when the cargoes have been the 
 produce of the country from which they were exported, 
 and have been staple articles of its commerce. " In the 
 practice of this Court," says Lord Stowell, " there is a 
 relaxation which allows the carrying of these articles 
 (pitch and tar), being the produce of the claimant's 
 country ; as it has been deemed a harsh exercise of 
 a beUigerent right to prohibit the carriage of these 
 articles, which constitute so considerable a part of its 
 native produce and ordinary commerce. But in the 
 same practice this relaxation is understood with a 
 condition that it may be brought in not for Confisca- 
 tion, but for Preemption, no unfair compromise, as it 
 should seem, between the belligerent's rights, founded 
 on the necessities of self-defence, and the claims 
 of the neutral to export his native commodities, 
 although immediately subservient to the purposes 
 of hostility^". Again, British Courts have shown in- 
 dulgence to articles, which are in their native and un- 
 manufactured state. Thus, unwrought iron has been 
 treated wdth lenience, whilst anchors and other in- 
 struments fabricated out of it have been confiscated. 
 Hemp has been more favourably considered than 
 cordage, and wheat than the final preparations of it for 
 
 8" The Sarah Christina, i Ch. Eob. p. 241. 
 PART II. T 
 
274 CONTEABAlirD OF WAH. 
 
 human use^^ Further, they have allowed the parti- 
 cular destination of the ship to be taken into account 
 to rebut the presumption of the articles in question 
 being destined for belligerent purposes ; and in the 
 case of ship-timber have made a distinction, according 
 as the particular destination of the vessel was to a 
 port of general commerce, or a port of naval arma- 
 ment. In these and other cases, whilst the Prize 
 Courts have not hesitated to maintain the extreme 
 right of a belhgerent to prohibit all trade with the 
 enemy, which is calculated, under circumstances, to 
 subserve the purposes of war, they have allowed 
 equitable deductions to be made from the exercise 
 of that right, wherever the hona fides of the neutral 
 trader, or the innocuous character of the actual 
 trade itself, was capable of being established. 
 Difficulty § 143. The expression "conditional Contrahand" 
 hig^artSes has been designedly used in the preceding passage 
 couditiou- ^Q mark the contrast with " absolute Contraband"' of 
 
 ally con- 
 traband. War. The term " conditional Contraband" is intended 
 
 to denote such articles as are ancipitis us4s, and 
 accordingly are not always, but only under certain 
 conditions, unlawful merchandise for neutrals to carry 
 to an enemy. Certain Publicists, in discussing the 
 unsettled character of the conditions, under which 
 certain articles may be free at one time, and at 
 another time unfree, for neutrals to convey to the 
 enemy's country, have expressed an opinion that it 
 would be desirable, if Nations would settle by some 
 common compact, Avhat articles to the exclusion of 
 all other articles shall be deemed Contraband of War. 
 It is obvious, however, that the necessities of a Con- 
 tinental Power in time of war may not be the same 
 with the necessities of an Insular Power : for in- 
 stance, horses may be necessary to enable an army 
 " The Jonge Margaretha, i Ch, Rob. p. 194 ; ibid. p. 195. 
 
CON.TEABAND OF WAR. 275 
 
 to move by land, whilst naval stores will be necessary 
 to enable a navy to move by sea. Horses ^^ may ac- 
 cordingly be prohibited with justice to be conveyed 
 by a neutral merchant to the ports of a Continental 
 Power, whilst naval stores may by parity of reason 
 be with justice prohibited to be carried to the 
 country of an Insular Power. On the other hand, 
 horses will be useless appendages to a fleet, whilst 
 naval stores will be equally unserviceable to land 
 forces. There are without doubt certain, articles, 
 which ^11 Nations have agreed in practice to regard 
 as unlawful for neutral merchants to convey by 
 sea to the dominions of a belligerent Power, and 
 such articles, if captured upon their voyage, are 
 by aU Courts declared to be lawful Prize of War 
 to the captors. If however it should be desirable 
 in the interests of International Commerce, that 
 some attempt should be made to render the law 
 of conditional Contraband less vague, the opinion, 
 which Sir Leoline Jenkins submitted to King 
 Charles II, in regard to a cargo of pitch and tar, 
 which had been captured and confiscated by the 
 Spaniards, may be worthy of attention. " Nothing," 
 said that eminent civilian, " ought to be judged 
 contraband by the Law of Nations, but what ' is 
 directly and immediately subservient to the uses of 
 war, except it be in the case of besieged places, or 
 of a general Notification made by Spain to all the 
 world, that they will condemn all the Pitch and Tar 
 they meet with," If a Belligerent Power at the 
 commencement of a war should notify to all Neutral 
 Powers what are the articles of ambiguous use 
 {ancipitis usds) which it intends to confiscate, if 
 they should be intercepted by its cruisers in the 
 
 ^^ Russia has never allowed list of Contraband in any of her 
 horses to be enumerated in the treaty-engagements. . 
 
 T 2 
 
276 CONTRABAND OF WAR. 
 
 course of transport on the High Seas to the enemy's 
 dominions, neutral merchants would have a warning 
 analogous to that, which is conveyed to them by the 
 Notification of a blockade, after which Notification a 
 belligerent Power is held to be entitled by the Law 
 of Nations to capture and confiscate aU vessels and 
 cargoes, which attempt to trade with a blockaded 
 port. As an instance however of the difficulties 
 which are in the way of Nations coming to any com- 
 mon agreement, as to what articles shall be con- 
 ditionally Contraband of War, Mr. Robert Ward 
 refers to the case of Bulls' Hides, as being goods 
 "which are in themselves seemingly a very inno- 
 cent article of traffic, and in the American war 
 Neutrals might, for a long time, have been safely 
 permitted to supply them to Spain. But when the 
 floating batteries, destined for the destruction of 
 Gibraltar, were fitting at Algeziras, and it was 
 known that Hides were to be the chief article of 
 defence to be used in that famous attack, I have no 
 doubt that a ship loaded with Hides, and destined 
 for that port of equipment, with a knowledge that 
 they were then wanted, might very justly have been 
 stopped, and even confiscated ^^" 
 General ^ 144. The general doctrine of the British Prize 
 
 British Courts On the subject of Contraband of War is to be 
 Wk*."' gathered from the decisions of those Courts during 
 the wars of the first French Revolution. In the 
 recent war of 1854-56 with Russia there was hardly 
 any occasion for the subject of Contraband of War 
 to be discussed in any British Court, seeing that 
 the allied Powers placed all the ports and coasts 
 of Russia both in the Baltic and in the Black sea 
 under Blockade, and the proceedings in the British 
 Prize Courts were instituted for the most part in 
 
 ^' "Ward's Essay on Contraband, London, 1801, p. 248. 
 
CONTRABAND OF WAE. '277 
 
 cases of neutral commerce, to punish attempts to 
 violate the Blockade. The British Courts of Prize 
 have however invariably confiscated all instruments 
 and munitions of war, under which head are embraced 
 all kinds of cannon and guns with their appurte- 
 nances, such as ammunition and carriages, arms of 
 every description, and all military equipments and 
 military clothing. To these may be added articles 
 in a natural or imperfectly prepared state, which 
 are used almost exclusively for purposes of war, 
 such as saltpetre and sulphur suitable for making 
 gunpowder, and aU kinds of machinery for manu- 
 facturing arms or ammunition. In addition to these 
 articles the British Courts have condemned vessels ^* 
 evidently built for warlike purposes, such as gun- 
 boats and mortar-boats destined to be sold to the 
 enemy, and all kinds of articles which are not in 
 their native and unmanufactured state, and which 
 are fitted for the building and equipment of ships of 
 •war, such for instance as masts, spars, rudders, sails, 
 sail-cloth ^^ cordage, rigging, anchors ^^ and sheet- 
 copper ^^ Articles on the other hand which are 
 susceptible of being used for military and naval pur- 
 poses, but are in a native and unmanufactured state, 
 have been dealt with by the Courts as articles of 
 equivocal use, which may or may not be condemned 
 as Prize of War, according to the character of the 
 port from which they are exported, and of the port 
 to which they are bound. If they are for instance the 
 produce of the country fi:om which they are exported, 
 
 «* The Brutus before the " The Charlotte, 5 Ch. Eob. 
 
 Lords 27 July 1804, cited in p. 277. Sheet-copper was enu- 
 
 Appendis to 5 Ch. Eob. p. 408. merated amongst articles of con- 
 
 TheEichmond, gCh.Eob.p. 325. traband "serving directly to 
 
 85 The Neptunus, 3 Ch. Eob. the equipment of vessels" in 
 
 p. 108. article 10 of the treaty of 1794 
 
 8^ The Stadt Embden, i Ch. between Great Britain and the 
 
 Eob. p. 29. United States. 
 
278 CONTRABAND OP WAR. 
 
 and are the property of its subjects or citizens, and 
 are staple articles of its commerce in time of peace, 
 they have not been condemned as unlawful articles 
 of neutral trade, except when the ship has been 
 bound to a port of military or naval armament. 
 Thus pitch ^^ and tar, hemp ^^ rosin "", ship timber in 
 balk®\ planks, un wrought iron^^, and other articles, 
 have been under such circumstances treated with 
 leniency. So likewise provisions have been held by 
 Sir William Scott to be generally not Contraband, 
 for instance in the case where they were the growth 
 of the country from which they were exported ^^, and 
 not bound to a port of naval equipment; but all 
 articles of human food have been held to be Contra- 
 band, when it was probable that they were intended 
 for naval or military use. Thus corn, flour, meal, rice, 
 sea-biscuits, salt, salt fish, wine, brandy, butter, cheese, 
 have been condemned as Contraband of War, when 
 destined to a port of naval equipment^*, unless it has 
 been established that the articles were from their 
 superior quality not adapted for naval use, but were 
 merely luxuries for the service of domestic tables *^ 
 
 The doctrine of the British Prize Courts on 
 the subject of provisions being conditionally Con- 
 traband of War, was approved by the United States 
 in Congress'"' in 1775, when they declared that all 
 
 *^ The Sarah Christina, i Ch. °* Cheeses were condemned in 
 
 Eob. p. 241. theZelden Rust, 6 Ch.Eob. p. 93. 
 
 '° The Apollo, 4 Ch. Rob. p. TheFrauMargaretha.Ibid. p.92. 
 
 158. Biscuits were condemned in the 
 
 "" Nostra Signora de Begona, Ranger, 6 Ch. Rob. p. 125. Wines 
 
 5 Ch. Rob. p. 98. in the Edward, 4 Ch. Rob. p. 68. 
 
 «i The Twende Brodre, 4 Ch. 9= The Weelvaart, zg August 
 
 Rob. p. 33. 1799, cited in note i Ch. Rob. p. 
 
 °^ The Ringende, Jacob, i Ch, 195. 
 Rob. p. 89, ^^ Journals of Congress, Vol. I. 
 
 '^ The Jonge Margaretha, i Ch. p. 241. Kent's Commentaries of 
 
 Rob. p. 194. The Apollo, 4 Ch. American Law, Vol. I. p. 140. 
 Rob. p. 158. 
 
CONTRABAND OF WAR. 279 
 
 vessels to whomsoever belonging, carrying provisions 
 •or other necessaries to the British army or navy 
 within the Colonies, should be liable, to seizure and 
 confiscation. They have also been adopted to the 
 fullest extent by the Courts ^' of the United States ; 
 and it may well be doubted whether, in the case of 
 the Commercen, those Courts have not gone beyond 
 any precedent furnished by the Prize Coin:ts of 
 Great Britain. In the case of the Commercen, a 
 Swedish vessel was carrying a cargo of provisions 
 the property of English merchants to a Spanish 
 port, there to be delivered to the Commissary of the 
 British army engaged in hostilities against France in 
 Spain. Great Britain was at such time at war with 
 the United States, and also at war with France ; 
 but there was no alliance or common action between 
 France and the United States. Sweden and Spain, 
 on the other hand, .were the allies of Great Britain 
 in the war against France ; but were neutral in the 
 war against the United States. The cargo was con- 
 demned as enemy's property, but the ship was re- 
 leased, and in the District Court of Maine freight 
 was allowed according to the rule of the Consolat 
 del Mar and the ancient practice in cases, where 
 enemy's goods are captured on board a neutral vessel. 
 But Mr. Justice Story, in the Circuit Coui't of the 
 United States ^^, reversed the judgment of the Court 
 below, so far as it allowed freight, and held that 
 although strictly speaking it was not a question of 
 Contraband, for that can arise only when the property 
 belongs to a neutral, and in this case the property 
 belonged to an' enemy, yet that the shipowner, in 
 carrying provisions for public use, and under a public 
 contract, was assisting the military operations of the 
 
 ^ Maisonuaire etal. v. Keating, '' The Commercen, i Gallison, 
 
 I Gallison, p. 325. p. 260. 
 
280 CONTEABAND OF WAR. 
 
 enemy. He pronounced accordingly the voyage to be 
 illicit, and inconsistent with the duties of neutrahty 
 equally as the carrying of the enemy's despatches, or 
 the conveyance of military personages in his employ. 
 The Supreme Court of the United States affirmed this 
 judgment by a majority of four against three Judges, 
 Mr. Justice Story himself forming one of the ma- 
 jority, and Chief Justice Marshall being in the mi- 
 nority. The latter eminent judge was of opinion, 
 that "a remote and consequential effect of an act 
 was not sufficient to give it a hostile character ; its 
 tendency to aid the enemy in the war must be direct 
 and immediate. It is also necessary that it should 
 be injurious to us ; for a mere benefit to another, 
 which is not injurious to us, cannot turn a friend 
 into an enemy ^'." Mr. Justice Livingstone and Mr. 
 Justice Johnson concurred with the Chief Justice, 
 that " Sweden, being the ally of J&jeat Britain in the 
 Peninsular war, her subjects had an indubitable right 
 to transport provisions in aid of their Nation, or its 
 allies. The owner therefore had a right to his 
 freight ; for he did not act inconsistent with our 
 belligerent rights, while in the direct and ordinary 
 exercise of those rights, which a state of war con- 
 ferred on himself." 
 British § 145. The distinction between absolute Contra- 
 
 3^t^'^ band of War and conditional Contraband of War 
 United ^as been fully recognised in the first Treaty of Com- 
 1796. merce concluded between Great Britain and the 
 United States on 4 Nov. 1796 1"". The list of 
 absolute Contraband is worthy of note, as the same 
 list, with a slight variation, has been adopted in the 
 Treaty of Commerce concluded between Great Bri- 
 tain and Brazil on 17 Aug. 1827^"^. 
 
 "" I Wheaton, p. 382. ""> Martens, Recueil, V. p. 674. 
 
 "" Martens, N. E. VII. p. 479. 
 
CONTRABAND OP WAR. 281 
 
 Art. XVIII. In order to regulate what is in future to be 
 deemed Contraband of War, it is agreed, that under the said 
 denomination shall be comprised all arms and implements 
 serving for the purposes of war by land or by sea, such as 
 cannon, muskets, mortars, petards, bombs, grenadoes, car- 
 casses, saueisses, carriages for cannon, musket rests, bando- 
 liers, gunpowder, match, saltpetre, ball, pikes, swords, head- 
 pieces, cuirasses, halberts, lances, javelins, horse furniture, 
 holsters, belts, and generally all other implements of war j as 
 also timber for ship-building, tar or rosin, copper in sheets, 
 sails, hemp and cordage, and generally whatever may serve 
 directly for the equipment of vessels, unwrought iron and fir 
 planks only excepted ; and all the above articles are hereby 
 declared to be just objects of Contraband, whenever they are 
 attempted to be carried to an enemy. 
 
 The variation, which is found in the Treaty of 
 Great Britain with Brazil, consists in the substitution 
 of the words " whatsoever may serve directly to the 
 equipment of vessels of war" in lieu of the words 
 "whatever may serve directly to the equipment of 
 vessels." The concluding portion of the same article 
 of the Treaty between G-reat Britain and the United 
 States recognises provisions and other articles as be- 
 coming Contraband in certain cases according to the 
 existing Law of Nations. " And whereas the difficulty 
 of agreeing on th,e precise cases, in which alone provi- 
 sions and other articles not generally Contraband may 
 be regarded as such, renders it expedient to provide 
 against the inconveniences and misunderstandings 
 which might thence arise, it is further agreed that 
 whenever any such articles so becoming Contraband 
 according to the existing Law of Nations, shall for 
 that reason be seized, the same shall not be confis- 
 cated, but the owners thereof shall be speedily and 
 completely indemnified, and the captors, or in their 
 default the Government under whose authority they 
 act, shall pay to the masters or owners of such vessel 
 the full value of all articles, with a reasonable mer- 
 
282 CONTRABAND OP WAR. 
 
 cantile profit thereon, together with the freight and 
 also the demurrage incident to such detention." 
 Eight of I 146. The Eight of Preemption {droit d' achat) 
 tion!™^" is considered by Sir William Scott to be a belligerent 
 right under the Law of Nations, irrespectively of 
 any Convention to that eflFect. " The right of taking 
 possession of cargoes of this description, commeatus 
 or provisions going to the enemy's ports, is no pe- 
 culiar claim of this country ; it belongs generally to 
 belligerent Nations. The ancient practice of Europe, 
 or at least of several maritime States of Europe, was 
 to confiscate them entirely : a century has not elapsed, 
 since this claim has been asserted by some of them. 
 A more mitigated practice has prevailed in later 
 times of holding such cargoes subject only to a right 
 of Preemption, that is, to a right of purchase upon 
 a reasonable compensation to the individual, whose 
 property is thus diverted. I have never understood 
 that this claim goes beyond the case of cargoes avow- 
 edly bound to the enemy's ports, or suspected on just 
 grounds to have a concealed destination of that kind, 
 or that, on the side of the neutral the same exact 
 compensation is to be expected, which he might have 
 demanded from the enemy in his own port. The 
 enemy may be distressed by famine, or may be driven 
 by his necessities to pay a famine price for the com- 
 modity, if it gets there ; it does not follow that 
 acting on my Eights of War, in intercepting such 
 supplies, I am under the obligation of paying that 
 price of distress. It is a mitigated exercise of war 
 on which my purchase is made, and no rule has es- 
 tabhshed that such a purchase shall be regulated 
 exactly upon the same terms of profit, which would 
 have followed the adventure, if no such exercise of 
 war had intervened: it is a reasonable indemnifica- 
 tion and a fair profit on the commodity that is due, 
 reference being had to the original price actually paid 
 
CONTRABAND OF WAR, 283 
 
 by the exporter and the expense which, he has in- 
 curred. As to what is to be deemed a reasonable , 
 indemnification and profit, I hope and trust that 
 this country will never be found backward in giving 
 a hberal interpretation to these terms. But certainly 
 the capturing Nation does not always take these 
 cargoes on the same terms, on which an enemy would 
 be content to purchase them ; much less are cases 
 of this kind to be considered as cases of costs and 
 damages, in which all loss of possible profit is to be 
 laid upon unjxist captors, for these are not unjust cap- 
 tures, but authorised exercises of the rights of war \" 
 The same learned Judge in dealing with the case of a 
 Swedish ship carrying pitch and tar to a French port, 
 the cargo of which he condemned by reason of there 
 being false cargo-papers on board setting up a pre- 
 tended neutral destination, observed, "In the practice 
 of this Court there is a relaxation which allows the 
 carrying of these articles (pitch and tar), being the 
 produce of the claimant's country ; as it has been 
 deemed a harsh exercise of a belligerent Right to 
 prohibit the carriage of these articles, which con- 
 stitute so considerable a part of its native produce 
 and ordinary commerce. But in the same practice 
 this relaxation is understood with a condition, that it 
 may be brought in, not for Confiscation, but for Pre- 
 emption ; no unfair compromise, as it should seem, 
 between the belligerent's Rights, founded on the ne- 
 cessities of self-defence, and the claims of the neutral 
 to export his native commodities though immediately 
 subservient to the purposes of hostility. To entitle 
 the party to the benefit of this rule, a perfect bona 
 fides on his part is required^." 
 
 The option of a sale to the belligerent had been 
 made a treaty-privilege between Sweden and Great 
 
 1 The Haabet, 2 Ch. Rob. p. ^ The Sarah Christina, i Ch. 
 
 183, 30 August 1800. Rob. p. 241, 6 March 1799. 
 
284 CONTRABAND OF WAR. 
 
 Treaty Britain in certain cases by the Treaty of West- 
 
 of West- ** . 
 
 minster of minstcr, concluded on 17 July 1656^ whicli treaty, 
 ' ^^' after enumerating what goods and merchandise 
 should thereafter be declared contraband and pro- 
 hibited, goes on by the third Article to provide as 
 follows : " But it shall be lawful for either of 
 the Confederates and his people and subjects to 
 trade with the enemies of the other, tod to carry 
 to them any goods whatever, which are not ex- 
 cepted as above, without any impediment ; pro- 
 vided they are not carried to those ports or places 
 which are besieged by the other, in which case they 
 shall have leave either to sell their goods to the 
 besiegers, or to repair with them to any other port 
 Treaty of which is Hot besieged." In the subsequent Treaty 
 wwtehaii of Whitehall* 21 October 1 661, in which a more ex- 
 tensive hst of Contraband articles was set forth, the 
 language of the treaty-privilege was slightly varied, 
 it being provided that " it shall be lawful for either 
 Confederate, his people, and subjects, to have com- 
 merce with the enemies of the other, and to carry to 
 them all kinds of merchandise, not before excepted, 
 without any let or hinderance, unless it be to such 
 ports and places as are besieged by the other, and 
 in such case it shall be lawful for them to sell their 
 commodities to the besiegers, or otherwise to betake 
 themselves to any other port which is not besieged/' 
 But as it had been specified in the earlier part of 
 the same article of that Treaty^ that neither of the 
 
 ^ Hertslet, II. p. 317. It ap- * Hertslet, Vol. II. p. 324. 
 pears from Whitelocke's Memo- Dumont, Traitds, Tom. VI. Part 
 rials, p. 645, that the Latin Ar- II. p. 384. 
 tides of this Treaty were drawn ^ Art. XI. Although in the 
 up by John Milton, as the Swed- preceding Articles of the present 
 ish Ambassador complained of Treaty it be forbidden to either 
 the delay in translating them, Confederate to yield any aid or 
 and of their having been sent to assistance to the enemies of the 
 one Mr. Milton, a blind man, to other, yet it is not to be so under- 
 put them into Latin. stood, as if either Confederate, 
 
CONTEABAND OP WAR. 
 
 285 
 
 Confederates should suffer any of his subjects to 
 give aid, sell or lend ships, or be in any way useful 
 to the enemy or rebels of the other, to his prejudice 
 or detriment, the British Grovernment contended that 
 the prohibition to give aid, sell or lend ships, or be in 
 any way useful to the enemy, carried with it by 
 implication a prohibition to supply the enemy with 
 the necessaries for building ships, and consequently 
 that pitch and tar were virtually made Contraband 
 of War under this treaty I" The English Court of 
 
 without any let or hinderance,. 
 unless it be into such ports and 
 places as are besieged by the 
 other, and in such case it shall 
 be lawful for them to sell their 
 commodities to the besiegers, or 
 otherwise to betake themselves 
 to any other port, which is not 
 besieged." Hertslet, II. p. 329. 
 
 ^ The doctrine of Contraband 
 by implication was upheld by 
 Sir Robert Wiseman, the King's 
 Advocate General, in certain po- 
 sitions of International Law which 
 he drew up on 23 May 1672, and 
 in which he says, " Setting aside 
 what are by treaties agreed to be 
 Contraband, which must be so 
 esteemed, whatsoever they be, 
 and no other, I also agree that 
 iron, pitch, tar, hemp, clypebard, 
 plancks,exceptingwainscott,corn, 
 wine, oyle, salt, will be accounted 
 Contraband, under which all such 
 things which are of a general use 
 of furnishing the war and those 
 that are in arms are properly 
 comprehended." The positions 
 of Sir R. Wiseman, fifteen in 
 number, are set forth at length 
 in Dr. JPratt's work on Contra- 
 band of War, p. 255. The author 
 has a copy of them in his posses- 
 sion in a MS. book of Sir Na- 
 thaniel Lloyd, Queen's Advocate- 
 General in 1710. 
 
 having no war with the enemies 
 of the other, might not sail to 
 or traffic with the said enemies, 
 notwithstanding that the other 
 Confederate be in actual war with 
 them. But it is only provided 
 that " no goods, called goods of 
 Contraband, and particularly that 
 nomoney,provision,weapons,fire- 
 arms with their appurtenances, 
 fire-balls, gunpowder, match, bul- 
 lets, spear-heads, swords, lances, 
 pikes, halberts, ordnance, mortar- 
 pieces, petards, grenadoes, rests, 
 bandeliers, saltpetre, pistols, small 
 shot, pots, head-pieces, backs and 
 breasts, or such kinds of armour; 
 soldiers, horses, all furniture ne- 
 cessary for horses, holsters, belts, 
 and whatsoever warlike instru- 
 ments J and also that no ships of 
 war or convoys be furnished to 
 the enemy, without peril, in case 
 they be taken, of being adjudged 
 lawful prize without hope of re- 
 stitution. And neither of the 
 Confederates shall suffer any of 
 his subjects to give aid, sell or 
 lend ships, or be any way useful 
 to the enemies or rebels of the 
 other to his prejudice or detri- 
 ment ; but it shall be lawful for 
 either Confederate, his people and 
 subjects, to have commerce with 
 the enemies of the other, and to 
 carry to them all kind of mer- 
 chandise not before excepted, 
 
286 CONTEABAND OF WAR. 
 
 Admiralty, in adjudicating upon sucli commodities 
 laden in Swedish, bottoms, captured on their way 
 to an enemy's port, considered them to be entitled 
 to the benefit of the more favourable rule, and held 
 them, if taken when avowedly going to the enemy, 
 to be brought in for Preemption, not for Confisca- 
 tion : nevertheless it was thought advisable by the 
 Swedish and British Governments, after the second 
 Armed Neutrality, to make this more favourable rule 
 a matter of treaty-engagement between the two 
 Powers ; and accordingly a Convention was concluded 
 at London on 25 July 1803 between Great Britain 
 and Sweden, with a view, as averred in the pre- 
 amble, to prevent the recurrence of the differences 
 which had previously arisen in relation to the nth 
 Article of the Treaty of Whitehall (21 Oct. 1661). 
 By the second Article of this Convention it was 
 provided as follows : — 
 
 Les croiseurs de la Puissance belligerante exereeront le 
 droit de detenir les batimens de la Puissance neutre, allants 
 aux ports de I'ennemi avec des chargemens de provisions et 
 de poix, resine, goudron, chanvre, et generalement tons les 
 articles non manufactures, servant a I'equipement des bati- 
 mens de toutes dimensions, et egalement tous les articles 
 manufactures servant k I'equipement des batimens marchands 
 (le hareng, fer en barres, acier, cuivre rouge, laiton, fil de 
 laiton, plancbes et madriers, bors ceux de cbene et esparres, 
 pourtant exceptes) ; et si les ebargemens, ainsi exportes par 
 les bitimens de la Puissance neutre, sont du produit du 
 territoire de cette Puissance, et allant pour compte de ses 
 sujets, la Puissance belligerante exercera dans ce cas le droit 
 d'acbat sous la condition de payer un benefice de dix pour 
 cent sur le prix de la facture du cbargement fidelement 
 declare, ou du vrai taux du marcbe, soit en Suede, soit en 
 Angleterre, au cboix du proprietaire, et en outre une in- 
 demnite pour la detention et les depenses necessaires''. 
 
 ' Martens, Edoueil, VIII. p. in the case of the Zacheraan, 
 92. This Treaty received a judi- i May 1804. 5 Ch. Eobinson, p. 
 cialexpositionfromLord Stowell, 152. 
 
CONTRABAND OF WAR. 287 
 
 This Convention appears not to have been renewed Treaty of 
 by the Treaty of Orebro in i8i2^ as that treaty re- 1812. 
 estabhshed relations of amity and commerce between 
 the two Crowns, upon the footing on which they 
 existed on i Januaiy 1791, and all treaties and con- 
 ventions existing at that time. The more rigorous 
 system, which was founded on the Treaty of 1661, 
 would therefore seem to be revived between the 
 two Nations. 
 
 f 147. It appears that pitch and tar and hemp 
 have been at times omitted from the catalogue of 
 Contraband of War in treaties of commerce, where the 
 restriction upon neutral trade resulting from such 
 commodities being regarded as Contraband would 
 not have been attended with mutual inconvenience to 
 both of the belligerent parties. Thus in the diplo- 
 matic discussions preliminary to the treaty of 1661* 
 the Swedish Ambassador contended in the first place 
 "that in Finland pitch and tar were the chief com- 
 modities, which if they did not vend them yearly, 
 having great quantities of them, the country could 
 not subsist, nor would the commodity last above 
 one year in their vessels, but by reason of the great 
 strength of it, being kept longer, it would break the 
 hoops of the vessels and be lost ; and if the least 
 restraint should be put upon the vending of it to 
 any place, the inhabitants of Finland would think 
 themselves undone, and it would be a great prejudice 
 to their trade." He urged in the second place, that 
 "it had been taken for granted, when the treaty of Treaty of 
 Upsal (9 May 1654)^° was concluded, that these ig^^^V 
 commodities should not be taken for contraband." 
 Mr. Whitelock, the negotiator of the treaty of Upsal, 
 in reply admitted that when he was in Sweden, 
 
 ^ Martens, E^oueil, IX. p. 431. 1656. 
 
 " Whitelock's Memorials, May " Hertslet, I. p. 310. 
 
288 CONTRABAND OF WAR. 
 
 England being at that time at war with the Dutch, 
 his judgment was not to insist on having pitch, &c. 
 to be Contraband goods, but rather that they should 
 not be esteemed so : " and my reason," he said, " was 
 because the Dutch could have them notwdthstanding 
 by small vessels, which should take them in at Ham- 
 burg, or have them brought from Lubeck most part 
 of the way by water to Hamburg, and from Ham- 
 burg in those vessels they could bring them down 
 the Elbe, and from thence by the Flats, which are 
 shoal waters fuU of sand on the coast of Bremen, 
 and so along to Holland, without going at aU into 
 the open sea, or coming within the danger of our 
 ships, which could not come among those Flats, nor 
 hinder the Dutch from having of those commodities. 
 Equity But on the other side they could not be brought to 
 ditionX England but through the wide sea, where they were 
 band™ subject to the danger of being intercepted by our 
 enemies ; and if I should have agreed to have them 
 Contraband goods, I conceived the same would have 
 hindered England being supplied, and not have 
 hindered our enemies having of them. But now, 
 I said, our war with Spain had made a gTeat differ- 
 ence as to that matter, because they could not have 
 them but through the wide sea, where they must be 
 brought by us, and we shall watch the conveyance 
 of them." 
 
 § 148. In the absence of treaty engagements, under 
 
 which ships have been enumerated amongst articles 
 
 prohibited to be transported to the enemy's country", 
 
 a question has sometimes arisen with respect to ships 
 
 which are going for sale to an enemy's port, the con- 
 
 Shipa struction of which ships is such, that there can be no 
 
 cumstiinces doubt that they would be easily convertible to belli- 
 
 band™f gereut uses. Where the neutral owner knew that 
 
 War 
 
 ^^ Treaty ofWestminster of 1654, supr. Ti-eaty of Whitehall of 160 1. 
 
CONTRABAND OF WAR. 289 
 
 his vessel was peculiarly adapted to the purposes of 
 war, and was avowedly going with it to the enemy's 
 country with the intention and expectation of selling 
 it to the enemy to be employed as a vessel of war, 
 Lord Stowell had no hesitation in condemning the 
 vessel as Contraband of War^l The same view had 
 been adopted by the Lords of Appeal on 27 July 
 1804 in the case of the Brutus, which had been 
 recently built at Salisbury, in the State of Massa- 
 chusetts, pierced for fourteen guns, but with only 
 two mounted to defend her, as alleged, against 
 French privateers. She had been sent on her first 
 voyage to the Havannah with instructions to her 
 master to sell her ; and having been captured on her 
 voyage was condemned in the Yice-Admiralty Court 
 of Halifax as Contraband of War^^. The Lords on 
 this occasion expressed their reason for condemning 
 the vessel as Contraband] of War, on the ground that 
 she was built, as the report of the Surveyors clearly 
 estabhshed, for purposes of war, not for peace, and 
 was going to be sold to the enemy. On the other 
 hand, where the character of a vessel has been 
 equivocal, and it has been actually engaged in trade, 
 and the occasion for selling it has arisen out of the 
 circumstances attending its employment in trade, 
 the Lords have decreed restitution^*. The hona 
 fides of the merchant has even been allowed to ex- 
 empt from confiscation, a vessel which had been 
 employed for the purposes of war, but was with- 
 drawn from such uses. Thus in the Kaven, Jennings, 
 the vessel had been a French privateer, and had been 
 condemned as such in New York ; but it appeared 
 that the purchaser had bought her for the purposes 
 
 '^^ The Richmoiid, 5 Ch. Eob. 1* Fanny, Ingraham, 24 March 
 
 p. 331, 7 Dec. 1804. 1804. Neptune, Gibbs, 18 July 
 
 1' The Brutus, 5 Ch. Rob. Ap- 1804 
 pendix, p. i. 
 
 PART II. U 
 
290 CONTEABAKD OP WAR. 
 
 of trade, and having used his best endeavours to 
 make her fit for that service, had found her unsuit- 
 able, and was on that account intending to sell her 
 again, the Lords reversed the judgment of the Vice- 
 Admiralty Court of the Bahamas and decreed resti- 
 tution. It wiU appear to be the result of the various 
 judgments of the highest British Court of Prize, that 
 though the principle of considering the transport of 
 ships of war to the enemy as contraband is strictly 
 upheld by it, the application of the principle has 
 been restricted to cases in which no doubt existed as 
 to the character of the vessels, or as to the purposes 
 for which they were intended to be sold. 
 The trans- ^ 149. By the Anciout Law of Europe, the carrying 
 ?he s^e of of Contraband of War to an enemy's port worked a 
 disetcrthe forfeiture of the ship ; nor can it be said, as Lord 
 enemy StowoU has justly obsorved^^, that such a penalty 
 under the is uujust or not Supported by the general analogies 
 Nations, oi law, for the owner of the ship has engaged 
 it in an unlawful commerce. In the Proclamation" 
 issued by King Charles I in 1626, to warn neutrals 
 not to furnish the King of Spain and his subjects 
 with provision for shipping or mimition for the wars, 
 or with victuals, it is declared, that " if any person 
 whatsoever after three months from the publication 
 of these presents shall, by any of his Majesty's own 
 ships, or the ships of any of his subjects authorised 
 to that effect, be taken sailing towards the places 
 aforesaid, having on board any of the things afore- 
 said, or returning thence in the same voyage, having 
 vented or disposed of the said prohibited goods, his 
 Majesty wiU hold both the ships and goods so taken 
 to be lawful prize, and cause them to be ordered as 
 
 ^ The Ringende, Jacob, i Ch. p. 856. Eobinson's Collectanea 
 Rob. p. 91. Maritima, p. 66. 
 
 " Rymer,Fcedera,Tom.XVIII. 
 
CONTRABAND OF WAR. 291 
 
 duly forfeited; whereby his Majesty doth put in 
 practice no innovation, since the same course has 
 been held, and the same penalties have been hereto- 
 fore inflicted by other States and Princes upon the 
 like occasions, and avowed and maintained by public 
 writings and apologies." This rule appears to have 
 been modified in respect of the return voyage as early 
 as the year 1672, since we find it laid down amongst 
 the positions" of Sir Eobert Wiseman, King's Ad- 
 vocate, that " nothing is forfeited but what is taken 
 going to the enemy ; for after the contraband goods 
 are delivered, neither the ship nor the proceeds of 
 the contra,band goods, upon their return, will be 
 Hable upon that account to confiscation, much less 
 will any other lading in the ship be confiscated." 
 On the other hand the same eminent civilian lays it 
 down that " by the Law of Nations a ship carrying 
 contraband goods forfeits itself only and the said 
 goods contraband, but not any other goods besides, 
 that are not contraban d ." It seems however that under 
 the modern practice of the British Prize Courts, as 
 stated by Lord Stowell, a milder rule has been 
 adopted, and the carrying of contraband articles is 
 attended only with loss of freight and expenses, 
 except where the ship belongs to the owner of the 
 contraband cargo, or where the simple misconduct of 
 carrying a contraband cargo has been connected with 
 other malignant circumstances^^. The milder rule 
 dates firom the early part of the eighteenth century, as 
 
 " Pratt onContraband of War, operantur rei illicitse." Qusest. 
 
 p. 255. Juris Publici, L. I. c. i. Gro- 
 
 '* Bynkershoek strongly vindi- tius and Loccenius distinguish 
 
 oates the strictness of the ancient the case, in which the owner of 
 
 law: "Publicabamquoque naves '.the ship is privy to the contra- 
 
 amicas, si scientibus dominis con- band cargo, and in such case hold 
 
 trabanda ad hostes deferrent ; et that the ship is forfeited ; but 
 
 . nisi pacta impediant,omnino pub- where the contraband nature of 
 
 licandsB sunt, quia earum domini the cargo is unknown to the 
 
 U 2 
 
292 - CONTRABAND OF WAR. 
 
 we find an exception introduced into the twenty-sixth 
 article of the Treaty concluded- between France and 
 Great Britain at Utrecht in 17 13, in favour of the 
 ship itself as well as of the other goods found therein, 
 which were to be esteemed free and not confiscated as 
 lawful prize, notwithstanding that part of the cargo 
 should consist of goods declared by that treaty to 
 be contraband, and accordingly liable to be confis- 
 cated. In order however to exempt the ship from 
 confiscation, the most perfect good faith must be 
 shown upon the part of the owner of the ship and 
 the master as his agent, for false papers setting up 
 a pretended neutral destination will work a forfeiture 
 of the ship", as well as of the cargo. So if the trade 
 be in breach of any specific Treaty-engagements, as 
 for instance when a Danish ship was carrying tar to 
 an enemy's port, contrary to the Treaty-engagement's 
 between Great Britain and Denmark^". So if an 
 attempt is made by the master to conceal any con- 
 traband cargo on board by fictitious biUs of lading, 
 the ship will be condemned with such portions of 
 the cargo ^^ Contraband articles wUl also affect 
 innocent parts of the cargo when they both belong 
 to the same owners ^^, and contraband articles, ap- 
 pearing by the ship's papers to belong to a part- 
 owner of the ship, have been held to affect his share 
 of the vesseP^ According to the practice of the 
 French Prize Courts, if the contraband portion of 
 the cargo compose three quarters of the entire cargo, 
 
 owner of the ship, the forfeiture ^ The Neutralitet, 3 Oh. Eob. 
 
 of the ship should not follow the p. 296. 
 
 condemnation of the cargo. ^' The Richmond, 5 Ch. Eob. 
 
 >' The Sarah Christina, i Ch. p. 325. 
 
 Eob. p. 238. The Franklin, 3 ^2 rpjjg g^^^^^. Embden, i Ch. 
 
 Ch. Eob. p. 221. The Edward, Eob. p. 27. 
 
 4 Oh. Eob. p. 68. The Ranger, '^ The Jonge Thomas, i Ch. 
 
 6 Ch. Rob. p. 126. Eob. p. 329. 
 
CONTRABAND OF WAR. 293 
 
 the ship will be confiscated, together with the entire 
 cargo ^. The carrying of a contraband cargo is held 
 under all circumstances by English Prize Courts to 
 'work a forfeiture of the freight ^^ This is a rule 
 recognised by Bynkershoek^^, • and the Courts of 
 the United States of America^^ have adopted it. 
 By the ancient law, as already observed, the ship, 
 which had succeeded in carrying a contraband cargo 
 to the enemy, was liable to be seized and confiscated 
 on its return voyage. The severity of this, law is 
 stm maintained in the case where the vessel has 
 succeeded in carrying its contraband cargo to its 
 destination by means of false papers, and the return 
 cargo has been condemned together with the vessel, 
 even in cases where the cargo has not been purchased 
 with the proceeds of the contraband articles ^^ 
 
 § 1 50. A somewhat singular innovation upon the Treaty-en- 
 practice, which has prevailed amongst the Nations fefwee™ ' 
 of Europe in regard to Contraband of War, has been ^^^^* 
 introduced into the Treaty- engagements between the United 
 United States of America and Prussia. The earliest America. 
 Treaty-engagements between these two Powers on 
 this subject occur in a Treaty of Amity and Com- 
 merce signed at the Hague on 10 Sept. 1785, and 
 those engagements were renewed in a more complete 
 manner in a subsequent Treaty signed on 1 1 July 
 
 ^* Ebglement de 26 Juillet et la cargaison seront confisquds 
 
 1778, k regard des Na vires des en entier. Traits des Prises 
 
 Etatsneutres,quiseraientcharg^s Maritimes, par A. de Pistoye et 
 
 de marchandises de contrebande Ch. Duverdy, Tom. I. p. 392. 
 
 destinies S, Tennemi, ils pourront ^* The Mercurius, i Ch. Rob. 
 
 ^tre arrSt^s, et les dites marchan- p. 288. 
 
 disesserontsaisiesetconfisqu^es; '"' Qusestiones Juris Publici, 
 
 mais les bdtiments et le surplus L. I. c. 10. 
 
 de la cargaison seront reldches, ^ The Commercen, i Wheaton, 
 
 a moins que les dites marchan- p. 382. 
 
 disesdecontrebandenecomposent ^' The Nancy, 3 Oh. Rob. p. 
 
 les trois quarts de la valeur du 122. The Margaret, i Acton, p. 
 
 chargement; auquelcaslesnavires 336. 
 
294 CONTRABAND OF WAE. 
 
 1799. By Article XIII of the latter Treaty it is 
 provided as follows : "And in the same case of one of 
 the contracting parties being engaged in war with 
 any other power, to prevent all difficulties and mis- 
 understandings that usually arise respecting mer- 
 chandise of contraband, such as arms, ammunition, 
 and military stores of every kind, no such articles 
 carried in the vessels or by the subjects or citizens 
 of either party to the enemies of the other shall be 
 deemed' contraband, so as to induce confiscation or 
 condemnation, and a loss of property to individuals. 
 Nevertheless it shall be lawful to stop such vessels 
 and articles, and to detain them for such length of 
 time as the captors may think necessary to prevent 
 the inconvenience or damage that might ensue fi:om 
 their proceeding, paying however a reasonable com- 
 pensation for the loss such arrest shall occasion to 
 the proprietors ; and it shall further be allowed to 
 use in the service of the captors the whole or any 
 part of the military stores so detained, paying the 
 owners the full value of the same, to be ascertained 
 by the current price at the place of its destination. 
 But in a case supposed of a vessel stopped for articles 
 of contraband, if the master of the vessel stopped will 
 deHver out the goods supposed to be of contraband 
 nature, he shall be admitted to do it, and the vessel 
 shall not in that case be carried into any port nor 
 further detained, and shall be allowed to proceed 
 on her voyage. AU cannons, mortars, fire-arms, 
 pistols, bombs, grenades, bullets, balls, muskets, flints, 
 matches, powder, saltpetre, sulphur, cuirasses, pikes, 
 swords, belts, cartouch-boxes, saddles and bridles, 
 beyond the quantity necessary for the use of the ship, 
 or beyond that which every man serving on board 
 the vessel or passenger ought to have ; and in general 
 whatever is comprised under the denomination of 
 
CONTRABAND OF WAR. 295 
 
 arms and military stores of what description soever, 
 shall be deemed objects of Contraband." The pro- 
 visions of this article have been renewed by the 
 twelfth article of the Treaty of Commerce concluded 
 between Prussia and the United States of America 
 on I May 1828'^ 
 
 I 151. As the exercise of Belligerent Eight can have Beiiige- 
 no place within the territory of a Neutral State, a nottn^^ 
 belligerent cannot interfere jure belli with any branch ^^^^7"^^^ 
 of trade, which is carried on within the jurisdiction within the 
 of a Neutral State. Trade only becomes Contraband if ™Neu-°" 
 of War, when the merchandise is transported beyond ''^^ ^*^*^" 
 the jurisdiction of a Neutral State, and is on its way 
 to an enemy's ports, or to an enemy's ships upon the 
 High Seas^°. A Neutral Nation is not bound to'pro- 
 hibit its subjects from trading in any article what- 
 soever with merchants who frequent its ports, and 
 who may be the subjects of belligerent Powers, for 
 the sovereignty of a neutral Nation within its own 
 territory is as absolute in regard to Nations which 
 are at war with one another, as in regard to Na- 
 tions which maintain relations of peace with one 
 another. The duty of a neutral Nation, as such, 
 towards belligerent Nations, is comprised in one 
 word, impartiality. It is not the duty of a neutral 
 Nation, as such, to undertake to prevent merchants, 
 who frequent its ports, from carrying out of its juris- 
 diction the articles which they may have purchased, 
 
 ^^ Martens, N. E. VII. p. 619. Maritima, p. 59.) The majority 
 
 Preussena Staatsvertrage, p. 852. of the Judges of the Supreme 
 
 '" The proclamation of King Court of the United States in 
 
 Charles I (anno 1625) is directed the case of the Commercen, 
 
 against any ships that shall sail Wheaton, I. p. 382, were dis- 
 
 with intention to pass to any of posed to apply the principle 
 
 the King of Spain's countries or of Contraband to merchandise, 
 
 dominions, or to any of the which was being carried to an 
 
 King of Spain's ships, being on enemy's army in a neutral coun- 
 
 the sea. (Robinson's Collectanea try. 
 
296 CONTEABAND OF WAR. 
 
 on the ground that those articles may be destined to 
 the uses of a belligerent Power; it is the business 
 of every belligerent Power to enforce its Rights of 
 War, if it sees fit, on the High Seas, or within the 
 enemy's territory, A neutral Nation may indeed 
 bind itself by Treaty-engagements with a belligerent 
 Nation not to allow any merchants to purchase within 
 its jurisdiction certain articles, if they are to be 
 carried to the ports of the adverse belligerent ; but 
 the observance of such Treaty-engagements wiU be 
 inconsistent with neutrality, unless the neutral Na- 
 tion should apply the same prohibition equally to all 
 merchants intending to carry such articles to the 
 ports of either belligerent. It is not however the 
 practice of Nations to undertake to prohibit by then- 
 territorial laws merchants from purchasing in their 
 ports those articles, which a belligerent Power may 
 confiscate to its own uses jure helli, if it finds them 
 on the High Seas, in the course of transport to the 
 ports of his enemy, much less is it the practice of 
 neutral Nations to confiscate such articles after 
 purchase, whilst they are within its jurisdiction. A 
 Belligerent alone has any right jure helli to take 
 possession of that, which is the property of another 
 person. 
 
 Mr. Webster, in a letter to Mr. Thompson, of 
 July 8, 1842^^, has well observed, in his character 
 of Secretary of Foreign Affairs to the President of 
 the United States of Americaj that "the trade in 
 articles contraband of war is carried on at the 
 risk of those engaged in it, under the liabilities 
 and penalties prescribed by the law of Nations or 
 particular Treaties. If it be true, therefore, that 
 citizens of the United States have been engaged in 
 
 " Webster's Works, VI. p. of Wheaton's Elements, Part iv. 
 452, cited in the sixth edition 0. 3. § 26. p. 571. 
 
CONTRABAND OP WAR. 297 
 
 a commerce by which Texas, an enemy of Mexico, 
 has been supplied with arms and munitions of war, 
 the Government of tlae United States, nevertheless, 
 was not bound to prevent it, could not have pre- 
 vented it without a manifest departure from the 
 principles of neutrality, and is in no wise answerable 
 for the consequences." 
 
 To the same effect Kltiber has observed ^^, "The 
 practice of Nations received in Europe at the present 
 day permits a commerce in time of war between 
 neutrals and belligerents. It has only subjected it 
 to certain restrictions with regard to the immediate 
 necessities of war, and in respect of places under 
 blockade. It does not forbid neutrals to sell to the 
 Subjects of a belligerent Power articles which serve 
 immediately to the uses of war, when the belli- 
 gerents purchase the articles in the neutral country, 
 and export them themselves. If, on the contrary, a 
 neutrah state or its subjects transport such articles 
 to one of the belligerents, it is a violation of neutra- 
 lity, and the merchandise is then styled ' Contraband 
 of War.'" 
 
 A modern French naval writer, M. Ortolan ^^, has 
 to a similar purpose laid great stress upon the terms 
 ' Commerce de transport,' as being that alone which 
 is contraband or illicit. " A neutral state," he writes, 
 "which permits its subjects to carry on a passive 
 trade in such objects, that is, which allows the sub- 
 jects of either belligerent indiscriminately to come 
 and purchase articles in its markets, to be transported 
 at their own cost and risk and in their own ships, 
 does not violate its neutrality, nor can it be said to 
 take part in the war because it allows free access 
 to its ports, and maintains for all Nations the same 
 
 '2 Droit des Gens, § 288. Tom. II. L. III. c. 6. p. 158. 
 
 '^ Diplomatie de la Mer, Vattel, L. III. c. 7. § iii. 
 
298 CONTKABAND OF WAE. 
 
 rights, which they had before war broke out, of 
 coming to supply themselves in the way of com- 
 merce with the merchandise, of which they may 
 have need ; the neutral Nation cannot be responsible 
 for the ultimate uses to which such articles may be 
 applied, nor is it bound to know for whom they are 
 bought, or what destination is reserved for them.'' 
 
 To a similar purport Chancellor Kent^* has re- 
 marked, that " it was contended on the part of the 
 French Nation, in 1796^^ that neutral governments 
 were bound to restrain their subjects from selling 
 or exporting articles Contraband of War to the bel- 
 ligerent Powers. But it was successfully shown by 
 the United States, that neutrals may lawfully sell 
 at home to a belligerent purchaser, or carry them- 
 selves to the belligerent powers contraband articles, 
 subject to the right of seizure in transitu. This 
 right has since been explicitly declared by the judicial 
 authorities of this country^^. 
 
 ^* Kent's Commentaries, Tom. can charge it upon the Govem- 
 
 I. p. 142. Santissima Trinidad, ment of the Neutral Nation as a 
 
 7 Wheaton, p. 783. Richardson departure from Neutrality, and 
 
 V. Marine Insur. Compan y 6 that it is not considered as a 
 
 Mass. Eep. 113. duty imposed upon a Nation by 
 
 ^^ Mr. Adet's Letter to Mr. a state of Neutrality to prevent 
 
 Pickering, 11 March 1796. its seamen from employing them- 
 
 ^ The judgments of the selves in contraband trade ; nor 
 Supreme Court of the United are there to be shown any in- 
 states had been anticipated by stances where a Neutral Nation 
 the opinion delivered by the has exercised, or attempted to 
 Attorney- General of the United exercise, its authority in restrain- 
 States on 20 Januaiy 1796, that ing practices or employments of 
 " if the individual citizens of the this kind." Opinions of the 
 United States carry on a contra- Attorney-General of the United 
 band commerce with either of States, Vol. I. ed. 1852. p. 6z. 
 the belligerent Powers, neither 
 
CHAPTER VIII. 
 
 ENEMY CHAEACTEK. 
 
 . Domicil the criterion of National Character for purposes of war 
 — Permanent Residence constitutes Domicil — An acquired Domicil 
 may be abandoned at the outset of war — The character of property 
 is not always identical with the character of its owner — The enemy 
 character may be engrafted sub modo on the neutral character — 
 Distinction between enemies de facto and enemies de jure — Employ- 
 ment of neutral property in the service of a Belligerent State — The 
 mercantile character is not affected by the consular character — The 
 character of the produce of landed estates depends upon the cha- 
 racter of the country, and not of the owners^Santa Cruz — City 
 of Hamburg — Island of Corfu — Treaties of Cession — Louisiana — • 
 Treaty of Tilsit — The Seven Islands — The character of property 
 cannot be changed in transitu on the High Seas — Exceptions in 
 transactions of good faith, originating in time of peace — Enemy 
 character may attach to places in the occupation of an enemy — 
 Places in the occupation of an ally may be divested of the enemy 
 character. 
 
 f 152. When a Sovereign Power is at war with D"m'oii 
 another Sovereign Power, all the subjects de facto of rion of 
 the one Power are enemies de jure of the other Power, chMaot'Ir 
 and the juridical obligations of amitv, which exist ^'"' p"'^ 
 
 " , , '~^, *^ , poses 01 
 
 between them as individuals, are suspended during war. 
 the continuance of war. It does not however follow, 
 according to the modern practice of Nations, that all 
 the natural born subjects of a belligerent Power are 
 enemies de facto of the other Power. It was the 
 
300 ENEMY CHARACTER. 
 
 ancient practice in formal Declarations of War for 
 the Sovereign Power, which declared War, to require 
 all its subjects to treat as enemies aU the subjects 
 of the Enemy-Power, in other words to require all 
 persons who owed allegiance to it to treat, as enemies, 
 all persons who owed allegiance to the Enemy-Power. 
 But when the principle of Territorial Sovereignty 
 came to be recognised by the Nations of Europe, as 
 the basis for regulating their mutual relations as 
 Nations, the character of an individual for inter- 
 national purposes came to be regarded from a ter- 
 ritorial point of view, and personQ,l allegiance ceased 
 to be an absolute criterion of Enemy-Character. 
 Under the feudal system individual men were bound, 
 in virtue of their personal relations towards their 
 Lord, to treat, as enemies, all who were enemies of 
 their Lord. Under the theory however of Territorial 
 Sovereignty the character of enemy-subjects is held 
 to attach to the occupants of an enemy's territory, 
 for all the occupants of the territory of a beUigerent 
 Sovereign are regarded as his subjects de facto, and 
 are consequently enemies dejure of the other belli- 
 gerent. Under this system of PubHc Law Domicil 
 has become the criterion of National Character for 
 purposes of war ; and accordingly all natural born 
 subjects of a belligerent Power, who may have aban- 
 doned their native country and acquired a domicil in 
 a neutral country before hostilities have commenced, 
 wUl have effectually clothed themselves with the 
 character of neutral subjects, precisely as every 
 natural born subject of a neutral Power will have 
 clothed himself with the character of an Enemy- 
 subject by long continued residence, coupled with 
 the intention of remaining, in the Enemy's territory. 
 So strongly is the principle of Territorial Domicil 
 interwoven with the administration of the Law r>^ 
 
ENEMY CHARACTER. 301 
 
 Prize, that even as between a Sovereign Power and 
 his natural born Subject the neutral Domicil of the 
 latter may be set up in time of war as counter- 
 balancing the principle of Natural Allegiance. Thus 
 the Lords of Appeal held that a British born subject, 
 resident in the English factory at Lisbon, so far pos- 
 sessed a Portuguese character, that his trade with 
 Holland (then at war with England, but not with 
 Portugal) was not impeachable as illegal trade ^. On 
 the same principle Lord Stowell held that a Natural 
 born British Subject domiciled in the United States, 
 who had estranged himself from his British character 
 as far as his own voHtion and act could do, was not 
 entitled to be regarded as a British subject, so as to 
 come within the benefit of an order in Council di- 
 recting the restitution of all vessels under the flag 
 of the United States of America,, which were bond 
 fde and whoUy the property of British subjects^. 
 So likewise a person who was a natural born British 
 subject, but had become a naturalised French subject, 
 and whose property had been confiscated by the 
 French Government, was held not to be within the 
 provisions of a Treaty concluded between France and 
 Great Britain, whereby compensation was given to 
 British subjects ^. On the other hand a foreigner, who 
 was actually domiciled in Great Britain at the period 
 of the confiscation of his property by the French 
 Government, was held to be entitled to claim com- 
 pensation for his losses under a Treaty providing 
 such compensation for British subjects*. 
 
 153. An essential difference exists between national 
 
 ' The Danous, 17 March in a note to Drummond's case, 
 
 1802, in a note to the Nayade, 2 Knapp, p. 301. 
 
 4 Ch. Eob. p. 256. * Andre's case, in a note to 
 
 ^ The Ann, i Dodson, p. 221. the Countess of Conway's case, 
 
 ' Sir William G-rant's obser- 2 Knapp, p. 365. 
 vation in the case of Devereux 
 
302 ENEMY CHARACTER. 
 
 character for m-unicipal purposes, and national 
 Permanent character for international purposes. Every inde- 
 constitutes pendent State is competent to decide absolutely 
 Domioii. ^pQj^ what conditions individuals shall enjoy the 
 benefits of membership with it ; and it may accord 
 to persons born in foreign countries with more or 
 fewer restrictions the same benefits which it accords 
 to Natives, without reference to the consent of any 
 other State. Accordingly the Eight of Naturalising 
 a natural born subject of another State is claimed 
 and exercised by every independent Power without 
 any regard to the municipal law of the particular 
 State, within the territory of which the individual 
 may have been born ; but such Naturalisation does 
 not necessarily determine the National Character of 
 the individual for international purposes. It does 
 not in the first place release the individual from his 
 obligations of Natural Allegiance to the country of 
 his Origin, for he can only be released from those 
 obhgations with the consent of the Sovereign to 
 whom his allegiance is due ; in other words the 
 Naturalisation of an individual by a foreign State 
 may operate to give to the party naturalised all 
 the privileges of a natural born subject within the 
 territory of the State itself, but it will be inoperative 
 to dissolve his previous relations with the country 
 of his Origin. Those relations indeed may be dis- 
 solved in such a case ipso facto under the provisions 
 of the Municipal Law of the country of his Origin ; 
 but again the dissolution of those relations under 
 that Law does not necessarily take effect beyond 
 the territory, within which that Law is supreme. 
 For instance, a third Nation might decree that the 
 nationality of all foreigners coming within its juris- 
 diction shall be determined by their Origin, and by 
 no other criterion whatsoever. Under such circum- 
 
ENEMY CHARACTER. J803 
 
 stances a person who is by Origin an Austrian subject, 
 and has been naturalised in France, and thereupon 
 by the Law of France has acquired in France all the 
 rights of a natural born subject of France, whilst by 
 the Law of Austria he has lost in Austria all the 
 rights of a natural born subject of Austria, might be 
 adjudged by the Tribunals of a third Power to be 
 clothed within its territory with an Austrian Nation- 
 ality by reason of his Origin. Again, a Nation may 
 have made no provision whatever under its Municipal 
 Law for distinguishing the status of one foreigner 
 from that of another foreigner within its territory; 
 and such a system of Law may not be attended 
 with any inconvenience in time of peace, but in time 
 of war it becomes indispensable for every Nation to 
 have some criterion to enahle it readily to distin- 
 guish the character of an alien friend from that of 
 an alien enemy. Nations have accordingly sought 
 for a common rule in such matters, which would be 
 free from ambiguity, whilst it should commend itself 
 to universal acceptance by its natural justice ; and 
 Permanent Kesidence has been found to answer all 
 the requirements of such a rule. An individual can- 
 not be permanently resident in two countries ; and 
 wherever he is permanently resident, there he is 
 contributing by his industry and general wealth to 
 the strength of the country, and to its capacity to 
 wage war. There can be therefore no injustice in 
 regarding the property of such a person as forming 
 part of the common stock of the Enemy Nation, 
 upon which a belligerent may make reprisals. Thus 
 Grotius^ observes, " By the Law of Nations all the 
 
 ^ L. III. c. 2. § 7. Jure nente, sive indigense, sive ad- 
 
 gentium subjacent pignorationi venae : non qui transeundi, aut 
 
 omnes subditi injuriam facientis, morse exiguse causa alicubi sunt, 
 qui tales sunt ex causa perma- 
 
304 ENEMY CHAEACTEK. 
 
 subjects of the Sovereign, from whom an injury has 
 been received, vs^ho are such from a permanent cause, 
 are liable to reprisals, vrhether they be natives or 
 immigrants, but not such persons as are only passing 
 through his territory and sojourning in it for a short 
 time." Accordingly we find, in the ordinary Decla- 
 rations of Eeprisals issued by Sovereign Powers,, an 
 express provision that the ships and goods of all 
 persons inhabiting the territory of the adverse Power 
 shall be subject to Reprisals ^. The most recent order 
 in Council issued by Great Britain on 29 March 1854 
 was to the like effect, " Her Majesty is pleased, by 
 and with the advice of her Privy Council, to order, 
 and it is hereby ordered, that general Eeprisals be 
 granted against the ships, vessels, and goods, of the 
 Emperor of All the Russias and of his subjects and 
 others inhabiting within any of his countries, terri- 
 tories, or dominions." 
 Anac- ^ 154. Every inhabitant of an enemy's country is 
 
 domTcU accordingly prima facie an enemy, and his property 
 abandoned ^^J ^^ scizcd by a belligerent, if found in any place 
 at the out- where a beUigerent may lawfully exercise the Rights 
 
 set of war o »/ »/ o 
 
 ' of War. The burden of proof in such a case, that 
 the merchant, whose property has been seized, is a 
 natural born subject of a neutral Power, and of Eight 
 ought not to be treated by the belligerent Power 
 as an enemy, falls upon the merchant. If he has 
 acquired a Domicil in the enemy's country before 
 war has commenced, and does not thereupon take 
 immediately effective measures to abandon his ac- 
 quired Domicil, he will be precluded by his Domicil 
 from setting up his Neutral character of Origin; An 
 actual return however to the country of his Origin 
 is not always necessary, in order that such a person 
 should divest himself of his Enemy-character nor 
 
 * The Postilion, Hay and Marriott, p. 245. 
 
ENEMY CHARACTER. 305 
 
 even an actual departure from the country of his 
 adoption, if he has actually put himself in motion 
 in good faith to quit the Enemy's country with the 
 intention of abandoning his residence in it. Lord 
 StoweU'^ has observed in regard to the national 
 character of a natural born citizen of the United 
 States of America, who by long residence in England 
 had acquired under the Law of Nations the character 
 of a British merchant at the commencement of hosti- 
 Hties between Great Britain and the United States, 
 that " the character, that is gained by residence, ceases 
 by residence. It is an adventitious character, which 
 no longer adheres to him from the moment, that he 
 puts himself in motion bondjide to quit the country 
 sine animo revertendi." Accordingly, notwithstand- 
 ing the owner of the ship Indian Chief had not 
 quitted England at the time when his vessel saUed 
 on an outward voyage Irom London, still as he had 
 actually left England and was in the act of resuming 
 his original American character at the time when his 
 vessel was seized on her arrival at an English port 
 for orders, the Prize Court held that her owner was 
 to be considered as a neutral American citizen. So 
 the Lords of Appeal® had previously held that a 
 Natural bom Subject of Great Britain, who had 
 acquired a Dutch domicil by continued residence 
 in Surinam and St. Eustatius, and had left those 
 settlements with the intention of returning to Great 
 Britain, but was still in Holland, the mother country 
 of those settlements, when the order of Eeprisals on 
 the part of Great Britain against Holland was issued, 
 was nevertheless entitled to the restitution of his 
 property as a British subject, inasmuch as he was 
 
 ' The Indian Chief, 3 Ch. Rob. 28 April 1783, reported in a 
 p. 20. note to the Indian Chi f, 3 Ch. 
 
 * The Snelle Zeylder, Lords, Rob. p. 21. 
 
 PART II. X 
 
306 ENEMY CHARACTER. 
 
 in itinere, had put himself in motion, and was in 
 pursuit of his native British character. So likewise 
 a British born subject who was domiciled in Holland 
 at the commencement of hostilities with Great Bri- 
 tain, as partner in a house of trade at Flushing, 
 and had immediately made arrangements for the 
 dissolution of his partnership, and was only prevented 
 from removing personally by the violent detention of 
 all British subjects, who happened to be within the 
 territory of the enemy at the breaking out of war, 
 was held by Lord Stowell to be entitled to have his 
 property restored to him as a British subject*. The 
 same rule has been recognised in the Courts of the 
 United States. " It is certainly true," observes Mr. 
 Justice Story ^°, " that a character acquired by resi- 
 dence ceases with the discontinuance of the residence. 
 And therefore if a party, who has resided in an 
 enemy country, puts himself in itinere to return to 
 his native country with an intention of bond fide 
 residence there, he is deemed already to have re- 
 sumed his neutral character, although he has not 
 arrived in such country. But until he has actually 
 put himself in itinere, the character of the country 
 where he resides adheres indissolubly to him. He 
 takes it, with all its benefits and all its disadvan- 
 tages." 
 Thecha- ^ 1 5 5. It has been sometimes said, that there is a 
 property is peculiarity about Domicil in time of war, as distin- 
 "atntkai^^ guished from Domicil in time of peace ; and that as 
 with the a person may have establishments in two countries 
 
 cnaracteroi „ "■ .•' ' 
 
 its owner. lor Commercial purposes, he may have in time of war 
 for commercial purposes both a neutral Domicil and 
 a belligerent Domicil., It is true, indeed, that the 
 Municipal Law of a State may permit a citizen to 
 
 " The Ocean, 5 Ch. Rob. " The ship Frances and cargo, 
 
 P- 91- 2 Gallison, p. 616. 
 
ENEMY CHARACTER. 307 
 
 have two or more Domicils for Civil purposes ; but 
 Domicil for Municipal purposes means something 
 different from and must be distinguished from 
 Domicil for International purposes. An individual 
 can only have one personal Domicil for international 
 purposes in the sense in which Domicil is , a criterion 
 of a person being a friend or an enemy, for no person 
 can be at the same time both a friend and an enemy 
 under the Law of Nations; but an individual may 
 be a belligerent de facto, notwithstanding that the 
 Sovereign of the country, in which his property is 
 situated, observes neutraHty ; and, on the other 
 hand, his property may be engaged in the service of 
 a belligerent Power, whilst he is himself resident in 
 a neutral country, and does not personally take part 
 in the war. The more philosophical view would 
 rather seem to be that, which does not admit the 
 Domicil of the owner to be conclusive of the immu- 
 nity of his property in all cases from capture on the 
 part of a belligerent, but oAly allows it to found a 
 presumption of immunity, which may be rebutted by 
 evidence that his property is de facto employed in the 
 service of the enemy. "It is very clear," observes 
 Mr. Justice Story ", " that in general the national 
 character of a person is to be decided by that of his 
 Domicil : if that be neutral, he acquires the neutral 
 character ; if otherwise, he is affected by the enemy's 
 character. But the property of a person may acquire 
 a hostile character, altogether independent of his own 
 pecidiar character derived from residence. In other 
 words, the origin of the property, or the trafSc in 
 which it is engaged, may stamp it with a hostile 
 character, although the owner may happen to be 
 domiciled in a neutral country. Such are the 
 
 " San Jose Indiano and cargo, 2 GalHson, p. 28. 
 X 2 
 
308 ENEMY CHAEACTEE. 
 
 familiar instances of engagements in the colonial, 
 coasting, fishing, or other privileged trade of the 
 enemy ^^. So the produce of an estate in an enemy's 
 colony belonging to a person permanently resident in 
 a neutral country, is impressed with the character of 
 the soil, notwithstanding the character of the owner ^^, 
 So if a vessel purchased in the enemy's country is by 
 consent and habitual occupation employed in ' the 
 trade of that country during the war, she is deemed 
 a vessel of the country fi?om which she is so navi- 
 gating, whatever may be the domicil of the owner ^\ 
 The principle to be extracted from these cases seems 
 to be, that where a person is engaged in the ordinary 
 or extraordinary commerce of an enemy's country 
 upon the same footing and with the same advantages 
 as native resident subjects, his property so employed 
 is to be deemed incorporated into the general com- 
 merce of that country, and subject to confiscation, be 
 his residence where it may ; and the principle seems 
 founded on reason. Such a trade so carried on has a 
 direct and immediate effect in aiding the resources 
 and revenue of the enemy, and in warding off the 
 pressure of the war. It subserves his manufactures 
 and industry, and its whole profits accumulate and 
 circulate in his dominions, and become regular objects 
 of taxation in the same manner, as if the trade were 
 pursued by native subjects. There is no reason 
 therefore why he who thus enjoys the protection and 
 benefits of the enemy's country, should not in refe- 
 rence to suck a trade share its dangers and its losses. 
 It would be too much to hold him entitled by a mere 
 
 12 The Vigilantia, i Ch. Rob. Eob. p. i6i. 
 
 p. I. The Immanuel, 2 Ch. Rob. " The Dree Gebroeders, 4 
 
 p. 148. The Anna Catherina, Ch. Rob. p. 235. The Phcenix, 
 
 4 Ch. Rob. p. 107. The Rends- 5 Ch. Rob. p. 20. 
 
 borg, 4 Ch. Rob. p. 121. The " The Vigilantia, i Ch. Rob, 
 
 Vrow Anna Catherina, 6 Ch. p. 12. 
 
ENEMY CHARACTER. 309 
 
 neutral residence to carry on a substantially hostile 
 commerce, and at the same time possess all the 
 advantages of a neutral traffic. "I" agree therefore 
 that it is a doctrine supported by strong principles 
 of equity and propriety that there is a traffic which 
 stamps a national character on the individual, inde- 
 pendent of that national character which mere per- 
 sonal residence may give him ^^." 
 
 § 156. The decisions of Prize Tribunals have some- The enemy- 
 times proceeded upon the view that a belHgerent ma^be*'^ 
 character may be engrafted sub modo upon the neu- ^^f^l^ 
 tral character of a merchant, without suspending on the neu- 
 altogether the latter. But this is only another form raoter. 
 of embodying the principle that the neutral Domicil 
 of the owner is not always conclusive af the neutral 
 character of his property. When a merchant has 
 commercial establishments in two countries, and it is 
 necessary in time of peace to decide by what law the 
 succession to his personal property is to be governed, 
 the country, which is the seat of his, principal esta- 
 blishment, is held to be the place of his Domicil. But 
 Courts of Prize do not weigh the question of Domicil 
 in the same accurate scales which are used by Courts, 
 which administer the Law of Nations in time of 
 Peace ; and they have been accustomed to rule, that 
 if a person has mercantile concerns in two countries, 
 and acts as a merchant of both countries, he must be 
 liable to be considered as a subject of either the one 
 or the other, according as the particular transactions 
 of his commerce have originated in one or other of 
 the two countries^*. Accordingly both the British 
 and American Prize Courts have held that the same 
 
 '° The case of Zacharie, Coop- antia, 6 Nov. 1798. i Oh. Rob. 
 
 man and Co., before the Lords p. iS- 
 of Appeal, 9 April I798,referred " The Jonge Classina, 5 Ch. 
 
 to by Lord Stowell in the Vigil- Eob. p. 303. 
 
310 ENEMY CHAEACTER. 
 
 person may have an enemy-cLiaracter for certain pur- 
 poses of commerce, combined with a neutral cha- 
 racter for other purposes ; and that his property, 
 which is incorporated into the general trade of the 
 enemy, may be condemned as enemy-property, whilst 
 his property incorporated into the general trade of 
 a neutral Nation, wiU not be liable to hostile confis- 
 cation. Thus it has been decided by the Supreme 
 Court of the United States, that the property of a 
 House of Trade, established in an Enemy's country, 
 is condemnable as prize, notwithstanding the neutral 
 Domicil of one or more of the partners ^'' ; and the 
 High Court of Admiralty of England has held, that 
 goods exported from an Enemy's country on behalf 
 of a House of Trade, of which aU the partners are 
 domiciled subjects of a neutral Power, may be con- 
 fiscated jure belli, if they have a permanent com- 
 mercial agent in the Enemy's country to carry on a 
 privileged trade of the Enemy ^l The same principle 
 seems to govern these cases, which founds the right 
 of every belligerent to capture and confiscate the 
 goods of a neutral merchant, which are being con- 
 veyed upon the High Seas to an Enemy's country, 
 if such goods are of their own nature suitable to 
 belligerent purposes, and which likewise founds the 
 right of a belligerent to capture and confiscate the 
 goods of a neutral merchant, of whatever nature they 
 may be, which are being carried to an Enemy's port, 
 which the beUigerent has placed under blockade. 
 In both of these latter cases it is obvious, that the 
 commercial adventure, if it should be successful, "woU 
 influence the conduct of the war in favour of the 
 party to whom the supplies are being carried. Such 
 
 1' The Friendscbaft, 4 Wheaton, i« The Anna Catherina, 4 Oh. 
 
 p. 107. The Antonia Johanna, Eob. p. 119. 
 I Wheaton, p. 168. 
 
ENEMY CHARACTER. 311 
 
 an adventure is accordingly inconsistent with neu- 
 trality, and in such a case it is immaterial what may 
 be the National character of the merchant, who has 
 committed his property to an unneutral adventure. 
 On an analogous principle, if a merchant domiciled 
 in a neutral country does not take immediate mea- 
 sures at the commencement of war to withdraw his 
 property from an unneutral trade, which he may have 
 lawfully carried on in time of peace in the country of 
 a belligerent, he cannot protect his property from 
 hostile capture and confiscation, by alleging that he 
 is personally resident in a neutral country. So like- 
 wise if the subject of a neutral Power, who is resi- 
 dent in an Enemy's country upon the outbreak of 
 war, does not take immediate measures to withdraw 
 his property from the Enemy's trade, so much of 
 his property as continues to be employed in such 
 trade will be liable to confiscation by the other belli- 
 gerent, as being subservient to Enemy-interests. The 
 trade of such a person is identical de facto with 
 that of an enemy merchant ; and it may be justly 
 said of an enemy merchant,, as contrasted with such 
 a trader, Quid ille fecit hostiliter, quod hie non 
 facial ^^ ? 
 
 § 157. The essential question to be determined in Distinction 
 •war in regard to the character of every person, is enemies tje 
 whether he is. a friend or an enemy. National {^g^i^'^^^ 
 character furnishes a safe test of friendly or hostile J"''^- 
 character in most cases, and the presumption arising 
 from it does not require to be supported by any 
 evidence of the conduct of the party. But the 
 presumption arising from national character fails 
 altogether, if the party is in action, and his acts are 
 at variance with the character of his Nation. A 
 
 " Bynkershoek, Qusest. Jur. Pflbl. L. I. c. 9. 
 
312 ENEMY CHAEACTEE. 
 
 belligerent lias a natural right to treat as enemies, 
 all who conduct themselves as such towards him ; 
 they are enemies de facto, and whilst they continue 
 to be such, the juridical incidents of the Enemy 
 character must be deemed to attach to them equally 
 as to persons who are enemies de jure. But there 
 is this difference between enemies de facto and 
 enemies de jure, that the former are enemies sub 
 modo only, and in reference to so much of their con- 
 duct as is hostile. If they cease to act as enemies, 
 the foundation of their hostUe character is gone. The 
 practice of Nations in this respect allows equitable 
 considerations to have weight in the question. It 
 is in the interest of the belligerent himself that an 
 enemy de facto should be distinguished in Law from 
 an enemy de jure. Peace is restored in the case of 
 an enemj de facto by the cessation of hostilities: 
 in the latter case however there is a question of 
 Right, which remains to be settled by conference 
 after the suspension of arms. But the conduct of 
 a party is that of an enemy de facto, if he supplies 
 the necessities of a belligerent, and by so doing 
 furthers his resistance to his adversary. Upon the 
 field of battle the men who bring up supplies from 
 the rear are sustaining the energies of those in the 
 front ranks : so in the case of a besieged town those 
 who carry in supphes to the Garrison are furthering 
 its resistance to the besiegers. There is no dis- 
 tinction in principle between the conduct of such 
 parties, and the conduct of the trader who carries 
 supplies into a blockaded port. The undertaking is 
 evidently for the immediate benefit of one belli- 
 gerent, and for the direct disadvantage of the other 
 belligerent, and is accordingly inconsistent with neu- 
 trality. To allow the property of the trader in such 
 a case to be exempt from capture and condemnation, 
 
ENEMY CHAKACTEE. 313 
 
 on the grounds that he is resident in a neutral 
 country, would be unreasonable, for it is precisely in 
 virtue of such residence that he is able to assist 
 the enemy, by supplying him with those necessaries 
 which the enemy has not in his own country. The 
 merchant however is only considered to be thus far 
 impressed with the hostile character, as regards his 
 unneutral trade. He is so far and no further an 
 enemy de facto. 
 
 § 158. The residence of a merchant in a neutral 
 country is thus not always conclusive of the neutral 
 character of his property in time of war. The use, Employ- 
 to which an article is put, will iu certain cases deter- ™roperty of 
 mine the right of a belligerent Power to seize and g^b^g't'^^ 
 confiscate it, without any regard to the neutral the service 
 character of the legal owner. For instance, if the gerent 
 subject of a neutral Power places an article, of which ^°'^®''- 
 he is owner, at the absolute disposal of a belligerent 
 Power for a certain time, the article in question 
 becomes subject to capture and confiscation during 
 such time, precisely as if it were enemy's property. 
 To admit any other conclusion would be equivalent 
 to allowing a belligerent to make war with borrowed 
 weapons, and to preclude his adversary from seizing 
 them and disarming him. It is immaterial in refer- 
 ence to the employment of the property of a 
 neutral subject in the service of an Enemy State, 
 whether such employment be voluntary or involun- 
 tary on the part of the owner, " If an act of force," 
 observed Lord Stowell, " exercised by one belligerent 
 on a neutral ship or person is to be deemed a suffi- 
 cient justification for any act done by him contrary 
 to the known duties of the neutral character, there 
 would 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 
 
314 ENEMY CHARACTER. 
 
 service, the neutral yielding to such demands iliust 
 seek redress against the Government that has im- 
 posed the restraint upon him." Upon this principle 
 Lord StoweU condemned as prize of war, a Swedish 
 vesseP", which had been employed by the French 
 Grovernment in transporting a troop of cavalry to 
 Alexandria, notwithstanding the Master alleged that 
 he was acting under duress. The conveyance of 
 enemy-soldiers to a neutral country is distinguish- 
 able from the conveyance of enemy-soldiers to an 
 enemy's country. If a vesseP^ belonging to the 
 subjects of a Neutral Power is engaged in convey- 
 ing miHtary persons in the service of the enemy to 
 an enemy's colony, such a trade will subject the 
 vessel captured to confiscation, notwithstanding that 
 the Master of the ship may have been deceived in 
 respect of the miHtary character of his passengers, 
 and however few may be the number of them; 
 although on the other hand the carrying persons in 
 the military service of the enemy to a neutral country, 
 as passengers in the ordinary course of trade, will 
 not enure to the confiscation of the ship, if she be 
 owned by the subjects of a neutral Power. Thus 
 in the case of the Henric and Alida^'^, which was a 
 Dutch ship bound from a Dutch port to St. Eu- 
 statius, a Dutch Colony, with powder, guns, and 
 naval stores on board, and five military officers in the 
 enemy's service embarked as ordinary passengers. 
 Sir George Hay directed the ship and cargo to be 
 restored to the Dutch owners, Holland being at such 
 time a Neutral Power. 
 
 It would be otherwise, however, if a neutral-owned 
 vessel should have been hired by the agents of a 
 
 2" The Carolina, 4 Ch. Eob. p. 436. 
 p. 261. ^^ I Hay and Marriott's Re- 
 
 ^'^ The Orozembo, 6 Ch. Bob. ports, p. 139 
 
ENEMY CHAEAOTEK. 316 
 
 belligerent Government so as to be entirely at its 
 disposal for the purpose of carrying soldiers or stores 
 in the service of the State. It will signify nothing 
 under such circumstances whether or not the troops 
 or stores conveyed are to be applied immediately to 
 hostile purposes, when they arrive at their destina- 
 tion. For instance, if Great Britain should be 
 engaged in a war with Russia, and the British 
 Government should charter a neutral vessel to trans- 
 port a British regiment of infantry to Alexandria, 
 the Sultan of the Ottomans, being at such time at 
 peace with both the belligerent Powers, might con- 
 sistently with neutrality allow a passage through a 
 province of the Ottoman Empire to the troops of 
 Great Britain. It is obvious however that the imme- 
 diate destination of the vessel to a neutral port would 
 not relieve such a traffic on the part of the shipowner 
 from its hostile character. The actual conveyance of 
 troops, either for present or for future use, is what 
 constitutes the object and employment of transport- 
 vessels ; and it is a distinction totally unimportant, 
 whether the transport of enemy-troops may be con- 
 nected with immediate action in the service of- the 
 enemy or not^^. So likewise the transport, coupled 
 with the concealment, of public despatches addressed 
 from the Governor of an enemy's colony to the 
 Government of the mother country in charge of an 
 officer of high rank, as a passenger on board of a 
 neutral vessel, although the voyage of such vessel 
 was to end in a neutral port, was held to be incon- 
 sistent with the neutral character, and to be an 
 aggravated case of active interposition in the service 
 of the enemy ^*. Other cases of trade in the service 
 of the enemy may be enumerated, in which a neutral 
 
 2' The Friendship, 6 Ch. Eofe. '* The Atalanta, 6 Ch. Eob. 
 
 p. 427. p. 460. 
 
316 ENEMY CHARACTER. • 
 
 shipowner cannot with good faith and without for- 
 feiture of his neutral character engage his vessel. 
 Thus if a vessel is owned by the subject of a neutral 
 Power which is under treaty-engagements with a 
 belligerent Power not to carry goods of a particular 
 nature for the use of its enemies, the employment of 
 such a vessel in carrying such commodities will work 
 its forfeiture, if it be captured by the belligerent 
 Power ^^. So. again a vessel neutral owned but 
 sailing under an enemy's license ^^ or under enemy's 
 convoy ^', renders itself thereby liable to capture by 
 the adverse belligerent. 
 TheMer- § 159- The national character of the Political agent 
 rfiaracter of a ueutral State, who is resident in a belligerent 
 affected bv ^ouutry, is uot affected by such residence, whatever 
 the Con- may have been the duration of such residence ; but it 
 character, is othcrwise with a Commercial agent. A Consul does 
 not participate in the privilege of exterritoriality, 
 which a Political Envoy enjoys ; and if he is per- 
 sonally engaged in the commerce of a belhgerent 
 country, his Consular character affords no protection 
 to his mercantile adventures. " It is a point fully 
 established in these Courts," says Lord StoweU^^ 
 " that the character of Consul does not protect that 
 of Merchant united in the same person. It was so 
 decided in solemn argument in the course of the last 
 war by the Lords, in the cases of Mr. GUdermester, 
 the Portuguese Consul in HoUand, and of Mr. 
 • Eykellenburg, Prussian Consul at Flushing ^l These 
 cases were again brought forward to notice iu the 
 case of Mr. Fenwick, American Consul at Bourdeaux, 
 
 25 The Neutralitet, 3 Ch. Eob. Eob. p. 27. 
 
 p. 296. ^' Concordia, Lords, 5 Feb. 
 
 20 The Julia, 8 Cranch, p. 189. 1782. The Het Huys, Lords, 16 
 
 2' The Nereid, 9 Cranch, p. July 1784. The Pigou, Lords, 
 
 388. 18 July 1797. 
 
 28 The Indian Chief, 3 Ch. 
 
ENEMY CHAIUCTEE. 317 
 
 in the beginning of this war, on whose behalf a dis- 
 tinction was set np in favour of American Consuls, 
 as being persons not usually appointed, as the Con- 
 suls of other nations are, from amojig the resident 
 merchants of the foreign country, but specially dele- 
 gated from America, and sent to Eiirope on the 
 particular Mission, and continuing in Europe princi- 
 pally in a mere Consular character. But in that 
 case, as well as in the case of Sylvanus Bourne^", 
 American Consul at Amsterdam, where the same 
 distinction was attempted, it was held, that if an 
 American Consul did engage in commerce, there was 
 no more reason for giving his mercantile character 
 the benefit of his official character, than existed in 
 the case of any other Consul. The moment he en- 
 gaged in trade, the pretended ground of any such 
 distinction ceased ; the whole of that question there- 
 fore is as much shut up and concluded as any 
 question of law can be." On the other hand the 
 subject of a neutral Power, who carries on trade 
 within the territory of the neutral Power, does not 
 forfeit his neutral character by acting as Consul of 
 a belligerent Power. " If the cargo," says Lord 
 Stowell^^ in the case of a Swedish ship laden with 
 tar, pitch, iron, hoops, and bars, and bound ostensibly 
 for the neutral port of Cagliari, " had been really 
 going to Cagliari, although it was the property of 
 Mr. Koch, the French Consul, yet being as to his 
 mercantile character a trader of Uddevalla, and his 
 mercantile character being unaffected by his con- 
 sular character, he would have a clear right to trade 
 to the same extent as any other merchant of that 
 place, and consequently to carry pitch and tar to a 
 neutral port." 
 
 =" The Orion, Admiralty '^ The Sarah Christina, i Ch. 
 
 Court, 24 March 1797. Rob. p. 238. 
 
318 ENEMY CHAEACTEE. 
 
 The cha- ^ 1 6o. Although the possession of landed estates 
 the pro- in a belligerent country will not deprive a merchant, 
 w vLes '^^^ ^^ ^ domiciled subject of a neutral Power, of his 
 with the personal neutral^ character, still the neutral character 
 of the of the owner will not protect his property, which 
 and^notof ^s in the coursc of transport from the belligerent 
 the owners, country as the immediate produce of his landed 
 estates, from belligerent capture ^^. " The produce 
 of a person's own plantation," says Lord StoweU^^ 
 " in the colony of the enemy, though shipped in 
 time of peace, is liable to be condemned as the 
 property of the enemy, by reason that the proprietor 
 has incorporated himself with the permanent in- 
 terests of the Nation, as a holder of the soil, and is 
 to be taken as a part of that country, in that par- 
 ticular transaction, independent of his own personal 
 relations and occupation." It would appear from 
 this decision that the breaking out of war subse- 
 quently to the shipment of the goods was sufficient 
 to impress upon them an Enemy-character at the 
 time of their capture. So if the character of a 
 country be varied under the operations of war, if it 
 passes by conquest out of the possession of one 
 Power into the possession of another Power, the 
 produce of the- soil shipped after the conquest wUl 
 vary in respect of its neutral or Enemy character 
 according to the character of the conquerors. Thus 
 Santa Cruz, the islaud of Santa Cruz, a possession of the Crown 
 of Denmark, was captured by the British forces. 
 Mr. Bentzon, who was a proprietor of land in the 
 island, and at the same time an ojBficer of the Danish 
 Government, withdrew from the island after its sur- 
 render, and took up his residence in Denmark. The 
 
 =2 The Dree Gebroeders, 4 Ch. 5 Ch. Kob. p. 1 68. The Phoenix, 
 Rob. p. 233. 5 Ch. Rob. p. 20. 
 
 ^^ The Vrow Anna Catherina, 
 
ENEMY CHARACTEE. 319 
 
 property of the inhabitants not being disturbed by 
 the conquerors, Mr. Bentzon still retained his estate 
 in the island under the management of an agent, 
 who shipped, thirty hogsheads of sugar, the produce 
 of the estate, on board a British ship to a commercial 
 house in London, at the risk of Mr. Bentzon. On 
 her passage the ship was captured by an American 
 privateer, and her cargo was condemned in a Prize 
 Court of the United States, as British property^*. 
 " Some doubt," observed Chief-Justice Marshall, 
 " has been suggested whether Santa Cruz, while in 
 the possession . of Great Britain, could properly be 
 considered as a British island. But for this doubt 
 there can be no foundation, although acquisitions 
 made during War are not considered as permanent, 
 until confirmed by Treaty, yet to every commercial 
 and belligerent purpose they are considered as part 
 of the domain of the conqueror, so long as he retains 
 the possession and government of them. The island 
 of Santa Cruz after its capitulation remained a 
 British island, until it was restored to Denmark." 
 In this case all the power of the Civil Government 
 had been absorbed by the conqueror, and the occupa- 
 tion of the island was politically complete. On the 
 other hand, if a Neutral Country be in the military 
 possession of a belligerent Power, but maintains her 
 own civil Government propria jure, the latter cir- 
 cumstance has been held sufficient to prevent the 
 Country being considered as a conquered Coiintry. 
 Such was the purport of a decision in an English 
 Court of Common Law in regard to the property of 
 merchants resident in the City of Hamburg, which city of 
 was at such time in the military occupation of^*™'"'''^' 
 French troops, whilst aU the powers of civil govern- 
 ment were administered in the same manner as they 
 
 '* Thirty Hogsheads of Sugar v. Bentzon, 9 Cranch, p. 191. 
 
320 ENEMY CHAKACTER. 
 
 had formerly been before the arrival of the French, 
 In this case, which came on before the Court of 
 King's Bench at Westminster and involved a question 
 of Maritime Insurance, the Court held, that as Great 
 Britain had by an order in Council permitted the 
 inhabitants of Hamburg to continue their commerce 
 with Great Britain, notwithstanding the Military 
 occupation of the City of Hamburg by French troops, 
 the inhabitants of Hamburg were to be considered as 
 retaining their character of neutral merchants. To a 
 Island of similar purport in reference to the island of Corfu, 
 in which, together with the other islands of the 
 Ionian Eepublic, Kussia had for four or five years 
 maintained itself in military occupation, but during 
 such time the flag of the Ionian Eepublic was dis- 
 played from the forts of the island, an Admiral 
 appointed by the Ionian Eepublic presided over the 
 port, a Consul from the Supreme Porte resided at 
 Corfu, and an English Consul was recognised by the 
 Prince and Senate of the Ionian Eepublic, Lord 
 EUenborough ^^ refused to recognise the island as 
 part of the Eussian territory, or its inhabitants as 
 co-belligerents with the Eussians against the Otto- 
 man Porte. " It is impossible," he observed, " to say 
 that the Government of the Ionian Eepublic (which 
 had been recognised at the peace of Amiens as an 
 independent State) was superseded at a time, when 
 its institutions subsisted and its supremacy was re- 
 cognised ^V 
 Treaties of § i6i. With regard to a country which has been 
 Cession, ceded Under Treaty by a neutral Power to an enemy 
 Power, the signature of the Treaty is not sufficient to 
 impress an enemy character on the country and its 
 inhabitants. Actual dehvery into the possession of 
 
 '° Hagerdon v. Bell, i Maule '° Donaldson v. Thompson, i 
 and Selwyn, p. 462. Campbell, p. 438. 
 
ENEMY CHAEACTEK. 321 
 
 'the enemy is required to give complete efi'ect to the 
 Cession. This question was considered by Lord 
 StowelP' in a case where property was captured in 
 the month of May 1803, in a voyage from the port 
 of New Orleans to Havre de Grace, and was claimed 
 on behalf of a merchant resident in New Orleans. 
 Louisiana had been ceded by Spain to France under Louisiana, 
 the treaty of San Ildefonso in 1796, but France had 
 not actually taken possession of the country at the 
 time when the property was captured. Lord Stowell 
 held that as it was a principle of jurisprudence, that 
 the actual possession of a thing must be united to 
 the right of taking possession before the Right of 
 Property is complete, and as the practice of Nations 
 had been in conformity with this principle, the 
 country of Louisiana and its inhabitants continued 
 to be under the dominion of Spain, until possession 
 should have been actually taken by France. Where 
 stipulations of Treaties for ceding particular countries 
 are to be carried into execution, solemn instruments 
 of Cession are drawn up, and adequate powers are 
 formally given to the persons, by whom the actual 
 dehvery is to be made. In modern times, more espe- 
 cially, such a proceeding has become almost a matter 
 of necessity with regard to the colonial establish- 
 ments, of the States of Europe in the New World. 
 The Treaties by which they are effected may not be 
 known to them for months after they are made. 
 Many articles must remain executory only, and not 
 executed, untU carried into effect ; and until that is 
 done by some public act, the former sovereignty 
 must remain. On the other hand, if a country has 
 been delivered over voluntarily by one Power to 
 another Power, which is in actual possession of it, 
 
 " The Fama, 5 Ch. Eob. p. 113. 
 PART II. Y 
 
322 ENEMY CHARACTER. 
 
 although there may be no evidence forthcoming of 
 a formal Treaty of Cession, the act of voluntary de- 
 Hvery -will establish a legal presumption of a volun- 
 tary surrender of all title. Thus Eussia had delivered 
 up possession of the Seven Islands to France, and 
 part of the French troops had been conveyed thither 
 on board of and under the protection of Eussian 
 ships. No Treaty of Cession had been publicly 
 announced, but France and Eussia had settled their 
 ^atyof differences by the Treaty of Tilsit, and, the two 
 countries being at peace with one another, there 
 could be no doubt that the surrender of the Seven 
 Islands to France had been a voluntary act on the 
 part of Eussia. Under these circumstances Lord 
 Stowell held that "the voluntary surrender of the 
 islands on the part of Eussia was an actual transfer 
 to France, and' consequently that the inhabitants 
 of the islands had become French subjects." A cargo 
 therefore which had been shipped on board a Danish 
 ship, bound from Zante to Copenhagen, and which 
 was documented as the property of merchants re- 
 sident in the Seven Islands, and which had been 
 J^^^^°™*" captured by an English privateer after the Seven 
 Islands had passed into the possession of France, 
 was condemned as belonging to the subjects of 
 France at the time of capture ^l . 
 Thecha- § 162. There is a settled rule of the Prize Courts 
 property of Great Britain and the United States, that pro- 
 ch^°ld^*n V^^^J cannot be divested of its enemy-character in 
 transitu en transitu On the High Seas, and that aU property 
 seas. which has a hostile character impressed upon it at 
 the inception of a voyage, remains Hable to capture 
 until its arrival at its destination^^. Thus a ship 
 
 =« The Bolletta, Edwards, p. i Gallison, p. 448, S. C. 8 
 173- • Cranch, p. 354. TheVrowMar- 
 
 ^^ The ship Prances and cargo, garetha, i Oh. Eob. p. 339- 
 
ENEMY CHAEACTEE. 323 
 
 was captured by a Britisli cruiser on a voyage from 
 Batavia to Holland. Slie was the property of mer- 
 chants resident at the Cape of Good Hope, who were 
 enemy-subjects at the time when the vessel sailed by 
 reason of the Cape of Good Hope being at such time 
 a Dutch settlement. During the voyage, and before 
 the vessel was captured, the Cape of Good Hope had 
 capitulated to the British forces, and the inhabitants 
 had become British subjects. The ship however was 
 condemned by Lord StoweU ^°, as retaining its Dutch 
 character, upon the authority of a decision of the 
 Lords of Appeal in De Negotie en Zeevaart (i8 July 
 1782). "I remember," observes Lord Stowell, "a 
 dictum of a great Law Lord then present. Lord 
 Camden, that ' the ship sailed as a Dutch ship, and 
 could not change her character in transitu.'" The 
 case of De Negotie en Zeevaart, on which Lord 
 Stowell thus relied, is an important decision upon 
 another point. It was the case of a Dutch ship 
 which sailed from Demerara to Middleburg, in 
 Holland, on 30 January 1781, about six weeks after 
 the declaration of war on the part of Great Britain 
 against Holland. Demerara subsequently surrendered 
 to the British forces on 14 March, and the vessel was 
 captured on 25 March. The terms of the Capitula- 
 tion had been very favourable, and it had been an- 
 nounced by a Proclamation of the Commander of the 
 British naval forces, that the inhabitants were " to be 
 permitted to export their own property,' and to be 
 treated in all respects like British subjects, until his 
 Majesty's pleasure should be known." Under the 
 terms of this Proclamation several claims were given 
 in to the High Court of Admiralty of England for 
 portions of the cargo on board De Negotie en 
 
 *" The Danckebaar Africaan, i Oh. Rob. p. 112. 
 Y 2 
 
324 ENEMY CHAEACTEE. 
 
 Zeevaart, as being the property of inhabitants of 
 Demerara described in such claims as British sub- 
 jects. Sir James Marriott, the Judge of the High 
 Court of Admiralty, had condemned the ship on 
 26 May 1 78 1 and the master's adventure, as Dutch 
 property, no claim having been given for them ; but 
 the claims for portions of the cargo, as the property 
 of British subjects, stood over for argument, and 
 came on before the Court on 23 February 1782, 
 when Sir James Marriott decreed such portions to 
 be restored to the claimants in their character of 
 British subjects. From this decree the captors ap- 
 pealed, and the appeal came on for hearing before 
 the Lords Commissioners of Appeal on 18 July 1782. 
 On this occasion Lord Camden, the Lord President 
 of the Council, said that " a General or Admiral 
 taking a settlement or an island by Capitulation 
 may by a Proclamation or otherwise grant to the 
 owners the property actually taken ; but he cannot 
 protect from capture the property of the Capitulants 
 at that time at sea, or out of the territory so taken." 
 Their Lordships accordingly reversed the sentence of 
 the Judge of the High Court of Admiralty, and con- 
 demned the cargo ^^ taken on board De Negotie en 
 Zeevaart, as good prize. 
 Exception § 1 63. There is an exception however to the rule 
 ti'ons^of '"' that property cannot be transferred in transitu on the 
 good faith High Seas, so as to acquire the national character 
 
 originating o ' T- 
 
 in time of of a ueutral purchaser. A merchant of Hamburg 
 peace. entered into a contract with two Spanish houses 
 for some wines, which were shipped from a Spanish 
 port before the commencement of hostilities between 
 Spain and Great Britaio. If the transaction had orig- 
 inated in time of war, as it was admitted that the 
 
 *^ MS. Keporfc of the judgment Negotie en Zeevaart, which is in 
 of the Lords of Appeal in De possession of the author. 
 
ENEMY CHARACTER. 325 
 
 -wines were shipped as Spanish property they would 
 have retained their Spanish character according to 
 the rule of the Prize Court, until they had been de- 
 livered at their port of destination'. " If such a rule 
 did not exist," observed Lord Stowell, " aU goods 
 shipped in the enemy's country would be protected 
 by transfers, which it would be impossible to detect. 
 It is on this principle held, I believe, as a general rule, 
 that property cannot be transferred in transitu, and 
 in that sense I recognise it as the rule of this Court. 
 But this arises out of a state of war, which creates 
 new rights in other parties, and cannot be applied to 
 transactions originating, like this, in time of peace. 
 The transfer, therefore, must be considered as not 
 invahd in poiut of law at the time of the contract, 
 and, being made before the war, it must be judged 
 according to the ordinary rules of commerce *l" In 
 the above case Lord Stowell held that the commer- 
 cial transaction was of a bond fide character, not 
 made in contemplation of a war with any intention 
 of defrauding the belligerent of his right to capture 
 the goods of his enemy. So likewise in consideration 
 of the fair course of mercantile speculation iu time 
 of peace, the. same learned judge allowed a transfer 
 of title to goods in transitu to he effected by the 
 transfer of the bills of lading, when it had been done 
 without any view of accommodation to relieve the 
 seller from the, pressure or prospect of war. But if 
 the contemplation of war leads immediately to the 
 transfer and becomes the. foundation of a contract, 
 which would not otherwise have been entered into on 
 the part of the seller, and this is known to be so 
 done in the understanding of the purchaser, though 
 on his side there may be other concurrent motives, as 
 
 *'' The Vrow Margaretha, i Ch. Eob. p. 337. The Packet de 
 Bilboa, 2 Ch, Eob. p. 133. 
 
326 ENEMY CHARACTER. 
 
 in the case of the Rendsborg ^, such a contract cannot 
 be held good on the Same principle that applies to in- 
 validate a transfer in transitu in time of actual war**. 
 " The nature of both contracts is identically the 
 same, being equally to protect the property from 
 capture of war, not indeed in either case from cap- 
 ture at the present moment, when the contract is 
 made, but from the danger of capture, when it is 
 likely to occur. The object is the same in both 
 instances, to afford a guaranty against the same 
 crisis. In other words, both are done for the pur- 
 pose of eluding a belligerent right, either present 
 or expected. Both contracts are framed with the 
 same animo fraudandi, and are in my opinion 
 justly subject to the same rule." 
 Enemy ^ 1 64. Although the occupation of a territory by 
 
 character "i -x p • n i i • • i 
 
 may attach ^ military lorcc IS usually regarded as provisional, 
 ^the"^^- ^'^^ ^® ^^^ ^Q^^ to change the national character of 
 cupation of its inhabitants, until it has been confirmed by some 
 formal act of Cession, or by Possession for a con- 
 siderable lapse of time, yet an enemy-character may 
 be impressed upon a place for commercial purposes 
 by the temporary occupation of it by an enemy's 
 army. The prohibition of all intercourse with the 
 enemy applies not only to places which are normally 
 and rightfully subject to the enemy, but to every 
 place which is in the actual possession of the enemy, 
 although the possession of it be so purely military 
 and temporary, as not to have affected the national 
 character of its inhabitants. The same considera- 
 tions, which forbid intercourse with the enemy, apply 
 to the ports of an allied or friendly Power, which are 
 in the temporary occupation of the. enemy, equally as 
 to those which are under his permanent dominion. 
 
 *' The Eendsborg, 4 Ch. Eob. p. 121. 
 " The Jan Frederick, g Ch. Eob. p. 133. 
 
ENEMY CHAEACTEE. 327 
 
 There is the same mischief likely to accrue to the 
 belhgerent Sovereign from such intercourse, and con- 
 sequently the same breach of duty on the part of a 
 neutral or a subject, if he should attempt to hold 
 any such intercourse. Accordingly we find that in 
 the British Order in Council of 15 April 1854, 
 whereby Neutrals and British Subjects were per- 
 mitted to transport enemy's property on board their 
 vessels without fear of its capture, unless it should 
 be Contraband of War, an express exception was 
 made in respect of the destination of such cargoes 
 on board of English vessels to ports in the posses- 
 sion of an enemy, namely, " that the British vessel 
 should not under any circumstances whatsoever, 
 either under or by virtue of this Order or other- 
 wise, be, permitted or empowered to enter or com- 
 municate with any port or place, which shall belong 
 to or be in the possession or occupation of her Ma- 
 jesty's enemies." 
 
 § 165. On the other hand it is competent for a Friendly 
 belligerent State to recognise the suspension (?e may'attach 
 facto of the authority of an enemy over a province *° fl^^ 
 
 •/ «/ •/ -i in the oc- 
 
 or colony, which has successfully revolted from the cupation 
 ruling or parent State. Thus the inhabitants o£° ^^^ ^' 
 several portions of the island of St. Domingo had 
 revolted against the Empire of France, at such time 
 engaged in war with Great Britain, and the insur- 
 gent negroes, who were in actual occupation of 
 those portions of the island, had detached them 
 from the authority of France, and maintained, within 
 those portions at least, an independent government 
 of their own. Under such circumstances a British 
 Order in Council was issued, permitting " British 
 vessels to go to such ports and places in the island 
 of St. Domingo as are not or shall not be under 
 the dominion, and in the actual possession of his 
 
328 ENEMY CHAKACTBB. 
 
 Majesty's enemies." Lord Stowell, in construiag 
 tMs Order, held that the legal meaning of ' domin- 
 ion ' implies rightful possession and authority ; as 
 applied to private property it signifies not merely 
 possession, but possession with rights of property, 
 that of which the person is dominus ; and as applied 
 to public possession, it is the right of legal author- 
 ity. Accordingly as the British Government had 
 declared there were parts of the island, which 
 were neither in the possession nor in the dominion 
 of France, trade with such parts would be innocent. 
 " It is not necessary," he observed, " that this de- 
 claration should amount to a perpetual recognition 
 of the independence of those places, as in the case 
 of a formal and permanent Cession. It is sufficient 
 that there is a rightful and acknowledged sus- 
 pension of the authority of France, that will of 
 itself exempt the parties from the penalty of trading 
 from an enemy's colony*®." It is however not for 
 the Prize tribiuials, but for the Executive Govern- 
 ment of a Nation, to decide, when the inhabitants 
 of a revolted territorv are entitled to be recognised 
 as an independent Nation. Until that decision has 
 been made. Courts administering the law of Nations 
 are bound to regard the Sovereignty of the ruling 
 or Mother State to be stUl subsisting of Eight. 
 
 *' The Manilla, Edwards, p. 5. 15 East, p. 81. Rose ■;;. Himely, 
 Johnson v. Greaves, 2 Taunton, 4 Cranch, p. 272. 
 p. 344. Blackburn v. Thompson, 
 
CHAPTER IX. 
 
 ON CAPTURE AND ITS INCIDENTS. 
 
 Duty of Captors to bring in tteir captures for adjudication as 
 Prize — Enemies have no locus standi in a Prize Court — What is 
 essential to constitute capture — Forms of proceeding in Great 
 Britain to constitute Prize Courts — Jurisdiction of Courts to dis- 
 tribute Prize — Absolute Control of the Crown over all captures — 
 Recapture subject to the jus postUminii — Rule of twenty-four hours' 
 possession — Salvage on Recapture — Practice of Great Britain and 
 of the United States of America — Practice of France, Spain, Den- 
 mark, Sweden, and Holland — Insurable interest of British captors 
 — Ancient practice as to prisoners of war — Modern Cartels for the 
 exchange of prisoners — Cartel Ships — Ransom of Captures at Sea 
 — Ransom Bills — Hostages — Modern Restraints upon Ransom — 
 Joint Captures — Distribution of Prize amongst joint Captors — 
 Condemnation of Prizes brought into the port of an ally. 
 
 § 1 66. The object of captures at sea having been Duty of 
 originally to make Eeprisals ad damni dati modum, bSn^gln*" 
 and the right to make Eeprisals ceasiner upon suffi- f'^'^ fv- 
 
 ^ , . , . o J. tures for 
 
 cient security (pignoratio) having been taken to make adjudioa- 
 good the damage, for which Letters of Reprisals had ph^^.^ 
 been granted by the Sovereign Power, it was an 
 iisual condition of Letters of Marque and Eeprisals 
 that the captures should be brought into port and 
 submitted to the adjudication of a competent Court, 
 in order that the validity of each capture should be 
 determined, and permission be granted or refused to 
 the captor to convert the property to his own use. 
 Hence very different rules have been established in 
 
330 ON CAPTURE AND ITS INCIDENTS. 
 
 regard to maritime captures from those which are 
 applicable to captures on land. The nature of hosti- 
 lities, which are carried on within an enemy's terri- 
 tory, requires that an invading army should not 
 encumber itself with booty ; and accordingly the 
 Commander of an army carries with him authority 
 to make immediate enquiry, and. to determine sum- 
 marily all questions of title to booty. 
 
 In very early times the Admiral of a fleet of 
 armed cruisers determined in hke manner the ques- 
 tion of Prize oi' no Prize summarily, or, as it was 
 said, velis levatis. The capturing vessel conducted 
 its capture to the Admiral-Ship, upon the deck of 
 which enquiry was made by inspecting the papers 
 of the captured vessel, and interrogating her master 
 and crew, and thereupon the vessel and her cargo 
 were adjudged to be good prize, or were forthwith 
 allowed to pursue their voyage. Under the pre- 
 sent practice of warfare upon the High Seas, it is 
 the duty of the captors to send their captures to a 
 convenient port of their own country or of an aUied 
 country, and to submit them immediately for enquiry 
 and adjudication before a lawfully constituted Prize 
 Court. If the captors should fail to ^ this, it is 
 competent for the party who claims the ship and 
 cargo to apply to a Prize Court of the captors' 
 country for a Monition against the captors to pro- 
 ceed forthwith to adjudication ; in which case if the 
 captors should neglect to appear and proceed to 
 adjudication, the Court may condemn them to make 
 restitution with costs, and sometimes with damages. 
 It is immaterial in such a case whether the captors 
 have acted in good faith or not in making the capture. 
 "If the captor," observes Lord StowelP, "has been 
 guilty of no wilful misconduct, but has acted from 
 
 ^ The Actseon, 2 Dodson, p. 52. 
 
ON CAPTURE AND ITS INCIDENTS. 331 
 
 error or mistake only, the suffering party is still 
 entitled to full compensation, pro"V^ided lie has not 
 by any conduct of his own contributed to, the loss.. 
 The destruction of the property by the Qa^ptoi; may 
 have been a meritorious act towards his own Govern-- 
 ment, but still the person, to. whom the property 
 belonged, must not be a sufferer. As to him it is; 
 an injury, for which he is entitled to redress from: 
 the party who has inflicted it upon him ; and if the 
 captor has by the act of destruction conferred g, 
 benefit upon the public, he must look, to, the Govern- 
 ment for his indemnity. The loss must not be 
 permitted to fall upon the innocent sufferer." 
 
 ^ 167. The personal obligation of a captor to bring 
 his captures into port for enquiry and adjudication 
 is founded upon the instructions, which he has 
 received from the Government, which has authorised 
 him to make captures. The obligation of every Enemies 
 Government on the other hand to require its cruisers locus^umdi 
 to bring their captures into port for adjudication j^ * ?'"^® 
 before a competent Court of Prize rests upon the 
 general Law of Nations. But this obligation under 
 the common Law of Nations exists only with respect 
 to vessels navigated under a Neutral flag, the object ■ 
 of the enquiry before a competent Court being to 
 ascertain whether the captured property in each case 
 belongs to a neutral or an enemy, and to restore the 
 property if it belongs to a neutral, and so to restrain 
 the captor in the eager pursuit of gain from doing 
 injustice to innocent merchants, whereby national 
 quarrels might arise. Enemies on the other hand 
 have no locus standi in a Prize Court under the 
 general Law of Nations, and they cannot claim of 
 Eight that their property upon capture by a belli- 
 gerent cruiser should be taken into a port of the 
 belligerent or of his ally for enquiry and adjudication. 
 
332 ON CAPTUKE ANB ITS INCIDENTS, 
 
 Capture of itself divests an enemy of his property 
 jure helli. Upon the surrender of a vessel under an 
 enemy's flag on the High Seas, a belligerent may 
 destroy her under the general Law of Nations ; and if 
 the captor is unable to bring her into port, he will be 
 justified towards his own Government in destroying 
 her. The instruction of his own Government may 
 indeed require him to bring into port every capture 
 which he may make, but he may be actually engaged 
 in a service, which will not allow him to put a prize 
 crew on board the vessel which he has captured, in 
 order that she may be taken into port. Under such 
 a collision of duties, Lord Stowell has held that 
 nothing is left to the belligerent vessel but to destroy 
 the enemy vessel which she has taken ; for she can- 
 not consistently with her general duty to her own 
 country, or indeed under its express injunctions, 
 permit enemy's property to sail away unmolested. 
 If it should be impossible to bring in, her next 
 duty is to destroy enemy's property. When it is 
 doubtful whether it is enemy's property, and it is 
 impossible to bring it in, no such obligation arises, 
 and the safe and proper course is to dismiss. When 
 it is neutral, the act of destruction cannot be justified 
 to the neutral owner by the gravest importance of 
 such an act to the captor's own State. To the 
 neutral it can only be justified, under any such cir- 
 cumstances, by a full restitution in valued 
 What is ^ 1 68. In order to constitute a capture at sea, an 
 constitute" act of taking possession is not absolutely necessary: 
 a capture. ^^ state of the weather alone may be such that the 
 captor cannot safely take possession of the enemy's 
 vessel, and yet he cannot with humanity continue 
 hostilities, after the master and crew have signified 
 
 2 The Felicity, z Dodson, p. 386. 
 
ON CAPTURE AND ITS INCIDENTS. 333 
 
 their intention not to resist. The real surrender of 
 the vessel is therefore held to take place when she 
 lowers her flag. But there must be an intention 
 manifested by the captor to make prize of the vessel, 
 which has surrendered, by some act beyond that of 
 compelling it to surrender, otherwise the capture 
 will be regarded as abandoned by him in such a 
 sense, that it may enure to the benefit of another 
 party, who subsequently takes possession of the 
 enemy's vessel. It is therefore the general rule for 
 the commander of the vessel, which has made a 
 capture at sea, to put a prize-master on board the 
 captured vessel ; but many captures have been held 
 effectual where no man has been even put on board, 
 but the ship only has been compelled to steer in 
 the direction prescribed by the captor ^ Lord Stowell 
 has observed that " if a merchant vessel is obliged to 
 lie to and obey the orders of the enemy-vessel, she is 
 completely under the dominion of the enemy ; and 
 that if a captured vessel remains under the coercion 
 of the guns of the captor, she is as much in his 
 possession, as if the men, who were otherwise to work 
 those guns, had been put on board." On the other 
 hand it is a sufficient act of taking possession of a 
 vessel, if a single man is put on board by the captors 
 as prize-master. It is usual to put a prize-crew on 
 board of sufficient strength to prevent any chance of 
 a successful attempt to rescue the vessel ; and some- 
 times a part of the crew of the captured vessel are 
 taken out of her as a measure of precaution against 
 their attempting to overpower the prize-crew ; but 
 it is competent for a captor, if he places confidence 
 in the promise of the master of a captured vessel, to 
 retain the possession of the prize as against all sub- 
 
 ' The Hercules, 2 Dodson, p. 368. The Edward and Mary, 
 3 Ch. Kob. p. 306. 
 
334 OK CAPTUEE AND ITS INCIDENTS. 
 
 sequent captors by placing a single man on board of 
 her. "It is clear," says Mr. Justice Washington* 
 in delivering the judgment of the Supreme Court 
 of the United States, "that some act should be 
 • done indicative of an intention to- seize and retain 
 as prize ; and it is always sufficient if such intention 
 is fairly to be inferred from the conduct of the 
 captor." Accordingly it was held by the Supreme 
 Court that the presence of a siagle man on board, 
 although he did not interfere with the naviga- 
 tion of the ship, has been sufficient to retain pos- 
 session of a prize on behalf of the captor. Lord 
 Stowell, to a similar purport, held that the presence 
 of two men on board, although they had not taken 
 possession of the ship's papers nor had interfered 
 with the navigation of the vessel, was sufficient to 
 retain possession of a prize in favour of the first 
 captor against a privateer, which had seized the 
 vessel a second time and put one man on board of 
 her, as well as against a King's ship which had sub- 
 sequently assisted to prevent the master of the cap- 
 tured vessel from carrying into effect his intention to 
 take his vessel into an enemy's port. Upon the 
 ground of the latter act of assistance the commander 
 and crew of the King's ship attempted to maintaia 
 a title of capture, but the Court, held that the assist- 
 ance which they had afforded was only sufficient to 
 found an interest on their behalf in the nature of 
 a claim for mihtary salvage, and decreed them only 
 a salvage remuneration^. 
 Forms of § 1 69. The right to all captures is vested in the 
 ?n Grelt*^ Soveroigu Power, which has granted to the Corn- 
 Britain to mander of an armed ship a Commission to make 
 
 conatitute i j.i j. f 
 
 Prize capture of enemy s property ; but the capture oi 
 
 Courts. 
 
 * The Grotius, 9 Cranch, p. ' The Kesolution, 6 Ch. Rob. 
 370- ?■ 23- 
 
ON CAPTURE AND ITS INCIDENTS. " 335 
 
 such property may enure to the benefit of the actual 
 captor by a grant from the Sovereign Power, and 
 under such limitations and conditions as it may be 
 pleased to impose. In Great Britain it is usual at 
 the outset of war for the crown to issue in the 
 first place an order in Council^, granting General 
 Eeprisals "against the ships, vessels, and goods of 
 the Enemy Sovereign and of his subjects and others 
 inhabiting within any of his countries, territories, or 
 dominions," so that her Majesty's Fleets and Ships 
 may lawfully seize them and "bring the same to 
 judgment in such Courts of Admiralty within her 
 Majesty's dominions, possessions, or colonies, as shall 
 be duly commissionated to take cognisance thereof." 
 The Crown thereupon issues a Commission under the 
 Great Seal (which is prepared by Her Majesty's 
 Advocate General and Her Majesty's Advocate in 
 her Office of Admiralty) addressed to the Lord High 
 Admiral, or the Commissioners for executing his 
 office, authorising him or them to require the High 
 Court of Admiralty of England and the Lieutenant 
 or Judge thereof, as also the several Courts of Ad- 
 miralty within her Majesty's dominions, which shall 
 be duly commissionated, to take cognisance of and 
 judicially proceed against all and aU manner of 
 captures, seizures, prizes, and reprisals of all ships, 
 vessels, and goods that are or shall be taken, and to 
 hear and determine the same, and according to the 
 course of the Admiralty and the Law of Nations to 
 adjudge and condemn all ships, vessels, and goods as 
 shall belong to the Enemy Sovereign, or his subjects, 
 or others inhabiting within any of his countries, terri- 
 tories, or dominions. Instructions are subsequently 
 prepared by the same Law Officers, and are issued to 
 the several Courts of Admiralty within her Majesty's 
 
 ° Order in Council of 29 March 1854. 
 
336 'ON CAPTURE AND ITS INCIDENTS. 
 
 dominions for their guidance. Under the authority 
 of the Commission issued pursuant to such Order in 
 Council, the Lord High Admiral or the Commissioners 
 for executing his office issue a Warrant to the Judge 
 of the High Court of Admiralty, who is thereby 
 authorised to adjudicate upon all captures, seizures, 
 prizes, and reprisals, of all ships, vessels, and goods, 
 according to the course of its estabhshed practice ; 
 and it is not necessary for the High Court of Admi- 
 ralty to obtain the direct sanction of the Legislature 
 to enable it to act as a Court of Prize. Lord Stowell 
 has observed that "it is the common practice of 
 European States in every war to issue proclamations 
 and edicts on the subject of Prize ; but till they 
 appear. Courts of Admiralty have a law and usage on 
 which they proceed from habit and ancient practice, 
 as regularly as afterwards they conform to the ex- 
 press regulations of their Prize Acts ''. The original 
 and exclusive Jurisdiction of Courts of Admiralty 
 over questions of Prize or no Prize, and who are 
 the captors, notwithstanding any of the Prize Acts, 
 has also been repeatedly recognised by the Common 
 Law Courts at Westminster ^ 
 
 § 1 70. It is competent for the Legislature of every 
 Courts to country to errant to its Courts of Admiralty a iuris- 
 
 distribute •/ o %/ o 
 
 Prize. diction over questions, which they do not possess by 
 Ancient Usage; as for instance, a jurisdiction to dis- 
 tribute the proceeds of prize amongst the captors in 
 certain fixed proportions. On the other hand, the 
 Legislature of a country may restrain its Courts of 
 Admiralty from proceeding in certain matters accord- 
 ing to the general Law of the Admiralty ; as for in- 
 stance, British Courts of Admiralty are restrained by 
 
 ' The Santa Cruz, i Ch. Eob. Home in Error, 4 Term Keports, 
 p. 62. p. 382. Lindo t/. Rodney, 3 Term 
 
 ° Lord Camden and others v. Reports, p. 613. 
 
 Jurisdic- 
 tion of 
 
Olf OAPTUKE AND ITS INCIDENTS. 337 
 
 the Prize Acts from restoring British vessels to their 
 former owners on the payment of military salvage 
 to the recaptors, wherever " such vessels have been 
 set forth or used as ships or vessels of war by the 
 enemy®;" the jus postUminii is in such cases not 
 recognised. Prior to the sixth year of the reign of 
 Queen Anne the Legislature had not been accus- 
 i;omed to interpose its authority under the form of a 
 general Prize Act, but the Statute (6 Anne, c. 13.) 
 caUed the Cruisers' Act, which established as a branch 
 of the Royal Navy a permanent fleet of cruising 
 ships, expressly to furnish convoys to merchant ves- 
 sels, had also for its object to vest the sole interest in 
 all captures made by the King's ships or privateers 
 in the actual captors after final adjudication in a 
 Court of Admiralty. The Law, as it stood with respect 
 to the right of prize before 6 Anne, c. 13 ^°, may 
 be thus stated. Whatever was taken by any subject 
 of the Crown of England from an enemy in the 
 course of naval operations was Prize of War, and 
 appertained to the Sovereign either jure coronce, or 
 jure admiralitatis, according to circumstances. For 
 instance, if a capture should have happened to be 
 made by a private ship not furnished with a Commis- 
 sion from the Crown, the prize belonged to the Lord 
 High Admiral. Such was the decision of the CouncU 
 held by King Charles II at Worcester House on 6 
 March 1665-6 for determining the rights of the Lord 
 High Admiral ". But the state of the law thereby 
 recognised was found to work prejudicial effects in 
 
 ° The Ceylon, i Dodson, p. Blackstone's Eeports, p. 189. 
 106. " The declaration of the King 
 
 " There was a further Statute 'in Council will be found in Hay 
 
 (13 Anne, c. 37.) called the and Marriott's Eeports, p. 50, 
 
 American Act, passed for the and likewise in a note to the 
 
 regulation of Vice Admiralty Kebeckah, i Ch. Eob. p. 231. 
 Courts. Brymer v. Atkins, i H. 
 
 PART 11. Z 
 
338 ON CAPTURE AND ITS INCIDENTS. 
 
 discouraging merchant vessels from resisting the 
 attacks of enemy-cruisers ; and accordingly a Statute ^^ 
 was soon afterwards passed, under which a merchant 
 ship which had been attacked by and had captured 
 an enemy's cruiser, was declared to be entitled to the 
 same share as a private man-of-war. On the other 
 hand, if a capture should have been made by a 
 private vessel having a Commission to make Ee- 
 prisals, one tenth " of the prize went to the Lord 
 High Admiral, or to the Sqj^ereign jure admiralitatis, 
 and the rest was for the benefit of the privateer. Sir 
 Leoline Jenkins, in commenting upon a claim of the 
 Lord High Admiral to the tenth of aU prizes, ob- 
 serves, " There is no mention in the Lord Admiral's 
 Patent of these tenths, nor is there any constant un- 
 interrupted custom alleged for them, except in the 
 case of private men of war, from whom the Lord 
 Admiral doth receive his tenths. That the Earl of 
 Warwick had them given him by the late usurpers 
 from the public ships Hkewise, is yet fresh in memory ; 
 and that after they had extinguished the name and 
 oflB.ce of Admiral (as much as in them lay), they 
 sequestered the tenths, as a distinct thing in the pro- 
 venue of their prizes, and applied them to different 
 uses from the rest ^*." The custom accordingly of 
 the Lord Admiral's tenth would thus appear to have 
 been confined in England to prizes taken by private, 
 ships, and originated most probably at a period sub- 
 sequent to the compilation of the Black Book of the 
 Admiralty ^^ In France, on the other hand, the 
 
 ^^ i6 Car. II. c. 6.; also 21 " Letter of Sir L. Jenkins to 
 
 and 22 Car. II. c. 11. the King in Council. (Wynn's 
 
 " The Dixibme of the Admi-, Life of Jenkins, Vol. 11. p. 766.) 
 
 ral is recognised in the Ordon- " In the case of privateers 
 
 nance of Charles VI of France, the Admiral was entitled to two- 
 
 7 Dec. 1400. Lebeau, Nouveau thirds of each prize according 
 
 Code des Prises, Tom. I. p. 4. to the provisions of the Black 
 
OH" CAPTURE AND ITS INCIDENTS, 339 
 
 Admiral for his support, and in consideration of the 
 dignity of his place, and the importance of his ser- 
 vices, had in the year 1400 A. D. "son droit de 
 dixi^me ;" which in 1582 ^® was confirmed to him as 
 an estahhshed right, not only over all prizes what- 
 ever, but over all prisoners. The Statute 4 and 5 
 WiUiam and Mary, c. 25, ^ 18, gave to privateers the 
 sole interest in aU vessels captured by them, without 
 a deduction of the tenth for the Lord High Admiral 
 or the Commissioners for executing his Office. The 
 same Statute gave to privateers four fifths of the 
 cargo, and to King's ships one third of the pro- 
 ceeds of each capture. It was however felt in the 
 next ensuing reign that prize matters ought to be 
 placed on a more liberal footing, as comparisons were 
 drawn, by which the situation of naval officers in the 
 service of France was made out to be more advan- 
 tageous than the situation of officers in the service of 
 England ; so that on the breaking out of hostilities 
 with France, a Eoyal proclamation was issued by 
 Queen Anne on i June 1 702, giving to her Majesty's 
 ships half, and to privateers the whole interest in the 
 prize ; but no general Parliamentary regulation during 
 that war appears to have been passed on the subject 
 prior to the Statute 6 Anne, c. 13, in 1708, By this 
 Statute the sole interest in the prize was granted 
 both to King's ships and to privateers after condem- 
 nation in a Court of Admiralty, A similar pohcy 
 
 Book, which are as ancient as have from twenty to forty parts, 
 
 Eang Edward the Third's time : according to agreement with the 
 
 but in the Chapters "sur les parties, who might have fitted 
 
 Armemens en Course," which out the vessels. (Pardessus, Lois 
 
 are probably of a date earlier Maritimes, Tom. V. p. 417.) 
 
 than 1330, and follow the Cus- ■'' Letters Patent of Henri 
 
 toms of the Sea in the Con- IIL (16 August 1582.) Lebeau, 
 
 solat del Mar, we find a pro- Tom. I. p. 18. 
 vision that the Admiral was to 
 
 Z 2 
 
340 ON CAPTURE AND ITS INCIDENTS. 
 
 appears to have been adopted by otter States about 
 the same time. The Swedish Ordinance " of 1 7 1 5 
 granted in Hke manner the whole benefit of prize 
 after condemnation to the actual captor. The Statute 
 of Anne further provided that the proceeds of each 
 prize should be distributed amongst the captors 
 according to their respective shares, in manner, form, 
 and proportion, as by her Majesty's most gracious 
 proclamation to be issued for that purpose shall be 
 directed and appointed, any law, statute, provision, 
 or declaration to the contrary thereof in any wise 
 ■ notwithstanding. Wherever therefore the capture is 
 made by the King's ships or forces, the interest in the 
 prize is vested in the Sovereign jure coronce until 
 final adjudication. In such cases the property is 
 adjudged by the Court of Admiralty as lawful prize 
 to the Crown, whereupon the Prize Act comes into 
 operation, and transfers the interest of the Crown, 
 after adjudication, to the captors. 
 Absolute ^ 171. As the Prize Acts only vest in the captors 
 the Crown the interest of the Crown, after the capture has 
 raptures ^^^^ adjudicated to be good Prize of War, it is com- 
 petent for the Crown at any time before adjudication 
 to renounce its interest in any capture, and to direct 
 it to be given up altogether to the claimants, even 
 after prize proceedings have been instituted by the 
 captors. " Prize," says Lord Stowell, " is a creature 
 of the Crown. No man has or can have any interest, 
 but what he takes as the mere gift of the Crown. 
 Beyond the extent of that gift he has nothing. This 
 is the principle of law on the subject, and founded 
 on the wisest reasons. The Eight of making war 
 and peace is exclusively in the Crown. The acqui- 
 sitions of war belong to the Crown, and the disposal 
 
 " Collectanea Maritima, p. 175. 
 
ON CAPTURE AND ITS INCIDENTS, 341 
 
 of those acquisitions may be of the utmost importance 
 for the purposes both of war and peace. This is no 
 peculiar doctrine of our Constitution ; it is univer- 
 sally received as a necessary principle of piiblic juris- 
 prudence by all writers on the subject. Parta bello 
 cedunt reipuhlicce^^." Lord Stowell accordingly held, 
 that as the Prize Act and the Royal Proclamation 
 did not give the property to the actual captors until 
 after final adjudication, the Crown could at any time 
 before adjudication declare, that property, which had 
 been seized under the general Order of Eeprisals, 
 should not be further proceeded against as enemy's 
 property, and could direct it to be released. The 
 practice on such occasions prior to the Prize Act 
 of 1708 appears to have been for the Crown to 
 issue an Order in Council directing the release of 
 the property seized ^^ ; but subsequently to 1708 it 
 would seem, that the Lords of the Admiralty have 
 been accustomed to issue to the captors personally 
 an Order for the release of the property captured 
 by them. 
 
 ^172. The capture of a vessel is complete as Eeoapteres 
 between the belligerents when the surrender has the jwsposj- 
 taken place, and the spes recuperandi is gone. But ''■'«'™*- 
 as between the original owner of the vessel and a 
 third party in respect of the jus postliminii, if the 
 vessel should be recaptured ; or as between the cap- 
 tor of the vessel and a third party in respect of the 
 right of the former to dispose of the vessel in favour 
 of the latter by sale or otherwise, positive rules have 
 been introduced, partly from equity, to extend the 
 jus postliminii in favour of the original owner ; partly 
 from policy, to prevent any irregular conversion of 
 
 *^ The Elsebe, 5 Oh. Eob. orders are cited in a note to the 
 p. 184. Elsebe, 5 Ch. Rob. p. 189. 
 
 '' Various instances of such 
 
342 ON CAPTUEE AND ITS INCIDENTS. 
 
 property, before it has been ascertained to have been 
 lawfully acquired jure helli. It was a provision of 
 the Consolat del Mar^", that if a ship and cargo, 
 which had been captured by the enemy, should have 
 been recaptured by a friendly ship, the recaptor 
 ought to restore the ship and cargo to those who 
 were on board of her, if there should be any persons 
 found on board stiU alive ; but in such a case the 
 recaptor ought to receive salvage remuneration for 
 his trouble, and for any damage which he might have 
 incurred. But this applies only to those cases in 
 which the recaptor hfis retaken his prize within the 
 jurisdiction and in the waters of the country, to which 
 the ship belongs, or else in a roadstead where the 
 captors have not yet moored their prize, that is, have 
 not placed her in security ; otherwise if the prize has 
 been already carried into a place of security by the 
 captors, it is not a case merely for salvage remunera- 
 tion ; but on the contrary it is consistent with justice 
 that the vessel and her cargo ought to belong to the 
 recaptors. Such is the language of the Consolat del 
 Mar on the subject of the recapture of vessels and 
 their cargoes ; and such seems to have been the an- 
 cient law of Maritime Capture amongst the Nations 
 of Europe, in accordance with the principle of the 
 Eoman law, as applicable to persons captured by the 
 enemy, antequam in prcesidia perducatur hostium, 
 manet civis^^. " By the consent of Nations," says 
 Grotius, " things are said to be taken in war, when 
 they are so detained, that the first owner has lost all 
 probable hope of recovering them, and cannot pursue 
 them, as Pomponius determines a like question. This 
 takes place when they are brought within the boun- 
 
 '^ Customs of the Sea, ch. 245, tured." 
 printed in the Black Book of 21 Digest. L. XLIX. Tit. XV. 
 
 the Admiralty, App. iii. p. 611, c. 5. § i. 
 " Of a ship captured and recap- 
 
ON CAPTURE AND ITS INCIDENTS. 343 
 
 daries, that is, within the stronghold (prcesidia) of 
 the enemy ^^." 
 
 § 173. " Under the Law of Nations," says Grotius, Buie of 
 " which is applicable to such matters, the case is the Fmu^ho'urs 
 same with regard to goods as to persons, whereby p^^^^^'o"- 
 we may easily perceive how, when things are said to 
 belong immediately to the captors, it is to be under- 
 stood with a certain reservation, that they continue 
 in their possession until they are brought infra prce- 
 sidia : whence it seems to follow, that at sea ships 
 and other things are then only said to be captured, 
 when they are brought into the enemy's docks or 
 ports, or into that place where his whole fleet is 
 riding, for thereupon their recovery may be despaired 
 of. But we find that under a more recent Law of 
 Nations it has become the rule amongst European 
 Nations to account such thiags to be captured, when 
 they have been in possession of the enemy during 
 twenty-four hours ^l" To the same purpose Lord 
 Stowell has observed, "It cannot be forgotten that 
 by the ancient Law of Europe, the perductio infra 
 prcesidia, infra locum tutum, was a sufficient con- 
 version of the property ; that by a later law a 
 possession of twenty-four hours was sufficient to 
 divest the former owner ^*." The rule, that the 
 continuous possession of a ship and cargo on the 
 part of the enemy for twenty-four hours should de- 
 
 ^^ Ceterum in hae belli quae- ducta fuerint. (De Jur. B. et P. 
 
 stione placuit gentibus, ut ce- L. III. cap. 6. § iii. i.) 
 pisse rem is intelligatur, qui ita ^^ Recentiore Jure Gentium 
 
 detinet, ut recuperandi spem inter Europseos populos intro- 
 
 probabilem alter amiserit, aut ut ductum videmus, ut talia capta 
 
 res persecutionem effugerit, ut censeantur, ubi per lioras viginti 
 
 loquitur in simili qusestione quatuor in potestate hostium 
 
 Pomponius. Hoc autem in re- fuerint. Ibid. § in. 2. 
 bus mobilibns ita procedit, ut ^* The Ceylon, i Dodson, p. 
 
 capta dicantur ubi intra fines, 116. 
 id est, prsesidia hostium per- 
 
344 ON CAPTURE AND ITS INCIDENTS. 
 
 bar the original owner of the jus postUmmii, in other 
 words should deprive him of all right to reclaim 
 possession of his former ship and cargo, on pay- 
 ment of military salvage to the recaptor, or as Byn- 
 kershoek terms it, salvo servaticio, seems to have 
 been borrowed from the Laws of the Lombards, and 
 was established after the analogy of the four and 
 twenty hours, which, not without reason was the 
 limit of time, within which a hunter who had 
 wounded a beast might recover possession of it, if 
 it had been taken by another ^. This rule may be 
 said to have been generally recognised amongst Eu- 
 ropean Nations until the middle of the seventeenth 
 century. Albericus Gentilis speaks of it as the Law 
 of Castile in his day, and it is the Law of the king- 
 dom of Spain in the present day. Lord Stair in his 
 decisions says it is the rule of Law in Scotland. 
 Valin states that a similar practice prevailed in his 
 time in France, and the Law of France in the present 
 day accords with that practice. Crompton, in his 
 treatise on the jurisdiction of Courts, says that it was 
 the ancient Law of England, and that a possession of 
 twenty-four hours on the part of the enemy was a 
 sufficient conversion of property. It has been dis- 
 puted whether the passage in Crompton apphes to 
 maritime capture, although Lord Stowell interprets 
 it in that sense ^^ ; but there is a specific assertion 
 in Thurloe's State Papers^' on the part of the Dutch 
 Eesident at the Court of St. James in 1656, that, 
 
 ^^ Si cervus aut quselibet fera transactas horas preedictas inve- 
 
 ab aliquo homine sagittata fuerit, nerit, non sit culpabilis si sibi 
 
 tam diu illius esse intelligatur, habeat ipsam feram. Leges Lon- 
 
 qui earn sagittaverit aut vulne- gobardorum, Tit. XXII. § 6. 
 
 raverit, usque ad aliam talem Lindenbrogii Codex Legum An- 
 
 horam diei aut noctis, quae sunt tiquarum, Tom. I. p. 558. 
 
 horse viginti quatuor, quando ^° The Ceylon, i Dodson, p. 
 
 earn postposuerit, et se ab ea n8. 
 
 tornaverit ; nam qui earn post ^^ Thurloe, Tom. IV. p. 589- 
 
ON CAPTURE AND ITS INCIDENTS. 345 
 
 after many suits and afterwards appeals had in the 
 Council of the King anno 1632, it was understood 
 that jure postliminu no ships ought to be restored, 
 which had been twenty-four hours in the power 
 of the latter. In Denmark the Maritime Code of 
 Christian V (1670-1699) ordains that if an armed 
 ship recaptures a Danish ship, which has been in the 
 possession of the enemy for twenty-four hours, the 
 recaptors shall have the exclusive benefit. 
 
 § 1 74. It is within the province of the Legislature Salvage 
 of every country to regulate by its municipal law ture.^Prac- 
 all questions of recapture, which may arise between g^gaf Bri- 
 its own citizens. We find accordingly that in Eng- tain and of 
 land during the Commonwealth a departure was states of 
 made from the general Law of Europe in favour ^™®"°*- 
 of merchants by the Ordinance of 1649, which di- 
 rected a restitution of all vessels by British recap- 
 tors to British subjects upon payment of salvage ; 
 and a like indulgence has been continued in suc- 
 cessive Prize Acts down to the present day, the 
 only exception being made in the case in which 
 the enemy has fitted out his prize as a man-of-war ^^ 
 It will be sufiicient to bring a vessel within this 
 exception, and to leave her subject to the operation 
 of the general Law, if she should have been fitted 
 out as a privateer by the enemy, although she may 
 be navigating as a merchant vessel at the time of 
 her recapture ^^. But it will not be sufficient to de- 
 prive her of the protection of the Prize Act, that - 
 she should have an additional number of men put 
 on board of her by the captor. A vessel originally 
 armed as a slave ship was captured by a privateer, 
 who put men on board of her ; but Lord Stowell 
 
 ^' Nostra Signora del Eosario, ibid. p. 401. 
 3 Ch. Eob. p. 10. The Ceylon, '^ L'Actif, Edwards, p. 186. 
 
 iDodson, p. 105. The Georgiana, 
 
346 ON CAPTURE AND ITS INCIDENTS. 
 
 held, that as there was no Commission of War, no 
 arming of the vessel, the mere fact of putting an 
 additional number of men on board did not have 
 the eifect of defeating the title of the original 
 owner ^''- The practice of Great Britain has been 
 adopted as the rule of their decisions by the Courts 
 of the United States of America. But the regula- 
 tions of the Municipal Law of a State are not ap- 
 plied to cases of recapture, when the property of 
 Neutrals is concerned. The rule of reciprocity was 
 followed by Lord Stowell in the case of a Portuguese 
 vesseP^ and so in the United States, the Salvage Act 
 of 1800 declared that upon the recapture of neutral 
 property, the rule of reciprocity was to prevail. If 
 the Courts of Neutral States would in the like case 
 restore on salvage, then the American Courts were 
 to restore on the same salvage ; if otherwise, then 
 they were to condemn to the recaptors ^^. Thus in 
 the case of an American vessel, which had been re- 
 captured from the British by an American privateer 
 with a valuable cargo on board, the property of 
 French subjects, the Supreme Court of the United 
 States decreed the ship to be restored to the Ame- 
 rican owners, on payment of salvage to the recaptors, 
 but condemned the cargo as good prize to the captors 
 on the principle of reciprocity, inasmuch as French 
 Courts award to recaptors the entire property, 
 whether it belongs to French subjects, to alhes, or 
 to neutrals, in all cases of recapture, after the pro- 
 perty has been twenty-four hours in the possession 
 of the enemy ^'. 
 Practice of ^175- There are notable differences to be observed 
 Spaing' ^^ ^^^ manner, in which the different States of Bu- 
 Sweden*' ^'"'P® administer the jus postUminn under the provi- 
 aud Hoi- so Tijg Horatio, 6 Oh. Eob. ^'^ The Star, 3 Wheaton, p. 
 
 '^"■l- p. 320. 92. 
 
 ^1 The Santa Cruz, i Ch. Eob. ^^ The Schooner Adeline and 
 
 p. 50. her Cargo, 9 Cranch, p. 244. 
 
ON CAPTURE AND ITS INCIDENTS. 347 
 
 pions of their Municipal Law in the case of property 
 recaptured at sea, although the tendency of all 
 modem legislation is in favour of a milder practice, 
 than that which had been generally received before 
 the commencement of the seventeenth century after 
 the analogy, which the Law of the Lombards sup- 
 plied. The French Arrete of 2 Prairial, an. XI. pro- 
 vided, that if the recapture should have been made 
 by a public ship of war, it should be restored to the 
 original owner on the payment of one thirtieth of 
 its value by way of salvage, if it had been recap- 
 tured within twenty-four hours ; or of one tenth of 
 its value, if twenty-four had elapsed, the original 
 owners being liable to defray the expenses attending 
 the recapture. If, on the other hand, the recapture 
 had been made by a private ship of war before 
 the lapse of twenty-four hours, the recaptors would 
 be entitled to a salvage of one third ; if after the 
 vessel had been twenty-four hours in possession of 
 the enemy, the recaptors would be entitled to the 
 whole as prize. The rule of the French Courts is 
 the same, whether the property recaptured belongs 
 to neutrals, or to French subjects. In Spain the 
 Ordinance of 1801 makes a distinction between the 
 property of Spanish subjects and the property of the 
 subjects of friendly Nations. The rule in regard to 
 the former is, that if the property is recaptured 
 within twenty-four hours, a salvage of one third 
 shall be paid to the recaptors ; but if after that 
 time, the recaptors shall take the property as prize. 
 But in regard to the latter, the recaptured ship, 
 unless it be laden with enemy's property, is to be 
 restored on payment of one eighth of its value, as 
 salvage, if recaptured by a public ship ; and of one 
 sixth of its value, if recaptured by a privateer ,- 
 subject however to the condition, that the Courts 
 of the State, under whose flag the vessel sails, should 
 
348 ON CAPTURE AND ITS INCIDENTS. 
 
 observe the same rale in regard to Spanish property. 
 Portugal, by an Ordinance of 1797, decreed that re- 
 stitution should be made of property recaptured after 
 twenty-four hours on salvage of one eighth to a 
 public ship, and of one fifth to a privateer. Den- 
 mark, by an Ordinance of 18 10, decreed the property 
 of Danish subjects and of allies to be restored without 
 any regard to the length of time which might have 
 elapsed since its capture, on payment of one third 
 of its value, as salvage, to the recaptors. In Swe- 
 den the Ordinance of 1788 enacted that, if a Swedish 
 vessel should be recaptured from the enemy, the re- 
 captor should have half her value without respect 
 to the time during which she had been in the pos- 
 session of the enemy. In Holland the law has 
 undergone great modifications, but at present resti- 
 tution to the original owners is to be made in all 
 cases, subject to different rates of salvage. Thus 
 the Ordinance of 1659 decreed the restitution of 
 the recaptured property to the original owners in 
 every case, on payment to the recaptors of one ninth 
 of the value, and such continues to be the rule of the 
 Courts in the case of recaptures by public vessels ; 
 but in regard to privateers, a later Ordinance of 1677 
 has decreed to them a salvage of one fifth, if the pro- 
 perty should have been recaptured within forty-eight 
 hours ; of one third, if it should be recaptured after 
 forty-eight and within ninety-six hours ; and of one 
 half, if recaptured after ninety-six hours. 
 Insurable § ij6. All Captures jure belli are consummated 
 British under the Natural Law of Nations by surrender 
 captora. ^(jgfjitio), in the sense in which a capture enures 
 to the benefit of the Sovereign Power which has 
 authorised the capture^* ; but in the sense in which 
 
 " In conformity with the solam occupationem dominium 
 rule of the Roman Law, " per prsedse hostibus acquiri," which 
 
ON CAPTUBE AND ITS INCIDENTS. 349 
 
 a capture enures to the benefit of the actual captor 
 under the Municipal Law of a civilised State, the 
 title of the captor is not complete until it has been 
 submitted to and sanctioned by a Court of Prize. 
 " In later times," says Lord Stowell, " an additional 
 formality has been required, that of a sentence of 
 condemnation in a competent Court, decreeing the 
 capture to have been rightly made jure belli ; it not 
 being thought fit in civilised society that property of 
 this sort should be converted without the sentence 
 of a competent Court, pronouncing it to have been 
 seized as the property of an enemy, and to be now 
 become jure belli the property of the captor. The 
 purposes of justice require that such exercises of 
 war shall be placed under public inspection, and 
 therefore the mere deductio infra prcBsidia has not 
 been deemed sufficient." In accordance with this 
 principle, the actual captors under the British Prize 
 Acts have no formal interest in their captures until 
 after the final adjudication of them, as Prize, by the 
 sentence of a competent Court, although they have 
 been held to have an insurable interest in them 
 immediately after capture. If the actual captor 
 might be regarded in the light of a trustee for the 
 Crown to bring all his captures as soon as possible 
 into port, in order that a competent Prize Court may 
 adjudicate upon them, the captor would have an in- 
 surable interest in his capture in his character of 
 trustee ; for such was the purport of the judgment 
 of the House of Lords ^^, in the case of the Commis- 
 sioners appointed under 35 Geo. HI. c. 80, for the 
 purpose of taking care of and disposing of Dutch 
 
 Lord Mansfield has discussed in and P. in the Exchequer Cham- 
 
 Goss V. Withers, 2 Burrows, ber, and 2 N. R. 269 in the 
 
 p. 683. House of Lords. Park on In- 
 
 '' Crawford v. Lucena, 3 B. surance, II. p. 571. 
 
350 ON CAPTURE AND ITS INCIDENTS. 
 
 ships and effects captured at sea by his Majesty's 
 ships of war and brought into the ports of Great 
 Britain. The Lords decided on that occasion, that 
 the Commissioners might insure in their own name 
 in the right of trustees for the Crown. But with 
 regard to actual captors, they have been adjudged to 
 have an insurable interest on other and different 
 grounds. In one case Lord Mansfield^® held that the 
 captor had under the Prize Act and Proclamation such 
 certain expectation of profit upon the safe arrival of 
 his prize in port, that it gave him an insurable in- 
 terest in its arrival ; whilst in another case Lord 
 Kenyon, Mr. Justice Grose, and Mr. Justice Law- 
 rence, were of opinion that as the captor has the risk 
 of being condemned in costs and damages, if the cap- 
 ture is pronounced to have been unjustifiable, he has 
 a right to insure against that risk ^'. 
 Ancient § 177- It was formerly the practice of belligerent 
 to^'^rison^ States to leave to every prisoner of war the care of 
 era of war. redeeming himself from captivity, and the captor ia 
 each case had a lawful right to demand a ransom for 
 his prisoner. The practice of ransom was in fact a 
 mitigation of the earlier practice under which a pri- 
 soner of war became the slave of the captor, and which 
 practice Grotius^^ recognises as conformable to the 
 Law of Nations. But Grotius has at the same time 
 pointed out, that this Law of Nations has neither 
 
 '^ Le Cras v. Hughes, East, sed omnes omnino bello solemni 
 
 2 2 G. III. publice oapti, ex quo scilicet 
 
 s'f Boelim V. Bell, 8 T. E. 154. intra prsesidia perducti sunt, ut 
 
 The Nemesis, Edwards, p. 50. ait Pomponius. Neque delictum 
 
 '^ At eo, de quo nunc agimus, requiritur, sed hsec omnium sors 
 
 gentium jure aliquanto latius est, etiam eorum qui fate suo, 
 
 patet servitus, turn quoad per- ut diximus, cum bellum repente 
 
 sonas, turn quoad eflfectus. Nam exortum asset, intra hostium fines 
 
 personas si spectamus, non soli, deprehenduntur. De Jure B. et 
 
 qui se dedunt aut servitutem P. L. III. c. 7. § i and 2. 
 promittunt, pro servis habentur, 
 
ON CAPTURE AND ITS INCIDENTS. 351 
 
 been received at all times, nor amongst all Nations, 
 although the language of the Eoman jurists on the 
 subject is general, and that an advance has been 
 made in the practice of mankind in the treatment of 
 captives from reverence for the law of Christ. " But 
 even Christian Nations have maintained the practice 
 of detaining prisoners of war in captivity, until a 
 price is paid for them, of which the captor is accus- 
 tomed to form an estimate at his pleasure, unless 
 there has been some Convention entered into on the 
 subject^^" Notwithstanding the mitigating influences, 
 which the profession of the same Religion by both 
 the belligerent parties and more especially the pro- 
 fession of the Christian Religion has been found in 
 practice to exercise over the conduct of hostilities, it 
 has been found necessary, within so recent a period 
 as the commencement of the seventeenth century, to 
 stipulate by treaties, that prisoners of war should not 
 be detained as galley-slaves after the war has termi- 
 nated. Thus it was stipulated in the treaty of 1604*" 
 between England and Spain, that prisoners of war 
 on either side should be released, although they had 
 been condemned to the galleys. An article in similar 
 terms was introduced into the treaty of 1630 between 
 England and Spain *^ It would appear from the 
 loist article of the Treaty of the Pyrenees, concluded 
 in 1659, between France and Spain, that at that time 
 the practice of condemning prisoners of war to the 
 galleys was not altogether abandoned*^. This prac- 
 tice however was evidently becoming obsolete before 
 the conclusion of the seventeenth century, for we find 
 
 ^^ Manet etiam inter Chris- L. III. c. 7. § 9. 2. 
 tianos mos captos custodiendi *" Dumont, Corps Diploma- 
 donee persolutum sit pretium, tique, Tom. V. Part II. p. 38. 
 cujus sestimatio in arbitrio est *^ Ibid. p. 623. 
 victoris, nisi certi aliquid con- ^ Dumont, Tom. VI. Part II. 
 venerit. De Jure Belli et Pacis, p. 278. 
 
352 ON CAPTUEE AND ITS INCIDENTS. 
 
 that when Count Solmes, who was serving under 
 William of Orange in Ireland in 1 690, threatened to 
 deport his prisoners as slaves to America, the Duke 
 of Berwick threatened to retaUate by sending his pri- 
 soners to the galleys in France*^. Bynkershoek, in 
 commenting on the conduct of the Dutch in 1602, in 
 liberating certain prisoners of war whom their friends 
 would not ransom, observes, that it would have been 
 foreign to the manners of that age morihus, qui nunc 
 frequentantur, alienum, to have put them to death, 
 or to have sold them as slaves, although he remarks 
 that the Dutch are accustomed to sell, as slaves, to 
 the Spaniards all prisoners of war belonging to 
 Algiers, Tunis, or Tripoli ; and that the States 
 General had ordered their Admiral in 1661 to sell, 
 as slaves, all pirates whom he might capture at sea. 
 From a proclamation of Charles 1 of 23 July 1628, 
 we may infer two facts ; first, that a practice of ex- 
 changing prisoners during war was growing up ; and 
 secondly, that the private interest of the actual 
 captor in his prisoners had not been entirely divested 
 at that time, as we find all prisoners brought into the 
 kingdom by private men were to be kept in prison at 
 the charge of the captors, until they should be de- 
 livered by way of exchange or otherwise**. At a 
 later period of the same century we arrive at greater 
 certainty; for we find in the year 1666 mention 
 made by D'Estrades*^ of a person coming to England 
 in a public capacity from Holland, to negotiate an 
 exchange of prisoners between England and Holland 
 then at war. It seems not improbable that Humanity 
 is indebted to the Dutch for initiating the modem 
 
 *' Bynkershoek, Qu. Jur. Publ. p. 1035. 
 L. I. c. 3. ^= Lettres de M. le Comte 
 
 " Eymer,Foedera,Tom.XVIII. d'Estrades, Tom. III. p. 475. 
 
ON CAPTURE AND ITS INCIDENTS. 353 
 
 practice of exchanging prisoners, whilst war was 
 going on*". 
 
 § 178. It was amongst the provisions (Art. LXIII.) Modem 
 of the Peace of Munster (a.d. 1648) that all prisoners the ex- ""^ 
 of war should be released on both sides without "^.^''s® "^ 
 
 prisoners. 
 
 ransom and without any distinction or reservation ; 
 and it is from about the sarnie period that we may 
 date the introduction of cartels in Europe for the 
 release of prisoners at a fixed rate of ransom, whilst 
 war is going on. It is not unusual in the present 
 day for two States which are engaged in war against 
 each other to enter into an agreement, which is 
 termed a Cartel, either for the exchange of prisoners, 
 or for their ransom at fixed rates. Such a Cartel 
 was agreed upon on 26 March 1673 between the 
 Duke of Luxemburg on the part of Louis XIV and 
 Coimt Horn on the part of the States General, under 
 which a proportionate scale of money prices was 
 settled for the ransom of o£B.cers and soldiers accord- 
 ing to their respective grades, in cases where there 
 was no officer or soldier of equal grade, who could be 
 released in exchange*^. AU medical and surgical 
 officers with their servants were to be released with- 
 out ransom. Similar Cartels were made between the 
 French and the_ Dutch in 1675^, and between the 
 Emperor Leopold and Louis XIV in 1692*^ and 
 between the French and the Imperial armies in Italy 
 in 1701®°* It is not unusual in modem Cartels to 
 stipulate, not merely for the ransom of prisoners for 
 a pecuniary equivalent, if no exchange of prisoners 
 of equal grade can be effected, but to stipulate for 
 
 *" 3 Oh. Eobinson's Keports, *^ Ibid. p. 292. 
 
 Appendix A. *» Tom. VII. Part II. p. 310. 
 
 *' Dumont, Corps Diploma- °° Martens, E^cueil, Tom. III. 
 
 tique, Tom. YII. Part I. p. 230. p. 310. 
 
 PART II. A a 
 
354 ON CAPTURE AND ITS INCIDENTS. 
 
 the ransom of prisoners for a personal equivalent, as 
 for instance in the Cartel of 1780" agreed upon 
 between France and Great Britain, a Field Marshal 
 was to be ransomed for sixty pounds sterling, or for 
 sixty private soldiers, each private soldier being 
 allowed to be ransomed for one pound sterling. A 
 Cartel for the exchange of prisoners during war was 
 agreed to between Great Britain and the United 
 States in 18 13, under which the same principle was 
 adopted of exchanging prisoners not merely for pri- 
 soners of equal rank, but for equivalents in men^l 
 During the war of the Allied Powers against Eussia 
 (1854-56) frequent exchanges of prisoners took place,; 
 and it was agreed, under a special convention between 
 France and England, that whenever the two allied 
 Governments should agree to an exchange of pri- 
 soners with the Enemy, no distinction should be made 
 between their respective subjects who might have 
 fallen into the hands of the Enemy, but their libera- 
 tion should be effected according to the priority of 
 their respective capture, except under special circum- 
 stances, which were reserved for the mutual consider- 
 ation of the two Governments^^ It seems to have 
 been thought necessary even in the Treaty of Paris 
 (30 March 1856) to stipulate that the prisoners of 
 war on both sides should be immediately released ^*. 
 It is advisable that such a provision should be intro- 
 duced ex majori cautela into all Treaties, even 
 between Powers, which do not recognise the status 
 of domestic slavery. Dr. PhiHimore has very justly 
 observedj that if prisoners are not released during 
 
 " Lamberty's Memoirs, Tom. 1854. Martens, N. E. G^n- XV. 
 
 T. p. 694. p. 595. 
 
 ™ National Advocate, May " Xies prisonniers de guerre 
 
 26, 18 1 3. Beront imm^diatement rendus de 
 
 '' Convention of 10 May part et d'autre. Ibid. p. 774- 
 
OS CAPTURE AND ITS INCIDENTS. 355 
 
 the war, their freedom should always form one of 
 the conditions of the peace, which terminates it^^ 
 
 § 179. The Cartel of 1 813, between Great Britain Cartel 
 and the United States, provided that American 
 Agents might reside at Halifax and other places, 
 and British Agents at various places within the 
 United States. It is usual, and obviously of the 
 last importance for carrying out the objects of a 
 Cartel, that a Commissary of prisoners should reside 
 in the country of the Enemy; and it is competent 
 for him to grant a pass or special safe-conduct eundo 
 et redeundo to ships employed in conveying prisoners 
 who have been exchanged or ransomed ^^. Such ships 
 are denominated Cartel Ships. The employment of 
 such ships, whilst it is entitled to every favourable 
 consideration upon the same principles as all other 
 commercia belli, by which the violence of war may 
 be allayed, as far as is consistent with its purposes, 
 must be conducted with very delicate honour on both 
 sides, so as to leave no ground for suspicion, that 
 a practice introduced for the common benefit of man- 
 kind should be made a stratagem of war, or become 
 liable to fraudulent abuse. In general, when a ship 
 is going on a Cartel, unless there has been a stipula- 
 tion as to the character of the ship to be so employed, 
 it is immaterial whether she is a merchant ship or a 
 ship of war ; but a Cartel ship has no right to trade 
 by carrying either merchandise or passengers for 
 hire^^ ; neither is a ship protected from capture when 
 
 °^ Commentaries upon Inter- cargo, which had been shipped 
 
 national Law, III. p. 145. at Dover on board of a French 
 
 ^ The Daifjie, 3 Ch. Rob. p. Cartel ship, which was lying near 
 
 143. the quay with her sails set and 
 
 ^' The Venus, 4 Ch. Rob. p. ready to sail back to France. 
 
 355. Lord Stowell condemned La Rosine, 2 Ch. Eob. p. 373. 
 as a Droit of Admiralty some 
 
 A a 2 
 
356 ON CAPTURE AND ITS INCIDENTS. 
 
 she is proceeding to a port for the purpose of taking 
 upon herself the character of a Cartel ship when she 
 arrives at such port ; but she is protected from cap- 
 ture in returning from a port of the enemy, to which 
 she has conveyed prisoners of war, until she has 
 arrived at a port of her own country, for she is pro- 
 tected in the whole trajectus between the ports of 
 the two belligerents. There are cases in which the 
 privileges of Cartel have been allowed to vessels 
 employed in carrying prisoners of war back to their 
 own country agreeably to an understanding with the 
 commander of the enemy-forces, although such vessels 
 have not been provided with the formal documents 
 of Cartel. Lord Stowell held that in such a case a 
 Prize Court was placed under an obligation to sup- 
 port the good faith of an agreement, on which the 
 other party had acted with confidence ^^. 
 Eansomof ^ i8o. The Eansom of Captures at sea comes 
 at Sea. uudor different considerations of Law from the ran- 
 som of prisoners of war. In the latter case the 
 person of the captive has been brought infra prce- 
 sidia, but with regard to captures at sea circum- 
 stances will frequently not permit a captor to bring 
 or send his prize into port. In such a case he may 
 destroy the property of his enemy jure heUi. Being 
 thus of Right dominus of the property which he has 
 taken, he may restore it, if he sees fit, to the owner 
 on an agreement on the part of the latter to pay a 
 specific sum of money by way of ransom^^ The 
 right of every captor to restore a captured ship and 
 cargo upon ransom is not founded on a formal vested 
 title in the captor to the captured property. Mr. 
 
 ^ The Gloire, 5 Ch. Rob. surances, c. 12. § 21. Customs 
 p. 93. of the Sea,<;h. 185, 186. Guidon, 
 
 °' Em^rigon, Traits des As- c. 6. § Art. 2, 3, 7, and 9. 
 
ON CAPTURE AND ITS INCIDENTS. 357 
 
 Justice Story*" has observed that " whether the pro- 
 perty vests after twenty-four hours' possession ; or 
 after bringing infra p^cesidia, as seems the doctrine 
 of the Civilians ; or after condemnation, as is the 
 doctrine of Great Britain ; it is clear that the right 
 to take a ransom exists from the moment of capture. 
 And by the general practice of the maritime world, a 
 decree of condemnation is deemed necessary to ascer- 
 tain and confirm the inchoate title of the captors, 
 at least in respect to the Sovereign and subjects of 
 their own country. Nor is a ransom, strictly speak- 
 ing, a repurchase of the captured property. It is 
 rather a repurchase of the actual right of the captors 
 at the time, be it what it may ; or, more properly, it 
 is a relinquishment of all the interest and benefit, 
 which the captors might acquire or consummate in 
 the property by the regular adjudication of a prize 
 tribunal, whether it be an interest in rem, a lien, or 
 a mere title to expenses. In this respect there seems 
 to be no legal difierence between the case of a ransom 
 of the property of an enemy, and of a neutral. For 
 if the property be neutral, and yet there be a pro- 
 bable cause of capture, dr if the delinquency be such, 
 that the penalty of confiscation might be justly ap- 
 plied, there can be no intrinsic difficulty in supporting 
 a contract, by which the captors agree to waive their 
 rights in consideration of a sum of money voluutarily 
 paid, or agreed ,to be paid, by the captured." 
 
 ^ j8i. The captor, when he restores a captured ^*°s°"i 
 vessel to its commander under a Contract of Ransom, 
 takes from the latter what is termed a ransom hill, 
 under which the latter binds himself and the owner 
 of the vessel and cargo to pay a certain sum of money 
 ' at a future day named in the bill. This contract is 
 usually made in duplicate, one of which is kept by 
 ^^ Maisonnaire and others v. Keating, 2 Grallison, p. 337. 
 
358 ON CAPTCTRE AND ITS INCIDENTS. 
 
 the captor, and is properly termed the Eansom Bill, 
 and the other is given to the master of the captured 
 vessel, and serves as a Pass or Safe-conduct for him. 
 The master of the captured vessel at the same time 
 delivers up to the captor one of his crew, generally 
 the mate of his vessel, as a hostage for the payment 
 of the money stipulated in the Ransom Bill. The 
 ransomed vessel is thereupon permitted to proceed to 
 a designated port by a prescribed route and within 
 a limited time. A failure to comply with any of 
 these conditions places the vessel and her cargo out 
 of the protection of the ransom bill, otherwise the 
 ransom bill serves to secure the vessel and her cargo 
 from all molestation from the cruisers of the belli- 
 gerent state of which the captor is a subject, or from 
 the cruisers of its aUies, until she has reached the 
 port of her destination. It has been justly observed 
 that all compacts with the common enemy must bind 
 allies, when they tend to accomplish the object of the 
 alliance ; otherwise the ally would reap all the fruits 
 of the compact vdthout being subject to the terms 
 and conditions of it, and the enemy with whom the 
 agreement was made would be exposed in regard to 
 the ally to all the disadvantages of it, without par- 
 ticipating in the stipulated benefit. Such an in- 
 equality of obligation is contrary to every principle 
 of reason and justice ^^ If the vessel should be forced 
 out of the course prescribed, or her voyage should 
 exceed the time allowed in the ransom biU owing 
 to stress of weather or some overpowering necessity, 
 such a circumstance will not work a forfeiture of her 
 safe-conduct ; but if she should have no such excuse 
 for her non-observance of the conditions of her ran- , 
 Bom, and should be captured a second time, she is 
 
 " Kent's Commentaries, Tom.I. 2 Dallas, p. ig. Yates v. Hall, 
 p. 105. Miller ?;, The Kesolution, i Term Eep. p. 73. 
 
ON CAPTURE AND ITS INCIDENTS. 359 
 
 liable to be adjudged good prize to the second 
 captors, in which case the debtors under the bill of 
 ransom will be discharged from their contract, and 
 the amount stipulated in her bill of ransom will be 
 deducted from the total proceeds of the prize, the 
 residue only going to the second captor ^^ On the 
 other hand, if the vessel of the captors should be 
 taken by the enemy with the ransom bill and' hos- 
 tage on board, the ransom bill is thereby discharged, 
 and it cannot be revived by recapture®^. So when 
 the vessel of the captor, after he has transmitted 
 the ransom bill, is taken with the hostage on board, 
 the ransom is discharged by such recapture of the 
 hostage®*. But if the hostage and the ransom bill 
 have both been transmitted by the captor to a place 
 of safety, and the captor's vessel be subsequently 
 taken by the enemy, the ransom remains due not- 
 withstanding such capture. In such a case there is 
 nothing on board the captor's vessel that represents 
 the ransom of the captured vessel; and where the 
 hostage and ransom bill have both been conveyed 
 to a place of safety, it is equivalent to the prize itself 
 having been carried infra prcesidia. So if the com- 
 mander of a privateer should have ransomed an 
 enemy's vessel, under a condition, amongst others 
 inserted in the ransom biU, that the full amount 
 should be paid notwithstanding " the hostage should 
 come to die, or to desert, or that the said privateer 
 should perish or be taken with the hostage on 
 board," and the privateer should have been subse- 
 quently captured by the enemy with the hostage 
 and ransom bill on board, but the ransom bill should 
 not have bepn deHvered up to the captors of the 
 
 '^ Valin, Traits des Prises, '' Em^rigon, Traits des As- 
 
 c. ir. § 1-3. Pothier, Traits de surances, c. 12. sect. 23. § 8. 
 Propriety,! 134-137. " Ibid. 
 
360 ON CAPTURE AND ITS INCIDENTS. 
 
 privateer, nor have ever come into their possession, 
 the original captor has been held entitled to recover 
 on the ransom bilP^. So likewise if the commander 
 of the ransomed vessel should have given a bill of 
 exchange to the captor as an additional security, to- 
 gether with the ransom bill, and the bill of exchange 
 should have been negotiated in good faith to the order 
 of a third party for value received, it is to be paid 
 by the owners of the ransomed vessel, although the 
 hostage should have been recaptured on board the 
 privateer ; but if the bill of exchange has not been 
 negotiated for value received at the time of his 
 recapture, the owners of the ransomed vessel are 
 absolved from their obligation under the bill of ex- 
 change, as well as under the ransom biU itself®^. 
 Hostages. ^ 182. When a captor releases an enemy's vessel 
 on Eansom, it is allowable for him to take one or 
 more hostages from the ransomed vessel. The French 
 Ordonnance de la Marine^' enjoined aU captors, if they 
 released a vessel and her cargo par composition, to 
 seize all her papers, and to bring away at least two 
 of the principal officers of the captured vessel ^. In 
 practice however one hostage only is taken, who is 
 liable to be detained as a prisoner of war vmtil the 
 ransom is paid. The validity of the ransom bill does 
 not in any way depend upon the taking of a hostage, 
 but the hostage serves as a security to facilitate the 
 recovery of the ransom in a court of law ; for the 
 hostage has a right of action in the courts of his 
 own country against the master, and against the 
 owner of the ship and cargo, to compel them to 
 
 *^ Corner v. Blackburne, 2 and Tit. VII. Des Avaries, § 6. 
 
 Douglas, p. 640. ** Valin, Ordonnance de la 
 
 «" Em^rigon, c. 12. Tit. XXII. Marine, Tit. IX. § 19. Lebeau, 
 
 ^' The practice of ransom is If ouveau Code des Prises, Tom. I. 
 
 recognised by this Ordinance in p. 89. Azuni, Droit Maritime, 
 
 Tit. VI. Des Assurances, § 66. Tom. II. c. 4. Art. VI. 
 
ON CAPTURE AND ITS INCIDENTS. 361 
 
 perform the conditions of the contract under which 
 their property has been restored to them, and the 
 due performance of which is a necessary condition 
 for the recovery of his freedom*^. But the hostage 
 is merely a collateral security, like bills of exchange, 
 and the escape or death of the hostage does not 
 discharge the ransom bill™. The master of a ship 
 cannot bind the owners of the ship and cargo to 
 pay a ransom which exceeds their value ^^, as they 
 may always discharge their liability under a ransom 
 bill by abandoning the vessel and cargo to the holders 
 of the biU, just as the owners of a ship and cargo 
 may abandon the ship and cargo in the Instance 
 Court of Admiralty to the holders of a bottomry 
 bond. When the vessel and cargo are insufficient to 
 defray the ransom bill, the master is hable to be 
 personally -sued for the payment of the balance of 
 the ransom bill, and for the expenses of the hostage. 
 The loss of the ransomed ship by stress of weather 
 does not discharge the ransom bill or release the host- 
 age. But if the ship and cargo have been abandoned 
 by the owners and sold under a decree of the Admir- 
 alty Court, and the proceeds should be insufficient to 
 discharge the ransom biU, and the master should be 
 insolvent, the captor in such a case is bound to release 
 the hostage on payment of the sum for which the 
 vessel and cargo have been sold by the decree of the 
 Court ; in other words, the Court of Admiralty wiU 
 not suffer the money to be paid out. of the Eegistry 
 until the hostage is released''^. 
 
 § 183. The practice of releasing captured vessels Modem 
 on ransom being considered to be less beneficial to up^on^ran- 
 
 som. 
 
 "^ The Hoop, I Ch. Eob. » The Gratitudine, 3 Ch. Eob. 
 
 p. 201. p. 258. 
 
 '"' Azuni, Droit Maritime, '''' Yates v. Hall, i Term Ke- 
 
 Tom. II. c. 4. Art. VI. § 5. ports, p. 80. 
 
362 ON CAPTURE AND ITS INCIDENTS. 
 
 the belligerent State, to which the captor belongs, 
 than their detention and conveyance as prize into 
 port, and the power of ransoming vessels being 
 liable to be abused by the captors to the great in- 
 convenience of neutral trade, it has been the policy 
 of the European Powers to restrain the liberty of 
 the captors to ransom their captures. Thus France, 
 by the Ordinance of 15 May 1756'^, forbade any 
 cruiser to ransom any enemy's vessel on any pretext 
 whatever, until she had sent three prizes into port; 
 and by a later Ordinance of 30 August 1782'^ prohib- 
 ited altogether the ransoming of any enemy's vessel 
 or cargo, or the taking of any hostage, or of any writ- 
 ten security whatever, which may be siispected to be 
 a disguised form of ransom. The present law of 
 France on the subject of ransom is contained in the 
 Arrete of 2 Prairial of the year XP^ according to 
 which every privateer is bound to send its prizes 
 as soon as possible into the port from which it 
 has been fitted out, unless prevented by stress of 
 weather or the superior force of the enemy'; but the 
 commander of a privateer is at liberty to ransom an 
 enemy's vessel, if he is formally authorised by the 
 owners of the privateer under a declaration made by 
 them before the officers of the port from which the 
 privateer is fitted out ; but no privateer is permitted 
 imder any circumstances to ransom a vessel, which has 
 a neutral passport, under very severe penalties against 
 the captain of the privateer. In Great Britain the 
 Parliament has been accustomed on each occasion 
 of passing a Prize Act since 22 Geo. III. c. 25, 
 (a.d. 1782,) to discountenance altogether the practice 
 of ransoming ships and cargoes belonging to British 
 
 " Lebeau, Nouveau Code des ''^ Pistoye et Duverdy, Traits 
 
 Prises, Tom. I. p. 547. des Prises Maritimes, Tom. I. 
 
 " Ibid. Tom. II. p. 427. p. 281. 
 
ON CAPTURE AND ITS INCIDENTS. 363 
 
 subjects, which may have been captured by the enemy, 
 as well as the practice of British captors restoring or 
 discharging any captured ship or cargo of the enemy 
 upon an agreement for ransom''®. With this object 
 all ransom bills given by British subjects are declared 
 to be null and void ; and accordingly no action could 
 be brought upon any such ransom bill in a British 
 Court, whilst the parties who may have given any 
 such ransom biU are liable to be proceeded against in 
 the High Court of Admiralty for heavy penalties, 
 " unless it shall appear to the Judge of the said Court 
 that the circumstances of the case were such as to 
 justify the said ransoming, or contract, or agreement 
 for the same." On the other hand, any Commander 
 of a British cruiser who shall have " actually quitted, 
 set at liberty, restored, or discharged," any ship or 
 cargo, after the same shall have been taken as prize, 
 upon any agreement for the ransoming thereof, "shall 
 for every such offence be liable to be articled in the 
 High Court of Admiralty of England, at the suit of 
 her Majesty in her office of Admiralty, and upon con- 
 viction thereof shall forfeit and suffer such penalty or 
 fine as the said Court shall adjudge, unless it shall 
 appear to such Court that the circumstances of the 
 case were such as to have justified the same." The 
 most recent of the prize Acts would thus appear to 
 be perfectly consistent with that view of the Law, 
 which Lord Stowell adopted under the Prize Act 
 which was in force in 1803, when he said, " Eansoms, 
 under circumstances of necessity, are still allowed'''', 
 but the burden of proof of any such existing necessity 
 is imposed by the Statute on the captors." In the 
 
 '^ The Act for manning the against ransom under any form. 
 Navy in the last war against '^ Ships taken at Genoa, 4 Ch. 
 
 Russia, 17 Vict. c. 18. contains Rob. p. 403. 
 the usual prohibitory enactments 
 
tures. 
 
 364 ON CAPTURE AND ITS INCIDENTS. 
 
 United States Eansoms have never been prohibited 
 by Congress, either in reference to enemy's property 
 or in reference to neutral property. Chancellor Kent, 
 in commenting upon the English view of the Con- 
 tract of Eansom as having a tendency to relax the 
 energy of belligerents and to deprive cruisers of the 
 chance of recapture, maintains that the practice of 
 Ransom is in many views highly reasonable and 
 humane. Other Nations regard such contracts as 
 binding, and to be classed amongst the few legitimate 
 commercia helW^. 
 Joint Cap- f 184. Joint captures are said to be made when, 
 besides the parties who are actually engaged in the 
 capture, other parties contribute to the surrender of 
 a vessel by constructive assistance. When two or 
 more ships actually take part in a capture, it is usual 
 to speak of them as the actual captors, although the 
 enemy strikes his flag in fact to one of them ; but it 
 may happen that the approach of a vessel which has 
 never been able to take part in the contest, has 
 intimidated the enemy and induced hirri to surrender. 
 Such a vessel cannot be said to be an actual captor, 
 and yet she may have materially influenced the 
 capture by encouraging the efforts of the one party 
 and discouraging the resistance of the other party, 
 at the same time that she may have been using 
 her best endeavours to arrive in time to give actual 
 assistance to her friend''^. Policy and Equity under 
 such circumstances, concur in pronouncing her" en- 
 deavours to take part in the contest to have been 
 of assistance to the actual captors, and in regarding 
 her in the light of a constructive captor. Joint 
 captors may accordingly comprise parties who have 
 
 "" Kent's Commentaries, I. '» La Flore, g Ch. Eob. p. 
 
 p. 104. Azuni, Droit Maritime, 268. The Virginia, 5 Ch. Eob. 
 Tom. II. c. 4. Art. vi. p. 126. 
 
ON CAPTURE AND ITS INCIDENTS. 365 
 
 not taken any actual part in a capture beyond 
 that of having actually set themselves in motion, 
 and arrived within sight of the prize at any time 
 before it has surrendered^". It is necessary how- 
 ever, in order to establish a claim of joint cap- 
 ture, to prove that the vessel claiming to be a joint 
 captor was seen by the prize as well as by the actual 
 captor, and thereby caused discouragement to the 
 enemy, whilst she gave encouragement to the actual 
 captor; but it is not necessary to prove that she 
 was seen by the prize at the moment of surrender, 
 if she had been seen by the prize beforehand, and 
 might have been seen at the time of surrender, if 
 the weather had been clear, or the darkness had not 
 intervened ^^ The law is in one respect more favour- 
 able to public ships of war than to private ships of 
 war. The animus ca/piendi is always presumed in 
 favour of the former, if they should be in sight ^, 
 as pubHc ships are under a constant obligation to 
 attack the enemy, whenever they may meet with 
 them, whereas private ships of war are not bound 
 to put their Commissions into force upon every dis- 
 covery of an enemy. In the case therefore of a 
 privateer which claims to be regarded as a con- 
 structive joint captor, positive proof must be given 
 that her commander really intended to take part 
 in the contest; either by showing that she was 
 actually engaged in the chase ^^ or, if she had been 
 engaged in the contest and been beaten off, that 
 she was still in sighi; of the enemy and was in- 
 tending to resume the contest^*. But a public ship 
 
 '0 The Galen, 2 Dodson, p. 19. '^ La Flore, 5 Ch. Eob. p. 268. 
 
 " The Union, i Dodson, p. *' L'Amiti^, 6 Ch.Rob.p.267. 
 
 346. The Fadrelandet, 5 Ch. ^* La Virginie, 5 Ch. Eob. p. 
 
 Rob. p. 124. Black Book of 124. The Santa Brigada, 3 Ch. 
 
 the Admiralty, I. p. 22. Eob. p. 52. 
 
366 OK CAPTUEE AND ITS INCIDENTS. 
 
 of war is entitled to the character of a constructive 
 joint captor, where the actual captor is a privateer, 
 under the same conditions, as if they were both public 
 vessels of war®^ On the other hand a public vessel 
 which is not under orders to make captures, although 
 its commander may have a Commission of War, enjoys 
 no privilege in respect of a presumed animus ca^iendi 
 over a private vessel, which has a Commission of War. 
 Thus a revenue cutter, of which the commander is 
 authorised but not commanded by his Commission to 
 make captures, was held by Lord Stowell to be in a 
 condition analogous to that of a private vessel of war. 
 Such vessels are not bound to attack and pursue the 
 enemy more than other private vessels of war ; and 
 as all which they derive from their Commission is an 
 authority to attack the enemy, they are theieby only 
 put on a footing with private ships of war ^^. On the 
 other hand, transport ships, although they may sail 
 under pennants and are associated with fleets of ves- 
 sels of war, will not be entitled to the character of 
 constructive joint captors, if they are associated with 
 them solely in their mercantile character ; for if they 
 have no Commission of War, they cannot be allowed 
 to establish a claim of mere constructive assistance^', 
 even if their appearance should have caused actual 
 intimidation to the enemy. Lord Stowell held, that 
 the fact of terror, however strongly proved, would 
 not establish that cooperation, nor that active assist- 
 ance, which the law requires to entitle noncommis- 
 sioned vessels to be considered. as joint captors. With 
 respect to captures made by boats, it is a general 
 rule that the crews of the ships, to which they belong, 
 are entitled to share as joint captors with the crews 
 
 85 The Dree Gebroeders, 5 Ch. 65. La Flore, 5 Ch. Eob. p. 270. 
 Rob. p. 339. 8' The Cape of Good Hope, 
 
 8" The Bellona, Edwards, p. 2 Ch. Eob. p. 282. 
 
ON CAPTURE AND ITS INCIDENTS. 367 
 
 of their respective boats, unless the capturing boats 
 have been detached for a time from their proper 
 ships, and are attached to some other ship ; but the 
 claim of constructive joint capture by boats, founded 
 on the mere facts of such boats being in sight at the 
 time of capture, has been rejected by Lord Stowell'^. 
 " I am not in possession," he says, " of any case in 
 which a boat, without any actual assistance or pre- 
 vious concert, has been held, from being in sight only, 
 to be entitled to share as a joint captor, even to the 
 extent of the persons composing the boat's crew, 
 much less to estabUsh a claim of joint capture for the 
 whole ship to which the boat belongs." 
 
 § 185. The distribution of prize amongst Joint Distnbu- 
 Captors, in the absence of any positive Statute or p^e° 
 Ordinance of the State to which they belong, is made ?™™^^' 
 upon general principles according to a scale proper- captors, 
 tionate to their respective force ; for in that pro- 
 portion they may reasonably be supposed to have 
 contributed their aid in overpowering the enemy, if 
 they have actually taken part in the contest, or to 
 have caused an intimidation by their approach, which 
 has led to his surrender, before they have been able 
 to take part in the contest. Bynkershoek, who is 
 adverse altogether to the doctrine of constructive joint 
 capture, advocates in the case oi actual joint captors 
 a distribution according to their respective force, from 
 the difficulty of measuring by any more accurate test 
 the degree in which each has assisted to overcome the 
 enemy. Such a rule is generally adopted in the pre- 
 sent day, in cases where the fleets of two or more 
 allied Powers have acted in conjunction. But in the 
 application of the rule different results will be arrived 
 at, according as the respective force of the captors is 
 
 88 The Odin, 4 Ch. Eob. p. 327. 
 
368 ON CAPTUKE AND ITS INCIDENTS, 
 
 calculated in proportion to the number of guns, or 
 the number of men, or the number of guns and men 
 combined. The British Prize Acts directs the whole 
 proceeds to be divided amongst all the officers and 
 crews of the respective vessels adjudged to be joint 
 captors according to a scale fixed by Royal proclama- 
 tion, under which all the officers and men of equal 
 rank take an equal share ; and the Eoyal Proclama- 
 tion^* of 1854 declares that ships or vessels being in 
 sight of the prize as also of the captors, under cir- 
 cumstances to cause intimidation to the enemy and 
 encouragement to the captors, shall be alone entitled 
 to share as joint captors. The Prize Act'*' further 
 directs the Court of Admiralty, in all cases where her 
 Majesty's ships have acted in conjunction with the 
 ships of a Power in alliance with her Majesty, to 
 apportion to such Ally a share of the proceeds of such 
 prize, according to the number of officers and men 
 present and employed on the part of such Ally as 
 compared with the number of officers and men em- 
 ployed on the part of her Majesty in taking such 
 prize, and without reference to their respective rank. 
 France, by a Decree bearing date 23 May 1854, has 
 adopted a like rule of division *\ There had been a 
 previous Convention on the subject of prize between 
 France and Great Britain, and each State had directed 
 its Prize Courts by a municipal enactment to observe 
 such a rule of distribution in every case of capture, in 
 which the ships of an Ally were concerned, as would 
 give effect to that Convention. Neither State un- 
 dertook to distribute the share of its Ally, but the 
 Courts of Prize were directed to transmit the share, 
 apportioned to the AUy, to such persons as should 
 
 *° Eoyal Proclamation of 29 (2 June 1854.) 
 March 1854. " Pistoye et Duverdy, Tom. 
 
 ^ 17 and 18 Vict. ch. 18. II. p. 447. 
 
ON CAPTURE AND ITS INCIDENTS. 369 
 
 be duly authorised on behalf of the Ally to receive 
 the same, and whose duty it would be to superintend 
 the distribution of that share amongst the parties 
 entitled to it according to its own laws and regula- 
 tions. In the United States of America the standard 
 of distribution amongst public ships in cases of joint 
 capture appears to be the combined number of men 
 and guns on board of each ship in sight ®^ ; but as 
 regards private armed ships no regulation has been 
 adopted, and the distribution is governed by the 
 general rule of prize distribution, namely, in propor- 
 tion to the number of men composing their respective 
 crews. Such also was the rule of the English Prize 
 Courts in regard to privateers, as settled by solemn 
 adjudications at the Cockpit and in the King's 
 Bench *^. Mr. Justice Story observes, that " 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 
 ultimately reside, rather than in the mere instru- 
 ments, which without such power would be useless 
 and unavailing^*. 
 
 ^ i86. The apportionment of a share of the proceeds Condemna- 
 of prize to an Ally is within the competency of the Prizes 
 Prize Courts of a belligerent Power, for a belligerent t^the'^pOTt 
 Power and its Ally form one State for the purpose of °*'^" ^'^y- 
 a common war, unam constituunt civitatem^^. In a 
 similar sense the ports of an Ally are equivalent to 
 the ports of the co-belligerent State, to which the 
 capturing vessel belongs, for the purpose of founding 
 
 '^ Act of 23 April 1800. (5 "* The brig Despatch and her 
 
 vol. TJ. S. Laws, p. 108.) cargo, 2 Gallison, p. 2. 
 
 ^' Roberts and Hartley, 3 '^ The Henrick and Maria, 
 
 Douglas, p. 311. Duckworth -y. 4 Ch. Rob. p. 60. 
 Tucker, 2 Taunton, p. 7. 
 
 PART II. B b 
 
370 ON CAPTDKE AND ITS INCIDENTS. 
 
 the jurisdiction of the Courts of the Captor over the 
 prize. Claims of Prize were originally prosecuted 
 before the Admiral of the Fleet®* to which the 
 capturing vessel belonged, or his Lieutenant ®' ; and 
 although by the Municipal Law of some countries ^ 
 other authorities besides the Admiral or his, Deputy- 
 General might hold cognisance of maritime captures, 
 the Admiral or his Yicegerent was the competent 
 judge upon questions of Prize, as between Nations'*. 
 There was no necessity at any time, as between 
 Nations, for the Captor to bring his prize within 
 the ports of his own State to found the jurisdiction 
 of the Admiral over it : if it was brought infra 
 prcesidia, so as to secure it from recapture by 
 the enemy, it was sufficient, and this condition is 
 evidently satisfied by the Captor carrying his prize 
 into the port of an Ally. A sentence of condemna- 
 tion is accordingly held to be valid, if it be passed' 
 by a Court of Admiralty sitting in the country of 
 the Captor against a ship and cargo, which have 
 been brought by the Captor into the port of an 
 Ally ^°°. The proper and regular Court for the Trial 
 of Prize is the Court of the State to which the 
 Captor belongs ; but where the capture is made by 
 the joint forces of two countries, it is usual for the 
 co-beUigerent Powers to agree that the adjudication 
 of aU questions of Prize shall belong to the juris- 
 
 «' Eymer, Foedera, Tom. IV. England and Chailes VIII of 
 
 p. 14, anno 1357. France, 24 May i49l- ^^ 
 
 *' Ordinance of Charles VI treaty is well worthy of notice as 
 
 of France, anno 1 400. Lebeau, containing many regulations for 
 
 Nouveau Code des Prises. Tom. the Prize proceedings of the fif- 
 
 I. p. I. teenth century, which correspond 
 
 «' Ordinance of Henry VI of with the practice of the present 
 
 England, anno 1496. Eymer, times. Eobinson's Collectanea 
 
 Foedera, Tom. X. p. 168. Maritima, p. 83. 
 
 ^ Treaty of Peace and Com- "" The Christopher,, 2 Ch.Eob. 
 
 merce between Henry VII of p. 209. 
 
ON CAPTURE AND ITS INCIDENTS. 371 
 
 diction of the country, of wliich the flag shall have 
 been borne by the officer having the superior com- 
 mand in the action^. It is not usual for a belli- 
 gerent Power to set up a Court of Admiralty within 
 the territory of an AUy, although under treaty the 
 Ally may have granted authority for such a purpose 
 and no principle of the Law of Nations would be 
 violated thereby, inasmuch as co-beUigerent Powers 
 form one State as regards operations of war. On the 
 other hand, it would be a violation of Neutrality for 
 a State, which is not a co-belligerent, to allow a bel- 
 ligerent Power to set up a tribunal of Prize within its 
 territory, and to allow it to condemn to the use of the 
 captors the property of the subjects of Powers, with 
 which it is at amity. Lord Stowell accordingly re- 
 fused to recognise a sentence of condemnation, passed 
 by a French Consular Court set up within the port 
 of Bergen in Norway upon a British vessel, which had 
 been brought in as prize into that port by a French 
 cruiser, Norway being at such time a Neutral Power. 
 Lord Stowell held that the act Of the French Consul 
 was "a licentious attempt to exercise the Eight- of 
 War within the bosom of a neutral country, where 
 no such exercise has ever been authorised ^." 
 
 Mr. Manning in his Commentaries on the Law Treaty be- 
 of Nations^ has referred to a Treaty concluded on mark and 
 30 July 1789 between Denmark and Genoa, as^®"°*' 
 being an exception to the rule, which Lord Stowell 
 on this occasion asserted to be universally received 
 in matters of Prize, namely, that the tribunals of 
 the Law of Nations in those matters should exercise 
 their jurisdiction within the belligerent country. It 
 
 ^ Convention between Prance * The Fladoyen, i Ch. Eob. 
 and Great Britain 10 May 1854. p. 146. 
 Martens, N. R. G^n. Tom. XV. = P. 381. 
 
 p 581. 
 
 B b 2 
 
372 ON CAPTUBE AND ITS INCIDENTS. 
 
 may, however, be a question whether the provisions 
 of that Treaty are to be interpreted in such a sense, 
 as will warrant their being regarded as exceptional 
 to the general rule in such matters. The provisions 
 of Art. XIII are as follows : — " Si une des deux 
 Parties contractantes vient h, avoir la guerre avec 
 une puissance tierce, I'autre partie contractante, qui 
 est restee neutre, sera la maitresse, en vertu de 
 I'Article IV, d'admettre ou de refuser dans ses ports, 
 de juger dans ses Tribunaux d'Amiraute ou de n'y 
 pas juger des prises, qui se feraient respectivement 
 par les puissances belligerantes *." In construing 
 this article of the Treaty regard must be paid to the 
 provisions of Article IV, which stipulate that either 
 party shall enjoy aU the rights of neutrality, in case 
 the other should be involved in war, on condition of 
 its observing all the duties of neutrahty. It is 
 evident that Article XIII must be interpreted in 
 conforinity with Article IV, the object of which was 
 not to enlarge the rights of a belligerent party, but 
 to' secure the recognition on its part of the rights of 
 the neutral party. But amongst the rights of a 
 Neutral Power are those of admitting or refusing to 
 admit the vessels of Belligerent Powers to enter its 
 ports, and hkewise of admitting or refusing to admit 
 captures to be made within its jurisdiction and in 
 violation of its territory. The stipulations of Art. 
 XIII of the Treaty refer expressly to a jurisdiction 
 to be exercised by the Courts of Admiralty of a 
 Neutral Power in virtue of Art. IV, the object of 
 which is to secure to the Neutral Power the recog- 
 nition of its full rights of neutrality ; and such a 
 result would be furthered by securing to its Courts 
 of Admiralty the right to hold cognisance of all 
 
 * Martens, Bicueil, Tom. IV. p. 449. ' 
 
ON CAPTUKE AND ITS INCIUENTS. 373 
 
 questions of Prize involving any violation of those 
 rights. Proceedings in such matters, if originated 
 in a Court of Admiralty of a Neutral Power, might 
 have heen primd facie open to objection on the part 
 of a Belligerent Power in the absence of Treaty- 
 stipulations, as the ordinary practice in modern 
 times, in cases where a belligerent vessel has made 
 capture of an enemy's vessel in violation of the 
 territory of a Neutral Power, has been for the 
 Neutral Power to prefer a complaint to the Govern- 
 ment of the Belligerent Power; and when the 
 capture is in controversy in a Belligerent Court of 
 Prize, to claim the release of the vessel on the 
 ground of the capture having been made in vio- 
 lation of its territory. But it is perfectly consistent 
 with all due respect to the Eights of a Belligerent, 
 as such, that the Courts of a Neutral Power should 
 take cognisance of captures, which involve a vio- 
 lation of its Sovereignty, if the Captor and his prize 
 should be found within its jurisdiction ; and it seems 
 reasonable to construe Article XIII of the Treaty as 
 intended to provide against any dispute on the sub- 
 ject of the exercise of this Right, rather than to 
 accept the interpretation suggested by Mr. Manning, 
 that it was intended to concede to the Belligerent a 
 privilege of holding a Belligerent Court of Prize 
 within Neutral territory. 
 
CHAPTEK X. 
 
 ON PRIVATEEES. 
 
 Privateers 
 are distin- 
 guishable 
 from Let- 
 ters of 
 Marque. 
 
 Privateers distinguishable from Letters of Marque — Gradual 
 Restraint of Private Expeditions on the Sea — Privateers in the 
 sixteenth and seventeenth centuries — ^A Commission of war must 
 be on board a Privateer — What constitutes a lawful Commission 
 of war — A Privateer may not have two Commissions of war from 
 different Powers — Belligerent Powers may grant Commissions of 
 war to Aliens — British Practice in issuing Commissions to the 
 Commanders of private ships — Restraints upon Privateers — Pur- 
 port of Instructions issued to British Privateers — Distinguishing 
 Flag of British Privateers — The Flag of Foreign Privateers — 
 Verification of the Military Flag of a Privateer — A Neutral 
 merchant-vessel cannot claim to verify a Privateer's belligerent 
 character — The exercise of the Belligerent Right of Visit and 
 Search regulated by Treaties — Privateers not admitted to the 
 same Comity as Public ships of war — Restrictions upon Privateers 
 in neutral waters — Treaty-Restraints upon neutral Subjects ac- 
 cepting Letters of Marque from Belligerent Powers — Municipal 
 prohibitions against Subjects accepting Commissions of war from 
 Foreign Powers — Privateers imder special conventions piratical 
 vessels — Distinction between piracy under special conventions and 
 piracy under the Common Law — Conventions amongst States 
 against the Employment of Privateers — Declaration of the Con- 
 gress of Paris of 1856. 
 
 ^187. Privateers are armed ships which are fitted 
 out by private persons, and sail under a commander, 
 to whom a Belligerent Power has granted a commis- 
 sion to seize and take the ships and goods of the 
 subjects of an Enemy Power. The term is of English 
 
ON PRIVATEERS. 375 
 
 origin^, and appears to have been employed to de- 
 signate a particular class of private armed vessels 
 in the reign of King Charles II ; but it is applied 
 in the present day indiscriminately to private ships 
 which sail under Commissions of War, and to private 
 ships sailing under Letters of Marque and Eeprisals. 
 The former class of vessels however is essentially 
 distinguishable from the latter class, inasmuch as a 
 Letter of Marque and Reprisals may be granted to 
 the commander of a private ship in time of peace, 
 and only empowers the bearer of it to make Ee- 
 prisals against the ships and goods of the subjects 
 of a Power, which has refused to make reparation 
 for an injury done by one of its subjects ; whereas 
 a Commission of War empowers the person, to whom 
 it is granted, not merely to seize and take the ships 
 and goods belonging to the subjects of the Power, 
 against which War has been declared or otherwise 
 commenced, but such other ships and goods as shall 
 be liable to confiscation pursuant to Treaties and the 
 Law of Nations. The form however and the extent 
 under which Commissions of War may be issued to 
 the conunanders of private ships, rests with the dis- 
 cretion of each Belligerent Power, subject however to 
 the same limitations, whatever those may be, which 
 the Law of Nations has attached to Commissions of 
 War issued to public ships I 
 
 ^ The Dutch name for them is don in his Life (II. p. 335), in 
 
 Kapers or Commissie-vaarders. narrating the events of the same 
 
 Cf. Bynkershoek, Obs. Jur. Publ. year, 1665, says, "It was re- 
 
 L. I. c. 118. De Prsedatoria solved that all possible encou- 
 
 privata. ragement should be given to 
 
 ^ The word Privateer, as far privateers, that is, as many as 
 
 as the author is aware, occurs would take commissions from 
 
 for the first time in a letter of the Admiral to set out vessels of 
 
 Sir Leoline Jenkins of 5 Dec. war, as they call them, to take 
 
 1665. (Life of Sir Leoline Jen- prizes from the enemy." 
 kins, II. p. 727.) Lord Claren- 
 
376 ON PRIVATEERS. 
 
 Gradual § i88. It would appear to have been the. custom 
 of Private ^f Sovereign Princes in the fourteenth century, if we 
 tioM o'' ™^y draw any general inference from the practice of 
 the Sea. the Kings of Aragon, to rely upon the voluntary 
 efforts of their Subjects, whenever there was occasion 
 to resent any injury done to them on the Figh Seas, 
 and to grant in such cases Letters Patent to the 
 Commander of an armed Fleet (Armada), the ships 
 or vessels of which were fitted out at the expense 
 of private persons^. Under the authority of such 
 Letters Patent the Captain or Commander-in-chief 
 of the Armada exercised over all the ships and 
 vessels which took part in the expedition a juris- 
 diction secundum statum et consuetudinem Armatm. 
 The Ordinances sur les armemens en course*, which 
 are generally printed in continuation of the Customs 
 of the Sea in the Consolat del Mar, as if they formed 
 a portion of those ancient Customs, contain regula- 
 tions for the government of private armed ships 
 going on a cruise, from which it would appear that 
 the Commander-in-chief of the expedition was styled 
 Admiral, and exercised a jurisdiction according to 
 an established usage, d'apres les usages de la Course, 
 The contents of these Ordinances, the compilation 
 of which is assigned with great probability to the 
 earlier part of the fourteenth centiu:y, as the use 
 of artillery was evidently not known when they were 
 drawn up, show that the Commanders of private 
 cruisers did not at such time require any express 
 License or Commission from a Belligerent Power ^ 
 
 ^ Privilege pour les armateurs separate form. Lois Maritimes, 
 
 en course de 1330. Pardessus, Tom. V. p. 396. 
 
 Lois Maritimes, V. p. 393. * The commission, granted by 
 
 * These chapters are a distinct King Henry VIII (a. d. 15 12) 
 work from the Customs of the to Sir Edward Howard, as Ad- 
 Sea, and M. Pardessus has judi- miral of the Sea, in the expedi- 
 ciously published them in a tion against the French King in 
 
ON PRIVATEERS. 377 
 
 -tior were they under any obligation to submit their 
 captures to a judicial enquiry in any Court of a 
 Belligerent Power, before they could dispose of them. 
 But with the commencement of the fifteenth century 
 greater order and regularity were introduced into the 
 conduct of Maritime warfare. It had been already 
 stipulated in various treaties of the fourteenth cen- 
 tury, that the subjects of the contracting Powers 
 should not have recourse to measures of force, until 
 they had applied in vain to "the Conservators of 
 the Peace," and that the Sovereign Power should 
 not grant Letters of Marque and Eeprisals to their 
 subjects, until such application had been made, and 
 made in vain. We find accordingly that Municipal 
 Laws were enacted in various States in the course 
 of the fifteenth century, the object of which was to 
 restrain individuals from committing any violence 
 upon the. Main Sea, without having previously ob- 
 tained authority to that effect from their Sovereign, 
 and to oblige them to bring all their captures into 
 port for adjudication before an Admiralty Tribunal. 
 One of the earlie'st of such Municipal Laws is the 
 Ordinance® of Charles VI of France (a. d. 1400),' 
 the third article of which provided, that "if any 
 one, of whatever estate he may be, shall set forth 
 any ship at his own expense to make war against 
 our enemies, it shall be by the permission and con- 
 sent of our Admiral or his Lieutenant, who has or 
 shall have in right of his said office, the cognisance, 
 corrections, and punishment of all acts done upon 
 the said sea and its dependencies, criminally and 
 civilly;" and further, that "in case our Admiral or 
 
 Guienne, authorising him to com- Rymer's Foedera, Tom. XIII. 
 
 mand all the captains, masters of p. 229. 
 
 ships, and .others taking part in " Lebeau, Nouveau Code des 
 
 the expedition, will be found in Prises, p. i. 
 
378 ON PRIVATEERS. 
 
 one of his lieutenants shall not accompany the ex- 
 pedition to maintain order amongst the parties to it, 
 every Commander of a ship shall swear to bring all 
 his prizes into port and give an account of them to 
 owe said Admiral." With a similar object the Statute 
 of Truces was passed in England in 1414', under 
 which the Commander of every vessel putting out 
 to sea was bound to swear before the Conservator of 
 the King's Truce and Safe Conducts, that he would 
 not attempt to do anything against the King's 
 Truce and Safe Conducts, and that, if he took any- 
 thing upon the sea from the King's enemies or from 
 any others, he would cause such things to be brought 
 into the port from which the vessel had sailed, and 
 .thereof make full information before the said Con- 
 servator, who had power and authority under the 
 Letters Patent of the Crown, and also by Commission 
 of the Admiral of England, to enquire and decide 
 upon all offences against the King's Truce and Safe 
 Conducts upon the Main Sea, "as the Admirals of the 
 Kings of England before this time reasonably after 
 the old Custom and Law on the Main Sea have done 
 or used^" This Statute however being found to 
 operate prejudicially in discouraging the King's Sub- 
 jects from attacking the King's Enemies, provision 
 was made by a subsequent Statute, 4 Henry V. c. 7, 
 (a.d. 141 6,) for enabling the King's Subjects, who had 
 been injured by the Subjects of any other Power, 
 upon demand to obtain Letters of Bequest under the 
 Sign Manual of the Sovereign addressed to that 
 Power, requiring satisfaction to be made according to 
 the rules of justice, and upon failure of such Lettera 
 of Eequest, to obtain Letters of Marque and Ee- 
 
 ' 2 Henry V. Stat. I. c. 6. High Treason for a Subject to 
 
 De Lovio v. Boit, 2 Gallison, violate the King's Truce or Safe 
 
 p. 430. Conducts. 
 
 ^ By this Statute it was made 
 
ON PBIVATEERS. 379 
 
 prisals under tlie Great Seal against the Subjects 
 of that Power ^ An Ordinance for a similar purpose 
 was issued in 1487 by Maximilian of Austria, after 
 his marriage with Mary of Burgundy, by which it 
 was provided that no person should fit out a ship 
 of war from any port in the Low Countries with- 
 out the leave and express license of our Admiral or 
 his Lieutenant ; and that the Commander of the 
 ship shall swear not to plunder our subjects or the 
 subjects of our friends or allies, but only to make 
 war upon our enemies^". It may be inferred from 
 the provisions of two Treaties of the fifteenth cen- 
 tury, namely, a Treaty ^-^ concluded in 1495 between 
 Henry VII of England and the Duke of Burgundy, 
 (Art. 17.) and a Treaty ^^ concluded in 1497 between 
 Henry VII of England and Charles VIII of France, 
 (Art. 7.) that the practice was at that time being 
 introduced of taking sureties {idoneam cautionem) 
 from the masters or owners of all ships going out 
 to sea, that they would keep the peace towards the 
 Subjects of friendly Powers, and bring all prizes, 
 which they might make, into port for adjudication^^. 
 § 189. The origin of Letters of Marque and Ee- 
 prisals has been discussed in an earlier chapter. The 
 
 ® A Proclamation was made object was to regulate the pro- 
 
 by King Henry VI in 1426 for- ceedings of Courts of Prize; and 
 
 bidding English captors to pro- its regulations are for the most 
 
 ceed to the sale of Prize Goods part observed by such Courts in 
 
 anywhere but in England, and the present day. See Tractatus 
 
 not before condemnation by the Deprsedationis, concluded be- 
 
 King's Council, the Chancellor, tween Henry VIII of England 
 
 or the Admiral. Eymer, Feed, and Francis I of France in 1526. 
 
 Tom. X. p. 368. Rymer, Tom. XIV. p. 147. 
 
 ^° Rdcueil,Van Zeezaken, c. 3. " Martens in his Essay on 
 
 pp. 1-22. Privateers, § 15, says that he 
 
 " Schmauss, Corpus Jur.Gent. does not find any instance of 
 
 Academicum, p. 142. such sureties being given earlier 
 
 " This Treaty, which is in than 1584 in France, and 1597 
 
 Robinson's Collectanea Maritima, in the Low Countries. 
 p. 83, deserves perusal, as its 
 
380 ON PBIVATEERS. 
 
 introduction of Commissions of War granted to the 
 commanders of private ships, as distinguished from 
 Letters of Marque and Eeprisals, may with proha- 
 Privateeis bility be referred to the Kings of France. It seems 
 teenth and to have been the rule of the French Monarchs 
 teenth cen- ^uring the fifteenth and sixteenth centuries to rely 
 turies. altogether upon the zeal and exertions of private 
 citizens, whenever it might be necessary to make 
 War by sea. Thus in 1555, when Margaret of Parma, 
 as Regent of the Low Countries, embargoed all the 
 French vessels which were in the ports of the Low 
 •Countries, King Henry II of France applied to the 
 merchants of Dieppe, who fitted out at once a fleet 
 of nineteen ships, and gave battle successfully to 
 the Spanish fleet ^*. That Commissions of War were 
 accustomed at this time to be issued by Sovereign 
 Princes to private ships fitted out either by their 
 own Subjects, or by the subjects of other Powers, 
 may be inferred from a Treaty concluded between 
 the Emperor Charles Y of Spain and Mary Queen 
 of Scotland in 1550, in which a clear distinction is 
 made between Letters of Reprisals and Commissions 
 of War : " Eevocando quascunque commissiones ac 
 literas patentes tam Eepraesaliarum, quam alias 
 quascunque super facultate belligerandi, et subditis 
 alterius principis nocendi, sive incolis sive exteris 
 datas et concessas *^." 
 
 The long period of Maritime warfare which ensued 
 upon the revolt of the Low Countries against the 
 dominion of Philip II, as it gave an extraordinary 
 
 '* Pistoye et Duverdy, Traits, of England, in 1604, in which 
 
 des Prises Maritimes, I. p. 23. these words occur, "Quascunque 
 
 ^^ Schmauss, Tom. I. p. 285. Commissiones et literas tam Re- 
 
 This distinction is still more prsesalium seu de Marcha, quam 
 
 clearly recognised in a Treaty facultatem belligerandi contin- 
 
 of Alliance concluded between entes." Schmauss, Corp. Jur. 
 
 Philip III of Spain and James I Acad. I. p. 437. 
 
ON PRIVATEERS. 381 
 
 impulse to the fitting out of private vessels of war, 
 so it fumislied occasion for determining more care- 
 fully the rights and obligations of the Commanders 
 of such vessels by Municipal regulations, under 
 which sureties were universally required to be given 
 to the Admiral for the good conduct of the Com- 
 manders and crews of such vessels, and a course of 
 judicial proceedings was established for determining 
 the legality of the captures made by them. The 
 Edict concerning the jurisdiction of the Admiralty 
 issued by Henry III of France in 1584, contained 
 various provisions on the subject of private ships of 
 war, with the view of restraining the excesses of 
 their Commanders and crews ^®. The instructions for 
 the Colleges of Admiralty in the Low Countries fol- 
 lowed in 1597^^^. The Proclamation made by Queen 
 Elizabeth of England in 1602^^, and the Spanish 
 Ordinance for the navigation of Cruisers issued in 
 1 62 1, had equally the same object in view^^ The 
 Parliament of England does not appear to have 
 legislated on the subject of Privateers before the 
 4th and 5th of William III. c. 25, but the Procla- 
 mation of Queen Elizabeth of 1602 had evidently 
 in view the regulation of private ships of war, when 
 it provided that no man-of-war should be furnished 
 or set out to sea without license^" under the Great 
 
 ^° Lebeau, Nouveau Code des Colecion de los Tratados. Phil. 
 
 Prises, p. 19. IV. Tom. I. p. 555. 
 
 *' Instructie voor de CoUegien ^^ In the articles on the sub- 
 
 ter Admiraliteyt, 15 Aug. 1597. ject of prize which came under 
 
 Edcueil Van Placaarten, D. I. • the consideration of the Eoyal 
 
 pp. 1-26. Commissioners in 1601, it is 
 
 ^' Proclamatio Eegia ad re- provided that ships under the 
 
 primendas Deprsedationes super immediate commission of the 
 
 mare. Rymer, Tom. XVI. p. 436. Sovereign were to be regarded 
 
 Robinson's Collect. Marit. p. 21. as Eoyal ships. Such ships 
 
 - " Ordenanza para Navigar in are evidently distinguished from 
 
 Corso, 24 Dec, 162 1. D'Abreu, those contemplated in the Pro- 
 
382 ON PRIVATEERS. 
 
 Seal of the Admiralty of England upon sufficient 
 bonds with sureties first given to the Judge of the 
 High Court of the Admiralty or to his Deputy, for 
 the good behaviour of themselves and company 
 towards her Majesty's Friends and Alhes. And 
 further, that no prizes taken shall be disposed of 
 till adjudication given by the said Judge, and order 
 given by him for the disposing thereof, under pain 
 of confiscation of ship and goods. The Act-books 
 of the High Court of Admiralty of England in 
 matters of Prize do not throw any light on this 
 period, as they do not extend further back than 
 i643^\ and there are no sentences preserved of more 
 ancient date than 1648^^. The period of the Com- 
 monwealth next following is also a blank in the 
 history of the Law of the English Prize Courts; 
 but on the breaking out of the first Dutch war 
 (a.d. 1664) in the reign of Charles II, the King 
 created a new kind of Commission consisting of the 
 Lords of the Privy Council, for the hearing and 
 determining of all matters and questions that might 
 happen to arise concerning Prizes and Captures. 
 
 The following Order in Council^^ was issued on 
 this occasion at the Court of Whitehall, Feb. 4, 1664: 
 
 clamation of 1602 as having a nations; The result of this en- 
 license under the Great Seal of quiry does not appear to be on 
 the Admiralty. Private Ships of record. Robinson's Collectanea 
 war are recognised in terms by Maritima, p. 69. 
 22 and 23 Car. II. c. 11. § 11. ^^ Lindo v. Eodney. Douglas 
 
 ^^ It appears from Eymer's Reports, p. 616. 
 Foedera, Tom. XVIII. p. 731, ^ This order is copied from 
 
 that King Charles I issued a a MS. book in possession of the 
 
 Commission to Lord Carleton, author, which purports to be 
 
 Sir John Coke, Sir Julius Csesar, copied from a book belonging to 
 
 and others, in 1626, to make en- Sir Nathaniel Lloyd, her Ma- 
 
 quiry and to settle a system of jesty's Advocate General in 17 10, 
 
 prize proceedings agreeably to containing copies of papers be- 
 
 the law in such cases, and what longing to his father. Sir Richard 
 
 is therein practised by other Lloyd, Advocate General of the 
 
ON PRIVATEERS. 383 
 
 By tJie Right Hon. his Majesty's Principal Commissioners for 
 
 Prizes. 
 
 Whereas we are informed that upon trial and adjudication 
 in the Court of Admiralty of several ships taken as prizes, 
 you proceed to the condemnation of the bottoms as Dutch, 
 and respite your Sentence as to the Goods with offer of time 
 and liberty unto all claimants, who are likely to withdraw, 
 by their pretended proofs, great quantities of the cargo of 
 ships condemned. 
 
 We therefore in pursuance of his Majesty's command, and 
 to prevent that the seizure of all enemy's ships may not by 
 such liberty of claiming the goods become wholly ineffectual, 
 and his Majesty having further declared himself that he will 
 speedily send you Rules for your better direction therein, do 
 hereby pray and require you to respite all proceedings of that 
 nature until you receive further orders. 
 
 Albemarle. St. Albans. Lauderdale. 
 
 Jno. Berkeley. Hen. Bennett. 
 
 Wm. Morris. Robt. Southwell. 
 
 The' Lords Commissioners thereupon appointed a 
 body of Civilians to review the maritime Law, and 
 to compile a body of Rules and Ordinances, by which 
 the Judge of the Admiralty for the time being 
 should proceed ia the adjudication of Prize ^*. Sir 
 Leoline Jenkins was one of the Civilians selected on 
 ■ this occasion by the Lords of the Privy Council, and 
 a body of Kules and Eegulations was prepared by 
 him and his colleagues, which was approved by his 
 Majesty in Council, and. has been the standard of all 
 subsequent proceedings in the English Prize Court. 
 
 \ 190. When War exists between two independent 
 Powers, all the Subjects of the one are the enemies 
 
 Lord High Admiral in 1674, according to the Process of the 
 
 and subsequently Judge, of the Instance Court of Admiralty, but 
 
 Admiralty. the whole system of litigation and 
 
 "^ Prize, as observed by Lord jurisprudence in the matters of 
 
 Mansfield, is not a cvoH or marine Prize is peculiar to itself. Lindo 
 
 coMse, to be heard and decided v. Eodney, 2 Douglas, p. 614. 
 
384 ON PRIVATEERS. 
 
 of the other, and are of right entitled to do aE 
 such acts to the Subjects of the other, which War 
 justifies between the Belligerent Powers themselves. 
 A Com- ^ private ship accordingly which is the property of 
 War must the Subject of a belligerent Power, and is not fur- 
 aPnVat^Jn J^ished with a Letter of Marque or Commission of 
 War, may nevertheless lawfully attack a private ship, 
 which is the property of an Enemy, because a state 
 of War exists between them, and a state of War 
 authorises the one to attack and capture the other. 
 It may indeed happen that the Municipal Law of 
 the Belligerent State, to which the Captor belongs, 
 has declared all captures made by private ships not 
 having Commissions of War or Letters of Marque''' 
 to be Droits of the Lord Admiral, or it may have 
 declared that captures made by non-commissioned 
 ships shaE. under certain circumstances be shared 
 amongst the crews in the same way as in the case 
 of private ships having a Commission of War^^ but 
 such distinctions do not arise under any Common 
 Law amongst Nations ; they are the creatures of 
 Municipal Law, and may be varied at the pleasure 
 of the Sovereign Power. 
 
 The case is otherwise however with regard to a 
 ship, which is the property of the Subjects of a 
 Belhgerent Power, if it should venture to attack 
 another ship belonging to the Subjects of a Neutral 
 Power. In such a case the attacking vessel, if 
 the Commander of it be not furnished with a 
 
 ^ Under the Order of Council Lord High Admiral. The "Ee- 
 
 of 6 March 1665-6, declaring beckah," i Ch. Kob. 227. The 
 
 what shall be Droits of the "Melomane," 5 Ch. Rob. p. 4z-. 
 Admiralty of England, it was ^^ The 22 and 33 Car. II., 
 
 declared that all enemy's ships c. 11. § 11. provided to that 
 
 and goods casually met at sea effect, when the private ship had 
 
 and seized by any vessel not been attacked and had captured 
 
 commissionated, do belong to the its assailant. 
 
ON PRIVATEERS. 385 
 
 Commission of War from the Belligerent Power, 
 may be treated as a pirate by the neutral vessel 
 which she has attacked, or by any vessel coming to 
 the aid of the latter ; and even if the assailant should 
 succeed in capturing the neutral vessel, the latter 
 would be entitled to be released by a tribunal of 
 Prize, inasmuch as the capturing vessel had not any 
 Commission of War. Every vessel, claiming to act 
 as a private ship of War, must have her Commission 
 of War on board. Thus a British vessel claiming to 
 have a Commission of War from the King of Por- 
 tugal against the Castilians and Moors, captured a 
 vessel belonging to Ostend in the British Channel, 
 and brought her Prize into the port of Dover, where 
 the Prize was taken possession of by the officers of 
 the Customs. It appeared that there was only on 
 board the Captor's vessel a transcript of a Commission 
 from the King of Portugal, translated into French, 
 and attested for a true translation under the hand 
 and seal of the French Consul at Lisbon. Sir LeoHne 
 Jenkins^', acting as judge of the Admiralty; advised 
 the Lords of his Majesty's Council, that amongst 
 other grounds why the capture was unduly made, 
 and the Ostender ought to have his ship and goods 
 restored to him, the true Commission was "neither 
 pretended, showed, nor indeed on board, at the time 
 of the capture ^l" On the other hand, if the Com- 
 mission of War has been lost since the capture has 
 been made, Courts of Prize have allowed the fact 
 
 " Life of Sir Leoline Jenkins, Government, and places itself 
 
 Vol. II. p. 727. A.D. 1665. under a new distinct Govern- 
 
 ^ In the case of an acknow- ment, the seal of a Commission 
 
 ledged Independent Power the issued by the new Government 
 
 seal of the Commission is held cannot be allowed to prove itself, 
 
 to prove itself ; but when a Civil but may be proved by such tes- 
 
 Warisraging in a foreign country, timony as the nature of the case 
 
 and one part of the population admits. The United States v. 
 
 separates itself from the old Palmer, 3 Wheaton, p. 644. 
 
 PART II. CO 
 
386 ON PEIVATEEES. 
 
 of such a Commission having been on board the 
 Privateer at the time of the capture to be proved 
 by oral evidence. Thus a question came before the 
 Supreme Court of the United States, in regard to 
 a vessel and cargo which had been captured by a 
 Venezuelan Privateer, which had been subsequently 
 lost before a Prize Court had adjudicated upon the 
 capture. It was attempted by the former Spanish 
 owner of the vessel and her cargo to obtain resti- 
 tution of his property from the American Prize 
 Court, on the alleged ground amongst others, that 
 the Privateer had not any Commission of War on 
 board at the time when she capt\u"ed the Spanish 
 vessel. The Court however on this occasion allowed 
 the Prize-crew to prove by oral evidence that the 
 capturing vessel had a Commission from the Govern- 
 ment of Yenezuela at the time the capture was made, 
 which had been issued and delivered at Carthagena, 
 and that the Commission was lost on board of her, 
 as she sank almost immediately after the Prize-crew 
 had taken possession of the Spanish vesseP^ AU 
 Codes of Maritime Law recognise the necessity of a 
 Commission of War being on board a Privateer. 
 Thus the French Ordonnance de la Marine (A.p. 
 1681)^" whilst it enacted that no one should fit out 
 a vessel of war without a Commission from the 
 Admiral, declared in its fourth article all vessels to 
 be good Prize, which should be found cruising on the 
 sea without a Commission from some Prince or 
 Sovereign State. The Spanish Ordinance of 1718'' 
 embodies in its sixth article the identical provision 
 of the French Ordinance ; and the British Naval 
 
 "» The Estrella, 6 Wheaton, ^^ Tratado Juridico-Politico 
 
 p. 304. Bobre Pressas de Mar su autor 
 
 ^^ Lebeau, Nouveau Code des Don Felix Joseph de Abreu y 
 
 Prises^ Tom. I. p. 82. Bertodano, Cadiz, p. 318. 
 
ON PEIVATEERS. 387 
 
 Instructions, whicli were published in 1730, declared 
 that if any ship or vessel shall be taken acting as 
 a Ship of War or Privateer, without having a Com- 
 mission duly authorising her to do so, her crew shall 
 be considered as pirates and treated accordingly ^l 
 
 5 191. What constitutes a lawful Commission of what con- 
 
 stii'fc'll'tiGS £L 
 
 War has been occasionally in dispute. After the lawful 
 revolt of the Low Countries against the dominion ^jo™™^" 
 of Philip II, not only Spain, but other Powers, re- War. 
 fused to recognise the lawfulness of the Letters of 
 Marque and Reprisals issued by the Prince of Orange 
 in 1569, on the ground that he was not competent to 
 grant them, not having any Admiralty jurisdiction : 
 but after he had been nominated Admiral of the 
 United Provinces in 1576, the Neutral European 
 Powers recognised the legality of his Letters Patent, 
 although Spain continued for a considerable time to 
 treat the sea-beggars, (for such were they called by 
 way of contempt,) as pirates ^^ The question, as it 
 regards the relations between a revolted Proviace and 
 the Mother Country, may be embarrassed by consi- 
 derations arising out of the Municipal Law of the 
 Mother Country; but as regards third Powers, if 
 there be a state of War between two Communities of 
 men, neither of which recognise de facto any political 
 Superior, vessels sailing under the flag of either Com- 
 munity are entitled so far to the jura belli, that they 
 cannot be treated as pirates by the public ships of 
 Neutral Powers. Thus the armed schooner Invincible, 
 sailing under the flag of the newly-constituted Ee- 
 public of Texas, captured in the month of April 1836 
 the American brig Pocket, carrying munitions of war 
 to a port within the territory of Texas for the use of 
 
 " The same directions are ^ Les gueux de mer was the 
 given in the British Naval In- name given to these privateers 
 structions of 1806 and of 1826. by the Spaniards. 
 
 C C 2 
 
388 ON PRIVATEERS. 
 
 the Mexican army, then attempting under the com- 
 mand of General Santa Anna to reconquer that for- 
 mer Province of Mexico. The United States ship of 
 vp-ar Warren thereupon captured the Texian schooner 
 as a pirate, and brought her to New Orleans for con- 
 denination in that character. The Attorney General 
 of the United States on this occasion laid it down 
 in his Eeport to the President of the United States, 
 that when " a civil War breaks out in a foreign Na- 
 tion, and part of such Nation erect a distinct and 
 separate government, and the United States, although 
 they do not acknowledge the independence of the 
 new government, do yet recognise the existence of a 
 civil war, our Courts have uniformly regarded each 
 party as a belligerent Nation in regard to acts done 
 jure belli. Such may be unlawful when measured 
 by the Law of Nations or by Treaty- stipulations ; 
 the individuals concerned in them may be treated as 
 trespassers, and the Nation, to which they belong, 
 may be held responsible by the United States ; but 
 the parties concerned are not treated as pirates. It 
 is true, that when persons acting under a Commission 
 from one of the belligerents make a capture ostensibly 
 in the right of war, but really with the design of 
 robbery, they will be held guilty of piracy. In this 
 present case there is not the least reason to believe 
 that the capture was made with any criminal inteiit. 
 It would seem to be an infraction of the Treaty made 
 in 1 83 1 between the United States and the United 
 Mexican States, (of which Texas was then a con- 
 stituent part ;) and there may be other reasons for 
 doubting its legality as an act done in the Eight of 
 War ; but that it was really done in that character, 
 and no other, is very clear. The existence of a Civil 
 War between the people of Texas and the authorities 
 and people of the other Mexican States was recog- 
 
ON PRIVATEERS. 389 
 
 nised by the President of the United States at an 
 early day of November last. Official notice of this ' 
 fact, and of the President's intention to preserve the 
 neutrality of the United States, was soon after given 
 to the Mexican Government. This recognition has 
 been since repeated by numerous acts of the Ex- 
 ecutive, several of which had taken place before the 
 capture of the Pocket. On the assumption that the 
 actors were aliens, the case is therefore fairly brought 
 within the principle above stated, and the charge of 
 piracy cannot be sustained^*." This opinion of the 
 Attorney General of the United States is justly 
 based on the assumption, that the Eights of War 
 as between Belligerents and Neutrals are essentially 
 Rights of Good Faith. 
 
 ^192. IVtartens, in his Essay on Privateers, ob-APriTa- 
 serves, that there is nothing that prevents a belli- not^ have 
 gerent Power from granting Letters of Marque and ^aai^n™of 
 General Reprisals to the subjects of an allied or even '^^^ fr°™ 
 of a neutral Power ; but that no person is allowed to Powers, 
 take Commissions from two Princes, even if they be 
 Co-belligerents ^^. In support of this view, we find 
 that the Spanish Ordinance of 1621 declared that 
 those vessels, which have Commissions from two dif- 
 ferent Princes or States, shall be declared good Prize ; 
 and if they be armed for war, the Captain and officers 
 shall be treated as pirates. The French Ordinance of 
 1 68 1 provides in like manner, that every ship having 
 a Commission from two different Princes or States 
 shall be . good Prize ; and if it is armed for war, the 
 Captain and officers shall be punished as pirates. 
 
 '* Letterof 17 May 1836 of the States, Vol. III. p. 120. 
 
 Attorney General, B. F. Butler, ^^ Bynkershoek, Obs. Jur. 
 
 to the President of the United PuhUci, CXVIT. Sir Leoline 
 
 States. Opinions of the Attor- Jenkins's Works, Vol. II. p. 
 
 neys General of the United 714. 
 
390 ON PEIVATEEKS. 
 
 If it is borne in mind, that a common object of 
 Municipal Ordinances and International Compacts 
 in regard to Privateers, has been to secure that the 
 conduct of their Commanders and crews on the High 
 Seas shall be controlled by the Admiralty Courts of 
 the Power, under whose Commission they undertake 
 to make prize of Neutral property, and that it is a 
 regulation of the Municipal Law of most States, that a 
 Privateer shall give securities to bring all its captures 
 into the port, from which it has been fitted out ; it is 
 obvious that no adequate supervision could be main- 
 tained in the manner contemplated over Privateers, 
 if the Commander of a Privateer were at liberty to 
 accept a Commission from more than one Power'*. 
 The reasons for this prohibition are equally valid in 
 the case of two Co-belligerent Powers. On the other 
 hand, there is nothing to prevent the Commander 
 of a Privateer from holding two Letters of Marque 
 issued by one and the same Power against two dif- 
 ferent Powers : for instance, Great Britain might be 
 at war with Spain, and might see fit to grant Letters 
 of Marque to private ships against Spain ; and upon 
 war subsequently breaking out with France, might 
 further see fit to grant to the Commanders of the 
 same ships Letters of Marque against France. Such 
 additional Letters of Marque will be perfectly lawful, 
 for even without such Letters of Marque against 
 France, the Commander of a British vessel will be 
 justified under the Law of Nations in attacking and 
 capturing French vessels, if war should have broken 
 out between Great Britain and France, as all the 
 subjects of the British Crown have thereupon become 
 enemies of the subjects of the French Crown. But 
 
 '' It is a Municipal regulation cruising under their flag shall he 
 of most of the European States, brought into their ports, and no- 
 that all prizes made by vessels where else, for adjudication. 
 
ON PRIVATEEES. 391 
 
 the Commander of a British vessel will not be jus- 
 tified, until he has obtained a Commission of Marque 
 against France, in capturing Neutral vessels for car- 
 rying Contraband of War to French ports. Further, 
 whatever Prize he may have made jure belli of 
 Enemy's property, all the interest in such Prize will 
 accrue to the Lord High Admiral, until he has ob- 
 tained a Commission of Marque against France. 
 Such was the decision of, the High Court of Admi- 
 ralty in the case of the Grand Terrein^^ a French 
 ship, taken by the Tartar privateer, which had a 
 British Commission of Marque against American pro- 
 perty, and had petitioned the Lords of the Admiralty 
 for a Letter of. Marque against France on the day 
 before the French ship was taken. The French ship 
 was held in this case to be good Prize, as being 
 Enemy's property ; but it was condemned as a Droit 
 to the Lord High Admiral. 
 
 § 193. There is nothing in the Common Law ofseUigerent 
 Nations which forbids a Belligerent Power from may grant 
 granting Letters of Marque or Commissions of War ^°™™f ^^^j. 
 to aliens, even if they should be the subjects of the to aUens. 
 Enemy-Power ^^. Thus we find that the Commission, 
 which it is usual to issue under the Great Seal of 
 Great Britain to the Lord High Admiral or the 
 Commissioners for executing the office of Lord High 
 Admiral ^^ empowers them " to issue forth and grant 
 Letters of Marque or General Reprisals to any of our 
 loving subjects, or others, whom he or they may deem 
 fitly qualified in that behalf, for taking the ships, 
 vessels, and goods, belonging to the enemy or to any 
 persons being subjects of the enemy, or inhabiting 
 
 ^' I Hay and Marriott, p. 155. the reign of George II. Beauwes, 
 
 ''The Mary and Susan, i LexMercatoria, Tom. II.p. 341; 
 
 "Wheaton, p. 46. and a,lBO in the reign of George 
 
 3" Such is the form of the III. Marriott's Formulary, p. 
 
 Commission which was in use in 104. 
 
392 
 
 ON PEIVATEBES. 
 
 British 
 practice 
 in issuing 
 Commis- 
 sions to 
 the Com- 
 manders of 
 private 
 ships. 
 
 within any of his territories." The Swedish Ordinance 
 of 19 Feb. 1715*° recites in terms that Commissions 
 are to be granted not only to Swedes, but to the 
 Subjects of foreign Powers : " Le Eoi voulant bien 
 permettre, non seulement h, ses propres sujets, mais 
 aussi d eeux des Puissances JEirangeres, d'aller en 
 course sur tons ceux qui contreviendront h, ce 
 Kfeglement, un chacun qui souhaitera d'avoir une 
 Commission d'Armateur, I'obtiendra de Sa Majeste 
 ou de ses Amiraux : mais ceux qui ne seront pas 
 munis d'une telle commission, n'auront point la per- 
 mission d'aller en course." 
 
 § 194. The practice in regard to the issuing 
 of such Commissions was for a party, who might 
 be desirous to obtain Letters of Marque or General 
 Eeprisals for a vessel of which he was owner or 
 part owner, to petition the Lord High Admiral, 
 or the Conynissioners for executing his office, 
 to grant a Commission to the Commander of the 
 vessel specified by name ; and for the Lord High 
 Admiral or the Commissioners for executing his 
 office, if they were satisfied of the sufficiency of 
 the vessel and her crew, thereupon to issue a War- 
 rant to the Judge of the High Court of Admiralty, 
 . directing that a Letter of Marque and Eeprisals 
 should be issued to the Commander, named in the 
 Petition, out of the High Court of Admiralty*^ It 
 was usual for the Crown, at the same time that 
 it issued its Commission xmder the Great Seal, to 
 issue Instructions under the Eoyal Signet and Sign 
 
 *" M^moires de Lamberty, 
 Tom. IX. p. 226. 
 
 *' It was provided by 43 Geo. 
 III. c. 96, that the owners of all 
 privateers should nominate and 
 register a Proctor in the Court, 
 where they obtained their Com- 
 
 mission or Letter of Marque, 
 that service upon him was bind- 
 ing for the Commander, owners, 
 and sureties, and that such owners 
 and sureties are liable to decrees 
 immediately after seizure. 
 
ON PRIVATEERS. 393 
 
 Marrnal addressed to all Commanders of Privateers, 
 in a separate form from the Instructions issued to 
 the Commanders of King's ships, although on some 
 occasions the Instructions to the Commanders of 
 either class of vessels v^ere conjoint Instructions. 
 These Instructions vsrere binding upon the Com- 
 mander of every privateer, who upon obtaining a 
 warrant from the Lord High Admiral or the Com- 
 missioners for executing the office, was required to 
 appear in the Eegistry of the High Court of Ad- 
 miralty, and there make a declaration respecting the 
 tonnage and fittings of his vessel, and to sign and 
 execute a bond to the Crown with two approved 
 sureties, that he would in every respect conform 
 himself to the Instructions issued by the King, in 
 Council, and to all future Instructions. It was ac- 
 cordingly to his Instructions that the Commander of 
 every privateer was bound to look for the interpre- 
 tation of the general language of his Commission, 
 and the authority contained in these Instructions, 
 equally as the Commission, was granted to the Com- 
 mander personally. It was necessary therefore that 
 the Commander himself should be on board the 
 privateer at the time of its making any capture, in 
 order that the legal interest in the capture should 
 enure to the private captors under the Commission. 
 In the case of the "Charlotte" privateer ^^ Lord 
 Stowell held that a capture made by her, when her 
 Commander was on shore, must be condemned as 
 a Droit of the Admiralty. An exception appears to 
 have been made in favour of the captors on one 
 occasion, where the Commander of the privateer 
 being dead, the Lieutenant had captured the prize ^. 
 
 *^ The Charlotte, Witt. 5 Ch. possession of the author, pur- 
 
 Eob. p. 280. porting to contain notes of Sir 
 
 *' In a MS. note-book in the Nathaniel Lloyd, Advocate Ge- 
 
394 ON PEIVATEERS. 
 
 But in most cases in modem times, where non-com' ' 
 missioned captors have made prize of enemy's pro- 
 perty, it has been usual for the Crown to grant to 
 the captors on their petition the ships and goods 
 of the enemy, although the same have been taken 
 without any legal authority or Commission of War. 
 Such is the purport of a Report** made by Sir 
 James Marriott, the King's Advocate General, in 
 1765, to the Lords Commissioners of the Treasury. 
 According to that Report the practice in the High 
 Court of Admiralty of Great Britain has been for 
 the Lord High Admiral to proceed for Droits by 
 his own Law Officers, ever since the time of the 
 Duke of York, who was Lord High Admiral in the 
 reign of King Charles II, and who, subsequently to 
 his appointment and to the Order in Council of 
 6 March 1666 declaring the Droits of the Lord 
 High Admiral, granted them back to the Crown. 
 This precedent of granting back the Droits of the 
 -Lord High Admiral to the Crown was followed by 
 Prince George of Denmark, after he had been ap- 
 pointed Lord High Admiral, and by the Earl of 
 Pembroke ; but whenever the office of Lord High 
 Admiral is in Commission, the Droits of the Lord 
 High Admiral remain vested in the Crown. 
 ReatraintB § 1 9 5. The Commission of a Privateer, although 
 vateCTs."' it is issued in general terms, is taken subject to aU 
 the restraints, which the legislature may have im- 
 posed upon it. In the case of British privateers, 
 their Commissions are revocable by the Lord High 
 Admiral or the Commissioners for executing his 
 
 neral in 1 7 16, there is this pas- of the Privateer. 30 May 1704." 
 
 sage: "The Privateer's Captain " MS. book of Sir James 
 
 being dead, the Lieutenant took Marriott, in possession of the 
 
 a prize. Salvo jure Admirali, author, 
 for once adjudged to the owners 
 
ON PRIVATEEKS. 395 
 
 office. In the case of privateers belonging to the 
 United States of America, their Commissions are 
 revocable by the President. Under the Prize Act 
 of 1812, the President of the United States was 
 empowered to grant, annul, and revoke at his plea- 
 sure, the Commissions of privateers, and by the Act 
 declaring War he was authorised to issue the Com- 
 missions in such form as he should deem fit, and 
 further to establish and order suitable Instructions 
 for the better governing and directing the conduct 
 of private armed vessels commissioned under that 
 Act, their officers and crews. " It has been the great . 
 object," observes Mr. Justice Story*^, " of every mari- 
 time Nation to restrain and regulate the conduct of 
 its privateers. They are watched with great anxiety 
 and vigilance, because they often involve the Nation 
 by irregularities of conduct in serious controversies, 
 not only with public enemies, but with neutrals and 
 allies. If a power did not exist to restrain their 
 operations in war, the public faith might be violated, 
 cartels and flags of truce might be disregarded, 
 and endless embarrassments arise in the negotia- 
 tions with foreign Powers." The Commission of a 
 privateer was declared by the British Prize Act to 
 be forfeited upon due proof of the breach of any of 
 his Majesty's Instructions relating to Prize, or of 
 any offence against the Law of Nations ; and upon 
 representations being made to the Lords of the 
 Admiralty, that the Commander of any privateer had 
 committed a breach of his Instructions or offended 
 against the Law of Nations, it was usual for them 
 to direct proceedings to be instituted in the Ad- 
 miralty Court against the privateer to deprive her 
 Commander of his Commission *^ Such a proceeding 
 
 " The Thomas Gibbons, 8 '" The Marianme, 5 Ch. Bob. 
 
 Cranch, 428. p. 10. 
 
396 ON PRIVATEERS. 
 
 was ad publicam vindictam, and was intended to 
 prevent a repetition of bad conduct. The misuse 
 of the authority conveyed to the Commander of a 
 privateer by his Commission rendered her Commander 
 and the owners liable in damages to the party in- 
 jured ; and each part-owner, if there were several, 
 was liable not merely pro rata for his own ghare 
 respectively, but for the total amount of what might 
 be awarded against them aU*^. So far back as 
 1672*^ it was held that every owner of a privateer 
 is liable in solidum for damages awarded against 
 the master and owners of the vessel. 
 Purport of J ip6. The Instructions, which have been generally 
 tions issued furnished to British privateers, authorise them to 
 Privateers, attack and scize all men-of-war, ships, and other 
 vessels whatsoever, as also all goods, wares, and mer- 
 chandises belonging to the enemy, but so as not to 
 commit any hostilities within the harbours of Powers 
 or States at amity with Great Britain, or in their 
 rivers, or roadsteads, within the shot of their can- 
 non ; also to attack and seize all ships carrying 
 Contraband of War to the ports of the Enemy, and 
 all ships, whatever be their cargoes, that may he 
 found attempting to enter any blockaded ports. It 
 has been usual for the Crown to issue additional 
 Instructions*^ from time to time to privateers, as 
 occasion may require, equally as to public vessels 
 of war, for the purpose of restraining or enlarging, 
 as the case may be, the exercise of the powers 
 contained in their Commissions. The Commanders 
 are further required by their Instructions to bring 
 their prizes into port for adjudication, to aid and 
 
 *' The Karasan, 5 Ch. Rob. Lord Stair's decisions, Vol. II- 
 
 p. 292. p. 239. 
 
 ^' Praris v. Captain Mar- *^ Marriott's Formulary, pp. 
 
 tine and his owners, a.d. 1675. 46-49, 54. 
 
ON PRIVATEERS. 397 
 
 succour all co-belligerent vessels, to make reports 
 
 from time to time of their proceedings to the Lord 
 
 High Admiral or the Commissioners for executing 
 
 his office, to refrain from ransoming their prizes, to 
 
 deliver up ^U prisoners of war to Commissioners 
 
 authorised to take charge of them, to send copies 
 
 of their journals to the Secretary of the Admiralty, 
 
 and not to hoist any jack, pennant, or other ensign 
 
 or colours usually borne by King's ships ; but be- Distin- 
 
 sides the colours usually borne by merchant ships, fiigo"/ 
 
 to wear a red Jack with the Union Jack described ^'^l^^^^ f"- 
 
 vateers. 
 
 in the canton at the upper corner thereof near the 
 staff. Such appears to have been the substance of 
 the Instructions issued on 30 Dec. 1739 for the 
 Commanders of such ships and vessels, as may have 
 Letters of Marque or Commissioife for private men- 
 of-war against the King of Spain, his vassals, and 
 subjects inhabiting within any of his Countries, 
 Territories, or Dominions, by virtue of our Commis- 
 sion granted under the Great Seal of Great Britain 
 bearing date the thirtieth day of November 1739^°. 
 It appears that precisely similar Instructions, as 
 to the distinguishing Jack to be carried by British 
 privateers, have been issued on all subsequent occa- 
 sions. 
 
 § 197. The French Ordinance of 1681 may be The Flag 
 regarded as furnishing a permanent body of In- priyTtefra, 
 structions to the Commanders of all ships having 
 Commissions from the Admiral, but it has been 
 supplemented by Regulations on the subject of Prize 
 issued from time to time, as, circumstances may have . 
 
 *° A copy of these Instruc- subject of blockade, but Instruc- 
 tions will be found in Beawes, tions to privateers on the subject 
 Lex Mercatoria, edited by Chitty, of Blockade will be found in 
 Vol. I. p. 345. These particular Marriott's Formulary, p. 49. 
 Instructions are silent on the 
 
398 ON PEIVATEEES. 
 
 called for them^'. They are silent on the subject 
 of a special flag to be used by private ships of war, 
 as distinguished from public vessels of war. The 
 ordinance of 15 April 1689 established special en- 
 signs for vessels of commerce, and two other ensigns 
 seem to have been in use in the French mercantile 
 marine before 1789^^; but since that period the same 
 ensign has been borne by vessels of war as by vessels 
 of commerce, the use of a pennant having been 
 reserved to -the former ^^. It does not appear that 
 French privateers are required to carry any special 
 flag to distinguish them from vessels of war be- 
 longiag to the Crown, although the latter may have 
 been always distinguishable from them in fact by 
 some special signal serving to denote the rank of 
 the navaL officer in command of them. By the Law 
 of 3 1 Oct. 1 790, which purports to fix the colours, 
 which the dififerent kinds of French flags used on 
 board of French vessels ought to bear, the jlamme 
 or pennant is spoken of as the distinguishing mark 
 of vessels of war and other ships of the State ; the 
 only other class of vessels mentioned in that Law 
 being vessels of commerce^*. 
 
 It does not appear from either of the Spanish 
 
 =1 This Ordinance and the Tit. III. Art. I. The tricolor 
 
 supplemental regulations may be ensign, which is borne in the 
 
 consulted in Lebeau, Nouveau present day by all French vessels, 
 
 Code des Prises, p. 80. was reestablished as the National 
 
 "" Les vaisseaux marchands ensign by a decree of 7 March 
 
 porteront I'enseigne de poupe 1848. 
 
 bleue aveo une croix blanche ^' Ortolan, Diplomatie de la 
 
 traversante, etles armes de S.M. Mer. Tom. I. p. 219. 
 sur le tout, ou telle autre dis- ^* Code des Prises et du Com- 
 
 tinction, qu'ils jugeront 3. pro- merce, par F. N. Dufriche- 
 
 pos, pouryij. que leur enseigne de Fontaines, Paris, an. xiii. Part 
 
 poupe ne soit point entiferement II. p. 6i6. Lebeau, Nouveau 
 
 blanche. Ordonnance de Louis Code des Prises, Tom. HI. p- 
 
 XII, 15 April 1689, L. III. 2r. 
 
ON PRIVATEERS. 399 
 
 Ordinances'^ to regulate privateering, issued in 1621 
 and in 1718, that Spanieh privateers are required to 
 carry any special flag. The Swedish Ordinance of 
 17 15'® and the Eussian Eegulations of 1787'^ are 
 likewise silent upon this head. The Instructions of 
 the President of the United States of America-'^, as 
 well as those of the Supreme Director of the United 
 Provinces of South America '® issued from the Fort- 
 ress of Buenos Ay res on 15 May 18 17, are equally 
 silent. On the other hand, the Danish Prize In- 
 structions issued at Copenhagen on 10 March 18 10 
 announce that those privateers, to which lawful Com- 
 missions have been granted, are allowed to carry the 
 Royal Danish Pennant and Ensign with our Koyal 
 Cypher in the middle of it "". It would thus appear 
 that there is no settled Practice of Nations which 
 requires that private ships of war should carry a 
 distinguishing flag, corresponding to the Privateer's 
 Jack, which British privateers are required by the 
 municipal Law of Great Britain to carry, nor any 
 Praictice of Nations which forbids private ships of 
 war to carry the pennant or fiamme which is borne 
 by pubBc vessels of war. 
 
 §198, Martens, in his Essay on Privateers", "Verifica- 
 observes, that "notwithstanding the species of i^tary ^ 
 military flag which Privateers have the privilege oi^^°^^^^ 
 hoisting, they cannot aspire to that exemption from 
 Yisitation on the part of foreign Powers, which a 
 Sovereign's ship demands." It seems to be a reason- 
 
 " D'Abreu, Tratado sobre '^ Wheaton's Reports, IV. 
 
 Pressas de Haf. p. 309. Appendix, p. 29. 
 
 *" Robinson's Collectanea Ma- '^ Wheaton's Reports, V. Ap- 
 
 ritima, p. 167. pendix, p. 93. 
 
 *' Lampredi, Du Commerce " Martens considers the case 
 
 des NetitreS, Paris, ann. p. 359. of merchant ships in cargo, which 
 
 ^' "Wheaton's Reports, II. Ap- are furnished with Letters of 
 
 pendix,p.8o. V.Appendix,p. 112. Marque, in a note to p. 41. 
 
400 ON PRIVATEERS. 
 
 able proposition, that the Commander of every 
 private ship of war should be required to verify his 
 character by exhibiting his Commission of war to the 
 Commander of any public vessel of war, for public 
 vessels of war are authorised by the Law of Nations 
 to maintain the pohce of the High Seas, and it 
 would be impossible for them to check piracy, unless 
 they were entitled to verify the military character 
 of every private vessel, which they may find acting 
 as a vessel of war. The ordinary instructions issued 
 by the maritime Powers of Europe to their public 
 vessels direct them to capture, as a Piratical vessel, 
 every vessel committing an act of war on the High 
 Seas without a lawful Commission. Thus in "the 
 Eegulations established by the King in Council and 
 Instructions issued by the Lords Commissioners of 
 the Admiralty relating to his Majesty's Service at 
 sea," published by authority in 1826, it is declared 
 under the head of Prizes and Prisoners of War, 
 " If any ship or vessel shall be taken acting as a 
 ship of war or privateer, without having a Com- 
 mission duly authorising her to do so, her crew shall 
 be considered as pirates, and treated accordingly." 
 Similar instructions had been issued to British Naval 
 Officers in 1730 and 1806. The Spanish Ordinance 
 of 162 1 and the French Ordinance of 168 1 were to 
 a similar purport, as they respectively authorised 
 Spanish and French cruisers to capture any vessel, 
 which they might find cruising without a Commission 
 from some Prince or Sovereign State. The Eight 
 of Visit for the purpose of ascertaining the lawful 
 character of a cruiser is altogether distinct from the 
 Eight of Search, and a private vessel of war equally 
 as a public vessel of war may be regarded as exempt 
 from search. Such seems to be the fair conclusion 
 to be drawn from the case of the Danish Corvette, 
 
ON PRIVATEERS. 401 
 
 St. Juan^l Accordingly, as soon as the Commander 
 of a privateer has exhibited his Commission of 
 War to the Commander of a public ship of war, 
 and the Commission is found to be under the Seal 
 of a Sovereign Prince or State, and to warrant the 
 vessel acting as a vessel of war, it is for the Courts 
 of Admiralty of the belligerent Power to determine, 
 whether any act of war, in which the privateer may 
 have been engaged, is warranted by her Commission 
 and the Law of Nations. M. de Hautefeuille is of 
 opinion that the Law of Nations, as received amongst 
 the Maritime Powers, does not authorise the public 
 ships of war of neutral Nations to verify the mili- 
 tary character of private ships by inspecting their 
 Commission ; but it seems difficult to reconcile his 
 view with the positive Law of so many maritime 
 Powers, whereby their public vessels are authorised 
 to capture, as pirates, every vessel committing an 
 act of war without a lawful Commission. 
 
 ^199. M. de Hautefeuille*^ contends that the a neutral 
 Master of a neutral merchant ship has a right to vessel can- 
 require the exhibition of the papers of a privateer ^°'^^|.^™ 
 to prove its national character, as well as the privateer's 
 exhibition of the Commission of its Commander, character. 
 before he permits any officer from the privateer 
 to board his vessel for the purpose of Visitation 
 and Search ; but such a refusal on the part of the 
 Master of a merchant ship to^ allow an officer of 
 the privateer to board his vessel would be equivalent 
 to resistance, and any resistance whatsoever on his 
 part would according to the Ordinances of all the 
 Maritime Powers fuUy authorise the Commander 
 
 ^^ Charles de Martens, Causes L. IT. 0. 8. 
 Celfebres du Droit des Gens, T. ^^ Des Droits et des Devoirs 
 
 II. p. 183. Ferdinand de Cusay, des Nations Neutres, Tom. HI. 
 Causes Cdfebres du Droit Ma- Tit. XI. c. i. s. i. p. 16. 
 ritime des Nations, Tom. II. 
 
 PAET II. D d 
 
402 ON I'EIVATBEKS. 
 
 and crew of the privateer to have recourse at once 
 to force, and to make prize of the merchant vessel. 
 Various regulations have been made from time to 
 time in France for restraining the excesses of private 
 ships of war, and one of the earliest of such regulations 
 forbade them under the most severe penalties to do 
 any violence to vessels, which should lower their sails 
 immediately upon being summoned by an affirming 
 gun to heave to, and should submit to the Visit ^^ ; 
 but it was an accompanying instruction to private 
 ships of war that they might give chase to any 
 vessel, which they might descry upon the High Seas, 
 and summon it by firing a gun to heave to, and if 
 it should neglect to do so, they might then compel it 
 by force ; and if any resistance should be made, the 
 vessel should be declared by the Admiralty to be 
 good Prize. Analogous provisions are found in the 
 French Ordinance of 1 68 1®*, in the Spanish Ordinance 
 of 171 8*^ in the Swedish Ordinance of 1715^^, and 
 in one of the most recent of modern Ordinances for 
 the regulation of privateers, namely, the Ordinance 
 which was issued by the Supreme Director of the 
 United Provinces of South America in 1817. This 
 Ordinance provided that a merchant vessel belonging 
 to any Nation whatever, that makes any defence after 
 the privateer's hoisting up her flag, shall be declared 
 good Prize, unless her captain shall prove that the 
 privateer gave him sufficient motive for such a re- 
 sistance®'. It seems impossible to maintain with 
 good reason in the face of this and other Ordinances 
 of a cognate character extending over a period of 
 
 °^ Edit concernant la juris- *^ D'Abreu, p. 320. Art. 13. 
 
 diction de TAmirautd de France, ^° Eobiason's Collect. Maritim. 
 
 Art. 64. A.D. 1584. Lebeau, p. 167. 
 
 Nouveau Code des Prises, I. "' Art. 28. Wheaton's Reports, 
 
 P- 24. Tom. IV. App. p. 35. 
 
 « Ibid. Art. 65. 
 
ON PKIVATEEES. 403 
 
 three centuries, that the Commander of a privateer 
 can of Right be required by the master of a neutral 
 merchant vessel to show his Commission and Ship's 
 Papers, before he is to be allowed to exercise his 
 belligerent Eight of Visit a,nd Search. Besides, 
 the exercise of the Eight of Visit and Search by pri- 
 vateers has been a subject of Treaty-arrangements 
 between most of the maritime Powers of Europe ; 
 and one object of such Treaty-arrangements has 
 been to regulate the approach of every privateer, so 
 that it shall not come within a certain distance of a 
 merchant vessel at the time, when its affirming gun 
 is fired by way of summons (Za semonce). To this 
 summons every merchant ship is bound to pay at- 
 tention and to lay her sails to the mast, and if 
 possible, to anchor. But no provision is found in 
 any of these Treaties, which authorises the master 
 of the neutral merchant ship to demand the pro- 
 duction of the Commission of the Commander of the 
 privateer before he submits to the Visit; on the 
 contrary, if any flight is attempted, the privateer 
 may fire into the neutral merchant vessel, and if 
 the neutral merchant vessel should offer resistance 
 and should be captured, she will be good prize, 
 although her neutral character should be afterwards 
 established ^^. 
 
 § 200. The mode of exercising the belligerent Eight The exer- 
 of Visit and Search®* is of no slight importance BeUigerent 
 in its bearings upon the degree of respect, which is ylf^^"^^ 
 due from every Belligerent Power towards a Neutral Search rc- 
 Power. A state of War does not authorise the ex- Treaties, 
 ercise of force on the part of a Belligerent Power 
 against any Power, with which it is at amity ; it is 
 only when another Power ceases to be at amity with 
 
 "' Martens on Privateers, p.- Treaties on the subject. 
 58, who cites a long series of '' Supr. p. 180. 
 
 D d 2 
 
404 ON PRIVATEERS. 
 
 it, in other words, when it conducts itself as an 
 Enemy, that a Belhgerent Power may exercise jure 
 helli force against it. The Right of Visit and Search 
 is not a Natural Right on the part of a belligerent, 
 as such, against a neutral, as such ; it is a Positive 
 Right, resting upon custom and tacit compact (mori- 
 hus et pacta tacito introductum''°), and, as such, is to 
 be exercised according to certain rules. Accordingly 
 we find that no question has been more frequently 
 the subject of Treaty-regulation than the forms to be 
 observed by every Commander of a belligerent ship 
 of war in visiting and searching a merchant vessel 
 sailing under a neutral flag. Private ships of war 
 equally as Public ships of war are empowered by 
 their Instructions to visit and search neutral vessels, 
 and their Commission of war is their sufficient war- 
 rant against neutral Powers for exercising such belli- 
 gerent Rights. It was an invariable provision of such 
 Treaty-regulations, that privateers should fire a blank 
 charge from a gun at a given distance from every 
 merchant vessel, which they intended to visit ; and 
 this distance was in some Treaties specified as beyond 
 cannon-shot, in others as within cannon-shot, but in 
 no treaties at a less distance than a half cannon-shot. 
 Thus it was specified in the Treaty of Commerce 
 between Great Britain and France of 1786", that 
 all cruisers, whether public or private ships of war, 
 should remain at a distance beyond cannon-shot 
 {demeureront hors de la portee da canon), whilst 
 exercising the Right of Visit ; on the other hand, in 
 the Treaty of Commerce between France and Russia 
 of 1787 it was stipulated, that no public or private 
 ship of war should approach nearer than a half can- 
 non-shot, whilst exercising the Right of Visit '^. One 
 
 '» Cf. Part I. § 76. ment ordonn^ aux dits vaisseaux 
 
 '^Martens, R^cueil, IV. p. 171. de guerre ou armateurs,^ de ne 
 " II n'est pas moins stricte- jamais s'approcher desdits na- 
 
ON PEIVATEEES. 405 
 
 object of a cruiser's remaining at a reasonable distance 
 on such occasions is to avoid giving rise to any alarm 
 or misgiving on the part of the master of the mer- 
 chant vessel as to the true character of the cruiser ; 
 on the other hand, it will be necessary for the cruiser 
 to remain within such a distance, as will enable it 
 promptly to give support, if required, to the boat's 
 crew, which it may have sent alongside the merchant 
 vessel. According as one or other of these two 
 considerations have preponderated in the minds of 
 the framers of Treaties, the distance at which cruisers 
 are to remain, whilst exercising the Right of Visit, 
 has been enlarged or reduced. Although there may 
 thus be some variations in the stipulations of Treaties 
 as to the actual distance, at which a cruiser is bound 
 to remain after it has fired its affirming gun and 
 whilst its boat's crew goes alongside the merchant 
 vessel, there is a general uniformity in the provisions 
 of such Treaties as to the mode in which the actual 
 visit shall be made, namely, by sending a boat along- 
 side the merchant vessel manned by so small a crew, 
 that its approach can cause no just alarm to the 
 master of the merchant vessel. It was a provision 
 of the Swedish Ordinance of 17 15, as well as of the 
 Spanish Ordinance of 1779, that the Commander of 
 a privateer might require the master of a merchant 
 vessel to come with his papers, or to send them by 
 one of his crew on board the privateer, and that if 
 the Commander of the privateer was not satisfied 
 with the papers, he might send some of his own men 
 on board the merchant vessel to inspect still further 
 her documents. But Sweden, in a Treaty of Com- 
 merce concluded with the Two Sicilies in 1742''^, 
 agreed that the privateers of either Nation should 
 
 vires marchands qu'k la distance p. 212. 
 
 au plus de la demi-portee du " Wenck, Codex Jur. Gent. 
 
 canon. Martens, Kecueil, IV. Tom. II. p. 137. 
 
406 ON PRIVATEERS. 
 
 not approach nearer to the merchant ships of the 
 other Nation than a cannon-shot, and should send 
 a boat alongside them for the purpose of visit with 
 two or three men on board at most, besides the 
 rowers, and that not more than those two or three 
 men should go on board the merchant vessel. Swe- 
 den likewise, in her Treaty with the United States 
 of America in 1783''*, agreed that the respective 
 cruisers of the two Powers should exercise their 
 belligerent Eight of Visit at a distance greater than 
 a cannon-shot, and should send a boat alongside 
 with two or three men at most to go on board of 
 the merchant vessel. Spain in like manner, in her 
 Treaty with the United States of America, in 1795''^ 
 agreed that the cruisers of either Nation in exer- 
 cising their belligerent Eight of Visit should remain 
 out of cannon-shot, and should send a boat's crew 
 alongside the merchant ship, out of which two or 
 three men only should go on board the vessel. Spain 
 had agreed to observe the same rules in a Treaty 
 concluded with England in 1667, which was renewed 
 by Art. II. of the Treaty of Versailles, 1783, which 
 latter Treaty was confirmed by the first additional 
 Article to the Treaty of 5 July 18 14'^ There is 
 thus a general concurrence of principle amongst 
 Nations as to the mode, in which the actual Visita- 
 tion of a neutral merchant ship is to be made by 
 every belligerent cruiser, namely, that it is to be 
 conducted in such a manner as to cause no alarm 
 to the commander and crew of the merchant ship, 
 and at the same time without any hostile demon- 
 stration of force ; and it may fairly be maintained, 
 that no Commander of a belligerent cruiser can capri- 
 ciously depart from the established practice without 
 
 " Martens, E^cueil, III. p. 597. "^ Art. 14. Hertslet's Trea- 
 
 '^ Art. 18. Martens, Edcueil, ties, II. p. 147. 
 VI. p. 160. 
 
ON PRIVATKEES. 407 
 
 incurring a responsibility to the Neutral Nation, upon 
 whose Eights of Independence it will have thereby 
 unduly trespassed. It should be borne in mind that 
 it is by the Custom of Nations that the cruisers of a 
 belligerent Power are authorised to visit and search 
 neutral merchant ships on the High Seas in as- 
 surance of their good Faith, and that although a 
 Belligerent Power would be justified in regarding a 
 Neutral Power, which should refuse to allow its 
 merchant vessels to be duly visited and searched, 
 as an adherent of the Enemy, and in treating it 
 accordingly, yet the Belligerent is not the less bound 
 in good Faith towards the Neutral to observe those 
 forms, which are of the essence of the Custom, and 
 the observance of which enables a Neutral to re- 
 cognise the exercise of Belligerent Right in a pro- 
 ceeding, which under any other form would be a 
 Maritime Trespass. 
 
 § 20 1. The Comity which is extended by the prac- Privatoera 
 tice of Neutral Powers to the Public vessels of war mitted'to 
 of a belligerent Power, in admitting them into its com^t^L 
 j)orts, is not invariably extended in an equal manner ^'^}>^'^° 
 to Private ships of war. It is competent indeed for a War. 
 Neutral Power to grant free access to its ports to all 
 privateers with their prizes ; and if it has granted 
 such access to them, it is not at liberty to interfere 
 with their possession of those prizes, whilst they are 
 within its jurisdiction, unless the capture of them 
 should have involved a violation of the Sovereignty 
 of the Neutral Power. For instance, if a privateer 
 should have entered any port of the Neutral Power 
 prior to making capture of an enemy's ship, and 
 should have augmented her crew in that port without 
 the permission of the Neutral Power, and thereupon 
 should have sailed out and captured a merchant 
 vessel, and brought her as prize of war into a port 
 
408 ON PEIVATEEES. 
 
 of the Neutral Power ; or if a privateer should have 
 made capture of a merchant ship within the Juris- 
 dictional waters of a Neutral Power, and brought 
 her prize into a port of the Neutral Power, under 
 such circumstances the Neutral Power may assert its 
 right of Sovereignty, and set the captured vessel at 
 liberty. But Neutral Powers are for the most part 
 accustomed to refuse to privateers all access to their 
 ports with their prizes, unless they should be driven 
 in by stress of weather, when motives of humanity 
 towards both the privateers themselves and their 
 prizes dictate, that they should be admitted. In such 
 cases however the privateers may be required, and 
 are in fact generally required, to put to sea again as 
 soon as the weather will permit. Some Powers have 
 been accustomed to forbid all access to their ports 
 during war to privateers, whether they have prizes 
 or not with them, except under circumstances of 
 necessity ; other Powers again have permitted the 
 privateers of a belligerent Power generally to enter 
 their ports, to continue therein, and even to sell their 
 prizes, after sentence of adjudication has been passed 
 in the Prize Courts of the belligerent Power. During 
 the war of the allied Powers against Eussia in 1854, 
 all the Baltic and Mediterranean Powers, which 
 remained Neutral, issued Proclamations forbidding 
 privateers to enter their ports, except under stress of 
 weather ; and Sweden'' went so far as to forbid them 
 to stay in her roadsteads. It may be inferred from 
 the practice of Neutral Powers in thus issuing Pro- 
 clamations, if they see fit, to announce their intention 
 to exclude privateers from the Comity which is ex- 
 hibited towards Public ships of war, that, unless a 
 Neutral State has so signified its determination to 
 
 " Edict of 4 April 1854. 
 
ON PRIVATEERS. 409 
 
 refuse to privateers the privilege of asylum witliiii 
 its jurisdictional waters, every belligerent Power is 
 entitled to presume that the usual Comity, will be 
 shown to its privateers, and to insist upon their en- 
 joyment of it, subject however to any regulations 
 and limitations, which the Neutral State may choose 
 to prescribe for its own safety or convenience. There 
 are cases indeed in which an independent Power 
 has bound itself by Treaty with another independent 
 Power to admit the privateers of the latter Power 
 with their prizes into its ports, and to refuse to the 
 privateers of the Enemy the like asyliim ; but such 
 Treaties have been Treaties in the nature of Alliance, 
 such as the Treaty of 1654™ between Great Britain 
 and Portugal, and the Treaty of 1778 between France 
 and the Uniteid States of America''^, and involve a 
 departure from a strict neutrality^". 
 
 § 202. It is competent for every Neutral Power Eeetno- 
 in admitting the Privateers of a Belhgerent Power privateers 
 into its ports and harbours, to enforce such rules ^g^^|"g*^^' 
 and regulations for their conduct, as to it may seem 
 fit, with a view to maintain the peace" of its juris- 
 dictional waters, and to preserve in the interest of 
 the Belligerent Power itself the Eight of Neutral 
 Asylum from violation. It may accordingly prohibit 
 a belligerent privateer from lying in wait for the 
 enemy's vessels at the mouths of its rivers or har- 
 bours", or from leaving its jurisdictional waters in 
 order to attack an enemy's vessel which is approach- 
 ing them, or from sending out her boats, whilst she . 
 is lying within neutral territory, to attack an enemy's 
 vessel which is lying outside of the neutral terri- 
 
 '* Dumont, Trait^s, Tom. VI. p. 2441. 
 Part II. p. 82. " Azuni, Droit Maritime, c. 
 
 " Martens, R^cueil, Tom. II. 5. Art. I. Martens, Precis du 
 
 p. 587. Droit des Gens, p. 251. The 
 
 *° The Eliza Ann, i Dodson, Anna, 5 Ch. Bob. p, 385. 
 
410 ON PKIVATBERS. 
 
 tory^^, or from setting sail in pursuit of an enemy's 
 vessel, which, has quitted a neutral port, until after 
 the lapse of twenty-four hours ^^ or from attempting 
 to recapture any prize which has been brought 
 into neutral waters by an enemy privateer, or from 
 selling its own prizes in neutral waters before ad- 
 judication, or from doing anything to vary its own 
 status or that of an enemy vessel, such as may 
 have been the status of either at the time of its 
 entering within the jurisdictional waters of the Neu- 
 tral Power. The Neutral Power" is also at liberty 
 to prohibit every belligerent Privateer from enlisting 
 marines or seamen within its ports, or from aug- 
 menting its armament, or from taking on board any 
 munitions of war, whilst it is within its jurisdic- 
 tional waters ; but it is the privilege of the Neutral 
 Grovernment, and not of the Enemy-Power, to com- 
 plain of any contempt of the Sovereignty of the 
 Neutral Power, which is implied in what is tech- 
 nically termed a violation of its territory. Thus 
 Lord Stowell held, that a privateer which was acci- 
 dentally lying in a neutral port, and saw an enemy's 
 vessel approaching it, might go out, and, as far 
 as the enemy was concerned, rightfully capture 
 the vessel, provided this was done beyond the 
 limits of the port^^. It is competent however at 
 aU times for a Neutral Grovernment, if it thinks 
 fit, to prevent by force any privateer from quitting 
 its port for the purpose of attacking another vesseP^ 
 which is in sight. So with regard to Privateers 
 
 ^^ The Twee Gebroeders, 3 the Kegulations of various Italian 
 
 Ch. Rob. -p. 164. States are given in extenso. 
 
 "3 Azuni, c. 5. Art. I. .Kent's ^ The Vrow Anna Catherina, 
 
 Commentaries, I. p. 123. Lam- 5 Ch. Rob. p. 18. 
 
 predi, del Commercio de Popoli ^^ Azuni, c. 5. Art. I. Lam- 
 
 Neutrali in tempo di guerra. predi, Part II. No. XI. 
 Parte Seoonda, No. XI. where 
 
ON PRIVATEERS. 411 
 
 which have been armed or manned in Neutral ports, 
 their captures on the High Seas would be sustained 
 in a belligerent Court of Prize, notwithstanding they 
 might have violated the Municipal Law of a Neutral 
 Power in order to further the object of their cruise, 
 whilst they were within its jurisdiction, unless the 
 Neutral Power should intervene to put in a claim 
 of Sovereignty over the place of capture ; for an 
 Enemy cannot be allowed in a Court of Prize to 
 set up as a bar to the exercise of belligerent Right 
 the privilege of a third party. On the other hand, 
 if any such privateers should have brought their 
 captures within the jurisdiction of the Neutral 
 Power, vhose Municipal Law they have so violated, 
 the Courts of the Neutral Power will interpose to 
 restore the captured property to its original owner, 
 on the ground of its capture having been effected 
 by means, which have involved a violation of its 
 Sovereignty. The Courts of the United States of 
 America have repeatedly adjudged property cap- 
 tvoced under such circumstances to be restored to its 
 original owners, where it has been brought by the 
 captors within the jurisdictional waters of the United 
 States ^^ ; but they have likewise held that an aug- 
 mentation of force or an illegal outfit within neutral 
 territory will not affect any capture made after the 
 termination of the original cruise, for which such 
 augmentation or outfit was made ^''. 
 
 § 203. Under the Common Law of Nations a Treaty-Ee- 
 Belligerent Power may enhst into its military or on neutraT 
 naval service any individuals whatsoever, notwith- fco'^pt*ng 
 standing thev may be the natural born Subiects of «»™mf- 
 
 T-P . . . IT • -I \c ^ sions from 
 
 other Powers, just as it may invoke the aid ot other bemgerent 
 
 Powers. 
 
 *' The Gran Para, 7 Wheaton, *' The Santissima Trinidad, 
 
 p. 471. The Arrogante Barce- and the St. Ander, 7 Wheaton, 
 lona, 7 Wheaton, p. 496. p. 283. 
 
412 ON PRIVATEERS. 
 
 independent Powers to take part with it against its 
 Enemy, and may form alliances with them. The 
 Swedish Ordinance of 17 15, as already observed, 
 alludes expressly to the Subjects of Foreign Powers, 
 who may be disposed to accept Swedish Commissions 
 of War ; and under the common Law of Nations it 
 is competent to a Belligerent Power to grant Letters 
 of Marque to any person, who may be disposed to 
 apply for them. But in process of time, as the 
 friendly intercourse of Nations came to be cemented 
 by Treaty-engagements in maritime matters, it was 
 found expedient, and became customary, to introduce 
 a provision into Treaties of Commerce, whereby each 
 of the Contracting Parties undertook not to suffer 
 its Subjects to accept Letters of Marque from any 
 Foreign Power, which might be the Enemy of the 
 other Party. One of the earliest instances of such 
 an engagement between two independent Powers 
 is found in the Treaty of Westminster^^ (29 Nov. 
 1669), concluded between Charles II of England 
 and Frederick III of Denmark. 
 
 Aet. XXXI. Subditis amborum Regum incolisve Regnorum 
 aut Terrarum illis obedientium lieitum non erit ab aliquo 
 Principe vel Statu, cui cum alterutro Fcederatorum discordia 
 aut bellum apertum erit, Litteras Patentes, quas Commis- 
 siones vocant, aut Repressalia, impetrare, multo minus vi 
 istarum Litterarum subditos alterutrius aliqua molestia aut 
 damno afficere ; uterque dictorum MagnsB Britanniae et Daniae 
 Regum subditos quisque suos sfcriete prohibebit uUas ejus- 
 modi Commissiones ab aliis principibus, aut Statibus obtinere 
 vel accipere, sed quantum in ipsis erit, deprsedationes omnes vi 
 talium Commissionum fieri omnino vetabit. 
 
 In the next following century M'e find various 
 independent Powers entering into Treaty-engage- 
 ments under which they agreed to prohibit their 
 
 «' Dumont, Trait^s, Tom. VII. Part I. p. 129. 
 
ON PEIVATEEES. 413 
 
 subjects from accepting Lettera of Marque or Com- 
 missions of War from Foreign Powers, under pain 
 of being treated and punished as Pirates. Thus in 
 the Treaty of Commerce concluded between France 
 and the States GeneraP", on 21 Dec. 1739, it was 
 . provided as follows : — 
 
 Aet. XXXIII. Les sujets des dits Seigneurs Etats Gene- 
 raux ne pourront prendre aucune Commission pour des arme- 
 mens particuliers ou Lettres de represailles des Princes et 
 Etats, qui pourroient devenir Ennemis de sa Majeste, ni 
 troubler ou endommager d^aueune maniere ses Sujets, en 
 vertu de pareille Commission ou Lettres de represailles, ni 
 memo s'en servir pour aller en course, h. peine d'etre pour- 
 suids et chaties eomme Pirates : ce qui sera pareillement 
 observi par les sujets de sa Majeste a I'egard de ceux des 
 Provinces Unies, et seront ei cette fin toutes et quantes fois 
 que cela sera requis de part ou d'autre, dans les terras de 
 I'obeissance de sa Majeste, ou dans les Provinces Unies, 
 publiees et renouvellees defenses tres expresses et trds precises, 
 de se servir en aucune maniere de pareilles Commissions ou 
 Lettres de represailles, sous la peine sus-mentionnee, qui sera 
 executee. severement centre les Contrevenans, outre la restitu- 
 tion entiere de laquelle ils seront tenus en vers ceux auxquels 
 ils auroient cause du dommage. 
 
 Provisions of a similar character are found in the 
 Treaties concluded between Sweden and the Two 
 Sicilies in 1 742 ^°, between Denmark and the Two 
 SicUies in 1 748 ^S between the United Provinces and 
 the Two Sicilies in 1753®^; and in various Treaties 
 concluded in the course of the eighteenth century be- 
 tween the Christian Powers of Europe and the Otto- 
 man Porte ®^ ; and between the Christian Powers of 
 Europe and the Dependencies of the Ottoman Porte 
 
 «» Wenck, Codex Juris Gen- "' Ibid. p. 771. Art. 36. 
 
 tium, Tom. I. p. 429. '^ Treaty between the Two 
 
 '"' Wenck, Tom. II. p. 136. Sicilies and the Ottoman Porte 
 
 Art. 23. ' in 1740- "Wenck, Tom. II. p. 
 
 91 
 
 Ibid. p. 298. Art. 32. 526. Art. 18. 
 
414 ON PEIVATEEES. 
 
 on the Barbary Coast. The object of these latter 
 Treaties was to famiharise the Mahommedan Powers 
 with the principles of Law which regulated the 
 mutual relations of the Christian Powers, and to 
 accustom them to respect them under the sanction 
 of Treaty-engagements. The States of the New 
 World have also in their turn been ready to co- 
 operate in one system of Conventional Law on this 
 subject with the States of the Old World. Thus 
 the United States of America entered into Treaty- 
 engagements prohibiting their citizens from taking 
 Letters of Marque from foreign Powers, with France 
 in 1778®*; with the United Provinces in 1782'^; 
 with Prussia in 1785'"; and with Great Britain in 
 1795^', and also with Spain in 1795 ^^ Most of these 
 Treaties, with the exception of that with Prussia, the 
 provisions of which on this head were renewed by 
 the Treaty of i May 1828^® ; and possibly with the 
 exception of that with Spain, are no longer in force, 
 and their stipulations may have ceased to be obliga- 
 tory, but their provisions serve to indicate the course, 
 in which the public opinion of the more civilised 
 States of Christendom upon this subject has been 
 steadily advancing. 
 Municipal § 204. It wiU have been observed, that by the 
 tiMa '' Treaty of Westminster (29 Nov. 1669), the con- 
 Sub'ects tracting Parties agreed to prohibit their Subjects 
 accepting from accepting Letters of Marque from any foreign 
 Marque Power agaiust the Subjects of the other Party. The 
 fordgn United Provinces had issued such a prohibition to 
 Powers, their citizens as far back as 12 May 161 1 ^°° ; and 
 
 8* Martens, K6cueil, II. p. "^ Ibid. VI. p. 154. Art. 14- 
 
 597. Art. 21. 83 Martens, K R VII. p.- 
 
 "^ Ibid. III. p. 447. Art. 19. 619. Art. 12. 
 
 «" Ibid. IV. p. 45. Art. 20. "" Groot Placaat Boek, Tom. 
 
 ^^ Martens, Rdcueil, V. p. I, p. 968. 
 678. Art. 21. 
 
ON PRIVATEERS. 415 
 
 it appears to have become the rule in the course of 
 the seventeenth century for the European Powers to 
 issue general Ordinances^ to that effect, or to publish 
 special Edicts at the commencement of any war, in 
 which they desired to remain neutral. Such appears 
 to have been the course adopted by Great Britain in 
 1677, after the conclusion of the Treaty of Westmin- 
 ster, when it seems to have been thought expedient 
 by the British Government to determine with pre- 
 cision, what were the legal obligations upon the Sub- 
 jects of the contracting Parties resulting from that 
 Treaty. The following case was accordingly sub- 
 mitted by the Lords of his Majesty's Privy Council 
 forming the Committee of Trade and Plantations 
 to Sir Thomas Exton and. Sir Richard Lloyd, two 
 of the most eminent civihans of that period, as 
 appears from the Journal of that Committee^ of 
 November 1677 : — 
 
 It is agreed that the following' question be sent to His 
 Majesty's Counsel, learned in the Common and Civil Laws, 
 for their opinion thereupon, viz. 
 
 Whether the Kings of England having made alliancej by 
 Treaty and League, with any foreign Prince or Potentate, 
 and thereby agreeing to punish with extreme or utmost 
 punishment such, as by colour of Commissions from Enemies 
 to his said Allies shall take arms against the King's Peace 
 and Treaty proclaimed and spoil the King's Allies, [it] be not 
 a levying a war against the King, and punishable by Death ? 
 Or what crime is it, and how punishable ? 
 
 It is our humble opinion that this is not a levying a war 
 against the King, nor by the Law of the land punishable 
 
 ' Ordonnance de la Marine of the late Sir James Marriott, 
 
 1681, Tit. Prizes, Art. 3. King's Advocate General (1764), 
 
 ^ A copy of this Eeport is in in the possession of the author, 
 a MS. book from the library of 
 
416 ON PEIVATEERS. 
 
 by Death. It is a crime against His Majesty's Treaties of 
 Peace, and the strict Proclamation lie has been pleased 
 to set forth to enjoin the due observance of them. It 
 is also an offence against the Law of Nations, and by 
 the Civil Law it is crimen Imsm majestatis. But by the 
 Law of England we do conceive it to be no more than a 
 Conspiracy against His Majesty's C;'own and Dignity, and 
 by the Statute for the trial of piracy (28 Henry VIII. c. 15.) 
 punishable only by Fine and Imprisonment ; and there is 
 an offender in the Marshalsea who hath accordingly been 
 so punished ^ 
 
 Thos. Exton. 
 
 EicH. Lloyd. 
 
 Nov. 21. 1677. 
 
 Privateers ^ 205. Such was the view taken by very high 
 c^iOTn- authorities in the seventeenth century of the legal 
 Piratical character of the offence, which the Subjects of a 
 veaseis. Sovereign Power commit in accepting Commissions 
 of War from a foreign Prince against a State, which 
 is at amity with their Sovereign, contrary to the 
 express stipulations of existing Treaty-engagements 
 between their Sovereign and that State. It remains 
 to be considered what is the effect of the provisions 
 of subsequent Treaties made in the eighteenth cen' 
 tury, under which it has been agreed that the Sub- 
 jects of either contracting Party should be punished 
 as Pirates, in case they should accept Commissions 
 of war or Letters of Marque against the other Party, 
 whilst it is at amity with their Sovereign. It may 
 be accepted as a sound position of Public Law, that 
 
 ^ This opinion is given with- the Lord Privy Seal, Lord Faul- 
 
 out the question in Chalmers's conbridge, Marquis of Worces- 
 
 " Opinions of Eminent Lawyers," ter, Mr. Secretary Coventry, the 
 
 Yol. II. p. 329 ; from which it Earl of Craven, Mr. Secretary 
 
 appears that the Lords present Williamson, Mr. Chancellor of 
 
 in the Council Chamber at the Exchequer. 
 Whitehall on this occasion were 
 
OK PEIVATEEES. 417 
 
 no person who has a Commission of War from a 
 Sovereign Prince commits piracy under the Com- 
 mon Law of Nations in attacking the subjects of 
 the Power, against which the Commission has been 
 issued. 'It was however the expressed opinion of 
 Sir LeoHne Jenkins*, in 1675, that the Commander 
 of a privateer, although he had a regular Commission 
 from the King of France, was liable to be treated as a 
 Pirate under the Law of Nations for having exceeded 
 the terms of his Commission ; but Bynkershoek ^ has 
 combated this opinion, and Chancellor Kent con- 
 siders the reasoning of Bynkershoek to be just. 
 Chancellor Kent goes on to observe ®, that if a na- 
 tural' born Subject were to capture property belong- 
 ing to his fellow Subjects under the authority of a 
 Commission from a foreign Prince, he would upon 
 general principles of Public Law be protected by his 
 Commission from the charge of Piracy ; but it will 
 be competent for every Sovereign Prince to declare, 
 that if any of his own natural born Subjects com- 
 mit any act of hostility against others of his Sub- 
 jects under colour of any Commission from any 
 Foreign Prince, such offender shall be deemed and 
 adjudged to be a Pirate, and if convicted in his 
 Courts, shall suffer such pains of death and loss 
 of lands and goods as pirates, felons, and robbers 
 upon the sea ought to suffer. Such in fact are the 
 provisions of the English Statute 1 1 and 1 2 Will. IIL 
 c. 7, and of the Act of Congress of the United States 
 of America passed 7 April 1790, sect. 9. But Muni- 
 cipal regulations in matters over which aU Nations 
 have a concurrent jurisdiction, are only operative 
 where the Municipal jurisdiction may be applied 
 
 * Life of Sir Leoline Jenkins, c. 1 7. 
 Vol. II. p. 754. ^ Commentaries on American 
 
 ° Quaestiones Jur. Publ. L. I. Law, Part I, sect. 9. p. 191. 
 
 PART II. E e 
 
Common 
 Law, 
 
 418 ON PRIVATEERS. 
 
 consistently witli the general principles of Public 
 Law, to persons, who owe allegiance to the Law- 
 making Power. No Power can make an offence to 
 be Piracy within the purview of the Law of Nations ' 
 Distinction by declaring it to be so. To make an offence Piracy, 
 piracy un- which has not been so considered and treated in 
 der special practice bv all civilised States, 'it must be so agreed 
 
 Conven- ^ '' , ^^ • ■^• ^ 
 
 tion, and to DO by a General Convention amongst ail civilised 
 derthe""" States. Such was the view maintained by Lord 
 StoweU in regard to the African Slave Trade, that 
 although formal Declarations had been made by indi- 
 vidual States against that Trade, and Laws enacted 
 by them, and Treaties concluded by them, yet there 
 were other Nations which adhered to the ancient 
 practice under all the encouragements which their 
 own Laws could give it, and that the doctrine of 
 Courts of the Law of Nations relatively to them 
 must be, that their practice is to be respected ^ 
 With regard therefore to Treaties, under which the 
 contracting Parties have agreed that their subjects or 
 citizens, who may contravene them, shall be punished 
 as Pirates, the obligation of the Treaties is confined 
 to the contracting Parties, and does not extend to 
 any third Paity. In the case therefore in which two 
 States, such as the United States and Prussia, are 
 under Treaty-engagements that no subject or citizen 
 of either of the contracting Parties shall accept a 
 Commission or Letter of Marque from a foreign Power 
 against the other Party under pain of being treated 
 as a Pirate, it is obvious that each of the contracting 
 Parties has undertaken not to make any reclamation 
 against the other, if it should punish as Pirates 
 Buch of its subjects or citizens as may so conduct 
 
 ' Kent's Commentaries, I. p. 125. 
 ' Le Louis, 2 Dodson, p. 210. 
 
ON PRIVATEERS. 419 
 
 themselves. But if the United States should be at 
 war with Austria, and Austria should have granted 
 a Commission or Letters of Marque to a natural born 
 Subject of Prussia, and if an Austrian privateer under 
 the command of such natural born Subject of Prussia 
 should be captured by a United States' cruiser, a 
 complicated question of Public Law might arise, if 
 the United States Government should propose to 
 punish such a person, as a Pirate, against the re- 
 clamation of Austria, for Austria will have been no 
 party to the Treaty-engagements between the United 
 States and Prussia ; and Austria is entitled by the 
 Law of Nations to grant Letters of Marque to any 
 person who will accept them, and to claim for all 
 parties acting under such Letters of Marque all the 
 jura belli, which the Common Law of Nations sanc- 
 tions. During the war between the United States 
 and Mexico, the President of the United States re- 
 commended to Congress to provide by Law for the 
 trial and punishment, as Pirates, of any Spanish sub- 
 jects, who should be found guilty of privateering 
 against the United States, as by the Treaty of 
 20 Oct. 1795, it was agreed between Spain and the 
 United States, that, if any person of either Nation 
 should take a Commission or Letter of Marque from 
 a foreign Power against the citizens of the other, he 
 should be punished as a Pirate. Congress accordingly 
 passed an Act on 3 March 1847, declaring it to be 
 Piracy for any subject or citizen of a foreign State to 
 make war 'upon the United States, or to cruise against 
 their vessels or property, contrary to the provisions of 
 the Treaties existing with that State. Mr. Lawrence 
 has observed, that this Act of Congress is an exten- 
 sion of the crime of Piracy as known to the Law of 
 Nations^. It further appears, that on a suggestion 
 
 ° Lawrence's Wheaton, 2d annotated edition, Lond. 1863, p. 254. 
 
 E e 2 
 
420 ON PRIVATEEES. 
 
 that a notice had been given by the United States 
 Government that they would treat as Pirates any 
 foreigners found on board Mexican privateers, the 
 British Minister at Washington -was instructed to 
 express to the Grovemment of the United States, that 
 it was the expectation of the British Government 
 that the threat would not be put into execution 
 against any British subject^". Other considerations 
 of Law would apply to the case, if Prussia were the 
 Power which, proposed to punish such a person as 
 a Pirate under the provisions of its Municipal Law, 
 for Prussia by the Law of Nations may enforce 
 its Territorial Law against all its natural bom sub- 
 jects, if they come within its jurisdiction. 
 
 The general principles of Public Law wiU continue 
 to govern the cases to which they apply, notwith- 
 standing that the Territorial Law of the State, 
 the Courts whereof are called upon to adjudicate 
 upon such cases, may be altogether at variance 
 with those principles. Thus the Courts of the 
 United States, which would be bound by the Terri- 
 torial Law of the United States to sentence to 
 death, as a pirate and felon, any citizen of the 
 United States, who should commit any act of 
 hostility against the United States or any citizen 
 thereof under colour of a Commission from any 
 foreign Prince, have held that there is no reason 
 why an Enemy's subject should not have granted 
 to him by the President of the United States a 
 Commission against his own country, as Commander 
 of a privateer. " There is no positive law," observes 
 Mr. Justice Johnson, in delivering the judgment of 
 the Supreme Court, " prohibiting it ; and it has been 
 
 " Hansard's Parliamentary p. 163, 21 Jan. 1847. Lawrence's 
 Debates, Series III. Vol. 89, Wheaton, London, 1863, p. 654. 
 
ON PEIVATEEES. 421 
 
 the universal practice of Nations to employ foreign- 
 ers, and even deserters, to fight their battles. Such 
 an individual knows his fate, should he faU into 
 the hands of the Enemy ; and the right to punish 
 in such a case is acquiesced in by all Nations. But, 
 unrestrained by positive law, we can see no reason 
 why this Government should be incapacitated to 
 delegate the exercise of the rights of war to any 
 individual who may command its confidence, what- 
 ever may be his National character ^^" 
 
 § 206. Endeavours have been made from time to Conven- 
 time by individual States to discourage the practice against the 
 of granting Commissions of War to the Commanders ^^1°^^ 
 of private ships. Thus Sweden and the United Privateers. 
 Provinces agreed in a Treaty of Commerce con- 
 cluded at Stockholm on 26 Nov. 1675, "that none 
 of their subjects -should be allowed to equip Pri- 
 vateers^^ against the subjects of the other, nor to 
 accept Commissions of War from their respective 
 Confederates ; and that each of the contracting 
 Parties would use their best endeavours to persuade 
 their respective Confederates not to grant Commis- 
 sions to private ships. It appears however from the 
 separate articles of the subsequent Treaty of Peaje 
 concluded between these two Powers at Nimegu^n 
 on 12 Oct. 1679^^ that the exigencies of war had 
 compelled Sweden to depart from her Treaty-engage- 
 ments, and to issue Commissions of War to private 
 ships after the example of France, her Confederate 
 in the war, and that the States General at the con- 
 clusion of the war demanded and obtained compen- 
 
 " The Mary and Susan, i audeat, quam Commissievaerders 
 
 Wheaton, p. 57. vocant. Dumont, Trait^s, Tom. 
 
 " Quod nemo respective sub- VII. Part I. p. 318. 
 ditorum vel incolarum earum " Ibid. p. 432. 
 
 Armaturam Navalem exercere 
 
422 ON PEIVATEEES. 
 
 sation from the Swedish Government for certain of 
 their Subjects, whose vessels and cargoes had been 
 captured by Swedish Letters of Marque in violation 
 of the Treaty-engagements between the two Powers. 
 No further attempt seems to have been made in 
 this direction until the United States of America 
 claimed a place in the Family of Nations, when a 
 Treaty was concluded between the United States 
 and Prussia on lo Sept. 1785, which does not ap- 
 pear to have gone quite so far as to bind either 
 Party to renounce the practice of granting Commis- 
 sions of War to private ships, but only bound each 
 of the contracting Parties in case of war between 
 them not to issue Commissions authorising privateers 
 to commit depredations on the merchant vessels of 
 the other party freighted with innocent cargoes^*. 
 With regard to a third Power with which either Party 
 might be at war, the continuance of the practice of 
 arming private ships against them was evidently 
 contemplated, and express provisions were made 
 securing to the privateers of either Party a free 
 admission with their prizes into the ports of the 
 other Party. This Treaty was negotiated by Ben- 
 jamin Franklin, whose real object appears to have 
 been to obtain for private property on the High 
 Seas an immunity from belligerent capture, in cases 
 where it was not of a Contraband character and 
 under transport to an Enemy's country ; and 
 the abolition of privateers was one of the means 
 
 " Tous les vaiss'eaux mar- sances Contractantes s'engagent 
 
 chands et commerfans, employes k n'accorder aucune Commission 
 
 k I'dchange des productions de a des vaifseaux axm6s en course, 
 
 diffdrens endroits, et par consd- qui les autorisat k prendre ou k 
 
 quent destines k faciliter et k d^truire ces sortes de vaisseaux 
 
 rdpandre les n^cessitds, les com- marchands, ou k interrompre le 
 
 moditds, et les douceurs de la commerce. Martens, Eecueil, 
 
 vie, passeront librement et sans IV. p. 47. Art. XXIII. 
 6tre molestds. Et les deux Puis- 
 
ON PRIVATEERS, 423 
 
 through which he hoped to attain to that object. 
 Upon this supposition the poHcy of the President 
 of the United States, on the recent occasion of the 
 Declaration of Maritime Law made at the Congress 
 of Paris in 1856, mvolves no departure from the 
 policy of the United States in 1785^^. 
 
 § 207. The Declaration of the Congress of Paris Deoiara- 
 of 16 AprO. 1856, was that "Privateering is and congress of 
 remains abolished -^^'^ .Mr. Lawrence in his last'^*™" 
 edition of Wheaton's Elements has very justly 
 remarked that this Declaration is only binding upon 
 the Parties to it, and does not constitute Privateering 
 an offence against the Law of Nations. " The De- 
 claration," he says, " is only a pledge on the part of 
 the States adhering to it, not to issue Commis- 
 sions for that purpose, and does not of itself create 
 any new offence against the Law of Nations ; while 
 the admission of the Congress, made at the sug- 
 gestion of the Eussian plenipotentiary, that it would 
 not be obligatory on the signers of the Declaration 
 to maintain the principle of the abolition of Pri- 
 vateering against those, which did not accede to 
 it'V received a practical construction in the course 
 adopted by England and France, and other countries, 
 in their Declarations with respect to the pending 
 contest in America ^^." As Eeciprocity is an implied 
 condition of all Eights and Obligations under the 
 Coinmon Law of Nations, and as the Eight of issuing 
 Commissions and Letters of Marque to the Com- 
 
 ^' The second annotated edi- " La course est et demeiire 
 
 tion of "Wheaton's Elements of abolie. Martens, N. E. G6n. XV. 
 
 International Law, p. 628, pub- p. 792. 
 
 lished in 1863, deserves to be " Protocol No. 23. Martens, 
 
 consulted on this subject. It has N. E. G^n. XV. p. 768. See 
 
 been enriched with various notes Appendix, 
 by its able editor, Mr. William " Lawrence's Wheaton. Lon- 
 
 Beach Lawrence. don, 1863, p. 255. 
 
424 ON PEIVATEEES. 
 
 manders of private ships of war is a Common Law 
 Right, it would seem that the more complete view 
 of the operation of the Declaration of Paris on the 
 Rights and ObHgations of the respective Parties to 
 it, would be that it has in no way affected the Com- 
 mon Law Rights and Obligations of any of those 
 Parties towards those Nations, which have not ac- 
 ceded to the Declaration. Accordingly, if Austria 
 were to become involved in war with the United 
 States of America, the Common Law of Nations 
 would regulate the Rights and Obligations of either 
 Power in regard to the use of Privateers, with this 
 difference however, that whilst the United States 
 of America would be at liberty to instruct its pri- 
 vateers to visit, and if there was probable cause, 
 to capture all neutral vessels equally with enemy- 
 vessels, Austria being a party to the Declaration of 
 Paris would be bound to instruct her privateers to 
 refrain from molesting in any way vessels belonging 
 to Subjects of any of the Powers, which have acceded 
 to the Declaration of Paris, inasmuch as the use of 
 privateers as regards the Parties to that Declaration 
 is abolished ^^. 
 
 ^' The Congress of the United years, and does not appear to 
 
 States passed an Act on March 3, have ever been put in force, not- 
 
 1863, authorising the President withstanding that the Confede- 
 
 in any foreign or domestic war rate States granted Letters of 
 
 to issue Letters of Marque, but Marque to several private armed 
 
 this act was limited to three vessels. 
 
CHAPTER XI. 
 
 ON THE EIGHTS AND DUTIES OF NEUTEAL POWEES. 
 
 Views of Grotius as to the relations between Belligerents and 
 Neutrals — Increased importance of the subject in the Eighteenth 
 Century — Bynkershoek's views — ^Views of Wolff and Vattel — 
 Views of Martens — Perfect liberty of commerce within the territory 
 of a Neutral Power — Distinction between trade on the High Seas 
 and trade within the territory of a Neutral Power — -Exceptional 
 Status of the merchant on the High Seas — The Political duty of 
 Neutral Nations towards Belligerents — Inviolability of the territory 
 of a Neutral Nation — The Passage of Belligerents through Neutral 
 territory — Hospitality to Belligerent ships discretional on the part 
 of Neutral Powers — Neutral Rights of Police over Belligerent 
 vessels of war in Neutral waters — Eight of a Neutral Power to 
 exclude privateers and all prizes of war from its ports — Belligerent 
 privilege of Asylum in Neutral waters — Right of a Neutral Power 
 to allow Belligerent Powers to recruit troops within its territory — 
 Views of the United States Government as to a Belligerent enlisting 
 troops in Neutral territory — Right of a Neutral Power to prohibit 
 the enlistment of troops within its territory. 
 
 § 208. Grotius in treating of Neutrals in War views of 
 [qui in hello medii sunt) observes, that it may ap- to the reia- 
 pear superfluous to treat of those, who are not parties t'^een*"!;!. 
 to ai war, since it is manifest that there are no Eights Ugerents 
 
 ' • -J? and Neu- 
 
 of war against them. But as upon occasion 01 war trais. 
 many things are accustomed to be done to Neutrals, 
 especially when they are neighbours, under pretext 
 
426 ON THE EIGHTS AND DUTIES 
 
 of necessity, it may be proper Bere briefly to repeat 
 what has been said already, (L. III. c. 2. ^ lo.) that 
 the necessity ought to be extreme, in order to give 
 to a party a right over another's property. That it 
 is further requisite, that the owner of the property 
 should not be under an equal necessity ; that if the 
 necessity is evident, more ought not to be taken 
 than is strictly required; that if the bare custody 
 of the thing is sufficient, it is not to be destroyed; 
 and if it be requisite to destroy it, full compensation 
 for it should be made. Having illustrated the ap- 
 plication of the above principles by examples of the 
 conduct of Belligerents towards Neutrals, drawn from 
 the records of Greek and Roman history, Grotius 
 proceeds to discuss the duties of Neutrals towards 
 Belligerents. " On the other hand," he says, " it is 
 the duty of those who abstain from war, to do 
 nothing whereby the party who maintains a bad 
 cause may be strengthened, or whereby the operations 
 of the party who wage^ a just war may be impeded, 
 and in a dubious cause io show themselves impartial 
 by allowing to either party free transit, by supplying 
 their troops with provisions in their march, by not 
 relieving the besieged \" 
 
 Such is the substance of a brief chapter on the 
 
 subject of Neutrals in time of War, which was in 
 
 all probability fully commensurate with the limited 
 
 importance, which attached to the subject in the 
 
 early part of the seventeenth century. 
 
 Increased § 209. To the Publicists however of the eighteenth 
 
 rfthe'ruT century the Eights and Duties of Neutral Nations 
 
 jeotinthe -yyas a subject of greater interest. The Wars of 
 
 century. Ecligion in the seventeenth century had brought 
 
 ^ In re vero dubia sequos se legionibus, in obsessis non suble- 
 prsebere utrisque, in permittendo vandis. De Jure Belli et Pacis, 
 transitu, in commeatu prsebendo L. III. c. 17. § i, 3. 
 
OF NEUTRAL POWERS. 427 
 
 almost all the Maritime Powers of Europe into the 
 battle-field, and in proportion as the area of Maritime 
 Warfare became enlarged, there was a greater ten- 
 dency on the part of Belligerents to invoke unduly 
 the pretext of necessity, as supplying a warrant of 
 Eight on their part to interfere with the commerce 
 of Neutrals on the High Seas. Again, the sanctity 
 of Neutral waters was a question, which involved 
 many considerations of Right in regard to the inno- 
 cent use of them, which did not have any application 
 to Neutral soil ; so that Publicists writing at the time, 
 when the works of Bynkershoek (a.d. 1737) and of 
 Wolff (a.d. 1749) appeared, might be expected to 
 devote to the subject of Neutral Rights- and Duties 
 far more attention than they had received at the 
 hands of the philosopher of Delft (a.d. 1625). 
 Vattel, the pupil of Wolfi", has devoted still further 
 attention to this subject, and subsequent writers 
 have not failed to enlarge upon it. It has however 
 been reserved for the Judges of the Supreme Court 
 of the United States of America, during the early 
 part of the nineteenth century, to give the fullest 
 and clearest exposition of the Eights of Neutral 
 Nations, as the attitude of NeutraHty which the 
 United States maintained during the greater por- 
 tion of the time, when Europe was arrayed in 
 arms against the military genius of the First Na- 
 poleon, required that her Judges should expound 
 the Rights and Duties of Neutrals on numerous 
 occasions, when her Courts were called upon to 
 vindicate the Sovereign Rights of the United States, 
 as a Neutral Nation, against the cruisers of the 
 Belligerent Powers. 
 
 ^210. Grotius, in the passage already cited, has Bynker- 
 made a distinction in the duties of a neutral Nation views. 
 towards two or more belligerent Nations, according 
 
428 OK THE EIGHTS AND DUTIES 
 
 as Right preponderates in favour of one or the 
 other of the belligerent Parties ; but in the system 
 of Grotius the term War is used to designate any- 
 state of Contention by Force, {Status per vim certan- 
 tium, qud tales sunt,) whereas in the system of later 
 pubHcists War is regarded as a Contention of Eight 
 by Force {juris sui persequendi causa concertatio,) 
 and the term War is used to denote the state or 
 condition of Nations which prosecute their Right by 
 Force. Under this view of the nature of War it is 
 the duty of Nations, which have determined to take 
 no part in the contention of belligerents, to refrain 
 from showing favour to either Party, irrespective of 
 aU question of Right preponderating on the one or 
 the other side ; for to show favour to either of them 
 on the ground of Right preponderating on its side 
 would be to prejudge the question of Eight, which 
 they have determined to refer to the arbitrament of 
 War as too dubious to admit of being settled by 
 an appeal to Reason. Bynkershoek ^ accordingly ob- 
 serves, in commenting on the passage of Grotius, that 
 " the justice or injustice of a war does not affect a 
 common friend : it is not his business to sit as judge 
 between two friends, and make each of them in turn 
 his enemy, and to give or deny to one or the other 
 more or less, according as he thinks his cause just 
 or unjust. If I am neutral {medius) I cannot benefit 
 the one, so as to do an injury to the other. But, 
 a party may say, I will benefit both beUigerents 
 alike ; I wiU carry to them both articles of the same 
 character, and it is not my concern if they use them 
 to injure one another." But here, to give the sub- 
 stance of Bynkershoek's further observations, both 
 Reason and Usage intervene and place restraint upon 
 
 " Qusest. Jur. Publ. L. I. c. 9, iion possum prodesse, ut alteri 
 § 4. Si medius sim, alteri noceam. 
 
OF NEUTRAL POWERS. 429 
 
 the intercourse of neutrals with belligerents. It is 
 not consistent with neutrality to convey to either 
 belligerent arms or ammunition or any warlike 
 stores ; for to furnish arms to the hands of one of 
 two belligerent parties is to aid him directly in 
 making war against his adversary. "Therefore,", he 
 goes on to say, " if we regard each of two belligerent 
 Parties simply as a friend, we may carry on com- 
 merce with him, and send to him all articles of mer- 
 chandise indiscriminately ; but if we consider each 
 of them to be the enemy of a friend, we must 
 exclude from our commerce all those articles, from, 
 which harm may accrue to a friend in war ^." 
 
 S 211. Wolff, havinff discussed the Riarht of views of 
 
 -NT .L- j_ 1 X • 1 • i^ p -x TV? , 1 Wolffand 
 
 every JNation to abstam, by virtue oi its JN atural of Vattei. 
 Liberty from taking part in a War, which has 
 broken out between other Nations, goes on to say, 
 that Neutral Nations ought to perform towards 
 each of the belligerent Parties the same good 
 offices, which they are bound by the Law of Na- 
 tions to perform in time of Peace, unless they are 
 bound by an express Convention with one of the 
 Parties to perform or to abstain from performing 
 certain good offices, which may have some reference 
 to War, in which case they are bound to perform or 
 to abstain from performing such good offices equally 
 to both the belligerent Parties. To the same pur- 
 port Vattei \ having defined Neutral Nations to be 
 those which in time of War do not take any part in 
 the contest, but remain common friends of both, 
 
 ' Non licet igitur altenitri stremus, quia his rebus nos ipsi 
 
 advehere, ex quibus in bello ge- quodammodo videremur amicis 
 
 rendo opus est, ut sunt tormenta, nostris bellum facere. Qusest. 
 
 arma, et quorum prsecipuus in Jur. Publ. Univ. L. I. c. g. 
 bello usus, milites. And again, * Droit des Gens. L. III. c. 7. 
 
 Optimo jure interdictum est, ne § 103, 104. 
 ^uid eorum hostibus submini- 
 
430 ON THE EIGHTS AND DUTIES 
 
 without favouring the arms of the one to the exclu- 
 sion of the other, observes that so long as a Neutral 
 Nation wishes securely to enjoy the advantages of 
 her Neutrality, she must in all things show a strict 
 impartiality towards the belligerent Parties. He 
 then proceeds to consider in what consists this im- 
 partiality, which a neutral Nation ought to observe. 
 " It solely relates to war and includes two articles. 
 I. To give no assistance where there is no obhgation 
 to give it, nor voluntarily to furnish troops, arms, 
 ammunition, or anything of direct use in war. I 
 do not say ' to give assistance equally,' but ' to give 
 no assistance ;' for it would be absurd that a State 
 should at one and the same time assist two Nations 
 at war with each other ; and besides, it would be 
 impossible to do it with equality. The same things, 
 the like number of troops, the like quantity of arms, 
 of stores, &c., furnished under different circumstances, 
 are no longer equivalent succours. 2 . In whatever 
 does not relate to war,, a neutral and impartial Nation 
 must not refuse to one of the Parties on account of 
 his present quarrel, what she grants to the other. 
 This does not deprive her of the liberty to make 
 the advantage of the State still serve as her rule of 
 conduct in her negotiations, her friendly connections, 
 and her commerce. When this reason induces her 
 to give preferences in things which are ever at the 
 disposal of the possessor, she only makes use of her 
 right, and is not chargeable with partiality. But 
 to refuse any of those things to one of the Parties 
 purely because he is at war with the other, and 
 because she wishes to favour the latter, would be 
 departing from the line of strict neutrality. I have 
 said that a neutral State ought to give no assist- 
 ance to either of the Parties, when under no obliga- 
 tion to give it. This restriction is necessary. We 
 
OP NEUTRAL POWERS. 431 
 
 have already seen ^, that, when a Sovereign furnishes 
 the moderate succour due in virtue of a former 
 defensive alliance, he does not become an associate 
 in the war. He may therefore fulfil his engage- 
 ment, and yet observe a strict neutrality. Of this 
 Europe affords frequent instances." 
 
 ^212. "Perfect Neutrality," says Martens", "con- views of 
 gists, I. in abstaining from all participation in the ^^'^''^"^' 
 operations of a war ; 2. in behaving impartially in 
 regard to everything which may be useful or neces- 
 sary to the belligerents in respect of the war, either 
 by granting or refusing to the one Party what we 
 have granted or refused to the other, or at least by 
 continuing the same behaviour which we have main- 
 tained in time of peace. As long as a Nation satisfies 
 these duties, she has a right to demand to be treated 
 as a friend by each of two Belligerent Parties, and to 
 enjoy the independence which the Law of Nature 
 assures to her, and which she is not obliged to sacri- 
 fice to the interests of the Belligerent Parties. But 
 the Natural Eights and Duties of Neutrality being 
 susceptible of modifications, the duties to be per- 
 formed in case of war, either on the part of a BelH- 
 gerent Nation towards a Neutral, or on the part 
 of a Neutral Nation towards a Belligerent, may 
 be extended or restricted by Conventions. Hence 
 there results what is termed a Conventional Neu- 
 trality, which may apply either to the whole of the 
 dominions of a Power, or only to portions of them, 
 such for iastance as the Austrian Low Countries in 
 1733." Martens then proceeds to consider in detail 
 the rights and duties of Neutrals under three heads : 
 I. the succours which may be furnished to the Belli- 
 gerent Parties ; 2. the conduct to be observed in 
 
 ^ Droit des Gens, L. III. c. 6. § loi. 
 
 ' Precis du Droit des Gens, L. VIII. c. 7. § 306, 307.. 
 
432 ON THE EIGHTS AND DITTIES 
 
 regard to the territory of the Neutral Power; 
 3. Commerce. On the first two of these heads it 
 may be observed, that there is not much divergence 
 either of theory amongst Jurists, or of practice 
 amongst Statesmen in the present day. Thus a 
 Nation may have engaged itself by Treaty to furnish 
 limited succours to another Nation in case that its 
 territory should be invaded by any third Nation ; and 
 in practice the fulfilment of such Treaty-engagements 
 has been held to be not inconsistent with neutrality ''. 
 On the other hand the sacredness of Neutral territory 
 is recognised in all Courts which hold cognisance of 
 questions of Prize of War. It is on the third head 
 of Commerce, that differences of opinion are still 
 foxmd to prevail amongst Publicists, and that dis- 
 putes in practice still arise between Nations fi:om 
 the tendency of Belligerents to overlook the fact, 
 that the political duty of Nations, which are at 
 peace with all other Nations, does not require them 
 to restrain their Subjects from continuing their 
 customary commerce by reason of war existing be- 
 tween other Nations ®. 
 Perfect X 21Q. " That an enemy may come into the terri- 
 
 Libertyof ^ S' ^^ ^ ^ -^ ^ ^ ^ , 
 
 commerce tory 01 a JNeutral Power, and there purchase and 
 territory of thence remove any article whatsoever, even instru- 
 Neutrai meuts of War, is a Law of Nations, long and uni- 
 versally established." Such is the language of the 
 Attorney General of the United States in his Eeport 
 addressed on 20 January 1796' to the Secretary of 
 State. VatteP" to the same purport writes, " Further 
 
 ' Vattel, L. III. c. 6. § 9, sup- and Selwyn, p. '72'/. 
 ports this view and combats with ' Opinions of the Attorneys 
 
 great earnestness the opposite General of the United States, 
 
 view of Wolff, § 736. ' Tom. I. p. 62. 
 
 8 Vattel, L. III. 0. 7. § III. " Droit des Gens, L. III. c. 7. 
 
 De Tastet v. Taylor, 4 Tannton, §110. 
 p. 238. Bell V. Reid, i Maule 
 
OP NEUTRAL POWERS. 433 
 
 it may be affirmed on the same principles, that if 
 a Nation trades in arms, timber for ship-building, 
 vessels, and warlike stores, I cannot take it amiss 
 that she sells such things to my enemy, provided she 
 does not refuse to sell them to me also at a reason- 
 able price. She carries on her trade without any 
 desire to injure me ; and by continuing it in the 
 same manner as if I were not engaged in war, she 
 gives me no just cause of complaint." Martens" in 
 the same spirit, after observing that the positive Law 
 of Nations has modified some of the principles of 
 Natural Law as regards Commerce, says, that " it 
 does not forbid neutral Powers to sell in their own 
 markets all sorts of merchandise, even munitions of 
 war, to individual purchasers who resort to them." 
 Lampredi^^ likewise, in his. Treatise on the Com- 
 merce of Neutrals in time of war, in which he has 
 advocated the Eights of Neutral Nations with great 
 moderation and in a very philosophical spirit, ob- 
 serves that " a State cannot be required to renounce 
 any of its Natural Rights against its free will, and 
 that consequently it is only by an express or tacit 
 Convention, that it can be debarred from the Eight of 
 selhng within its own territory its own productions 
 to whom it pleases, provided that without exception 
 of persons it sells equally to all parties, although 
 they may be the enemies of one another, and shows 
 no favour to one Belligerent in preference to the 
 other." He further proceeds to observe, that "the 
 sale of merchandise within the territory of a Neutral 
 Nation has always been considered to be as free and 
 unassailable as the Sovereignty itself of the Nation. 
 This truth, known by all writers and confirmed by 
 the practice of all Nations, has been developed by us 
 
 " Precis du Droit des Gens, '^ Du Commerce des Neutres, 
 
 § 318. § 5- P- 53- ed. 1802. 
 
 PART II. F f 
 
434 ON' THE RIGHTS AND DUTIES 
 
 in our Cours du Droit Public, where we have esta- 
 blished in substance, that in virtue of the Conven- 
 tional Law of Europe Neutrals cannot furnish with 
 impunity to Belligerent Nations articles of direct use 
 in war, remarking however that by the word furnish 
 (fournir) we mean carry (porter), and that the sale 
 of the same merchandise within the territory of the 
 Neutral to any purchaser, who may present himself, 
 is allowable to Neutral Nations, who in so acting do 
 nothing contrary to Natural Eight, or hurtful to 
 any one, so long as they do not show partiality and 
 favour to any of the belligerents in their commercial 
 operations." 
 Distinction ^ 21.4. It is important to bear in mind the great 
 trade on distinction which exists between trade which is car- 
 s^eL'^nd ^^^^ ^^ within the territory of a Neutral Power, and 
 trade trade which is carried on within the territory of a 
 
 •within the _ n . -r-, , tt- in "n xi 
 
 territory of iseihgerent Fower, or upon the High beas. ±5y the 
 Powe"!^* Law of Nations the Sovereignty of an Independent 
 State over its own territory is absolute, and its Laws 
 are binding upon all persons who come within its 
 territory. Such persons become its Subjects de facto, 
 whilst they are within its territorial jurisdiction, and 
 it matters not whether the mutual relations of the 
 political communities themselves, of which they may 
 happen to be natural born Subjects, be those of peace 
 or war. The merchant who enters the territory of a 
 Neutral Power is entitled to find an Asylum there 
 from which the arts of peace have not taken their 
 departure, and where amongst those arts of .peace, 
 commerce may still be cultivated without fear of any 
 Belligerent wresting merchandise by force of arms 
 from its owner. The Eights of War have no place 
 where the Sovereignty of a Neutral Power prevails ; 
 but if the Merchant ventures beyond the confines 
 of Neutral territory, the case is different. Whatever 
 
OF NEUTRAL POWERS. 435 
 
 be his mercliandise, if he is an enemy of the Belli- 
 gerent Power, he is at the mercy of the Belligerent 
 Power whilst he is on the High Seas. If, on the 
 other hand, the Merchant is a Subject of a Neutral 
 Power, the Sovereignty of his Nation does not attend 
 upon him on the High Seas to protect his property 
 from the just application to it of the Eights of War 
 on the part of a belligerent Power. 
 
 It is not disputed by any Jurist of note that a 
 belligerent Power may interdict all commerce with 
 the markets of an Enemy by estabhshing a blockade 
 of his ports ; and may confiscate jure belli the ship 
 and cargo of any Merchant who, whatever may be his 
 national character, with knowledge of the blockade 
 destines his cargo for a blockaded port. Lord Stowell 
 has pointed out that this practice of confiscation is 
 founded on the necessity of applying a penalty, which 
 will prevent future transgression". This Right of 
 War may be exercised in every place where it does 
 not conflict with the Sovereign Right of a Neutral 
 Nation; and accordingly a Belligerent cruiser may 
 capture a merchant vessel, which is destined to a 
 blockaded port^ immediately after she has quitted 
 the Jurisdictional waters of a Neutral Power. So 
 Hkewise it is not an overstraining of Belhgerent 
 Eight, if a Belligerent cruiser should capture a 
 merchant vessel, which is laden with munitions of 
 war, destined to an enemy's port, although the port 
 should not be under blockade, as soon as she has 
 begun to navigate the High Seas. The Eight of 
 Commerce, although it be a Eight of Natural So- 
 ciety, is not a paramount Right ; and wherever the 
 Eight of Commerce comes into evident conflict with 
 the Eight of Self-Defence, which is a paramount 
 Eight, the exercise of the former must be subject to 
 >5 The Lisette, 6 Ch. Eob. p. 387. 
 Ff 2 
 
436 OK THE BIGHTS AND DUTIES 
 
 restriction. In oMen times indeed belligerent Powers 
 claimed an arbitrary Right to prohibit by Proclama- 
 tion all trade with the ports of the Enemy, and were 
 accustomed to treat, as adherents of the Enemy, all 
 Merchants who should contravene their Proclamation. 
 The Usage of Nations however has intervened in this 
 matter, and shifted the subject from its foundations 
 of arbitrary Right ; and by that Usage a BeUigerent 
 Power can only interfere with the commerce of Mer- 
 chants, who are the Subjects of Neutral Powers, when 
 their commerce either supplies the enemy directly 
 with munitions of war, or will defeat the immediate 
 operations of a siege or blockade, whereby the Belli- 
 gerent seeks to reduce his enemy to terms by cutting 
 off all his supplies. 
 Exception- | 2 1 5. That an individual citizen of a Neutral 
 of theMer- State should bc liable to be treated as an adherent 
 the High of a Belligerent Power, whilst the Nation itself, of 
 Seas. which he is a member, maintains neutrality, presents 
 no difficulty. War is a great trial of Right, in which 
 all mankind are entitled to take part, if their sense 
 of justice prompts them to side with either party, 
 or their sense of danger compels them to array them- 
 selves against either party. On the other hand, a 
 Belligerent is entitled to enlist in his cause all who 
 are disposed to aid him in the prosecution of his 
 Eight by force. Whether those who unite with him 
 to support his contention are bound by a tacit or 
 express contract to give him aid, or voluntarily join 
 their force to his force in consideration of fixed pay 
 or contingent booty, is immaterial. All, who take 
 part in the war, are Belligerents ; all, who stand 
 aloof from the contention of the Belligerents, are 
 neutral. A Nation, in the sense in which it is the 
 subject of Law in relation to other Nations, is not 
 a Race of men scattered over the face of the globe 
 
OP NEUTEAL POWERS. 437 
 
 according as pleasure or interest may direct the 
 movements of individuals, but it is an Indepen- 
 dent Community of men living under a common 
 Government within a given territory, and of which 
 the Governing Power represents the Community 
 in aU its relations with other similar Communities. 
 Every member of such a Community, as long as he 
 remains within the territory of the Nation, is sub- 
 ject to the Laws of the Community, and partakes 
 of its independence in the face of other Nations, 
 and the Government is responsible for his conduct 
 towards all persons within its territory. But if an 
 individual member of such a Community quits the 
 territory of the Community, the Community ceases to 
 be responsible for his acts, for he has passed out of 
 the dominion of its laws ; and if he enters the ter- 
 ritory of another Nation, he becomes de facto subject 
 to its Government, and the Government of that Na- 
 tion in its turn becomes responsible for his conduct 
 towards all persons within its territory. On the 
 other hand, as no Nation has jurisdiction over the 
 High Seas, no Nation is charged with responsibility 
 for the acts of any individuals upon the High Seas 
 ratione loci, and it can only be responsible for the 
 acts of individuals ratione personarum, where the 
 Government of the Nation has authorised them to act 
 in its name. " Nostri juris interpretes rectius et 
 explicatius docent factum esse publicum, quando de- 
 liberatum a legitime congregata universitate est"." 
 Hence arises a fundamental distinction between the 
 character of a Public Ship and of a Private Ship. 
 The Commander of a Pubhc Ship has a Commission 
 from the Government of the Nation under whose flag 
 the ship is navigated, and accordingly the Govern- 
 
 " Albericus Gentilis, De Jure Bell, et Pac. L. I. c. 21. 
 
438 ON THE EIGHTS AND DUTIES 
 
 ment of the Nation is responsible for the conduct of 
 the Commander of a Pubhc Ship ratione personcB, 
 wherever that ship may be. The Sovereignty of a 
 Nation is present in the person of the Commander 
 of a Public Ship on the High Seas, just as it is pre- 
 sent in the person of the Commander of an army 
 marching through a foreign country, or in the person 
 of a political Envoy who is the bearer of credentials 
 to a foreign Power. But the Sovereignty of a Nation 
 is not present in the person of the master of a Pri- 
 vate Ship on the High Seas any more than it is pre- 
 sent in the person of a traveller who is sojourning 
 in foreign lands, and who is not directly clothed by 
 any act of his Government with a representative 
 character. Accordingly, as the traveller becomes 
 subject to the Laws of the State wherein he is 
 sojourning, without any conflict thereby arising be- 
 tween the Sovereignty of the State, of which he 
 is a natural born subject, and the Sovereignty of 
 the State, wherein he is sojourning, so the mer- 
 chant on the High Seas may become subject to the 
 Common Law of the Highway of Nations without 
 any prejudice thereby resulting to the Sovereignty 
 of the Nation, of which he is a citizen. Accordingly, 
 after a Private Ship has quitted the Jurisdictional 
 waters of the State, of which its master and crew 
 are natural born Subjects, they will become amenable 
 to a law which does not bind in any way their fellow 
 Subjects, who remain within the territory of their * 
 Nation. Such is in fact the normal state of things 
 in time of peace. For instance, if the master and 
 crew of a ship should attack another ship within the 
 Jurisdictional waters of a State, they are amenable 
 to the Territorial Law of that State ; but if they 
 should commit a similar act on the High Seas, they 
 are amenable to a Common Law, which all Nations 
 
OP NEUTRAL POWERS. 439 
 
 may administer, and they may be seized and justified 
 by any Nation wbatsoever for a breach of the Common 
 Law of Nations, without the slightest encroachment 
 upon the independence of the Nation, whose natural 
 born Subjects they may be. There is therefore no 
 a priori difficulty in supposing that in time of war 
 the citizens of a Neutral State, when they are on 
 the High Seas, may be amenable to a different Law 
 from that which exclusively prevails within the 
 territory of their State, and that belligerent Nations 
 may enforce the Eights of "War against them with- 
 out encroaching upon the Independence of their 
 Nation. What those Rights of War may be must 
 be gathered from reason and usage. " Jus Gentium 
 Commune in banc rem non aliunde licet discere, 
 quam, ex Katione et Usu i®. Eeason, to paraphrase 
 the language of Bynkershoek, dictates that if I wish 
 to remain equally the friend of two parties who are 
 enemies, I must prefer neither of them to the other 
 in any matter which has relation to their quarrel. 
 Usage, on the other hand, as may be inferred from 
 an almost perpetual Custom of making treaties and 
 proclamations {ex perpetua quodammodo paciscendi 
 edicendique consuetudine) enjoins, that a party who 
 wishes to remain the friend of both Belligerents 
 should not carry to either of them arms or other 
 articles of warlike use, and that if such merchandise 
 be taken on its voyage to an enemy's country, it may 
 be confiscated ; that with this exception commerce 
 should be free, and all other merchandise be carried 
 with impunity to the enemy; 
 
 5 216. A Nation, in its character of a Political The Poiiti- 
 
 •> ' , . oal Duties 
 
 Community inhabiting a given territory, has no of Neutral 
 Political duties towards .Belligerent Nations different towaX 
 
 Belligerent 
 Nationn. 
 
 " Bynkershoek, Qusest. Jur. Publ. L. I. c. 10. 
 
440 ON THE EIGHTS AND DUTIES 
 
 in kind from its duties towards Nations wMcli are 
 at peace witli one another. Its duties towards 
 Belligerents may however be said to differ in degree 
 from those duties, which it owes to Nations which 
 are at peace with one another. For example, a 
 Neutral Nation is not bound to perform any other 
 good oflBces towards Belligerent Nations, than it is 
 accustomed to perform towards Nations which are 
 at peace with one another ; but if it performs any 
 good offices towards one of two Belligerent Nations, 
 it is bound in the same degree to perform them 
 towards the other Belligerent Nation. A Nation is 
 at liberty to show more or less favour, as it sees fit, 
 to a Nation which is at peace with all other Nations ; 
 but it cannot consistently with a state of Neutrality 
 refuse to one of two Belligerent Nations any good 
 offices, which it has accorded to its adversary. The 
 Political duty therefore, which is imposed upon a 
 Nation by a state of Neutrality, consists in its 
 obHgation to exercise its Eights of Sovereignty 
 with impartiality towards every Belligerent Nation, 
 and this Political duty is coextensive with the Sove- 
 reignty of a Nation. It follows that the limits of 
 the Political duties of a Neutral Nation towards 
 Belligerent Nations are identical with the limits of 
 its Sovereignty ; and if any individual citizen of a 
 Neutral State should be guilty of unneutral conduct 
 beyond the limits of its Sovereignty, such conduct 
 cannot be charged upon the Government of the State 
 as a departure from Neutrality. Forfeiture of the 
 goods and ship is the penalty annexed to such acts 
 by the Law of the High Seas in time of War, and, if 
 this were not the case, it would be in the power 
 of individual merchants to involve a Neutral Nation 
 in war against its will. 
 
 § 217. As every obligation under the Common 
 
OF NEDTEAL POWEES. 441 
 
 Law of Nations implies a corresponding Eight, the luvioia- 
 obligation of a Neutral Nation to exercise its Eight temtory*of 
 of Sovereignty with impartiality towards either of ^■^y^*''*'' 
 two Belhgerent Parties implies a Eight to enforce 
 its Sovereignty with impartiality against either of 
 them. Accordingly the territory of a Neutral Na- 
 tion can never be rightfully made the battle-field 
 for settling the disputes of Belligerent Nations, for 
 such a result would be a violation of the Indepen- 
 dence of the Neutral Nation, if it were brought 
 about against its will. On the other hand, if the 
 Government of a Nation were to permit a Belligerent 
 to take advantage of its territory for the purpose 
 of attacking his adversary, the Nation itself would 
 forfeit its character of Neutrality. The Eights of a 
 Belligerent Nation, as such, which are founded upon 
 a state of War existing between it and another 
 Nation, can only be exercised by it within its own 
 territory, where its Eights of Empire {imperium) are 
 always supreme, or within the territory of its Enemy, 
 whose Empire it is entitled by its Declaration of War 
 to supersede by force, or on the High Seas, or on 
 land which is not under the Empire of any Nation. 
 "Jure belli," says Bynkershoek-^", "adversus hostem 
 duntaxat utimur in nostro, hostis, aut nuUius terri- 
 torio. Sed in territorio utriusque amici qui hostem 
 agit, agit et adversus principem, qui ibi imperat et 
 omnem vim a quocunque factam legibus coercet." 
 So Grotius^'' says of Enemies, " Interfici ergo possunt 
 impune in solo proprio, in solo hostili, in solo nuUius, 
 in mari. In territorio autem pacato, quod eos inter- 
 ficere aut violare non licet, id jus non ex ipsorum 
 venit persona, sed ex jure ejus qui imperium habet." 
 All writers accordingly agree that a Neutral Nation 
 
 " Quffist. Jur. Publ. Univ. " De Jure Belli et Pacis, L. 
 
 L. I. c. 8. III. c. 4. § 8, 2. 
 
442 OK THE RIGHTS AND DUTIES 
 
 may prohibit a Belligerent from attacking his Enemy, 
 whilst he is within the territory of the Neutral 
 Nation. There is not however the same unanimity 
 on the question, whether if the contest shall have 
 been begun on a lawful battle-field, and either of the 
 Belligerent parties should seek to avail himself of the 
 shelter of Neutral Territory, the adverse Belligerent 
 may continue his pursuit, dumfervet opus, and capture 
 his antagonist, although he should be at the moment 
 of capture within the territory of a Neutral State. 
 Bynkershoek intimates an opinion of his own in the 
 affirmative, but with many qualifications, and as a 
 view which he did not find to have been counte- 
 nanced by any other writers^®. Casaregis, in one of 
 his Discourses ^^ advocates a similar view ; but he is 
 not consistent in such advocacy, as he maintains a 
 contrary opinion in a later Discourse^. D'Abreu, 
 Vattel, Emerigon, Lampredi, Martens, Kliiber, and 
 all English and American writers of note, agree in 
 maintaining the doctrine, that if a Belligerent is 
 successful in effecting his retreat into Neutral Terri- 
 tory during a contest with his adversary, the con- 
 tinuance of the contest on the part of his adversary 
 will be a violation of the Sovereignty of the Neutral 
 Power. The Prize Courts of Great Britain, and 
 of the United States, have upheld this view of the 
 Law of Nations by repeated decisions ^^, and have 
 invariably ordered the captors to make restitution 
 of every vessel which may have been captured within 
 the Territory of a Neutral Power, if that Power has 
 
 " QuEest. Jur. Publ. Univ. " ^j^g ^^^^ g qj, jj^i, p_ 
 
 L. I. c. 8. The Anna, 5 Ch. Bob. 373. J. F. Soult v. L'Afrioaine. 
 
 p. 385. d. Bee's Reports, p. 204. The 
 
 " Casaregis de Commercio, Grange. Opinions of the At- 
 
 Discorso XXIV. No. z. torneys General of the United 
 
 '» Ibid. DiscorBo CLXXIV. States, Tom. I. p. 15. 
 No. n. 
 
OP NEUTEAL POWERS. 443 
 
 'itself demanded its restitution^^ But it is the pri- 
 vilege of the Neutral Power alone to vindicate the 
 outrage against its Empire. " A capture," says Mr. 
 Justice Story, "made within Neutral Waters is, as 
 between Enemies, deemed to all intents and purposes 
 rightful : it is only by the Neutral Sovereign that 
 its legal validity can be called in question, and as 
 to him, and him only, is it to be considered void. 
 The Enemy has no rights whatever, and if the 
 Neutral Sovereign omits or declines to interpose a 
 claim, the property is condemnable jure belli to the 
 captors. This, is the clear result of the authorities, 
 and the doctrine rests on well established principles 
 of Public Law^^ 
 
 § 218. A Neutral Nation has the same absolute The pas- 
 Right of Sovereignty within its own Territory inulCTents^ 
 respect of Belligerent Nations, as it has in respect of ^g°"^^^ 
 Nations which are at peace with one another. It Territory, 
 may accordingly grant a free passage through its 
 Territory to the armed troops of a Belligerent Power 
 without compromising its neutrality, if it is pre- 
 pared to grant a free passage similarly to the armed 
 troops of the other Belligerent^*. " An innocent 
 passage," says VatteP^, "is due to all Nations with 
 whom a State is at peace, and this duty extends to 
 troops as well as to individuals. But it rests with 
 the Sovereign of the Country to judge whether the 
 passage be innocent, and it is very difficult for the 
 passage of an army to be entirely so." "It is to 
 
 ''^ The Eliza Ann, i Dodson, ^* Qui transitum cum exer- 
 
 p. 244. citu per terras suus petenti 
 
 ^^ The Anne, 3 Wheaton, p. concedit, ei, contra quern eodem 
 
 446. The doctrine of the British opus habet, injuriam minime 
 
 Courts of Prize on this subject faoit. Wolff, § 689. 
 is identical with that of the ^^ L. III. c. 7. § 119. 
 
 American Courts. 
 
444 ON THE RIGHTS AND DUTIES 
 
 be observed," says Lord StowelP^ " that the right of 
 refusal of passage, even upon land, is supposed to 
 depend more on the inconvenience falling on the 
 Neutral State, than on any injustice committed to 
 the third party, who is to be affected by the per- 
 mission." Grotius^' and Vattel both agree that it is 
 no ground of complaint, nor cause of war against 
 the intermediate Neutral State, if it grants a pas- 
 sage to the troops of a Belligerent, though incon- 
 venience may thereby ensue to the State beyond; 
 the ground of the right of refusal being the incon- 
 venience that such passage may bring with it to 
 the Neutral State itself ^^ Since therefore the pas- 
 sage of troops and especially of an army is by no 
 means a matter of indifference, he who desires to 
 march his troops through Neutral Territory must 
 apply for the Sovereign's permissions^. To enter his 
 Territory without his consent, is a violation of his 
 right of Empire, by virtue of which his Territory is 
 not to be employed for any use whatever, without 
 his express or tacit permission. Now a tacit per- 
 mission for the entrance of a body of troops is not 
 to be presumed, since their entrance may be pro- 
 ductive of the most serious consequences. If the 
 Neutral Sovereign has good reason for refusing a 
 passage to them, he is not obliged to grant it, the 
 passage in that case being no longer innocent'". 
 With regard however to the passage of the armed 
 vessels of a belligerent Power over what is some- 
 times termed the Maritime Territory of a Neutral 
 Nation, that is, over those portions of the sea which 
 
 ''■'' The Twee Gebroeders, 3 Ch. ^ Qui cum exercitu per ter- 
 
 Rob. p. 353. ras alterius Gentis iter facere 
 
 '" De Jure Belli et Pace, L. II. vult, transitum peters debit, 
 
 c. 2. § 13. "Wolff, Jus Gent. § 688. 
 
 ^' Kent's Commentariea on ^ Droit des Gens. L. III. c. 7. 
 
 American Law, Tom. I. p. 119. § 1 19-12 1. 
 
OP NEUTRAL POWERS. 445 
 
 flow within the distance of three miles from its coast, 
 and over which it exercises a jurisdiction of its own 
 concurrently with the common Maritime jurisdiction 
 of Nations, the case is difi'erent^^ A Nation may 
 forbid the armed fleets of a belligerent Power to 
 enter its ports, harbours, and estuaries, or any of its 
 internal waters ; but it cannot rightfully forbid them 
 to pass over the seas which wash its coasts, although 
 it has a qualified jurisdiction over such seas, inas- 
 much as the passage of ships over such external 
 waters, whether such ships are armed for war or 
 fitted out for commerce, is equally innocent as re- 
 gards the Nation whose coasts are washed by such 
 waters, for it does not sustain any damage by the 
 passage of them. " It is an observation," says Lord 
 StoweU, "that the passage of ships over territorial 
 portions of the sea, or external water, is a thing less 
 guarded than the passage of armies over land, and 
 for obvious reasons. An army in the strictest state 
 of discipline can hardly pass into a country without 
 the greatest inconvenience to the inhabitants : roads 
 are broken up ; the price of provisions is raised ; 
 the sick are quartered on individuals, and a general 
 uneasiness and terror is excited ; but the passage 
 of two or three vessels, or of a fleet over external 
 waters, may be neither felt nor perceived. For this 
 reason the act of inofiensively passing over such 
 portions of water, without any violence committed 
 there, is not considered as any violation of Territory 
 belonging to a Neutral State : permission is not 
 usually required ; such waters are considered as the 
 common thoroughfare of Nations, though they may 
 
 '' Grotius holds that a Neutral otherwise the right of the Neutral 
 
 State may refuse a passage to a State will be limited to regulat- 
 
 Belligerent army, if it is making ing the passage of the Belligerent 
 
 an unjust war, or brings with it troops, and requiring hostages for 
 
 any enemies of the Neutral State, their good conduct. 
 
446 ON THE EIGHTS AND DUTIES 
 
 be SO far Territory, that any actual exercise of hosti- 
 lities is prohibited therein^^. 
 toT^uf e*^ § 219. A Neutral State, by virtue of its Eight of 
 rent ships Empire over everything within its Territory, may 
 
 discretional • ^ ,. ,"• -, ^ i it 
 
 on the part unpose such Conditions as it pleases upon belligerent 
 Powct"'"^*' vessels which enter its Territory ^\ The circumstance 
 that a vessel belongs to the citizen or subject of a Belli- 
 gerent State will not disentitle its master and crew 
 from claiming the ordinary rights of hospitality from 
 a Neutral Nation in case of immediate danger from 
 the perils of the sea, or of pressing distress owing to 
 sickness or want of water or provisions. Merchant 
 ships are received in general into the ports of Neutral 
 States without any distinction between those which 
 are the property of the Subjects of Belligerent Powers, 
 and those which are the property of the Subjects of 
 Neutral Powers ; but with regard to armed ships, 
 of which the Captain has a Commission of War from 
 a Belligerent Power, and particularly with regard to 
 private ships sailing under Letters of Marque, the 
 hospitality of Neutral States is in practice restricted 
 for the most part to supplying them with articles of 
 pressing necessity. Hospitality to such an extent 
 may be regarded as a common duty of humanity; 
 but it is an act of Comity within the discretion of 
 the Neutral State to allow the armed ship of a Belli- 
 gerent Power to have free communication with the 
 land {libre pratique), or to permit its crew to disem- 
 bark on its shores. Further, it is competent for the 
 Neutral Power without any disregard of the duties 
 of humanity to require any armed Belligerent ship 
 to continue its voyage, as soon as its pressing neces- 
 sities have been satisfied. It is by- no means a rare 
 event for a Neutral Power to notify publicly the 
 
 =2 The Twee Gebroeders, 3 Ch. ^' Bynkershoek, Qusest. Jur. 
 Rob. p. 352. Publ. L. I. c. 8. 
 
OF NEUTRAL POWERS. 447 
 
 conditions under whicli the armed ships of Belligerent 
 Powers will be admitted into its ports, and to inter- 
 dict them from entering certain of its ports, as for 
 instance its military ports. Thus in the war between 
 the three Allied Powers and, Russia in 1854, the 
 Swedish and Norwegian Government issued a Cir- 
 cular Notice to the effect that, whilst it conceded 
 to Belligerent ships of war and of commerce per- 
 mission to enter its ports, it reserved to itself the 
 faculty of interdicting to Belligerent ships of war 
 an entrance into certain ports : to wit, the port of 
 Stockholm, inside of the fortress of Maxholm ; the 
 port of Christiania inside of the port of Kaholm ; 
 the interior basin of the military port of Horten ; 
 the ports of Carlsten and of Carlscrona within the 
 fortifications ; and the port of SHto in Gothland in- 
 side the batteries of Eneholm. In the exercise of 
 an analogous right of Empire over her own Territory 
 Denmark issued a circular note in the same spirit 
 on 2 April 1854, reserving to herself the right of 
 interdicting Belligerent ships of war and transport 
 ships from entering the port of Christiansoe ^\ 
 
 f 220. A Neutral State, in permitting Belligerent Neutral 
 ships of war to enter within her territorial waters, is poUce^over 
 bound, if it be within its power, to render their ^^^J^^^l®^^*^''* 
 sojourn in those waters safe to them, equally as in ^ar in 
 granting a passage to their troops over land. She waters. 
 is under an obligation of good faith to render their 
 passage through her territory safe, as far as depends 
 upon her ^^ ; otherwise to permit the vessels of a BelH- 
 gerent to enter within her ports or harbours would 
 be to ensnare them ^®. Accordingly, it is the duty of 
 
 '* Circular of the Danish zeiten. Hamburg, 1854. 
 
 Minister of Foreign Affairs, of 20 ^^ Transeuntibustransitus prse- 
 
 April 1854, LD Sammlung Offi- standus est tutus. Wolff, § 704. 
 
 cieller Actenstucke in Bezug auf ^* Vattel, L. III. c. 7. § 131. 
 Schiffahrt und Handel in Kriegs- 
 
448 ON THE EIGHTS AND DUTIES 
 
 a Neutral State not to permit a Belligerent vessel of 
 war, whicli she has admitted into her internal waters, 
 to be attacked by an Enemy-vessel of war which may 
 subsequently enter them, and at the same time to 
 prevent the vessel which has first arrived from 
 availing itself of the advantage of its position to 
 attack the last comer. Further, it is competent for 
 a Neutral State, by virtue of its Right of Sovereignty 
 over every person and thing which is within its 
 territory, to detain a Belligerent vessel of war which 
 has entered into any of its ports subsequently to 
 another vessel which belongs to an Enemy, so as 
 to secure that the latter shall not suffer prejudice 
 from having entered into the port of a Neutral Power. 
 A practice in this matter has become established 
 amongst the European Powers to require every 
 Belligerent vessel of war to allow an interval of 
 twenty-four hours at least to elapse before it can 
 sail out of a neutral port in pursuit of an Enemy 
 vessel, which has quitted the port since its arrival ; 
 and this practice has been adopted, as a rule of the 
 Law of Nations, by the States of the American Con- 
 tinent^'. The rule has further been incorporated into 
 the provisions of various Treaties which regulate the 
 intercourse of the Christian Nations of Europe and 
 America with the Mahommedan Powers of Africa ^. 
 A striking example ^® of the manner, in which this 
 rule is accustomed to be enforced, occurred in the 
 month of December 1759, when a British fleet had 
 entered the port of, Cadiz, whilst a French vessel of 
 
 ^' Instructions to the Col- Martens, E^cueil, IV. p. 247. 
 
 lectors of Customs, 4 Aug. 1793. U. S. and Tripoli, 4 Nov. 1796- 
 
 Jefferson's Letters to M. Genet, Id. p. 299. U. S. and Tunis, 
 
 8 and 17 June 1793. Kent's 28 Aug. 1797. Id. VI. p- 405- 
 
 Gommentaries, I. p. 123. ^^ Ortolan, Efegles Intema- 
 
 ^* Treaty between the United tionales, Tom. II. p. 249. 
 States and Morocco, 2 5 Jan. 1787. 
 
OF NEUTEAL POWBES. 449 
 
 war, the Fantasqtie, was lying at anclior. The Go- 
 vernor of Cadiz immediately sent a requisition to the 
 British Admiral to allow the Captain of the French 
 vessel the option of sailing out at least twenty-four 
 hours before the departure of the British fleet ; and 
 Admiral Broderick at once acceded to the requisition 
 of the Governor. An instance of this rule having 
 been enforced by the King of Spain in the previous 
 century is furnished by a Eoyal Ordinance of i8 June 
 1653, issued on the occasion of jiostilities between 
 the English and Dutch*'. 
 
 ■Azuni " has set forth at length the re^vilations of 
 Police, which Neutral Nations have from time to 
 time thought fit to enforce against Belligerent vessels 
 of war, which have taken advantage of the Asylum 
 of Neutral waters. 
 
 (i) Privateers and all vessels of war ought to 
 observe peace and perfect tranquillity towards all 
 parties, and particularly towards the subjects and 
 ships of their enemies, even if the latter should be 
 privateers or vessels of war. 
 
 (2) Privateers and vessels of war are forbidden to 
 increase the number of their crew by receiving on 
 board any seaman of any Nation whatever, without 
 excepting even their fellow citizens, who may have 
 been enrolled for military service. 
 
 (3) They may not augment the number or calibre 
 of their guns, nor the quantity of their ammunition. 
 
 (4) They may not keep sentinel in the port, nor 
 seek to procure information about the vessels which 
 
 *° This Ordinance is given in rule of twenty-four hours was en- 
 
 esotenso in D'Abreu, Tratado Ju- forced by the British Government 
 
 ridico-Politico sobre Pressas de in the case of the U. S. ship 
 
 Mer, Cadiz, 1746, c. 4. p. 62. Tuscarora and the Confederate 
 
 A Efeglement of the Eepublic of Steam Ship Nashville in the port 
 
 Grenoa on this subject, issued in of Southampton Jan. 29, 1862. 
 1779, will be found in Martens, " Droit Maritime, Tom. I. c, 
 
 Rdcueil, Tom. III. p. 67. The 5. p. 409- 
 
 PART II. G g 
 
450 ON THE RIGHTS AND DUTIES 
 
 are likely to touch there. In case that they descry 
 any of them, they are not to sail out of port for the 
 purpose of attacking them : if they should do so, 
 they may be fired at from the batteries and ships 
 of war in the port, and compelled to return. 
 
 (5) They may not set sail after an enemy's ship 
 has tripped her anchor : they ought to allow at least 
 an interval of twenty-four hours to elapse between 
 its departure and their own. After this interval 
 has elapsed, if thg enemy-ship is still in sight of 
 the port, a belligerent vessel ought to delay its de- 
 parture until the other vessel is out of sight and 
 the direction of its course cannot be known. 
 
 (6) They may not place themselves iu ambuscade 
 in bays or gulfs, nor hide themselves behind promon- 
 tories, or small islands which are dependencies of 
 the neutral mainland, in order to watch for and give 
 chase to enemy-vessels. They ought not to trouble 
 in any manner the approach of vessels, of whatever 
 Nation they may be, to the ports or coasts of a 
 Neutral Nation. 
 
 (7) They may not, during all the time that they 
 are within the ports or territorial seas of a Neutral 
 Nation, employ force or stratagem to recover prizes 
 which may be in the power of an enemy, or to 
 deliver their fellow citizens who may be their pri- 
 soners. 
 
 (8) They may not proceed to the sale or re- 
 demption of prizes made by them, before a legal 
 judgment has established their yahdity. 
 
 The foregoing rules may be traced through a long 
 series of Ordinances, which have been published from 
 time to time, as occasion called for them, by various 
 Neutral Powers. It is not however incumbent on 
 a Neutral Power to enforce the pohce of its own 
 Territory against the Subjects of a Belligerent Power, 
 
OF NEUTRAL POWERS. 451 
 
 further than may be requisite to aiford protection to 
 the Subjects o£ the adverse Belligerent, whilst they 
 are under the Sovereignty of the Neutral Power. 
 
 ^221. It is by no means unusual for a Neutral KigM of 
 State to refuse to the Privateers of a Belligerent Power to 
 Power all access to its internal waters. Thus during prfyateera 
 the war between the Allied Powers and Eussia in ^^ *'i „ 
 
 Pnzes of 
 
 1854, the King of Sweden and Norway issued an war from 
 Ordinance on 24 March 1854, whereby it was pro-^^^° 
 vided that no foreign Privateer should be allowed to 
 enter any Swedish port or to sojourn in its roadsteads. 
 Such prohibitions however are not in practice inter- 
 preted so strictly, as to deny to Privateers a refuge 
 within Neutral waters from the attack of an enemy, 
 or from perils of the sea. Thus even in cases where 
 a State has entered into Treaty-engagements*^ tO/ ex- 
 clude Privateers belonging to the enemies of the other 
 contracting Party from all commerce with its Sub- 
 jects, an exception is usually made in favour of the 
 duties of humanity being shown to such privateers, 
 if they should be in distress. It is also perfectly 
 competent for a Neutral State to Prohibit by Pro- 
 clamation or otherwise the Public vessels of Belli- 
 gerent Powers, as well as Privateers, from bringing 
 their prizes into its ports. In the silence however 
 of a Neutral State on this subject, a Belligerent 
 Power is entitled to presume that its armed vessels 
 may freely enter the ports of the Neutral State with 
 their prizes and prisoners, and that they will be at 
 hberty to depart with them unmolested. 
 
 There appears to have been a time when Jurists 
 were disposed to maintain, on the theory of the 
 detention and custody of prisoners of war being a 
 
 *2 Treaty of 6 Feb. 1778 be- Nov. 1794 between the United 
 
 tween the United States of Ame- States of America and Great Bri- 
 
 rica and France. Martens, E^- tain. Ibid. V. p. 682. 
 cueil, II. p. 597. Treaty of 19 
 
 G g 2 
 
452 ON THE EIGHTS AND DUTIES 
 
 continuation of hostilities, that such prisoners were 
 entitled to be set free, if they were brought within 
 Neutral waters, although they were not landed on the 
 shore of the Neutral State. Bynkershoek ^ however 
 has pointed out, that in such a case, when the capture 
 is completed, a state of lawful possession is esta- 
 blished, which a third Power cannot disturb consists 
 ently with impartiality. There can be no doubt that 
 according to the usage of Nations, if an armed ship 
 under the flag of a Belligerent Power has been ad- 
 mitted into the harbour of a Neutral Power without 
 notice of any intention on the part of that Power to 
 interfere with the custody of its prizes or its prisoners, 
 it would be inconsistent with Neutrality for the Go- 
 vernment of the Neutral Power to set those prizes or 
 prisoners at liberty. But if, on the other hand, the 
 prisoners should have escaped to land without any 
 interference on the part of the Neutral Power, they 
 will have escaped out of the possession of the Belli- 
 gerent Power, and the Neutral Power will equally 
 be called upon to maintain their state of freedom, 
 as it was before called upon to maintain their state 
 of captivity. 
 
 A question of this kind arose in the course of the 
 war between the Allied Powers and Russia in 1854, 
 on occasion of a British vessel of war entering the 
 Bay of San Francisco, in the State of CaHfornia, in 
 company with a Eussian prize, the Sitka, in charge 
 of a British prize-crew. On 25 Nov. 1854, a petition 
 was presented to a Court of Municipal Law at San 
 Francisco on behalf of two Eussian seamen, alleging 
 
 *' Apud eos, qui utriiique sim- reverti, qusecunque in non hostis 
 
 pliciter amici sunt, status rerum imperium delata sunt, et quod ei 
 
 hominumve nostrorum non mu- consequens est, captivos in terri- 
 
 tatur, cum nulla sit mutandi torium amici deductos, fieri libe- 
 
 causa. Unde miror Gentilem ros. Qusest. Jur. Publ. TJniv. 
 
 aliosque existimasse, postliminio L. I. c. 15. 
 
OP NEUTRAL POWEES. 453 
 
 that they were unlawfully detained on board the 
 Sitka by the prize-master and crew, and praying for 
 a writ of Haheas Corpus, directed to such master 
 and crew. The Court thereupon granted the writ, 
 which was duly served upon the prize-master, who 
 thereupon immediately got the Sitka under weigh, 
 and sailed out of the jurisdiction of the State of 
 California. Upon the question being referred to the 
 Federal Government, the Attorney General of the 
 United States reported, that the conduct of the 
 prize-master constituted no just cause of complaint 
 on the part of the United States under the Law of 
 Nations, or under any Treaty between the United 
 States and a Foreign Power **. 
 
 § 222. The following propositions contain the BeUigerent 
 views of the Government of the United States of A^yium^n 
 America as to the privilege of Asylum within N-eutral ^^"*^' 
 Waters. They were issued in 1855 ^^^^ accord with 
 the practice of the European Powers : — 
 
 1. Belligerent ships of war, privateers, and the 
 prizes of either are entitled on the score of humanity 
 to temporary refage in Neutral Waters from, casual- 
 ties of the sea or war. 
 
 2. By the Law of Nations BeHigeEont ships of war, 
 with their prizes, enjoy Asylum in Neutral ports for 
 the purpose of obtaining supplies or undergoing 
 repairs, according to the discretion of the Neutral 
 Sovereign, who may refuse the Asylum absolutely, 
 or grant it under such conditions of duration, place, 
 and other circumstances, as he shall see fit, provided 
 that he be strictly impartial in this respect towards 
 all the Belligerent Powers. 
 
 3. When the Neutral State has not signified its 
 determination to refuse the privilege of Asylum to 
 
 " Opinions of the Attorneys General of the United States, 
 Tom. VII. p. 123. 
 
454 ON THE EIGHTS AND DUTIES 
 
 Belligerent ships of war, privateers, or their priizes, 
 either Belligerent has a right to assume its existence, 
 and enter upon its enjoyment, subject to such regu- 
 lations and limitations as the Neutral State may 
 please to prescribe for its own security. 
 
 4. The United States have not by Treaty with 
 any of the present Belligerents bound themselves 
 to accord Asylum to either, but neither have the 
 United States given notice that they will not do it, 
 and of course our ports are open for lawful purposes 
 to the ships of war of either Great Britain, France, 
 Eussia, Turkey, or Sardinia,. 
 
 5. A foreign ship of war, or any prize of hers, in 
 command of a public officer, possesses in the ports 
 of the United States the right of extra-territoriality, 
 and is not subject to the local jurisdiction. 
 
 6. A prisoner of war on board a foreign man-of- 
 war, or her prize, cannot be released by Habeas 
 Corpus issuing from Courts either of the United 
 States or of a particular State. 
 
 7. But if such prisoner of war be taken on shore, 
 he becomes subject to the local jurisdiction or not, 
 according as it may be agreed between the pohtical 
 authorities of the BelHgerent and the Neutral State. 
 
 Eight of § 223. It is competent for every Independent State 
 
 statrto to allow the agents of a Foreign Power to enlist 
 
 h ^ere^^^' P^^^^ns. withiu its Territory for its military or naval 
 
 Powers to servico, and such conduct will be consistent with 
 
 troops Neutrality so long as a State does not permit any 
 
 Mo^y! Belhgerent Power to do so, and refuse the like 
 
 permission to its adversary. It was the common 
 
 practice of the European Powers in the fourteenth 
 
 century to. carry on their wars with the aid of foreign 
 
 mercenaries ; and it was not until the fifteenth 
 
 century, that Treaties of Alliance were introduced 
 
 amongst the European Powers, in which there were 
 
OF NEUTRAL POWEES. 455 
 
 stipulations, that each of the contracting Parties 
 should restrain its Subjects from taking part against 
 the other contracting Party, in case it should be 
 involved in war with a third Power. Thus in the 
 Treaty concluded in 1467*^ between Edward IV of 
 England and Henry IV of Castile, it was agreed that 
 neither Ally should allow his Subjects to engage in 
 any war against the other ; and in the Treaty con- 
 cluded in 1270-1*" between Henry VI of England 
 and Louis XI of France, it was agreed that neither 
 Monarch nor the Subjects of either should engage in 
 hostilities, either for their own quarrels or for the 
 quarrels of others. Similar stipulations occur in other 
 Treaties of alliance during the fifteenth century, and 
 in numerous Treaties of Alliance concluded in the 
 sixteenth century, to which England, France, Spain, 
 and the Emperor, were respectively parties. It is 
 a necessary inference from the provisions of these 
 and other Treaties, that the Common Law of Europe 
 at that time did not impose upon a Power, which was 
 desirous to observe Neutrality, the duty of restraining 
 its Siibjects from individually taking part in a war 
 between Foreign Nations, and that the foundation of 
 such a duty, when it arose, was alliance, and not 
 simple neutrality. Such also is the inference to be 
 drawn from the provisions of the Treaty of Munster, 
 concluded in the middle of the seventeenth century 
 (1648) between France, the Emperor, and the Elec- 
 tors, Princes, and States of the Holy Koman Empire, 
 whereby it was agreed "that none of the contracting 
 Parties should under any title or prete-t supply the 
 enemies of the other Parties with arms, money, sol- 
 diers, or provisions, or receive the troops of any such 
 enemies into their territory, or allow them to encamp 
 
 « Dumont, Corps. Diplom. Tom. III. Part I. p. 5^9. 
 " Ibid. p. 601. 
 
456 ON THE EIGHTS AND DUTIES 
 
 or permit tliera to pass through it," ah of which acts 
 
 are under the Common Law of Nations perfectly 
 
 consistent with Neutrality. So far indeed was it 
 
 from being regarded at any time by the Nations 
 
 of Europe as inconsistent with the Neutrality of a 
 
 State, that any of its natural born Subjects should 
 
 serve under the standard of a Foreign Power in a 
 
 war against another Foreign Power, that there are on 
 
 record numerous Conventions concluded by France, 
 
 Spain, the Holy See, and Naples respectively with 
 
 the Helvetic Cantons, under which the latter have 
 
 engaged themselves to furnish those Powers with a 
 
 certain number of troops, or to allow those Power's 
 
 to recruit a certain number of troops' within their 
 
 territory, and not to recall such troops whilst those 
 
 Powers should be at war*'. The employment of Swiss 
 
 mercenaries has only been discontinued by Naples 
 
 and the Holy See within a very recent period. Great 
 
 Britain on the other hand had Conventions in the 
 
 last century with various German Powers^ and more 
 
 particularly with the Landgrave of Hesse CasseP, 
 
 under which she had German mercenaries in her 
 
 pay, whom she employed in her foreign wars by the 
 
 side of her native troops. 
 
 Views of ^ 224. The views of the Government of the United 
 
 states^Go- States as to the right of a Neutral Power to grant 
 
 as toTsei- °^ refuso, as it sees fit, permission to a Belligerent 
 
 ligerent Power to enlist troops of land or sea within its Terri- 
 
 tioops tory are contained in a State Paper issued from the 
 
 Neutral Attomey-General's. office in the month of October 
 
 Territory. 1855, on occasiou of Certain agents of the British 
 
 Government enlisting soldiei;s within the Teri:itory 
 
 of the United States. 
 
 *' The Treaty between France same Powers, will be found in 
 
 and Switzerland of 1521, which Dumont, Corps. Diplom. Tom. 
 
 was the model for numerous sub- IV. Part I. p. 333. 
 
 sequent Treaties between the ** Martens, N. K. II. p. 422- 
 
OF NEUTRAL POWERS. 457 
 
 1. It is a settled principle of the Law of Nations, 
 that no Belligerent can rightfully make use of the 
 territory of a Neutral State for Belligerent purposes 
 without the consent of the Neutral Government. 
 
 2. The undertaking of a Belligerent to enlist 
 troops of land or sea in a Neutral State without 
 the previous consent of the latter is a hostile attack 
 on its National Sovereignty. 
 
 3. A Neutral State may, if it pleases, permit or 
 grant to Belligerents the liberty to raise troops of 
 land or sea within its Territory, but for the Neutral 
 State to allow or concede the liberty to one Belli- 
 gerent and not to all would be an act of manifest 
 Belligerent partiality, and a palpable breach of Neu- 
 trality. 
 
 4. The United States constantly refuse this liberty 
 to all Belligerents alike, with impartial justice, and 
 that prohibition is made known to the world by a 
 permanent Act of Congress. 
 
 5. Great Britain, in attempting, by the agency of 
 her military and civil authorities in the British North 
 American provinces, and her diplomatic and consular 
 functionaries in the United States, to raise troops 
 here, committed an act of usurpation against the 
 Sovereign Rights of the United States. 
 
 6. All persons engaged in such undertaking to 
 raise troops in the United States for the mili- 
 tary service of G-reat Britain, whether citizens or 
 foreigners, individuals or officers, except they be 
 protected by diplomatic privilege, are indictable 
 by Statute. 
 
 § 225. Bynkershoek *" considers that the Common Right of a 
 Law of Nations does not impose upon a Neutral powerto 
 Btate any obligation to prohibit the agents of aP^'^'^j^^^ 
 
 <"> Bynkershoek, Observationes Jur. Publ. L. I. c. 22. 
 
458 ON THE EIGHTS AND DUTIES 
 
 ment of Foreign Power, which is at war with another Foreign 
 within its Power, from enlisting men within its Territory to 
 Territory, gg^yg [^ j^ army or navy, but that the Neutral 
 State has the right, if it thinks fit, to prohibit all 
 such raising of men for warlike purposes within its 
 Territory, inasmuch as it has a paramount right to 
 require the services of all persons within its Territory 
 for the purposes of its own defence, if war should 
 arise. It is accordingly the privilege of a Neutral 
 State at all times, and not the privilege of a Belli- 
 gerent Power arising out of a state of War, to 
 determine whether it is fit that the Subjects of the 
 Neutral State should be prohibited from quitting 
 ^ its Territory to take service under the standard of 
 a Foreign Power. "As the right of levying soldiers," 
 says VatteP", "belongs solely to the Nation or the 
 Sovereign, no person must attempt to enlist soldiers 
 in a foreign country without the permission of the 
 Sovereign." Hence it is competent for the Govern- 
 ment of a Neutral Nation, if it sees fit, to forbid by 
 proclamation or other public notice the agents of any 
 Foreign Power, in time of war equally as in time of 
 peace, from recruiting men for its army or navy within 
 its territory. Wolff" has correctly pointed out that 
 it is an offence against the Supreme Majesty of a 
 State for any individual to levy soldiers within its 
 territory without its consent, and that if a stranger 
 so acts, he will be amenable to punishment under 
 the Territorial Law of the State. " Quoniam nemini 
 in alieno territorio militem conscribere licet invito 
 superiore, si quis legere audet,yws Gentis violat, ac 
 ideo injuriam eidem facit, cumque injuria h^c crimen 
 sit a peregrino commissum, peregrini autem in ter- 
 ritorio alieno delinquentes juxta leges loci puniendi 
 
 '"' Droit des Gens, L. III. c. ii. § 15. 
 
 '^^ Jus Gentium, § 754. 
 
OF NEUTRAL POWERS. 459 
 
 sint, si peregrinus in territorio alieno invito superiore 
 militem legere audet, deprehensus puniri potest." 
 To a similar effect the Supreme Court of the United 
 States of America has held ^^ that a Neutral Nation, 
 may, if so disposed, without any breach of her Neutral 
 character, grant permission to both Belligerents to 
 equip their vessels of war within her territory. But 
 without such permission the Subjects of such Belli- 
 gerent Powers have no right to equip vessels of war, 
 or to increase or augment their force, either with 
 arms or with men, within the territory of such 
 Neutral Nation. Such unauthorised acts violate her 
 Sovereignty and her Rights as a Neutral. All cap- 
 tures made by means of such equipments are illegal 
 in relation to such Nation, and it is competent to 
 her Courts to punish the offenders, and in case the 
 prizes taken by them are brought infra prcBsidia, 
 to order them to be restored. 
 
 ^^ Brig Alerta v. Bias Moran, 9 Cranch, p. 365. 
 
CHAPTER XII. 
 
 ON THE EIGHTS AND DUTIES OP NEUTRAL POWERS, 
 CONTINUED. 
 
 Trade within the Territory of a Neutral State — Purchase and sale 
 of Ships by the Subjects of Neutral Powers — Sale of Ships of War 
 by a Neutral Power — Modified Neutrality under Treaty-Engage- 
 ments — Non-interference with trade consistent with the Neutrality 
 of a State — The Policy of the United States of America, as a Neu- 
 tral Power, to interdict certain branches of trade — Trade, unless 
 interdicted, not a violation of the Sovereignty of a Neutral State — 
 Jurisdiction over Captures in Neutral waters exercised by the 
 Neutral Power — ^Ancient jurisdiction exercised by Neutral Powers 
 in matters of Prize — Neutral Courts do not entertain the question 
 of Damages — A Neutral Power may claim a vessel, captured in 
 violation of its Territory, before a Belligerent Prize Court — Neutral 
 Powers do not interpose their jurisdiction in cases of Rescue — 
 Conflict of jurisdiction between a Neutral Admiralty Court and 
 a Belligerent Prize Court — Duties of a Neutral Power in cases 
 of Civil War — Belligerent Right of Capture reconcilable with the 
 Independence of Neutral Powers. 
 
 Trade ^ 2 26. Merchants, who are the subjects of Foreign 
 
 Territory of Powers, when the J seek to exercise commerce within 
 Stote!'"^''^ the Territory of an Independent State, are subject to 
 the absolute Sovereignty of that State, unless their 
 commerce should be carried on under Treaty-engage- 
 ments of a special character between the Sovereign 
 to whom they owe Natural allegiance, and the Sove- 
 reign in whose ports they seek to exercise commerce. 
 
RIGHTS AND DUTIES OF NEUTRAL POWERS. 461 
 
 Every Independent State is accordingly entitled to 
 make laws for the regulation of the trade of foreign 
 merchants in its ports, and it is competent for it to 
 allow or to forbid to foreign merchants all trade in 
 certain articles within its Territory. This absolute 
 right of every Independent State to regulate the 
 commerce of foreign merchants, who frequent its 
 ports, is not affected by the circumstance that other 
 Nations are at war with one another, further than 
 that, if it wishes to observe a state of Neutrality 
 between the Belhgerent Nations, it must allow or 
 forbid equally the Subjects of either Belligerent 
 Nation to trade within its Territory ; and that if it 
 does allow the subjects of either Belhgerent Power 
 to trade in its ports, it is essential to the maintenance 
 of its character, as a friendly State, to protect them 
 in their trade. It is immaterial for the purposes of 
 Eightful commerce within the Territory of a Neutral 
 State, what may be the nature of the articles in 
 which merchants seek to trade, provided they are 
 not prohibited as objects of commerce by its Laws. 
 Whether they are weapons which are suitable for 
 the purposes of the chase or for the purposes of 
 war; whether they are ships which are suited to 
 carry cargo or to carry guns, is perfectly immaterial, 
 if commerce in such articles is part of the customary 
 trade within the ports of a Neutral State. Vattel 
 considers the commerce of arms and ships to be 
 no exception to the general commerce which every 
 Power may permit to be carried on withiu its Terri- 
 tory\ consistently with a State of Neutrality. " If 
 a Nation," by which Vattel means the domiciled 
 Subjects of a Nation, " trades in arms, timber for 
 ship-building, ships, and warhke stores, I cannot take 
 
 1 L. III. c. 7. § no. 
 
462 ON THE RIGHTS AND DUTIES 
 
 it amiss, that it sells such things to my enemy, pro- 
 vided it does not refuse to sell them to me also at a 
 reasonable price. It carries on its trade without any 
 design to injure me, and by continuing it in the same 
 manner, as if I were not engaged in war, it gives me 
 no just cause of complaint. In what I have said 
 above, it is supposed that my enemy goes himself to 
 the Neutral country to make his purchases. Let us 
 discuss another case, that of Neutral Nations resort- 
 ing to my enemy s country for commercial purposes. 
 It is certain that as they have no part in my quarrel, 
 they are under no obligation to renounce their com- 
 merce for the sake of avoiding to supply my enemy 
 with the means of carrying on the war against me. 
 Should they affect to refuse selling me a single 
 article, while at the same time they take pains to 
 convey an abundant supply to my enemy, with an 
 evident intention to favour him, such partial conduct 
 would exclude them from the Neutrality which they 
 enjoyed. But if they only continue their customary 
 trade, they do not thereby declare themselves against 
 my interest ; they only exercise a right which they 
 are under no obligation of sacrificing to me^." Accord- 
 ingly a Neutral Power does nothing incompatible 
 with Neutrality in allowing its Subjects to carry any 
 articles whatsoever of commerce to markets within 
 the Territory of a belligerent Power, nor is it re- 
 quired by the Common Law of Nations to exercise its 
 Eight of Sovereignty over strangers who frequent 
 its markets, in order to prevent the exportation of 
 any articles which they may have purchased in its 
 markets. On the contrary, although it may be com- 
 petent for an Independent State to deny to aU Na- 
 
 == Cf. Tastet V. Taylor, 4 Taunton, 238. Bell v. Eeid, i Maule 
 and Selwyn, p. 727. 
 
OF NEUTEAL POWERS. 463 
 
 tions the liberty of carrying on trade in a particular 
 article of merchandise within its Territory, if the mo- 
 tive of such denial should be to impede the military 
 operations of one of the belligerent Powers, and to 
 favour the other, it is manifest that such condvxct 
 would be a breach of Neutrality ^ 
 
 § 22J. That there is nothing in the Law of Na- Purchase 
 tions which requires a Neutral Power to prohibit its ships by ° 
 Subjects from selling armed vessels to a Belligerent, jectf ^f " 
 was very carefully laid down by Mr, Justice Story, Neutral 
 in delivering the judgment of the Supreme Court of 
 the United States on the subject of the equipment 
 of an armed vessel called the Independencia del Sud, 
 which had been fitted out by some merchants of the 
 United States in the port of Baltimore, and sent to 
 Buenos Ayres for sale, where she was purchased by 
 the de facto Government of Buenos Ayres, at that 
 time engaged ia war with Spain. The question came 
 before the Supreme Court on appeal from the Circuit 
 Court for the district of Virginia, ki which the 
 owners of certain cargo captured by the Indepen- 
 dencia del Sud and the Altravida claimed that their 
 property, which had been brought infra prcesidia of 
 the United States, should be restored to them, on the 
 ground that the equipment and sale of the Indepen-^ 
 dencia del Sud was a breach of the Neutrality of the 
 United States. " It is apparent," said Mr. Justice 
 Story, " that although equipped as a vessel of war, 
 she was sent to Buenos Ayres on a commercial ad- 
 venture. Contraband indeed, but in no shape violating 
 our Laws or our National Neutrality. If captured by 
 a Spanish ship of war during the voyage, she would 
 have been justly condemned as good prize for being 
 
 ' Opinkns of Attorneys General of the Tnited States, Tom. I. 
 p. 6i. 
 
464 ON THE EIGHTS AND DUTIES 
 
 engaged in a traffic punishable by the Law of Na- 
 tions. But there is nothing in our Laws, or in the 
 Law of Nations, which forbids our citizens from 
 sending armed vessels, as well as munitions of war, 
 to foreign ports for sale. It is a commercial adven- 
 ture which no Nation is bound to prohibit, and 
 which only exposes the persons engaged in it to 
 the penalty of Contraband. Supposing therefore the 
 voyage to have been for commercial purposes, aad 
 the sale at Buenos Ayres to have been a hond fide 
 sale, there is no pretence to say that the original 
 outfit on the voyage was illegal, or that a capture 
 made by the vessel after the sale was, for that cause 
 alone, illegal*. 
 
 The above judgment proceeds upon the assump- 
 tion that by the Law of Nations an ai'med ship, 
 although it be the private property of a Neutral 
 merchant, may be captured by a Belligerent cruiser 
 on the High Seas as Contraband of War, if it be 
 destined to an enemy's port for sale ; but that if it 
 has arrived in an enemy's port, a Neutral merchant 
 may lawfully sell it, just as he may lawfully sell a 
 cargo of arms and munitions of war, which he has 
 safely transported over the High Seas to an enemy's 
 market. In accordance with this view we find nu- 
 merous treaties, in which it is stipulated that ships 
 of war which are being carried to an enemy, shall be 
 liable to capture and confiscation. Thus in Art. XP 
 of the treaty of friendship between Charles II of 
 England and Charles XI of Sweden (anno 1661), it 
 is provided that no merchandise called Contraband, 
 and especially no money, nor provisions, nor arms, 
 
 * The Santissima Trinidad by Art. XI of the Treaty of 
 
 and the St. Ander, 7 Wheaton's Orebro, 181 2. Hertslet's Trea- 
 
 Eeports, p. 283. ties, Tom. I. p. 328. 
 
 '' This Treaty was renewed 
 
OF NEUTEAL POWERS. 465 
 
 nor cannon, &c. ; " as also no ships of war or csnvoys 
 be supplied or carried to the enemy, without peril, in 
 case they be taken, of being adjudged lawful prize, 
 without hope of restitution." So likewise in the 
 treaty between Denmark and Great Britain, signed 
 at Copenhagen on ii July 1670^ it is provided that 
 the contracting Parties shall not aid or fximish the 
 enemies of either Party, that shall be aggressors, 
 with any provisions of war, as soldiers, arms, engines, 
 guns, ships, or other necessaries for the use of war, 
 nor suffer any to be furnished by their Subjects ; but 
 if the Subjects of either Prince shall presume to act 
 contrary hereunto, then that King, whose Subjects 
 shall have so dojae, shall be obliged to proceed 
 agaiust them with ah severity, as against seditious 
 persons and breakers of the league." Numerous 
 other treaties might be cited in which ships are 
 classed in the same category with money, troops, 
 ammunition, arms, and provisions, as articles which 
 are not to be sent to the enemy. Amongst these 
 may be more particularly noticed a treaty concluded 
 between Charles I of England and the IJnited Pro- 
 vinces (17 Sept. 1625), in which ships are enumerated 
 amongst those articles of merchandise which are 
 Contraband of War. 
 
 " Toutes merchandises de contrebande, comme sont muni- 
 tions de bouehe et de guerre, Navires, armes, voiles, cordages, 
 or, argent, cuivre, fer, plomb, et semblables, de quelque part 
 qu'on les voudra porter en Espagne et aux autres Pays" de 
 I'obeissance du dit Roi d'Espagne et de ses adherens, seront 
 de bonne prise avec les Navires et Hommes quails porte- 
 ront'." 
 
 It is competent for a Neutral Power to allow the 
 
 ° This Treaty was renewed Tom. II. p. 187. 
 by Art. XIII of the Treaty of '' Dumont, Traitds, Tom. V. 
 
 Kiel, 1 8 14. Hertslet's Treaties, Part II. p. 480. 
 
 PAET II. H h 
 
466 ON THE EIGHTS AND DUTIES 
 
 Subjeqts of a Belligerent Power to sell ships which 
 are within its ports, even when such ships have been 
 captured from the enemy, provided that the rightful 
 possession of the captors has been affirmed by the 
 sentence of a competent Prize Tribunal. A Neutral 
 Power does nothing incompatible with a state of 
 Neutrality in permitting a Belligerent to transfer 
 his rights of property over a ship within its terri- 
 tory to a Neutral merchant. But when a vessel, 
 which has been sold by a Belligerent in a Neutral 
 port, ventures out of the jurisdiction of the Neutral 
 Power, she ceases to be under its protection and 
 becomes amenable to the Eights of War ; and it is 
 the practice of some of the European Powers to 
 refuse to recognise, if they happen to be Belligerents, 
 the sale of any ship by the Enemy to a Neutral mer- 
 chant after war has commenced, on the ground of 
 such a sale being in fraud of the Belligerent's Rights 
 against the property of the Enemy. The practice of 
 the French tribunals under the Prize regulations of 
 23 July 1704® and 26 July 1778" is to refuse to 
 recognise as Neutral Property any vessel of Enemy- 
 build, or which has ever been Enemy- owned, unless 
 the sale of it to a Neutral merchant has taken place 
 before the commencement of hostUities. The British 
 Prize Courts on the other hand recognise such a sale 
 as a valid transaction of commerce, if it be hondfide, 
 and the Enemy's interest has been entirely divested. 
 Lord Stowell held this doctrine repeatedly, and Dr. 
 Lushington, during the war between the Allied Powers 
 and Russia in 1854, observed, in reference to a vessel 
 which had been purchased from a Russian ship-owner 
 by a merchant of Hanover, " that if the hond fdes 
 of the sale be assumed, it is not to be denied that it 
 
 ' Lebeau, Code des Prises, Tom. I. p. 287. 
 » Ibid. Tom. II. p. 61. 
 
OF NEUTRAL POWERS. 467 
 
 is competent to Neutrals to purchase the property of 
 Enemies to another country, whether consisting of 
 ships or anything else ; they have a perfect right to 
 do so, and no Belligerent Eight can override it^"." 
 The United States of America" have in a similar 
 manner maintained the Eight of any citizen of the 
 United States to purchase a foreign ship of a Belli- 
 gerent Power, and this anywhere, at home or abroad, 
 in a Belligerent port or in a Neutral port, or even 
 upon the High Seas, provided the purchase is hond 
 fide, and the property be passed absolutely and 
 without reserve. 
 
 § 228. It has never been a subject of complaint on saieof 
 the part of a Belligerent against a Neiitral Power ^^^^^^^ 
 that the latter has permitted an Enemy of the former Neutral 
 to effect the sale of a vessel in the course of trade 
 within its ports. But it may reasonably be a subject 
 of complaint on the part of a Belligerent Power 
 against a Neutral Power, if the latter should itself 
 purchase from an Enemy an armed ship which had 
 taken refuge in its ports, or if the latter should itself 
 sell to an Enemy-Power, or to its agents, any vessels 
 of war lying within its waters. The distinction be- 
 tween such a transaction on the part of a Neutral 
 Power, and a similar transaction on the part of a 
 Subject of such Power in the ordinary course of com- 
 merce, is obvious. Trade is not the normal occu- 
 pation of a Sovereign Power in the sense in which it 
 is the business of a merchant ; and although, whilst 
 general peace prevails, a State may put on the cha- 
 racter of the Merchant without injury thereby re- 
 sulting to any other State, and may freely sell or buy 
 articles of immediate use in war, it is diflficult for it 
 
 " The Johanna Emilia, i Gushing of Aug. 7, 1854, to Mr. 
 
 Spinks'sEcc].andAdin.Keports, Secretary Marcy. Opinions of 
 
 p. 321. the Attorneys General of the 
 
 " Letter of Attorney General United States, Vol. VI. p. 652. 
 
 H h 2 
 
468 ON THE EIGHTS AND DUTIES 
 
 to enter into the arena of commerce in time of war, 
 and to sell its surplus stores of arms or its surplus 
 sHps of war with the best of faith to one of two 
 Belligerent Powers without inflicting an injury upon 
 the other Belligerent. Thus in 1825, whilst Spain was 
 engaged in war with her revolted Subjects in Mexico, 
 the Swedish Government put up six Public vessels 
 of war for sale, which were purchased by the Swedish 
 house of Michaelson and Benedicks, which transferred 
 them to the English house of Barclay, Harring, Eich- 
 ardson, and Co., of London, who were the financial 
 agents of the Eevolted Colonies. There was no 
 doubt that this purchase had been made for the 
 account of the Insurgents, and the Spanish Secretary 
 of Legation, M. D'Alvarado, was instructed by his 
 Government to make a representation to the Swedish 
 Government, and to press it to cancel the sale of the 
 ships, alleging that Spain had no doubt of the good 
 faith of Sweden, but that the latter had been de- 
 ceived into an act of disloyalty by the agents of the 
 Insurgents. Sweden for a long time hesitated to 
 exercise her Bights of Sovereignty over the vessels 
 which were still within her ports, but the Envoys of 
 several of the European Powers having supported 
 the remonstrances of Spain, Sweden ultimately con- 
 sented to cancel the sale of three of the vessels, which 
 were still lying in Swedish ports. M. de Oussy^^ in 
 commenting on the above transaction, remarks, that 
 " the original sale of the vessels was in itself without 
 doubt a purely commercial transaction on the part 
 of the Swedish Government, divested of all pohtical- 
 motive, and as such perfectly legitimate; but that as 
 soon as it was shown that the vessels were in all 
 probability destined for the use of the Insurgents, 
 
 ^'^ Phases et Causes C^lfebres par Baron Ferdinand de Cussy, 
 du Droit Maritime des Nations Tom. II. p. 402. 
 
OF NEUTEAL POWERS. 469 
 
 the Swedish Government could not consistently with 
 Neutrality refuse to exercise its jurisdiction over the 
 vessels which were still within Swedish waters, and 
 to prevent them saihng out to join the naval forces 
 of the Mexicans. A similar distinction has been 
 made between the act of a Neutral Power in supply- 
 ing a Belligerent vessel of war with coals out of the 
 Government stores, and the act of a Neutral Power 
 in allowing merchants resident within its Territory 
 to supply, in the customary course of their trade, 
 coals to a BeHigerent vessel. Coal is an article 
 ancipitis usus, and as such may be supplied freely 
 by Merchants within the jutisdiction of a Neutral 
 Power in the course of their trade ^^ but for a State to 
 furnish supplies of it to a Belligerent vessel of war 
 out of the Government stores has been held to be 
 inconsistent with the Neutrality of the State ^^. 
 
 § 2 29. A Nation may contract Treaty-engagements Modified 
 
 T . Neutrality 
 
 with another Nation, binding itself to exercise in a under 
 certain manner its Eights of Sovereignty within its gagements. 
 Territory, in case the other contracting Party should 
 be, involved in war ; for instance, that it will not 
 allow the vessels of war of the Enemy an asylum 
 within its waters, except they should be in a state 
 of distress, or that it will not allow a free passage 
 across its territory to the Enemy's forces, or that it 
 will not allow Enemy-merchants to purchase muni- 
 tions of war in its markets, or that it will not allow 
 its own Subjects to furnish arms or warlike stores 
 to the Enemy. The fulfilment of such Treaty-en- 
 gagements wiU not be inconsistent with the Neutral 
 Character of a Nation, if it should deny to both of 
 two Belligerent Parties that liberty of commerce, 
 
 " Circular Despatch of the Secretaryof State for the Colonies 
 
 British Secretary of State for the to the Governor of Bermuda. 
 
 Colonies of Nov. 15, 1851. Papers relating to Foreign Affairs 
 
 " Despatch from the British presented to Parliament, 1862. 
 
470 ON THE -EIGHTS AND DUTIES 
 
 which it has bound itself by Treaty to refuse to 
 one of them. Thus Great Britain had entered into 
 Treaty-engagements^^ with Spain, in 1814, not to 
 allow any British subject to furnish arms, ammuni- 
 tion, or any other warlike articles, to the Insurgents 
 in America. In 1 8 1 9 the Eevolted Colonies had suc- 
 ceeded in establishing their Independence de facto. 
 The insurrection thenceforth took the character of a 
 war between a Government de jure and a Govern- 
 ment de facto. The British Government had already 
 in 181 7, in order to observe Neutrality, and at the 
 same time to give fuU effect to her Treaty-engage- 
 ments with Spain, issu'fed a Proclamation prohibiting 
 the exportation of arms and munitions of war to 
 Spain as well as to her Insurgent Colonies, but it 
 being open to doubt, whether the existing Statute 
 Law applied to the service of Powers, which were 
 not acknowledged amongst the Family of Nations, 
 the British Parliament, in deference to the argu- 
 ments of Lord Castlereagh and of Mr. Canning^'', armed 
 the Executive Government with full authority, under 
 The For- gp Goo. Ill, c. 69, commouly called the Foreign En- 
 m?nt Act. listment Act, to prevent the enlistment of troops or 
 the arming of vessels to be employed in the service 
 of any person or persons exercising the powers of 
 Government de facto in any Country, equally as of 
 any acknowledged Power. The British Government 
 accordingly took advantage of the powers conferred 
 upon them by British Law to prevent the enlistment 
 of troops and the equipment and armament of ves- 
 sels in British Ports to be employed in the service 
 of either Belligerent Party against its enemy, as the 
 only measure whereby the Crown of Great Britain 
 
 '^ Additional Articles to the IV. p. 122. 
 
 TreatyofFriendsliip and Alliance " Hansard's Pari. Debates, 
 
 betweenQ-reatBritain and Spain, XL. p. 367, 904, 1102. 
 23 Aug. 1814. Martens, N. R. 
 
OF NBUTEAL POWERS. 471 
 
 could at once observe its Treaty-engagements with 
 Spain, and maintain a state of Neutrality between 
 the Belligerents. At a later period however, when 
 war was imminent in 1823 between Spain and 
 France, the British Government determined not to 
 enforce the provisions of the Foreign EnHstment 
 Act, as, although the enforcement of its provisions 
 would have been sounding to Neutrality, it would 
 have in fact operated most partially in favour of 
 France. An Order in Council was accordingly issued, 
 removing the prohibition to export arms and muni- 
 tions of war from British ports to Spain. Mr. Can- 
 ning^'', in defending the conduct of the British 
 Government on this occasion, observed, "It was in 
 order to give full and impartial effect to the provi- 
 sions of the Treaty with Spain, which prohibited the 
 exportation of arms and ammunition to the colonies, 
 but did not prohibit their exportation to Spain, 
 that the Act of 1819 declared that the prohibition 
 should be mutual. When however, from the tide of 
 events, war became probable between France and 
 Spain, it became necessary to review these relations. 
 It was obvious that if war actually broke out, we 
 must either extend to France the prohibition which 
 already existed with respect to Spain, or we must 
 remove from Spain the prohibition to which she was 
 at present subject ; provided we meant to place the 
 two countries on an equal footing. As far as the 
 exportation of arms and ammunition was concerned, 
 it was in the power of the Crown to remove any in- 
 equahty between the Parties simply by an order in 
 Council. Such an order was consequently issued, and 
 the prohibition of exporting arms and ammunition to 
 Spain was taken off. By this measure His Majesty's 
 Government afforded a guaranty of their bond fide 
 Neutrality. It is obvious that the mere appearance 
 " Hansard's Parliamentary Debates, N.S. VIII. p. 1050. 
 
472 ON THE EIGHTS AND DUTIES 
 
 of Neutrality might have been preserved by the ex- 
 tension of the prohibition to France instead of by the 
 removal of the prohibition from Spain ; but it would 
 have been a prohibition in words only, and not at 
 all in fact ; for the immediate vicinity of the Belgic 
 ports to France would have rendered the prohibition 
 of direct exportation to France totally nugatory." 
 Non-inter- ^ 230. In reviewing the opposite lines of conduct 
 ■with trade wMch Great Britain pursued on the above occasions, 
 vritHh" with a view to maintain a state of Neutrahty, a 
 of Estate 9.^6stion suggests itself, whether it is more con- 
 sistent with that bond fide impartiality which be- 
 comes a Neutral State, for her to prohibit both 
 Belhgerents from trading in her ports during the 
 continuance of their hostilities, or to permit them 
 both to enjoy equal facilities of trade as in time of 
 peace \ Circumstances may occur, in a period of 
 general peace, which will warrant a State in pro- 
 hibiting the exportation of any warlike stores from 
 her ports ; as, for instance, if she have reason to 
 expect that she may herself be soon involved in war. 
 And considerations of a like nature may equally 
 warrant a State in prohibiting the exportation of 
 any warlike stores from her ports at a time when 
 war exists between other States. No Neutral State 
 is responsible to any Belligerent State for measures 
 which she feels called upon to adopt for her own 
 security within the limits of her own Sovereignty. 
 On the other hand, it is the privilege of every 
 Neutral Nation, as such, to maintain relations of peace 
 with both Belligerents, and either Belligerent may 
 justly expect that a Neutral Nation wiU not pro- 
 hibit any trade within its' ports, whenever such 
 prohibition would clearly work a greater prejudice 
 to one Belligerent than to the other, and so be indi- 
 rectly an act of favour to the latter. Sir W. Scott ^^ 
 
 '^ The Eliza Ann, i Dodson, p. 244. 
 
OF NEUTRAL POWERS. 473, 
 
 has observed, " If a Sovereign has shown more favour 
 to one side than to the other — if he has excluded 
 the ships of one, of the Belligerents from his ports 
 and hospitably received those of the other — he can- 
 not be considered as acting vfith the necessary im- 
 partiality. I do not think a country, showing such 
 an invidious distinction, entitled to claims in the 
 character of a Neutral State. The high privileges 
 of a Neutral are forfeited by the abandonment of 
 that perfect indifference between the contending 
 parties in which the essence of Neutrality consists." 
 It would seem then that a Belligerent Power, as 
 such, has no right to call upon a Neutral Power to 
 exercise its rights of Sovereignty within its own 
 Territory in any other manner than in time of 
 peace, provided the Neutral Power is acting with 
 impartiality towards the Belligerent Power and its 
 adversary. It is a less questionable act therefore 
 for a Neutral Power to allow its markets to be open 
 equally to the Subjects of both Belligerent Powers, 
 than to prohibit to both parties the exportation of 
 provisions, or ammunition, or arms, or ships, or any 
 other article available for Belligerent purposes. A 
 Nation may indeed, in appearance, act with im- 
 partiality in issuing and enforcing such prohibitions, 
 whilst in substance it may be favouring the one party 
 more than the other. For instance, a war may 
 arise between two countries, one of which in time 
 of peace exports arms and imports provisions, whilst 
 the other exports provisions and imports arms; in 
 other words, between two countries, one of which 
 is highly advanced in manufacturing industry, whilst 
 the other is strictly agricultural It is obvious that 
 a Nation will not act with impartiality towards both 
 Belligerents, if it should prohibit the exportation of 
 arms and allow the exportation of provisions. Again, 
 
474 ON THE RIGHTS AND DUTIES 
 
 one Belligerent may be in want of ships, and the 
 other Belligerent may be in want of horses. It will 
 evidently not be consistent with a State of Neu- 
 trality for a State to allow a free commerce to both 
 Belligerents in horses within its ports, and to pro- 
 hibit a free commerce in ships, if her subjects in time 
 of peace are accustomed to trade freely with foreign 
 merchants in ships and in horses. On the other hand, 
 if a State does not impose any restraints upon com- 
 merce within her Territory during a period of war- 
 fare between other Powers, but affords to the Sub- 
 jects of either Belligerent free access to her markets, 
 and if it should happen that the one Belligerent de- 
 rives from commerce in her ports more advantages 
 than the other Belligerent, she may justly allege, 
 that if her continuing to allow free access to her 
 markets to the Subjects of both Belligerent parties 
 equally as to the Subjects of other Nations operates 
 more beneficially to one of the Belligerent parties 
 than to the other, it is by reason of the alteration of 
 their mutual relations towards each other, over which 
 she has no control, and not by reason of any altera- 
 tion in her conduct towards either of them. Any 
 change which a Nation may make upon war break- 
 ing out between other Nations, by interdicting the 
 commerce of either of them in her ports, may expose 
 the good faith of a Nation to question, whenever 
 the change operates more prejudicially against the 
 one than against the other of the two Belligerent 
 parties. On the other hand, the maintenance of an 
 order of things which existed prior to the war, 
 against which no complaint was raised in time of 
 peace by any other Nation, cannot expose a neutral 
 Nation to any imputation of bad faith towards .either 
 of two Belligerent parties. 
 
 § 231. "The United States of America," as ob- 
 
OF NEUTRAL POWERS. 475 
 
 served in a judgment of' the Supreme Court in 
 1817^^ "instead of opening their ports, to all the 
 contending parties, when at peace themselves (as may 
 be done, if not prevented by antecedent Treaties), 
 have always thought it the wisest and safest course 
 to interdict them aU from fitting out or furnishing 
 vessels of war within their limits, and to punish 
 those who may contribute to such equipments." The The Policy 
 United States first adopted this policy, as a Neutral united 
 State, in 1794 2°, when M. Genet, the French Minister l*^*;^';^ 
 at Washington, was endeavouring to work upon the^saNeu- 
 
 ^ ® ■* tral Power 
 
 sympathies of the States for the purpose of involving to interdict 
 them in war with Great Britain, and they have per- branches of 
 severed in the same policy down to the present day. *''^'^®' 
 Thus the Act of Congress of 1818, although it does 
 not prohibit armed vessels fitted out by citizens of 
 the United States from sailing out of their ports, 
 requires the owners to give security that such vessels 
 shall not be employed by them to commit hostilities 
 against foreign Powers at peace with the United 
 States. Accordingly, when Denmark remonstrated 
 against the Government of the United States allow- 
 ing a steam vessel of war, which had been purchased 
 by the Government of the German Empire, at that 
 time engaged in war against Denmark, to leave the 
 ports of the United States, the United States Go- 
 vernment refused to permit the vessel to quit its 
 waters, until a bond had been executed in compliance 
 with the Act of Congress of 1818, that the vessel 
 should not be employed to cruise or commit hostili- 
 ties against any State, with which the United States 
 were at peace ^^ On the other hand, "the Laws of 
 the United States do not forbid their citizens to sell 
 
 " The Estrella, 4 Wheaton, "^ Annuaire des Deux Mondes, 
 
 p. 448. 1852-53, p. 485. Lawrence's 
 
 2» Waite'sAmerican State Pa- Wheaton, second annotated edi- 
 
 pers, Vol. I. p. 89. tion, p. 95. Editor's note. 
 
476 ON THE EIGHTS AND DUTIES 
 
 to either of the Belligerent Powers articles Contra- 
 band of war, or to take munitions of war or soldiers 
 on board their private ships for transportation ; and 
 although, in so doing, the individual citizen exposes 
 his property or person to some of the hazards of 
 war, his acts do not involve any breach of National 
 Neutrality, nor of themselves implicate the Govern- 
 ment." Such was the purport of the message de- 
 livered by the President of the United States on 
 31 December 1854^^ and in the following month of 
 October 1855 an OfScial Declaration on the same 
 subject was issued from the office of the Attorney- 
 General, the legal organ of the Government of the 
 United States ^^ " It is no departure from Neutrality," 
 is the language of this Declaration, " for the citizens 
 of a Neutral State to sell to belligerents gunpowder, 
 arms, munitions, or any other articles of merchandise 
 Contraband of war, or for the merchant ships of a 
 Neutral State to transport the troops or military 
 munitions of either Belligerent. Such commerce is 
 perfectly lawful in itself, subject always to the 
 chances of hostile capture by the other Belligerent ; 
 and in the present war, suppUes of gunpowder or 
 other articles Contraband of war, and military trans- 
 portation, have been furnished of Lawful Eight by 
 citizens of the United States, to each of the Belli- 
 gerents, but more especially and in larger propor- 
 tions to Great Britain and to France." To the same 
 effect President Pierce had observed, in the mes- 
 sage above cited, that " during the progress of the 
 present war in Europe our citizens have, without 
 National responsibility therefore, sold gunpowder 
 and arms to all buyers, regardless of the destination 
 
 ^^ Message of President Pierce. ^^ Sammlung tier Officieller Ac- 
 Annuaire Hist. Universel, 1855, tenstiicke, &c., Hamburg, 1855. 
 App. p. 211. Neue Folge, II. p. 22. 
 
OP NEUTRAL POWEKS. 477 
 
 of those articles. Our merchantmeri have been, and 
 still continue to be, largely employed by Great 
 Britain and France in transporting troops, provi- 
 sions, and munitions of war to the principal seat 
 of military operations, and in bringing home the 
 sick and wounded soldiers ; but such use of our 
 mercantile marine is not interdicted either by the 
 International, or by our Municipal Law, and there- 
 fore does not compromise our Neutral relations with 
 Eussia." 
 
 ^232. A distinction must always be kept in mind Trade, un- 
 between acts of civil life within the Territory of a ^g^'d, not 
 Neutral Nation which violate its Eight of Sovereignty, ^^^^^°^ 
 and acts which do not violate it. No transaction of vereignty 
 commerce between Belligerent merchants or between tiui state. 
 a Belligerent merchant and a Neutral merchant, 
 entered into or completed within Neutral Territory, 
 is an oflPence against the Sovereignty of the Neutral 
 Nation, unless it should be forbidden by its Territorial 
 Law. All offences against the Law of a State com- 
 mitted by any person whatsoever within its Territory 
 are offences Icesce majestatis, and may be punished by 
 the State as such, unless the offender be the subject of 
 a foreign Power, with which there are Treaty-engage- 
 ments in restraint of the independent action of the 
 State ia such matters. A particular transaction of 
 commerce equally with any other act of civU life may 
 be forbidden by the Law of a State, as, for instance, 
 the sale of a freeman into slavery, and all parties 
 within the Territory of that State, who should be 
 engaged in such a transaction of commerce, would be 
 guilty of an offence against its Sovereign Power. 
 It is immaterial with regard to the binding force of 
 the Law of a State whether there is a state of War 
 beyond its Territory or not, and whether the parties 
 within its Territory, who may infringe its Law, are 
 Subjects of a Belligerent or of a Neutral State. For 
 
478- ON THE BIGHTS AND DUTIES 
 
 instance, to enlist for military service the Subjects 
 of an Independent Prince within his Territory, 
 without his permission, is a violation of his Eights 
 of Sovereignty. Accordingly, if a foreign vessel of 
 war should enter the harbour of an Independent 
 State, and its Commander should enlist any of the 
 Subjects of that State to serve on board his vessel, 
 without the license of the Sovereign Power, it would 
 be a violation of the Sovereignty of the State, and 
 accordingly the augmentation of the force of a 
 Belligerent vessel of war in the harbour of a Neutral 
 State without the license of the Sovereign Power 
 will be a breach of the Law of Nations. It has 
 therefore been held by Courts which administer 
 the Law of Nations, that such an unlawful aug- 
 mentation of the force of a Belligerent vessel of 
 war in the port of a Neutral Nation wiU. infect 
 every capture made during the voyage, upon which 
 she is engaged, vsdth the character of a Maritime 
 tort, which the Neutral Nation is empowered to 
 redress, if the Belligerent vessel should bring any 
 capture within the Territory of the Neutral Nation. 
 A question of this kind came before the Supreme 
 Court of the United States, on appeal from the 
 District Court of Virginia, in reference to the cargo 
 of a Spanish vessel, which had been captured by 
 two Belligerent cruisers commissioned by the de 
 facto Government of Buenos Ayres. Although the 
 independence of Buenos Ayres had not at such 
 time (April 1817) been recognised by the Govern- 
 ment of the United States, the existence of a Civil 
 War between Spain and her Colonies had been re- 
 cognised by it, aiid each party was deemed by it to 
 be a Belligerent Nation, having, so far as concerned 
 the United States, the Sovereign Eights of War, and 
 entitled to be respected in the exercise of those 
 Rights. One of the Belligerent cruisers, which had 
 
OF NEUTRAL POWERS. 479 
 
 effected the capture of the Spanish vessel, came into 
 the port of Virginia, and there, with the consent of 
 the Custom-house Authorities, landed for safe keeping 
 a quantity of property which had been taken out of 
 the captured vessel. The original Spanish owner of 
 this property, through the medium of the Spanish 
 Consul at Norfolk, thereupon commenced proceedings 
 in the District Court of Virginia for the recovery of 
 his property, as having been captured under circum- 
 stances, which involved a violation of the Neutrality 
 of the United States. Two pleas were rehed upon 
 by the claimants as justifying restitution : i . that 
 the Belligerent cruiser had been originally equipped, 
 armed, and manned as a vessel of war in the ports 
 of the United States ; 2 . that there had been an 
 illegal augmentation of the force of the Belligerent 
 vessel during her cruise, whilst she was in a port 
 of the United States. 
 
 The Court dismissed the first plea in a few words. 
 " It is apparent," said Mr. Justice Story, "that though 
 equipped as a vessel of war, she was sent to Buenos 
 Ayres on a commercial adventure. Contraband indeed, 
 but in no shape violating our Laws, or our National 
 Neutrality. If captured by a Spanish ship of war 
 during the voyage, she would have been justly con- 
 demnable as good Prize for being engaged in a traffic 
 prohibited by the Law of Nations. But there is 
 nothing in our Laws, or in the Law of Nations, that 
 forbids our citizens from sending armed vessels, as 
 weU as munitions of war, to foreign ports for sale. 
 It is a commercial adventure, which no Nation is 
 bound to prohibit, and which only exposes the per- 
 sons engaged in it to the penalty of confiscation. 
 Supposing, therefore, the voyage to have been for 
 commercial purposes, and the sale at Buenos Ayres 
 to have been a bond fide sale, (and there is nothing 
 in the evidence before us to contradict this,) there is 
 
480 ON THE EIGHTS AND DUTIES 
 
 no pretence to say that the original outfit on her 
 voyage was illegal, or that a capture made after the 
 sale was, for that cause alone, illegal." But on the 
 second plea the Supreme Court held that, as it was 
 proved that during the stay of the Belligerent cruiser 
 in the port of Baltimore she had enlisted thirty per- 
 sons, there was an illegal augmentation of her force 
 by a substantial increase of her crew, and that such 
 an augmentation of her force was not merely an 
 infraction of the Municipal Law of the United States, 
 subjecting the offender to personal penaltieSj but was 
 a violation of the Law of Nations, infecting all cap- 
 tures made during the cruise. " It has never been 
 held," says Mr. Justice Story, " that an augmentation 
 of force or an illegal outfit afiected any captures made 
 after the original cruise was terminated. By analogy 
 to other cases of violation of Public Law, the offence 
 may be well deemed to be deposited at the termina- 
 tion of the voyage, and not to affect future trans- 
 actions. But as to captures made during the same 
 cruise, the doctrine of this Court has long been estab- 
 lished, that such illegal augmentation is a violation^of 
 the Law of Nations, as well as of our own Municipal 
 Laws, and as a violation of our Neutrality, by analogy 
 to other cases, it infects the captures subsequently 
 made with the character of torts, and justifies and 
 requires a restitution to the parties who have been 
 injured by the misconduct. It does not lie in the 
 mouth of wrong-doers to set up a title derived from 
 a violation of our NeutraHty. The cases in which 
 this doctrine has been recognised and applied have 
 been cited at the bar, and are so numerous and so 
 uniform that it would be a waste of time to discuss 
 them, or to examine the reasoning by which they are 
 supported^*." 
 
 ^* The Santissima Trinidad and the St. Ander, 7 Wheaton's 
 Reports, p. 348. 
 
OP NEUTRAL POWERS. 481 
 
 The offence of violating the Territory of a Neutral 
 Nation by enlisting seamen within its ports to man 
 a Belligerent vessel, without the previous consent of 
 the Sovereign Power of the Nation, has been held by 
 the Supreme Court of the United States^® not to be 
 purged by the discharge of her crew in a foreign 
 port, if the same crew has been re-enlisted in that 
 port, and the vessel has thereupon proceeded to sea, 
 and made captures under the commission of a Belli- 
 gerent Power. Under such circumstances, the Su- 
 preme Court held that the discharge of the crew was 
 a colourable transaction, and that a Neutral Power 
 was justified in enforcing its Neutrality by the resti- 
 tution of the prizes made by the Belligerent vessel, 
 when those prizes had been brought within the Neu- 
 tral Jurisdiction. The same Court ^^ has held that the 
 sale of a vessel in a BeUigerent port to the BelHgerent 
 Government was a colourable sale, insufficient to 
 purge the offence of a breach of Neutral Territory, 
 where an interest in the prizes made by the vessel 
 could be traced as still attaching to the parties, who 
 had committed the offence. The Courts of the 
 United States appear, from a long series of decisions, 
 to hold it to be the Right of the Courts of a Neutral 
 Nation to require from Belligerents as strict proof of 
 bond fides on their part, in matters involving a vio- 
 lation of its Neutrality, as the Courts of BelHgerent 
 Powers require from Neutrals in matters involving a 
 violation of their Belligerent Eights, and that every 
 Neutral Power is entitled to refuse the use of its Ter- 
 ritory for any Belligerent purpose, and to vindicate 
 its refusal by restoring all prizes made in violation of 
 
 "= The Gran Para, 7 Wheaton, Eainha de los Anjos, 7 Wheaton, 
 
 p. 471. P- 520- 
 ^ The Monte AUegi-e and the 
 
 PABT II. I i 
 
482 ON THE EIGHTS AND DUTIES 
 
 its Territory, if they should be brought by the captors 
 
 within its Territory. 
 Jurisdic- §2^3- The principle upon which the Courts of the 
 captures' United States, sitting as Courts of a Neutral Nation 
 in Neutral "vsrithin Noutral Territory, have claimed to exercise a 
 
 waters ex- . . -n • p • ^^ 
 
 ercised by Jurisdiction over Prize of War, has been lucidly set 
 Power" '^^ forth by Mr. Justice Washington. " The general 
 rule," he observes^'', "is undeniable, that the trial of 
 captures made on the High Seas, jure belli, by a duly 
 commissioned vessel of war, whether from an Enemy 
 or a Neutral, belongs exclusively to the Courts of 
 that Nation to which the captors belong. To this 
 rule there are exceptions, which are as firmly esta- 
 blished as the rule itself. If the capture be made 
 within the territorial limits of a Neutral country, 
 into which her prize is brought, or by a privateer 
 which has been illegally equipped in such Neutral 
 country, the Prize Courts of such Neutral country 
 not only possess the power, but it is their duty, to 
 restore the property so illegally captured to the 
 owner. This is necessary to the vindication of their 
 Neutrality. A Neutral Nation may, if so disposed, 
 without a breach of her Neutral character, grant per- 
 mission to both Belligerents to equip their vessels 
 of war within her territory. But without such 
 permission, the subjects of such Belligerent Powers 
 have no right to equip vessels of war, or to increase 
 or augment their force, either with arms or with men, 
 within the territory of such Neutral Nation. Such 
 imauthorised acts violate her Sovereignty, and her 
 rights as a Neutral. All captures by means of such 
 equipments are illegal in relation to such Nation, 
 and it is competent to her Courts to punish the 
 offenders ; and in case the prizes taken by them are 
 
 ^'' The Brig Alerta and Bias Moran, 9 Cranch, p. 364. 
 
OF NEUTEAL POWERS. 483 
 
 brought infra prcesidia, to order them to be re- 
 stored." Traces of the exercise of this Jurisdiction 
 on the part of Great Britain, as a Neutral Power, are 
 found in the writings of Sir Leoline Jenkins ^^, who 
 was Judge of the High Court of Admiralty of 
 England in the reigns of Charles II and James II. 
 In a letter written on 5 Dec. 1665, after hearing 
 what was alleged on both sides, he advises his 
 Majesty in Council to decree restitution of the 
 St. Anne of Ostend, which had been brought into 
 Dover by a Portuguese Privateer, on the ground 
 that the Privateer had set out from Dover manned 
 for the most part with British subjects, and hovered 
 off that port, in violation of the protection and safe- 
 guard, which your Majesty's authority affords to 
 strangers coming upon their lawful occasions towards 
 any of your Majesty's Harbours or Ports. On an- 
 other occasion ^^, (11 Oct. 1675,) when a French Pri- 
 vateer had captured a merchant vessel belonging to 
 the port of Hamburg, within one of the King's 
 Chambers, the same learned Judge advised his Ma- 
 jesty in Council that the Hamburger being taken 
 in one of his Majesty's Chambers, and being bound 
 to one of his Majesty's ports, ought to be set free. 
 Other instances of the restitution of vessels, which 
 had been captured in violation of Neutral Territory, 
 will be found amongst the judgments of this eminent 
 Civilian, who was at the same time very careful^" not 
 to encroach upon the clear and undoubted Eights of 
 War of Belligerent cruisers. The Eight of a Neutral 
 country, according to the modern practice of Na- 
 tions, to take cognisance of Prize of War, when there 
 
 ^ Life of Sir Leoline Jenkins, ^'' Letter to the King upon 
 
 II. p. '727. the judgment of the Court of 
 
 2' Life of Sir Leoline Jenkins, Admiralty at Dublin, 5 Jan. 
 
 II. p. 780. 1679-80. Life, IL p. 783. 
 
 I i 2 
 
484 ON THE RIGHTS AND DUTIES 
 
 has been an infringement of its Territory, has been 
 incidentally recognised by Lord StowelP^ ; but there 
 are no cases to be found in the Reports of the 
 proceedings of the English Courts of Admiralty 
 in modern times, in which this question has been 
 directly raised and decided. 
 Ancient ^ 234. It scems at one time to have been generally 
 tim exei-- held to be within the competency of the Admiralty 
 Ne^tra^ Court of a Neutral Nation to take cognisance of aU 
 Powers in captures made on the High Seas of the property of 
 Prize. its owu Subjccts by Belligerent vessels, if the captors 
 should have brought their prizes into its ports. The 
 Ordonnance de la Marine of Louis XIV (art. XV) 
 directs, that if on board of prizes brought into French 
 ports by foreign armed vessels, there shall be found 
 goods belonging to the Subjects of France or its 
 allies, the goods so belonging to French Subjects 
 shall be restored. Valin says, that this Right is 
 exercised in favour of Subjects by way of compensa- 
 tion for the asylum granted to the captor and his 
 prize ; but he expressly states that the rule does not 
 extend to the goods of allies ^^, According to the 
 opinion of Sir Leoline Jenkins ^, it was in accordance 
 with the General Law of Nations in the seven- 
 teenth century for the Admiralty Court of a Neutral 
 Nation to order the restitution of goods belonging 
 to its citizens, if they had been captured by a 
 Belligerent on board an enemy vessel, and the latter 
 should have been brought by the captor within 
 the jurisdiction of the Neutral Nation. Thus, he 
 observes, in the case of a Spanish ship taken by a 
 Portuguese frigate, which had brought her Prize into 
 a British port, " The last question is, (for I do not 
 
 ^^ The Fladoyen, i Ch. Rob. Traits des Prises, c. 7. p. 176. 
 p. 144. ^' Life of Sir L. Jenkins, 
 
 *^ 2 Valin, Comment, p. 274. vol. ii. pp. 732, 780. 
 
OF NEUTRAL POWEKS. 485 
 
 find anything material made out against the validity 
 of the Portuguese Commission,) in the case of your 
 Majesty's subjects, Sir Arthur Ingram and the 
 Canary Company, to whom a third part of the 
 lading belongs, whether their goods shall be Prize 
 in this Spanish bottom. 'Tis certain they are re- 
 Hevable upon the General Law; and whatever be- 
 came of the Biscayer, the English goods might and 
 ought to be taken out, and restored to the owners." 
 On another occasion (ii Oct. 1675) the same learned 
 Judge, after advising the restitution of a Ham- 
 burger ship captured by a French Privateer in an 
 English Chamber,, proceeds to say, " The last ques- 
 tion is, whether the Englishmen should have such 
 goods as belong to them in property taken out of the 
 Prize, and restored to them here, or else be forced to 
 go to France to claim and recover them. It is my 
 opinion they should be forthwith taken out and re- 
 stored, they making full and clear proof of their pro- 
 perty that they were and are upon their own account 
 and risk (as some have already done in the Admi- 
 ralty), and purging themselves by oath that they do 
 not claim or colour anything belonging to the Ham- 
 burgers, for where the thing in contention is within 
 your Majesty's Jurisdiction, there justice ought to be 
 administered, and nowhere else. And I do humbly 
 conceive that the French Privateer hath the less pre- 
 tence for a Benvoy into France, because the Law is 
 the same in that coxmtry." M. Theodore Ortolan ^*, in 
 treating of the Right of Neutral Asylum, after dis- 
 cussing the cases of illegal capture within Neutral 
 Waters, and the case of illegal equipment within 
 Neutral Territory, goes on to say, " Les K^glements 
 particuliers de quelques Puissances y ajoutent un 
 autre cas ; celui o\X la prise a ete faite sur les propres 
 '* Diplomatie de la Mer, Tom. II. L. III. c. 8. p. 265. 
 
486 ON THE RIGHTS AND DUTIES 
 
 sujets de I'Etat Neutre, sous pretexte de Contrebande 
 de guerre ou de toute autre cause dans des condi- 
 tions, qui aux yeux de cet Etat la rendent illegitime." 
 If indeed it should be alleged tliat a capture has 
 been made without lawful Commission, or fraudu- 
 lently and piratically under pretext and colour of 
 Belligerent Right, Neutral Admiralty Courts may 
 without doubt entertain jurisdiction under the Law of 
 Nations for the purpose of enquiring into the Right 
 of the captor to make capture on the High Seas ; 
 but if it be established that the captor is lawfully 
 commissioned by a Belligerent Power, and has seized 
 the ship and goods jure belli, the trial of Prize or 
 no Prize cannot, according to the modem practice of 
 Nations, be adjudicated by the Admiralty Court of any 
 Neutral Nation, but belongs exclusively to the Courts 
 of the Power to which the captor belongs. The ge- 
 neral doctrine, that the trial of Prize belongs exclu- 
 sively to the Courts of the State to which the captor 
 belongs, is now too firmly settled to admit of doubt," 
 is the language of Mr. Justice Story ^^ In the great 
 argument respecting the Silesian loan, it is laid down 
 in emphatic terms, that "the proper and regular 
 Court for these condemnations is the Court of that 
 State to which the captor belongs ^^;" and that in this 
 method, by the Courts of Admiralty acting according 
 to the Law of Nations and particular Treaties, all 
 captures at sea have immemorially been judged of in 
 every country of Europe." The exemption in favour 
 of the Admiralty Courts of a Neutral Nation exer- 
 cising jurisdiction over captures brought infra prcB- 
 sidia of the Neutral Power, has been thought to 
 
 '^ The Invincible, 2 Gallison, answer to the Prussian Memo- 
 
 P- 35- rial. Collectanea Juridica, Lon- 
 
 '^ Letter of the Duke of don 1791, pp. 135, 137. 
 Newcastle of 8 Feb. 1753, in 
 
OF NEUTRAL POWERS. 487 
 
 derive some countenance from a decision of the Su- 
 preme Court of the United States in the year 1794, 
 in the case of a Swedish vessel, the Betsey, laden 
 with Swedish and American property, which had 
 been captured by a French privateer, the Citizen 
 Genet, on the High Seas, and sent into the port of 
 Baltimore ^'. The Supreme Court overruled in this 
 case the decrees of the District and Circuit Courts 
 declining jurisdiction, and held that the Admiralty 
 Courts of the United States were competent to en- 
 quire and decide whether restitution should be made 
 to the claimants in whole or in part, (that is, whether 
 such restitution can be made consistently with the 
 Law of Nations and the Treaties and Laws of the 
 United States.) But this judgment was very carefuUy 
 reviewed by the Supreme Court of the United States 
 in 1816, which held that the only question settled in 
 the case of Glass v. the Betsey was, that the dispos- 
 session of the master and crew of any vessel on the 
 High Seas was primd facie a Maritime tort, of which 
 every Admiralty Court might take cognisance ac- 
 cording to the Law of Nations ; and that the case 
 was sent back by the Supreme Court with a view 
 that the District Court should exercise jurisdiction, 
 subject however to the Law of Nations on this sub- 
 ject as the rule to govern its decision. On this occa- 
 sion, Mr. Justice Johnson ^^ in delivering the judg- 
 ment of the Supreme Court, observed, that " every 
 violent dispossession of property on the ocean is 
 primd facie a maritime tort ; as such, it belongs to 
 the Admiralty jurisdiction. But sitting and judging 
 as such. Courts do by the Law of Nations, the mo- 
 ment that it is ascertained to be a seizure by a com- 
 
 '^ Glass V. the Sloop Betsey, '' L'Invincible, 1 Wheaton, 
 
 3 Dallas, p. 6. P- 258. 
 
488 ON THE RIGHTS AND DUTIES 
 
 missioned cruiser, made in the legitimate exercise of 
 the Eights of War, their progress is arrested ; for this 
 circumstance is in those Courts a sufficient evidence 
 of Eight. That the mere fact of seizure, as Prize, 
 does not of itself oust the Neutral Admiralty Court 
 of its jurisdiction, is evident from this fact, that there 
 are acknowledged cases in which the Courts of a 
 Neutral may interfere to divest possession ; to wit, 
 those in w^hich her own Right to stand Neutral is 
 invaded ; and there is no case in which the Court of 
 a Neutral may not claim the Eight of determining 
 whether the capturing vessel be in fact the com- 
 missioned cruiser of a Belligerent Power '^. Without 
 the exercise of jurisdiction thus far, in all cases, the 
 power of the Admiralty would be inadequate to 
 afford protection from piratical capture." But the 
 Court of a Neutral Power wiU only so far enquire 
 into the Commission of the capturing vessel as to 
 ascertain its authenticity. The Commission of a 
 Public Ship, duly authenticated by the signature of 
 the proper authorities of the Nation to which she 
 belongs, imports absolute verity**, so far at least as 
 Foreign Courts are concerned, and is complete proof 
 of the title to exercise Belligerent Rights. 
 Neutral 5 2 35. The samB considerations of Comity which 
 
 Courts do 111 1 1 ,1 /^ f. iwT 1 
 
 not enter- are uow held to preclude the Court or a JNeutral 
 ti^ns'^oT" Nation from sitting in judgment on the question 
 Damages. q£ ^-]^q validity of a capture made upon the High 
 Seas, even if the captured property should be 
 voluntarily brought by the captor within its juris- 
 diction, preclude it from entertaining the question 
 of Damages, even when the seizure has been made 
 within its Territory, and the Neutral Court has de- 
 
 '" Life of Sir Leoline Jenkins, and the St. Ander, 7 Wheaton, 
 Vol. II. p. 727. p. 336. 
 
 *"• The Santissima Trinidad 
 
OF NEUTEAL POWEES. 489 
 
 creed that the vessel and her cargo shall be set free. 
 If a Belligerent cruiser has attacked and seized an 
 enemy vessel within Neutral Territory, no Eight of 
 the enemy vessel has been violated by such an 
 attack and seizure ; for no Eights exist between 
 enemies, except what are termed Eights of War, 
 and one of the Eights of War is to attack and 
 destroy an enemy, wherever he may be found. "A 
 capture made within Neutral waters is, as between 
 enemies, deemed to all intents and purposes rightful ; 
 it is only by the Neutral Sovereign that its legal 
 validity can be called in question ; and as to him, 
 and him only, is it to be considered void*^." A Neu- 
 tral Power may interpose at any time and forbid 
 a Belligerent to exercise within its jurisdictional 
 waters the Eights, which a state of War gives rise to 
 as against his adversary : it may arrest, in virtue of 
 its Sovereignty over the place, a combat between 
 Belligerents dum fervet opus; or if the combat 
 should have been brought to an end by the sub- 
 mission of one of the combatants, it may require the 
 victor to set the vanquished party free ; but when a 
 Neutral Power so interposes between Belligerent 
 parties, it does not profess to redress a wrong done 
 by one Belligerent to another, but it refuses to allow 
 a Eight of War to be exercised by a Belligerent 
 against his enemy, because the Territory of a Neutral 
 State is by the Law of Nations not subject to the 
 exercise of any Eight of War against the will of the 
 State. Accordingly, if a Belligerent vessel has at- 
 tacked an enemy vessel within the jurisdiction of a 
 Neutral Power, and has been worsted in the conflict, 
 the Neutral Power may justly decline, if it sees fit, to 
 interpose between the vanquished party and the 
 operation of the jus belli, which it has been the first 
 " The Anne,. 3 Wheaton, p. 447. 
 
490 ON THE RIGHTS AND DUTIES 
 
 to invoke. " Whilst the ship was lying within Neu- 
 tral waters, she was bound," says Mr. Justice Story ^\ 
 " to abstain from all hostilities except in self defence. 
 The Privateer had an equal title with herself to the 
 Neutral protection, and was in no fault in approach- 
 ing the coast without showing its National character. 
 It was a violation of that Neutrality, which the 
 captured ship was bound to observe, to commence 
 hostilities for any purpose in these waters, for no 
 vessel coming here was bound to submit to search, 
 or to account to her for her conduct or character. 
 When therefore she commenced hostilities, she for- 
 feited the Neutral protection, and the capture was 
 no injury for which any redress would be rightfully 
 sought from the Neutral Sovereign." 
 
 The Supreme Court of the United States has 
 accordingly held that the jurisdiction of a Neutral 
 Court of Admiralty over captures made in violation 
 of Neutral Territory, is exercised only for the purpose 
 of restoring the property which has been voluntarily 
 brought infra prcBsidia'^^ of the Neutral Power, and 
 does not extend to the awarding of damages against 
 the captors as in ordinary cases of maritime torts. 
 A Spanish ship** was captured on the High Seas 
 by a Venezuelan Privateer, La Guerriere, and sub- 
 sequently brought into the port of New Orleans. It 
 was established that the Privateer had augmented 
 her crew in the United States during the cruise, and 
 before the capture, in violation of the Neutrality of 
 the United States ; and one of the questions raised 
 upon appeal before the Supreme Court was, whether 
 
 '^ The Anne, 3 Wheaton, p. bilia numeratur ; praesidia autem 
 
 44'7. stationes. Alberic. Grentilis, His- 
 
 *' Pr88sidia vero non esse na- pan. Advocationes, L. I. c. 11. 
 vim, ad quam deducta erant bona ^^ La Amistad de Rues, 5 
 
 capta, certum est, quae inter mo- Wheaton, p. 385. 
 
OF NEUTRAL POWERS. 491 
 
 the District Court of New Orleans had rightfully 
 decreed damages against the captors. Mr. Justice 
 Story, in delivering the judgment of the Supreme 
 Court in reversal of the decree of the District 
 Court as to damages, observed : " The doctrine 
 heretofore asserted in this Court is, that vfhenever 
 a capture is made by any belligerent in violation 
 of our Neutrality, if the Prize comes voluntarily 
 within our jurisdiction, it shall be restored to 
 its owners. This is done upon the footing of the 
 General Law of Nations, and the doctrine is fully 
 recognised by the Act of Congress of 1794. But 
 this Coiirt has never yet been understood to carry 
 its jurisdiction in cases of violation of Neutrality 
 beyond the authority to decree restitution of the 
 specific property, with the costs and expenses during 
 the pending of the judicial proceeding. We are now 
 called upon to give general damages for plunderage ; 
 and if the particular circumstances of any case shall 
 hereafter require it, we may be called upon to inflict 
 exemplary damages to the same extent as in or- 
 dinary cases of marine torts. We entirely disclaim 
 any right to inflict such damages ; and consider it 
 no part of the duty of a Neutral Nation to interpose, 
 upon the mere footing of the Law of Nations, to 
 settle all the rights and wrongs which may grow 
 out of a capture between Belligerents. Strictly 
 speaking, there can be no such thing as a marine 
 tort between enemies. Each has an undoubted Eight 
 to exercise all the Eights of War against the other ; 
 and it cannot be made a matter of judicial complaint, 
 that they are exercised with severity, even if the 
 parties do transcend those rules which the Customary 
 Laws of War justify. At least they have never been 
 held within the cognisance of the Prize tribunals of 
 Neutral Nations. The captors are amenable to their 
 
492 ON THE RIGHTS AND DUTIES 
 
 own Government exclusively for any excess or ir- 
 regularity in their proceedings; and a Neutral Nation 
 ought not otherwise to interfere, than to prevent 
 captors from obtaining any unjust advantage by a 
 violation of its Neutral jurisdiction. A Neutral Na- 
 tion may indeed inflict pecuniary or other penalties 
 on the parties for such violation, but then it does 
 it professedly in vindication of its own Eights, not 
 by way of compensation to the captured. When 
 called upon by either of the Belligerents to act in 
 such cases, aU that justice seems to require is, that 
 the Neutral Nation shall fairly execute its own laws, 
 and give no asylum to the property unjustly cap- 
 txu-ed. It is bound therefore to restore the property, 
 if found within its own ports ; but beyond this it is 
 not obliged to interpose between the Belligerents. 
 •If indeed it were otherwise, there would be no end 
 of the difficulties and embarrassments of Neutral 
 Prize tribunals. They would be compelled to decide 
 in every variety of shape upon marine trespasses in 
 rem and in personam between Belligerents, without 
 possessing adequate means of ascertaining the real 
 facts, or of compelling the attendance of witnesses, 
 and thus they would draw within their jurisdiction 
 almost every incident of Prize. Such a course of 
 things would necessarily create irritations and ani- 
 mosities, and very soon embark Neutral Nations in 
 all the controversies and hostilities of the conflicting 
 parties. Considerations of policy came therefore in 
 aid of what we consider the Law of Nations on the 
 subject." 
 A Neutral § 2^6. The Court of a Neutral PoM'er, in decreeing 
 daim'a™*'^ restitution of property which has been captured by 
 vessel cap- a Belligerent in violation of its Territory, when such 
 
 tured m *^ . . 
 
 yioiatiou of property has been brought by the Belligerent infra 
 ioij.heiove JpfCBsidia of the Neutrat Power, performs a duty in 
 
OF NEUTRAL POWERS. 493 
 
 which all Belligerents have an equal interest, and a Beiiifre- 
 which the Court of the- Captor is itself bound to dis- cTurt."'' 
 charge, if the property should be brought infra 
 prcesidia of the Belligerent Power, under whose Com- 
 mission the capture has been effected. It is also 
 the privilege of the Neutral Power, within whose 
 Territory a vessel has been captured by a Belligerent 
 cruiser, if the vessel should be carried into a port 
 of the Captor's country, to pursue the vessel in the 
 Courts of the Captor, and to demand its restitution, 
 on the ground that its seizure was a trespass upon 
 its Neutrality. It is not however competent for the 
 owner of a vessel to raise in the Court of a Belh- 
 gerent Captor the objection, that the capture of the 
 vessel is invalid by reason of its having been 
 effected in violation of the Territory of a Neutral 
 Power. Further, if in the absence of any sugges- 
 tion from the Government of the Neutral Nation, 
 whose Territory may have been violated, a vessel 
 shall have been condemned in a competent Court 
 of Prize jurisdiction, as good Prize, and . sold to 
 a third party under a decree of the Court, the 
 purchaser will have a good title everywhere to 
 the vessel, and may successfully resist any sub- 
 sequent claim of the former owner, if the vessel 
 should be found within the jurisdiction of the 
 Neutral Nation, whose Territory may have been 
 violated by the act of capture. The case of the 
 Fanny*^ does not conflict with this view of the 
 law, for in that case the Supreme Court of the 
 United States, sitting as a Neutral Admiralty Court 
 and decreeing restitution of property captured in 
 breach of the Neutrality of the United States, held 
 that there had been no condemnation of the pro- 
 
 « 9 Wheaton, p. 658. 
 
494 ON THE EIGHTS AND DUTIES 
 
 perty as Prize by a Competent Court ; and that 
 even if there had been a hond fide purchase of the 
 goods, a tortious possessor of the property, to which 
 he had no title at all, could not transfer a title to 
 his v^dee. There may however be an exception to 
 the rule, that the decree of a competent Court of 
 Prize founds a valid title to a ship, which cannot be 
 called in question in any other Court. If the owner 
 of the Belligerent vessel, which has violated the 
 Sovereign Rights of a Neutral Nation in effecting 
 the capture of an enemy's vessel, should become the 
 purchaser of such vessel under a decree of sale made 
 at his own prayer before a Prize Tribunal of his 
 own country, and should subsequently bring the 
 vessel within the territorial jurisdiction of the Power 
 whose Neutrality was violated by its capture, the 
 Courts of that Power, finding the captured property 
 in the hands of the offender, will disregard the 
 circuit of changes through which it may have 
 passed, and will not allow him to set up a right 
 springing out of his own wrong. Such indeed is 
 the purport of a judgment of the Supreme Court 
 of the United States in the case of the Arrogante 
 Barcelonas*®. " In the hands of a third person," 
 Mr. Justice Johnson observes, " a valid sentence of 
 condemnation, properly authenticated, would present 
 a very different view of the subject. The offender's 
 touch here restores the taint, from which the con- 
 demnation may have purified the Prize. Although 
 a purchaser without notice may in many cases hold 
 his purchase free from an interest, with which it was 
 chargeable in the hands of the vendor, yet it cannot 
 leturn into the hands of the vendor without re- 
 viving the original lien. Nor will Courts of Justice 
 
 *° The Arrogante Barcelonas, mentaries on American Law, 
 7 Wheaton, p. 496. Kent's Com- Tom. I. p. 121. 
 
OF NEUTEAL POWERS. 495 
 
 ever yield the locus standi in judicio to the suitor, 
 who is compelled to trace his title through his own 
 criminal acts." 
 
 f 237. A Neutral Court of Admiralty has no Neutral 
 jurisdiction to decree restitution of a vessel which „°t^^^g^° 
 has been seized bv prisoners on board, or has been V°^? JJ'^i'' 
 
 . " „ . . junsdiction 
 
 rescued by its crew from its captors, and carried in cases of 
 into a Neutral port, when there has been no breach 
 of its Neutrality. A Neutral State -is bound to re- 
 gard all captures made by either Belligerent party 
 as equally just, excepting in such cases where its 
 own Eights of Sovereignty have been invaded. " The 
 Eight of postliminium," saysVatteP^, "does not take 
 effect in Neutral countries, for when a Nation chooses 
 to remain Neuter in war, she is bound to consider 
 it as equally just on both sides, so far as relates 
 to its effects, and consequently, to look upon every 
 capture made by either party as a lawful acquisi- 
 tion. To allow one of the parties, in prejudice to 
 the other, to enjoy in her dominions the right of 
 claiming things taken by the latter, or the right of 
 postliminium, would be declaring in favour of the 
 former, and departing from the line of Neutrality." 
 Thus the British vessel Yere was taken possession of 
 on the High Seas by a number of French prisoners, 
 who had been put on board of her by the British 
 Government for conveyance from Jamaica to Eng- 
 land, and who rose upon the captain as soon as she 
 parted from the Convoy. The vessel was subse- 
 quently carried by the French captors into the port 
 of Georgetown, in South Carolina, where a libel was 
 filed in the District Court, praying for restitution of 
 the vessel under the Law of Nations. The Court held 
 that the captors were entitled to the Right of Asylum, 
 
 " Vattel, L. III. c. 14. § 208. 
 
496 ON THE RIGHTS AND DUTIES 
 
 and that their plea in bar to the jurisdiction of the 
 Court ought to be sustained ^. On the other hand, 
 the United States' merchant- vessel, Lone, commanded 
 by Captain Clarke, in the course of a voyage -to 
 New Orleans, as her port of final destination, entered 
 the port of Matamoras, then under blockade by a 
 French squadron. On her homeward voyage she was 
 captured by a vessel belonging to the blockading 
 squadron. Some days after the capture Captain 
 Clarke rescued his vessel, and continuing his original 
 voyage brought her safe into New Orleans, where it 
 terminated. The Government of France appHed to 
 the Government of the United States for the vessel 
 and cargo to be delivered up, on the ground of the 
 original forfeiture of the vessel for breach of blockade, 
 and the unlawful rescue of it. On this occasion the 
 Attorney- General of the United States reported to 
 the President of the United States, that there was 
 "no instance known to him in which the United 
 States Government had been called upon to inter- 
 pose, and restore to the captors property, that was 
 rescued from them by reason of failure on their own 
 part to make the capture sure. By the well settled 
 principles of International Law it is made the duty 
 of the captors to place an adequate force upon the 
 captured vessel ; and if from a mistaken reliance on 
 the sufiiciency of their force, or misplaced confidence, 
 they fail to do so, the omission is at their peril. 
 No instance is known in which it has been regarded 
 as a ground for asking such interposition as is now 
 sought*." 
 
 The same considerations of Law apply to Neutral 
 vessels, which have been rescued by their crews from 
 
 *^ Reid V. Ship Vere. Bee's General of the United States, 
 Eeports, p. 66. (22 Jan. 1795.) Vol. III. p. 327. (11 Oct. 1838.) 
 ^^ Opinions of the Attorneys- 
 
OP NECTTEAL POWERS, 497 
 
 a Belligerent captor, and have escaped into a port 
 of their own country after capture. The Supreme 
 Court of the United States, in- discussing the point 
 whether the Courts of a Neutral Power were com- 
 petent to entertain the question of Prize or no Prize 
 in regard to a vessel belonging to a Subject of the 
 Neutral Power, which had been brought into its 
 ports by the Belligerent captor, observed, that " the 
 situation of the captured ship of a citizen is precisely 
 the same as of any other captured Neutral, or rather* 
 the obligation to abstain from interference between 
 the captor and the captured becomes greater, inas- 
 much as it is purchased by a concession from a Belli- 
 gerent of no little importance to the peace of the 
 world, and particularly of the Nation of the offending 
 individual, namely, that the Neutral Nation shall not 
 be implicated in his misconduct. The Belligerent 
 contents himself with cutting up the unneutral 
 commerce, and makes no complaint to the Neutral 
 Power, not even where the individual rescues his 
 vessel and escapes into his own port after capture^"." 
 
 ^238. A conflict of jurisdiction may arise between Conflict of 
 a Neutral Admiralty Court and a Belligerent Prize bTtwtenT 
 Court, under circumstances of this nature. Property ^^^^. 
 has been sometimes condemned in the Prize Court of Court and 
 a BeUigerent Power, notwithstanding that it has been rent Prize 
 lying in a Neutral port. In case, however, that such '^°"'^' 
 property should have been captured in violation of 
 the Neutrality of the State, within whose territorial 
 jurisdiction the captured property has been brought, 
 it will be competent for the Admiralty Court of the 
 Neutral State to decree restitution of such property 
 to the owners, who have been dispossessed of it by 
 the wrongful act of the captors. The captors, on the 
 
 ^0 L'Invincible, i Wheaton, p. 256. 
 PART II. K k 
 
498 ON THE RIGHTS AND DUTIES 
 
 other hand, if they have proceeded pari passu 
 in the Prize Court of their own country, may 
 have obtained a decree of condemnation of the pro- 
 perty as good Prize of war, in the absence of any 
 suggestion from the Agent of the Neutral State 
 that its Neutrality has been violated. The possible 
 conflict between two such sentences was considered 
 by the Supreme Court of the United States in the 
 case of property, which had been captured by a Bel- 
 ligerent privateer, after it had augmented its crew 
 in a port of the United States during its cruise. It 
 was asserted before the Neutral Admiralty Court, that 
 the Prize Court of the Belligerent Power had con- 
 demned- the property in controversy pending the suit 
 before the Neutral Court. "Assuming," says Mr. 
 Justice Story, in delivering the opinion of the Su- 
 preme Court, " for the purpose of argument, that 
 the condemnation was regularly made and is duly 
 authenticated, we are of opinion that it cannot oust 
 the jurisdiction of this Court, after it has once regu- 
 larly attached itself to the cause. By the seizure 
 and possession of the property under process of the 
 District Court, the possession of the captors was 
 devested, and the property was emphatically placed 
 in the custody of the law. It has ' been since sold 
 by consent of the parties, under an interlocutory 
 decree of the Court, and the proceeds are deposited 
 in the Registry to abide the final adjudication. Ad- 
 mitting then that property may be condemned whilst 
 lying in a Neutral country, (a doctrine which has been 
 affirmed by this Court,) still it can be so adjudicated 
 only, while the possession of the captor remains ; for 
 if it be devested in fact or by operation of the law, 
 that possession is gone, which can alone sustain the 
 jurisdiction. A fortiori, where the property is al- 
 ready in the custody of a Neutral tribunal, and the 
 
OF NEUTRAL POWERS. 499 
 
 title is in litigation there, no other foreign Court can 
 by its adjudication rightfully take away its juris- 
 diction, or forestall and defeat its judgment. It would 
 be an attempt to exercise a Sovereign authority over 
 the Court having possession of the thing, and to take 
 frorn the Nation the right of vindicating its own 
 justice and Neutrality".''' Lord Stowell, in administer- 
 ing the Prize Law of the English Admiralty Court 
 in the case of a British vessel captured by a Dutch 
 privateer, which had been sold under a sentence of 
 condemnation passed in a Prize Court at the Hague, 
 whilst the vessel itself was lying in a Norwegian 
 port, was most reluctant to recognise the validity 
 of such a sale, on the ground that " the res ipsa, the 
 corpus, was not within the possession of the Dutch 
 Court, and possession founds the jurisdiction ^^," but he 
 deferred to the practice which had been not only ad- 
 mitted, but applied by British Prize Courts, and, in 
 violation of what he believed to be the true principle, 
 felt bound by precedent to recognise the title given 
 by the decree of the Dutch Court. But his objection 
 is well worthy of the consideration of Belligerent 
 Powers, for the decree of condemnation of a Belli- 
 gerent Court must of necessity remain a dead letter, 
 if a Neutral Court should be in possession of the res, 
 and should adjudge it to be restored to the owner 
 on the ground of the capture involving a violation 
 of its Neutrality. 
 
 ^ 239. If a state of War exists between a Govern- Duties of 
 ment de jure and a Government de facto of any Coun- pqwct ^ 
 try, foreign Powers are entitled to remain indifferent ^^ ^^ 
 spectators of the contest, and to allow impartially to 
 both Belligerent parties the free exercise of those 
 
 " The Santissima Trinidad ^^ The Henriok and Maria, 
 
 and the St. Ander, 7 Wheaton, 4 Ch. Eob. p. 56. 
 P- 383. 
 
 K k 2 
 
500 ON THE EIGHTS AKD DUTIES 
 
 Eights, which War gives to Public Enemies against 
 each other, such as the Eight of Search, the Right of 
 Blockade, the Eight of capturing Contraband of War 
 and Enemy's property laden in Neutral vessels ^\ A 
 Government de jure may notify to foreign Powers 
 that there is an Insurrection against it, whereby its 
 Laws within its Territory are not executed, and that it 
 has deemed it advisable to have recourse to measures 
 of war against the Insurgents by setting on foot a 
 blockade of the ports in their occupation, or other- 
 wise, and by enforcing such blockade pursuant to the 
 Law of Nations. Such a Notification imposes at once 
 upon a foreign Nation the necessity of deciding upon 
 one out of three alternative courses of action. It mav 
 assist the Government dejure, or it may assist the In- 
 surgents, in either of which cases it becomes a party to 
 the War ; or it may remain impartial, still continuing 
 to treat the Grovernment de jure as an independent 
 Power, whilst it treats the Insurgents as a Community 
 entitled to the Rights of War against its adversary. 
 It is obviously impossible for a neutral Power to 
 recognise the character of one party as a Belligerent, 
 without acknowledging the Belligerent character of 
 its adversary. As long as an Insurrection against a 
 Government de jure is confined within the limits of 
 its Territory, foreign Nations are not concerned in 
 it ; but if the contending parties violently assail the 
 lives, vessels, and property of one another on the 
 High Seas, all Nations are necessarily concerned in 
 their quarrel ; for the peace of the High Seas is dis- 
 turbed thereby, which peace can only be lawfully 
 violated by parties, who are exercising BeUigerent 
 Rights. A violation of the peace of the High Seas 
 is either an act of Piracy or an act of War, according 
 
 "' Wheaton's Elements, Part I. c. ii. § 7. 
 
OF NEUTRAL POWERS. 501 
 
 as such act is done with the design of robbery, or 
 with the object of prosecuting a Right. Lord Stowell 
 declined to treat a capture made on the High Seas 
 by an Algerine Corsair as an act of Piracy, as it had 
 been effected by a vessel belonging to the Dey of 
 Algiers himself, and the Dey had intervened to gua- 
 ranty the transfer of the captured ship to a Spanish 
 purchaser. From these circumstances he held that 
 the acts of capture and condemnation were not mere 
 private acts of depredation, but must be presumed to 
 have been conducted in accordance with what the 
 Dey conceived to be a Kight under the Mohammedan 
 Law of Nations ^*- If the Government of a State has 
 notified to foreign Powers that it has had recourse to 
 force, which it intends to employ in pursuance of the 
 Law of Nations, it is immaterial against what ad- 
 versary such force is to be directed. Foreign Powers 
 are bound to accept such Notification, as an announce- 
 ment of a state of War between the Government of 
 that State and its adversary ; in other words, they 
 are bound to measure the acts of violence committed 
 on both sides, if they interfere with the peace of the 
 High Seas, by the rules which govern the relations 
 of Nations in. time of War. The Government of a 
 State may notify to foreign States that there is a 
 state of Tumult amongst its Subjects, whereby it has 
 become necessary for it in "the exercise of its Eights 
 of Sovereignty to interdict certain of its ports to 
 foreign merchants, until the tumult is appeased ; and 
 that, if foreigners should enter the interdicted ports, 
 they will be subject to certain penalties under its 
 territorial Law. The Notification of such a fact gives 
 to the Grovernment of such a State no new Eights 
 against foreign Nations ; it is simply an announce- 
 
 " The Helena, 4 Ch. Eob. p. 7. 
 
502 ON THE EIGHTS AND DUTIES 
 
 ment to them that it intends to exercise its Eights 
 of Sovereignty within its own Territory in a certain 
 manner, and they are bound to respect its territorial 
 Independence. But a Notification to Foreign Powers 
 on the part of the Grovernment of a State that it has 
 established a Blockade of certain ports in pursuance 
 of the Law of Nations, and that, if any vessel should 
 attempt to enter or leave any of the blockaded ports, 
 it will be captured, and proceeded against as Prize 
 of War, will warrant the notifying Power in exer- 
 cising the Bights of a Belligerent with respect to all 
 foreign vessels ; and those Bights will not be confined 
 to vessels which have entered its Territory, but may 
 be exercised on the High Seas against vessels which 
 are approaching its Territory. Under such circum- 
 stances a foreign Nation is not concerned with the 
 justice or injustice of the War, and it is not for it, 
 if it wishes to remain Neutral, to judge between the 
 parties to the War, and to grant or refuse more or 
 less to the one or the other, as it thinks its cause 
 to be more or less just or unjust. A Nation there- 
 fore which wishes to be Neutral in such a War, must 
 acquiesce in either party exercising the Eights of a 
 Belligerent in regard to all foreign Nations ; for it 
 cannot concede the exercise of those Bights to one 
 party, and refuse it to the other, without interfering 
 in the War. Thus in the year 1835 the population 
 of Texas rose in insurrection against the Government 
 of Mexico, and a Civil War ensued. The Mexican 
 President, General Santa Anna, thereupon invaded 
 the Territory of Texas, in order to reduce the rebel- 
 lious province to submission, and in the month of 
 April 1836 fought the battle of San Jacinto, in which 
 the army of the Government de jure was defeated, 
 .and the President Santa Anna taken prisoner. In 
 the same month of April the American brig Pocket 
 
OV NEUTRAL POWERS. 503 
 
 sailed from New Orleans for the port of Brassos of 
 St. Jago, within the limits of Texas ; and when ap- 
 proaching her destination was captured by the armed 
 schooner Invincible, sailing under the flag of the re- 
 cently constituted Republic of Texas, on the alleged 
 ground that she was carrying Contraband of War for 
 the use of the Mexican army under the command of 
 General Santa Anna. The officer in command of the 
 United States' naval forces in the Grulf of Mexico, 
 having heard of the capture of the brig, promptly 
 despatched the United States' ship of war Warren 
 to capture the Invincible, and to send her into New 
 Orleans for adjudication as a Pirate. Pursuant to 
 these orders the Invincible was captured on 29 April 
 with the principal part of her crew, and the vessel 
 and men were sent into New Orleans, and dehvered 
 up to the Civil authorities, to be proceeded against as 
 Pirates. The United States Government had how- 
 ever recognised the existence of a Civil War between 
 the people of Texas and the Government of Mexico 
 in November 1835, and the President of the United 
 States had given notice to the Mexican Govern- 
 ment of his intention to maintain the Neutrality of 
 the United States. Under these circumstances, the 
 Attorney General of the United States reported to 
 the President, that when " a Civil War breaks out in 
 a foreign Nation, and part of such Nation erects a 
 distinct and separate Government, and the United 
 States, although they do not acknowledge the Inde- 
 pendence of the new Government, do yet recognise 
 the existence of a Civil War, our Courts have uni- 
 formly regarded each party as a Belligerent Nation 
 in regard to acts done jure belli. Such may be 
 unlawful, when measured by the Law of Nations, or 
 by Treaty-Stipulations; the individuals concerned in 
 them may be treated as trespassers, and the Nation 
 
504 ON THE EIGHTS AND DUTIES 
 
 to which they belong may be held responsible to the 
 United States, but the parties concerned are not 
 treated as Pirates ^^" A similar view of the juridical 
 incidents of a Civil War has been frequently ex- 
 pressed by the Supreme Court of the United States. 
 Mr. Justice Story, in delivering the judgment of 
 that Court in a' case in which the Neutrality of the 
 United States had been violated by a Public armed 
 vessel belonging to the Government of the United 
 Provinces of Eio de la Plata, observed, "There is 
 another objection urged against the admission of this 
 vessel to the privileges and immunities of a Public 
 ship, which may as well be disposed of in connection 
 with the question already considered. It is, that 
 Buenos Ayres has not been acknowledged as a Sove- 
 reign Independent Government by the Executive 
 or Legislature of the United States, and therefore is 
 not entitled to have her ships of War recognised by 
 our Courts as National ships. We have in former 
 cases had to express our opinion on this point. The 
 Government of the United States has recognised the 
 existence of a Civil War between Spain and her Colo- 
 nies, and has avowed her intention to remain Neutral 
 between the parties, and to allow to each the same 
 rights of asylum and hospitahty and intercourse. 
 Each party is therefore deemed by us a Belligerent 
 Nation, having, so far as concerns us, the Sovereign 
 Eights of War, and entitled to be respected in the 
 exercise of those Eights. We cannot interfere to the 
 prejudice of either Belligerent without making our- 
 selves a party to the contest, and departing from the 
 posture of Neutrality. All captures made by each 
 must be considered as having the same validity, and 
 
 "' Opinions of the Attorneys General of the United States, 
 Vol. II. p. 1065. 
 
OF NEUTEAL POWERS. 505 
 
 all the immunities, which may be claimed by Public 
 ships in our ports under the Law of Nations, must 
 be considered as equally the Eight of each, and as 
 such must be recognised by our Courts of Justice, 
 until Congress shall prescribe a different rule. This 
 is the doctrine heretofore asserted by this Court, and 
 we see no reason to depart from it^®." 
 
 § 240. A state of War does not give rise to any Belligerent 
 Eights on the part of BeUigerent Nations in their capture 
 relations with Neutral Nations, which derogate in '"t^^^li', 
 
 _ o able witn 
 
 any way from the Sovereignty of the latter- If ati^einde- 
 Belligerent cruiser captures a merchant vessel on the of NeXai 
 High Seas, it does not violate the Sovereignty of the ^**'°°^- 
 Nation, to whose citizens the merchant vessel may 
 belong as property. The Eights of Sovereignty of 
 every Nation are restricted to the limits of its Terri- 
 tory ; and if in certain matters it exercises any Eight 
 of Sovereignty beyond the limits of its Territory, it 
 does so under the Comity of Nations. Accordingly, 
 if an armed ship of one Nation captures on the High 
 Seas a merchant vessel which belongs to the Subjects 
 of another Nation, there is neither the exercise of any 
 Right of Sovereignty, nor the violation of any Eight 
 of Sovereignty, on either side. If an armed ship is 
 commissioned by a Nation to make War against an- 
 other Nation, it is authorised by the Law of Nations 
 to exercise aU the Eights of War, in other words, the 
 Eights of Natural Justice, applicable to the pro- 
 secution of the particular Eight or the redress of the 
 particular Wrong, which is the object of the War. 
 Amongst the Rights of Natural Justice is the seizure 
 of Enemy's property wherever it may be found, if it 
 
 ^^ The Santissima Trinidad and Palmer, 3 Wheaton, p . 6 1 o. The 
 
 the St.Ander,7Wheaton,p. 337. Estrella, 4 Wheaton, p. 302. 
 
 The Divina Pastora, 4 Wheaton, The Neustra Senora de la Cari- 
 
 p. 52. The United States v. dad, 4 Wheaton, p. 497. 
 
506 ON THE EIGHTS AND DUTIES 
 
 is not under the protection of the Sovereignty of a 
 Neutral Nation. But property ceases to be under 
 the protection of the Sovereignty of a Neutral Nation, 
 when it ceases to be within its Territory, and by 
 parity of reason a Neutral Nation ceases to be re- 
 sponsible for the Neutrality of individuals, when 
 they are beyond the limits of its Sovereignty. In 
 the case where a Belligerent cruiser captures a mer- 
 chant vessel, which is the property of the Subjects 
 of a Neutral Power, for a breach of Neutrality, the 
 capture, is not made as of a vessel of a Neutral mer- 
 chant, but as of one who, quitting his Neutrality, 
 voluntarily arrays himself on the side of the Enemy. 
 On this subject, to use the language of Mr. Justice 
 Johnson, in delivering the judgment of the Supreme 
 Court of the United States, " there appears to be a 
 tacit Convention between the Neutral Power and the 
 Belligerent Power, that, on the one hand, the Neu- 
 tral State shall not be implicated in the misconduct 
 of the individual ; and, on the other, that the of- 
 fender shall be subjected to the ' exercise of Belli- 
 gerent Eight." Accordingly, if a vessel, which is 
 the property of a Subject of a Neutral Power, has 
 been taken on the High Seas by a Belligerent cruiser 
 in an act of unneutral trade, and should be brought 
 by the captor within the jurisdiction of the Neutral 
 Power, the situation of that ship towards the Neutral 
 Power is precisely the same as that of any other 
 captured Neutral, or rather the obligation of the 
 Neutral Power to abstain from interference between 
 the captor and the captured vessel becomes greater, 
 inasmuch as it is purchased by a concession from the 
 Belligerent of no slight importance to the peace of 
 the world, and particularly of the Nation of the 
 offending individual. On the other hand, the Bel- 
 ligerent Power contents itself with suppressing the 
 
1 OP NEUTRAL POWERS. 507 
 
 unneutral commerce, and makes no complaint to the 
 Neutral Power, not even where a merchant vessel, 
 which has been captured by a Belligerent cruiser, 
 has been rescued by its crew on the High Seas, and 
 has escaped in safety within the jurisdiction of the 
 Neutral Power®'." 
 
 °' The Invincible, i Wheaton, p. 255. 
 
 END OF PART II. 
 
APPENDIX. 
 
APPENDIX. 
 
 CONGRESS OF PARIS, 1856. 
 
 Kecoedistg (i) the expression by the Plenipotentiaries of the 
 wish of their respective Governments, that States, before appealing 
 to arms, should have recourse, as far as circumstances may allow, 
 to the good offices of a friendly Power ; (2) a Declaration re- 
 specting Maritime Law ; (3) an agreement that the Powers, which 
 have signed the said Declaration, or which shall have acceded to 
 it, cannot hereafter enter into any arrangement in regard to the 
 application of the right of neutrals in time of war, which does not 
 rest on the four principles, which are the object of the said 
 Declaration. 
 
 Protocole No. 23. — SSance du 14 Avril, 1856. 
 
 PiiisENTS : — Les Pllnipotentiaires de TAutriche : de la 
 France : de la Grande Bretagne : de la Prusse : de la Russie : 
 de la Sardaigne : de la Turquie. 
 
 Le Protocole de la seance prec^dente et son Annexe sont lus 
 et approuves. 
 
 M. le Comte Walewski rappelle qu'il reste au Congres k 
 se prononcer sur le projet de Declaration dont il a indique les 
 bases dans la derniere reunion, et demande aux Plenipoten- 
 tiaires qui s'etaient reserve de prendre les ordres de leurs Cours 
 respectivesj a cet egard, s'ils sont autorises k y donner leur 
 assentiment. 
 
 M. le Comte de Buol declare que TAutriclie se felicite de 
 
512 APPENDIX. 
 
 pouvoir concourir h un Acte dont elle reconnalt la salutaire 
 influence, et qu'il a ete muni des pouvoirs necessaires pour 
 J adherer. 
 
 M. le Comte Orloff s'exprime dans le m^me sens ; il ajoute, 
 toutefois, qu'en adoptant la proposition faite par M. le premier 
 Plenipotentiare de la France, sa Cour ne saurait s'engager 
 a maintenir le principe de I'abolition de la course et k le 
 defendre, centre des Puissances qui ne croiraient pas devoir 
 y acceder. 
 
 MM. les Plenipotentiaires de la Prusse, de la Sardaigne, 
 et de la Turquie, ayant 6galement donne leur assentiment, 
 le Congres adopte le projet de redaction annexe au present 
 Protoeole, et en renvoie la signature h la prochaine re- 
 union. 
 
 M. le Comte de Clarendon, ayant demande la permission de 
 presenter au Congres une proposition qui lui semble devoir 
 etre favorablement accueillie, dit que les calamites de la guerre 
 sont encore trop presentes a tous les esprits pour qu'il n'y 
 ait pas lieu de rechercher tous les moyens qui seraient de 
 nature k en prevenir le retour; qu'il a ete insere a I'Article 
 VII du Traite de Paix une stipulation qui recommande de 
 recourir k Faction mediatrice d'un Etat ami avant d'en ap- 
 peler a la force, en cas de dissentiment entre la Porte et I'une 
 ou plusieurs des autres Puissances signataires. 
 
 M. le premier Plenipotentiaire de la Grande Bretagne pense 
 que cette heureuse innovation pourrait reeevoir une applica- 
 tion plus g^n^rale et devenir ainsi une barri^re opposle a 
 des conflits qui, souvent, n'eelatent que parcequ'il n'est pas 
 toujours possible de s'expliquer et de s'entendre. 
 
 II propose done de se concerter sur une resolution propre 
 a assurer, dans I'avenir, au maintien de la paix cette cbance 
 de dur^e, sans, toutefois, porter atteinte k I'independance des 
 Gouvernements. 
 
 M. le Comte Walewski se declare autorise a appuyer Tidee 
 emise par M. le premier Plenipotentiaire de la Grande Bre- 
 tagne ; il assure que les Plenipotentiaires de la Prance sont 
 tout disposes a s'associer k I'insertion au Protoeole d'un vceu 
 qui, en repondant pleinement aux tendances de notre epoque, 
 n'entraverait, d'aucune fagon, la liberie d'action des Gouverne- 
 ments. 
 
 M. le Comte de Buol n'hesiterait pas k se joindre a I'avis 
 
CONGRESS OP PARIS, 1856. 513, 
 
 des Pl^nipotentiaires de la Grande Bretagne et de la France, 
 si la resolution du Congres doit avoir la forme indiquee par 
 M. le Comte Walewski ; mais il ne saurait prendre, au nom 
 de sa Cour, un engagement absolu e,t de nature a limiter 
 I'independance du Cabinet Autrichien. 
 
 M. le Comte de Clarendon repond que chaque Puissance est 
 et sera seule juge des exigences de son honneur et de ses 
 interets ; qu'il n'entend nullement circonscrire Fautorite des 
 Gouvernements, mais seulement leur fournir I'occasion de ne 
 pas reeourir aux armes, toutes les fois que les dissentiments 
 pourront etre aplanis par d'autres voies. 
 
 M. le Baron de ManteuflFel assure que le Roi, son auguste 
 Maitre, partage completement les idees expos^es par M. le 
 Comte de Clarendon; qu'il se croit done autoris^ a y ad- 
 herer et a leur donner tout le developpement qu'elles com- 
 portent. 
 
 M. le Comte Orloff, tout en reconnaissant la sagesse de 
 la proposition faite au Congres, croit devoir en referer k sa 
 Cour avant d'exprimer I'opinion des Plenipotentiaires de la 
 Russie. 
 
 M. le Comte de Cavour desire savoir, avant de donner son 
 opinion, si dans I'intention de I'auteur de la proposition, le 
 voeu, qui serait exprim^ par le Congres, s'etendrait aux inter- 
 ventions militaires dirigees centre des Gouvernements de fait, 
 et cite, comme exemple, I'intervention de I'Autriche dans le 
 Royaume de Naples en 1821. 
 
 Lord Clarendon repond que le vceu du Congres devrait 
 admettre I'application la plus generale ; il fait remarquer que, 
 si les bons offices d'une autre Puissance avaient determine le 
 Gouvemement Grec k respecter les lois de la neutralite, la 
 Prance et I'Angleterre se seraient tres probablement abstenues 
 de faire occuper le Piree par leurs troupes.- II rappelle les 
 efforts faits par le Cabinet de la Grande Bretagne, en 1823, 
 pour prevenir I'intervention armee qui eut lieu, a cette epoque, 
 en Espagne. 
 
 M. le Comte Walewski ajoute qu'il ne s'agit ni de stipuler 
 un droit, ni de prendre un engagement j que le vceu exprime 
 par le Congres ne saurait, en aucun cas, opposer des limites 
 alaliberte d'appreciation, qu'aueune Puissance ne peut aliener 
 dans les questions qui touchent a sa dignite; qu'il n'y a 
 done aucun inconvenient a generaliser Fidee dont s'est inspire 
 
 PART II. T-i 1 
 
514 APPENDIX. 
 
 M. le Comte de Clarendon, et h lui donner la portee la plus 
 etendue. 
 
 M. le Comte de Buol dit que M. le Comte de Cavour, 
 en parlant, dans une autre seance, de roecupation des Lega- 
 tions par des troupes Autrichiennes, a oublie que d'autres 
 troupes etrangeres ont ^te appelees sur le sol des Etats 
 Romains. Aujourd'hui, en parlant de Inoccupation par I'Au- 
 triclie du Royaume de Naples en i8ai, il oublie que cette 
 occupation a ete le resultat d'une entente entre les Cinq 
 Grandes Puissances reunies au Congres de Laybach. Dans 
 les deux cas, il attribue d I'Autriche la merite d'une initiative 
 et d'une spontaneite que les Plenipotentiaires Autrichiens sont 
 loin de revendiquer pour elle. 
 
 L'intervention, rappelee par le Plenipotentiaire de la Sar- 
 daigne, a eu lieu, ajoute-t-il, k la suite des pourparlers du 
 Congres de Laybach ; elle rentre done dans I'ordre d'idees 
 enonce par Lord Clarendon. Des cas semblables pourraient 
 encore se reproduire, et M. le Comte de Buol n'admet pas 
 qu'une intervention, efiPectuee par suite d'un accord etabli 
 entre les Cinq Grandes Puissances, puisse devenir I'objet des 
 reclamations d'un Etat de second ordre. 
 
 M. le Comte de Buol applaudit h la proposition, telle que 
 Lord Clarendon I'a presentee^ dans un but d'humanite ; mais 
 il ne pourrait y adherer, si on voulait lui donner une trop 
 grande etendue, ou en deduire des consequences favorables 
 aux Gouvernements de fait, et a des doctrines qu'il ne saurait 
 admettre. 
 
 II desire, au reste, que le Congres, au moment m^me de 
 terminer ses travaux, ne se voie pas oblig^ de traiter des 
 questions irritantes et de nature h, troubler la parfaite har- 
 monic, qui n'a eesse de regner parmi les Plenipotentiaires. 
 
 M. le Comte de Cavour declare qu'il est pleinement satisfait 
 des explications qu'il a provoquees, et qu'il donne son ad- 
 hesion h la proposition soumise au Congres. 
 
 Apres quoi MM. les Plenipotentiaires n'h6sitent pas a 
 exprimer, au nom de leurs Gouvernements, le voeu que les 
 Etats entre lesquels s'^leverait un dissentiment serieux, avant 
 d'en appeler aux armes, eussent recours, en tant que les 
 circonstances I'admettraient, aux bons offices d'une Puissance 
 amie. 
 
 MM. les Plenipotentiaires esperent que les Gouvernements 
 
CONGRESS OF PARIS, 1856. 515 
 
 non representes au Congres s'associeront h la pensee qui a 
 inspire le vcbu consign^ au present Protoeole. 
 
 (Suivent les signatures.) 
 
 (Translation.) 
 Protocol No. 23. — Meeting of A^ril 14, 1856. 
 
 Present : — The Plenipotentiaries of Austria ; France ; Great 
 Britain ; Prussia ; Russia ; Sardinia ; Turkey. 
 
 The Protocol of the preceding sitting and its Annex are 
 read and approved. 
 
 Count Walevvski remarks that it remains for the Congress 
 to decide upon the draft of Declaration, of which he indicated 
 the bases in the last meeting, and he demands of the Pleni- 
 potentiaries who had reserved to themselves to take the orders 
 of their respective Courts in regard to this matter, whether 
 they are authorised to assent to it. 
 
 Count Buol declares that Austria is happy to concur in an 
 Act of which she recognises the salutary influence, and that 
 he has been furnished with necessary powers to adhere to 
 it. 
 
 Count OrlofF expresses himself in the same sense ; he adds, 
 however, that in adopting the proposition made by the first 
 Plenipotentiary of France, his Court cannot bind itself to 
 maintain the principle of the abolition of privateering, and 
 to defend it against Powers who might not think proper 
 to accede to it. 
 
 The Plenipotentiaries of Prussia, of Sardinia, and of Turkey, 
 having equally given their assent, the Congress adopts the 
 draft annexed to the present Protocol, and appoints the next 
 meeting for the signature of it. 
 
 • The Earl of Clarendon having demanded permission to lay 
 ' before the Congress a proposition, which it appears to him 
 .'sught to be favourably received, states that the calamities 
 ■'6i yva,T are still too present to every mind not to make it 
 desirable to seek out every expedient calculated to prevent 
 their return; that a stipulation had been inserted in Article 
 VII of the Treaty of Peace, recommending that in case of 
 
 Ll2 
 
516 APPENDIX. 
 
 difference between the Porte and one or more of the other 
 signing Powers, recourse should be had to the mediation of a 
 friendly State before resorting to force. 
 
 The first Plenipotentiary of Great Britain conceives that 
 this happy innovation might receive a more general applica- 
 tion, and thus become a barrier against confl.icts, which 
 frequently only break forth, because it is not always possible 
 to enter into explanation and to come to an understanding. 
 
 He proposes, therefore^ to agree upon a resolution calculated 
 to afford to the maintenance of peace that chance of duration 
 hereafter, without prejudice, however, to the independence of 
 Governments. 
 
 Count Walewski declares himself authorized to support the 
 idea expressed by the first Plenipotentiary of Great Britain; 
 he gives the assurance that the Plenipotentiaries of France 
 are wholly disposed to concur in the insertion in the Protocol 
 of a wish, which, being fully in accordance with the tendencies 
 of our epoch, would not in any way fetter the free action 
 of Governments. 
 
 Count Buol would not hesitate to concur in the opinion 
 of the Plenipotentiaries of Great Britain and of France, if 
 the resolution of the Congress is to have the form indicated 
 by Count Walewski, but he could not take, in the name of 
 his Court, an absolute engagement calculated to limit the 
 independence of the Austrian Cabinet. 
 
 The Earl of Clarendon replies, that each Power is and 
 will be the sole judge of the requirements of its honour 
 and of its interests ; that it is by no means his intention 
 to restrict the authority of the Governments, but only to 
 afford them the opportunity of not having recourse to arms, 
 whenever differences may be adjusted by other means. 
 
 Baron Manteuffel gives the assurance that the King, his 
 august Master, completely shares the ideas set forth by the 
 Earl of Clarendon; that he therefore considers himself au- 
 thorized to adhere to them, and to give them the utmost 
 development which they admit of. 
 
 Count Orloff, while admitting the wisdom of the proposal 
 made to the Congress, considers that he must refer to his 
 Court respecting it, before he expresses the opinion of the 
 Plenipotentiaries of Russia. 
 
 Count Cavour, before he gives his opinion, wishes to know 
 
CON&KESS OP PARIS, 1856. 517 
 
 whether, in the intention of the author of the proposition, 
 the wish to be expressed by the Congress would extend to 
 military interventions directed against de facto Governments, 
 and quotes, as an .instance, the intervention of Austria in 
 the Kingdom of Naples in i8ai. 
 
 Lord Clarendon replies that the wish of the Congress 
 should allow of the most general application ; he observes that 
 if the good offices of another Power had induced the Govern- 
 ment of Greece to respect the laws of neutrality, France 
 and England would very probably have abstained from occu- 
 pying the Pirseus with their troops. He refers to the efforts 
 made by the Cabinet of Great Britain in 1823, in order 
 to prevent the armed intervention, which took place at that 
 time in Spain. 
 
 Count Walewski adds, that there is no question of stipu- 
 lating for a right or of taking an engagement ; that the wish 
 expressed by the Congress cannot in any case oppose limits 
 to the liberty of judgment, of which no Power can divest itself 
 in questions affecting its dignity ; that there is therefore 
 no inconvenience in attaching a general character to the idea 
 entertained by the Earl of Clarendon, and in giving to it 
 the most extended application. 
 
 Count Buol says that Count Cavour, in speaking in another 
 sitting of the occupation of the Legations by Austrian troops, 
 forgot that other foreign troops have been invited into the 
 Roman States. To-day, while speaking of the occupation 
 by Austria of the Kingdom of Naples in rSai, he forgets 
 that that occupation was the result of an understanding 
 between the Five Great Powers assembled at the Congress 
 of Laybach. In both cases, he attributes to Austria the 
 merit of an initiative and of a spontaneous action, which 
 the Austrian Plenipotentiaries are far from claiming for her. 
 
 The intervention, adverted to by the Plenipotentiary of 
 Sardinia, took place, he adds, in consequence of the discussions 
 of the Congress of Laybach ; it therefore comes within the 
 scope of the ideas expressed by Lord Clarendon. Similar 
 cases might perhaps recur, and Count Buol does not allow 
 that an intervention, carried into effect in consequence of 
 an agreement come to between the Five Great Powers, can 
 become the object of the remonstrances of a State of the second 
 order. 
 
518 APPENDIX. 
 
 Count Buol approves the proposition in the shape that 
 Lord Clarendon has presented it, as having a humane object; 
 but he could not assent to it, if it were wished to give to 
 it too great an extension, or to deduce from it consequences 
 favourable to de facto Governments, and to doctrines which 
 he cannot admit. 
 
 He desires besides that the Conference, at the moment 
 of terminating its labours, should not find itself compelled 
 to discuss irritating questions, calculated to disturb the perfect 
 harmony, which has not ceased to prevail among the Pleni- 
 potentiaries. 
 
 Count Cavour declares that he is fully satisfied with the 
 explanations which he has elicited, and he accedes to the 
 proposition submitted to the Congress. 
 
 Whereupon, the Plenipotentiaries do not hesitate to ex- 
 press, in the name of their Governments, the wish that 
 States, between which any serious misunderstanding may arise, 
 should, before appealing to arms, have recourse, as far as 
 circumstances might allow, to the good ofiices of a friendly 
 Power. 
 
 The Plenipotentiaries hope that the Governments not 
 represented at the Congress will unite in the sentiment which 
 has inspired the wish recorded in the present Protocol. 
 
 (The signatures follow.) 
 
 Annexe au Frotocole No. 23. 
 Declaration, 
 
 Les Pl^nipotentiaires qui . ont signe le Traite de Paris du 
 trente Mars, mil huit cent cinquante-six, reunis en Con- 
 ference, — 
 Considerant : 
 
 Que le droit maritime, en temps de guerre, a ^te pendant 
 longtemps I'objet de contestations regrettables j 
 
 Que I'incertitude du droit et des devoirs en pareille 
 matiere, donne lieu, entre les neutres et les bellig6rants, h 
 des divergences d'opinion qui peuvent faire naltre des diffi- 
 cultes serieuses et m6me des conflits ; 
 
DECLARATION OP PARIS, 1856. : 519 
 
 Qu'il y a avantage, par consequent, a etablir une doctrine 
 uniforme sur un point aussi important ; 
 ■ Que les Plenipotentiaires assembles au Congres de Paris ne 
 sauraient mieux repondre aux intentions, dont leurs Gouverne- 
 ments sont animes, qu'en cherchant a introduire dans les 
 rapports internationaux des' principes fixes a cat egard ; 
 
 Dument autoris6s, les susdits Plenipotentiaires sont eonve- 
 nus de se concerter sur les moyens d'atteindre ee but; et 
 etant tombes d'accord ont arrete la Declaration solennelle 
 ci-apres : — 
 
 1. La course est et demeure abolie ; 
 
 2. Le pavilion neutre couvre la marchandise ennemie, a 
 I'exception de la contrebande de guerre ; 
 
 3. La marchandise neutre, h I'exception de la contrebande 
 de guerre, n'est pas saisissable sous pavilion ennemi ; 
 
 4. Les bloeus, pour etre obligatoires, doivent etre eifectifs, 
 c'est-k-dire, maintenus par une force suffisante pour interdire 
 reellement Faeces du littoral de I'ennemi. 
 
 Les Gouvernements des Plenipotentiaires soussign6s s'en- 
 gagent k porter leette Declaration a la connaissance des Etats, 
 qui n'ont pas ete appeles a partieiper au Congres de Paris, et 
 a les inviter a y ace^der. 
 
 Convaincus que les maximes qu'ils viennent de proclamer 
 ne sauraient etre aceueillies qu^avee gratitude par le monde 
 entier, les Plenipotentiaires soussign^s ne doutent pas, que les 
 efforts de leurs Gouvernements pour en genlraliser I'adoption 
 ne soient couronnes d'un plein sucees. 
 
 La presente Declaration n'est et ne sera obligatoire qu'entrc 
 les Puissances, qui y ont, ou qui y auront accede. 
 
 Fait a Paris, le seize Avril, mil huit cent cinquante-six. 
 
 (Signe) 
 
 BUOL-SCHATJENSTEIN. HaTZFELDT. 
 
 HUBNEK. OULOFF. 
 
 Walewski. Betjnnow. 
 
 BOXIEQUENEY. CaVOUK. 
 
 Clarendon. De Villamaeina. 
 
 Cowley. 
 
 Aali. 
 
 Manteupfel. Mehemmed Djemil. 
 
520 APPENDIX. 
 
 (Translation.) 
 
 The Plenipotentiaries who signed the Treaty of Paris of the 
 thirtieth of March, one thousand eight hundred and fifty six, 
 assembled in Conference, — 
 Considering : 
 
 That maritime law, in time of war, has long been the sub- 
 ject of deplorable disputes ; 
 
 That the uncertainty of the law and of the duties in such 
 a matter, gives rise to differences of opinion between neutrals 
 and belligerents, which may occasion serious difficulties and 
 even conflicts ; 
 
 That it is consequently advantageous to establish a uniform 
 doctrine on so important a point ; 
 
 That the Plenipotentiaries assembled in Congress at Paris 
 cannot better respond to the intentions by which their 
 Governments are animated, than by seeking to introduce into 
 international relations fixed principles in this respect ; 
 
 The above-mentioned Plenipotentiaries, being duly author- 
 ized, resolved to concert among themselves as to the means 
 of attaining this object; and, having come to an agreement, 
 have adopted the following solemn Declaration : — 
 
 1. Privateering is, and remains, abolished ; 
 
 2. The neutral flag covers enemy's goods, with the ex- 
 ception of contraband of war ; 
 
 3. Neutral goods, with the exception of contraband of 
 war, are not liable to capture under enemy's flag ; 
 
 4. Blockades, in order to be binding, must be effective, 
 that is to say, maintained by a force sufficient really to pre- 
 vent access to the coast of the enemy. 
 
 The. Governments of the undersigned Plenipotentiaries en- 
 gage to bring the present Declaration to the knowledge of 
 the States, which have not taken part in the Congress of 
 Paris, and to invite them to accede to it. 
 
 Convinced that the maxims which they now proclaim can- 
 not but be received with gratitude by the whole world, the 
 undersigned Plenipotentiaries doubt not, that the efibrts of 
 their Governments to obtain the general adoption thereof will 
 be crowned with full success. 
 
 The present Declaration is not and shall not be binding, except 
 between those Powers who have acceded, or shall accede, to it. 
 
DECLARATION OF PARIS, 1856. 
 
 521 
 
 Done at Paris, the sixteenth of April, one thousand eight 
 hundred and fifty-six. 
 
 (Signed) 
 
 B UOL- S CHAUENSTEIN . 
 HuBNEE. 
 
 Walewski. 
 
 bouequeney. 
 
 Clarendon. 
 
 Cowley. 
 
 Manteoefel. 
 
 Hatzfeldt. 
 
 Orloff. 
 
 Betjnnow. 
 
 Cavour. 
 
 De Villamaeina. 
 
 Aali. 
 
 Mehemmed Djemil. 
 
 Protocole No. 24. — Seance du 16 Avril, 1856. 
 
 Presents : — Les Plenipotentiaires de FAutriche ; de la 
 France ; de la Grande Bretagne ; de la Prusse ; de la Russie ; 
 de la Sardaigne ; de la Turquie. 
 
 Le Protocole de la precedente seance est lu et approuve. 
 
 M. le Comte Orloff annonce qu'il est en mesure, en vertu 
 des instructions de sa Cour, d'adherer definitivement au Yceu 
 consigne a I'avant dernier paragraphe du Protocole No. 23. 
 
 II est donne lecture du projet de Declaration annexe au 
 Protocole de la derniere reunion, apres quoi, et ainsi quails 
 I'avaient decide, MM. les Plenipotentiaires precedent k la 
 signature de cet Acte. 
 
 Sur la proposition de M. le Comte Walewski, et reconnais- 
 sant qu'il est de I'int^ret eommun de maintenir I'indivisibilite 
 des quatre principes mentionnes a la Declaration signee en ce 
 jour, MM. les Plenipotentiaires conviennent que les Puis- 
 sances, qui I'auront signee, ou qui y auront accede, ne pourront 
 entrer a I'avenir, sur I'application du droit des neutres en 
 temps de guerre, en aucun arrangement, qui ne repose a la 
 fois sur les quatre principes objet de la dite Declaration. 
 
 Sur une observation faite par MM. les Plenipotentiaires de 
 la Russie, le Congres reconnait que la presente resolution, 
 ne pouvant avoir d'eflFet retroactif, ne saurait invalider les 
 Conventions anterieures. 
 
 M. le Comte Orloff propose k MM. les Plenipotentiaires 
 d'offrir, avant de se separer, a M. le Comte Walewski tons les 
 remerciements du Congres pour la maniere dont il a conduit 
 
522 APPENDIX. 
 
 ses travaux: "M. le Comte Walewski formait," dit-il, "a 
 I'ouverture de notre premiere reunion, le voeu de voir nos 
 deliberations aboutir a une beureuse issue ; ce voeu se trouve 
 realise, et assurement I'esprit de conciliation avec lequel notre 
 President a dirige nos discussions, a exerce une influence que 
 nous ne . saurions trop reconnaitre, et je suis convaincu de 
 repondre aux sentiments de tous les Plenipotentiaires en 
 priant M. le Comte Walewski d'agr^er I'expression de la 
 gratitude du Congres." 
 
 M. le Comte de Clarendon appuie cette proposition, qui est 
 accueillie avec un empressement unanime par tous les Pleni- 
 potentiaires, lesquels decident d'en faire une mention speciale 
 au Protocole. 
 
 M. le Comte Walewski repond qu'il est extremement 
 sensible au temoignage bienveillant dont il vient d'etre 
 I'objet ; et de son cote, il s'empresse d'exprimer a MM. les 
 Plenipotentiaires sa reconnaissance pour I'indulgence dont il 
 n'a cesse de recueillir les preuves pendant la duree des Con- 
 ferences. II se felicite avec eux d'avoir si heureusement et si 
 completement atteint le but propose k leurs efforts. 
 
 Le present Protocole est lu et approuve. 
 
 (Suivent les signatures.) 
 
 (Translation.) 
 Protocol No. 24. — Sitting of April 16, 1856. 
 
 Present: — The Plenipotentiaries of Austria; France; 
 Great Britain ; Prussia ; Russia ; Sardinia ; Turkey. 
 
 The Protocol of the preceding sitting is read and approved. 
 
 Count Orloff announces that he is prepared, in virtue of 
 instructions from his Court, to adhere definitively to the wish 
 recorded in the last paragraph but one of the Protocol 
 No. 23. 
 
 The draft of Declaration annexed to the Protocol of the 
 last meeting is read; whereupon, and as they had deter- 
 mined, the Plenipotentiaries proceed to the signature of that 
 Act. 
 
 On the proposition of Count Walewski, and recognising 
 
DECLARATION OF PARIS, 1856. 523 
 
 that It is for the general interest to maintain the indivisi- 
 bility of the four principles mentioned in the Declaration 
 signed this day, the Plenipotentiaries agree that the Powers 
 which shall have signed it, or which shall have acceded to it, 
 cannot hereafter enter into any arrangement in regard to the 
 application of the right of neutrals in time of war, which does 
 not at the same time rest on the four principles which are the 
 object of the said Declaration. 
 
 Upon an observation made by the Plenipotentiaries of 
 Russia, the Congress admits that as the present resolution 
 cannot have any retroactive effect, it cannot invalidate ante- 
 cedent Conventions. 
 
 Count Orloff proposes to the Plenipotentiaries to offer to 
 Count Walewski, before they separate, the thanks of the 
 Congress for the manner in which he has guided its labours. 
 "Count Walewski," he says, "at the opening of our first 
 meeting expressed the wish to see our deliberations result 
 in a happy issue; this wish is realized, and assuredly the 
 spirit of conciliation, with which our President has directed 
 our discussions, has exercised an influence for which we cannot 
 be too grateful ; and I am convinced that I act in accordance 
 with the sentiments of all the Plenipotentiaries in requesting 
 Count Walewski to accept the expression of the gratitude 
 of the Congress." 
 
 The Earl of Clarendon supports this proposition, which is 
 accepted with prompt unanimity by all the Plenipotentiaries, 
 who determine to make a special mention of it in the 
 Protocol. 
 
 Count Walewski replies that he is extremely sensible of the 
 kind manifestation of which he is now the object, and on his 
 part eagerly expresses to the Plenipotentiaries his gratitude 
 for the indulgence, of which he has not ceased to receive the 
 proofs during the Conferences. He congratulates himself 
 with them on having so happily and so completely attained 
 the object proposed for their exertions. 
 
 The present Protocol is read and approved. 
 
 (The signatures follow.) 
 
 Note.— All the proceedings of the Congress of Paris and the 
 -treaties consequent thereon are printed in Martens, Nouveau Ee- 
 cueil Gin6ra\ des Trait^s. Tom. XV. p. 700-794^ 
 
524 APPENDIX. 
 
 CONVENTION OF GENEVA, 1864. 
 
 Accession of the British Grovernment to the Convention signed 
 at Geneva, August 22, 1864, for the Amelioration of the Condition 
 of the Wounded in Armies in the Field. 
 
 Signed at London, February 18, 1865. 
 
 And Acceptance thereof by the Swiss Confederation in the name 
 of all the Contracting Parties. 
 
 Signed at Seme, March 3, 1865. 
 
 The President and Federal Council of the Swiss Confede- 
 ration having communicated to the Government of Her 
 Majesty the Queen of the United Kingdom of Great Britain 
 and Ireland, a Convention signed at Geneva on the 22nd of 
 August, 1864, between the Svciss Confederation, His Eoyal 
 Highness the Grand Duke of Baden, His Majesty the King 
 of the Belgians, His Majesty the King of Denmark, Her 
 Majesty the Queen of Spain, His Majesty the Emperor of 
 the French, His Royal Highness the Grand Duke of Hesse, 
 His Majesty the King of Italy, His Majesty the King of 
 the Netherlands, His Majesty the King of Portugal and the 
 Algarves, His Majesty the King of Prussia, and His Majesty 
 the King of Wurtemberg, for the amelioration of the con- 
 dition of the wounded in armies in the field, which Conven- 
 tion is word for word as follows : — , 
 
 Convention, 2}om- 1' Amelioration du Sort des Militaires Messes 
 dans les Armies en Campagne. 
 
 La Confederation Suisse; Son Altesse Royale le Grand- 
 Due de Bade; Sa Majeste le Roi des Beiges; Sa Majesty 
 le Roi de Danemark; Sa Majeste la Reine d'Espagne; Sa 
 Majeste I'Empereur des Frangais; Son Altesse Royale le 
 Grand-Due de Hesse ; Sa Majeste le Roi d'ltalie ; Sa Majeste 
 le Roi des Pays-Bas ; Sa Majesty le Roi de Portugal et des 
 
CONVENTION OF GENEVA, 1864. 525 
 
 Algarves ; Sa Majeste le Roi de Prusse ; Sa Majeste le Roi 
 de Wurtemberg, — egalement animes du desir d'adoucir, au- 
 tant qu'il depend d'eux, les maux ins6parables de la guerre, 
 de supprimer les rigueurs inutiles, at d'ameliorer le sort des 
 militaires blesses sur les champs de bataille, ont resolu de 
 conclure une Convention a cet effet, et ont nomme pour leurs 
 Plenipotentiaires, savoir ; — 
 
 La Confederation Suisse, le Sieur Guillaume-Henri Dufour, 
 Grand Officier de I'Ordre Imperial de la Legion d'Honneur, 
 General-en-chef de I'Armee Federale, Membre du Conseil des 
 Etats ; le Sieur Gustave Moynier, President du Comity In- 
 ternational de Secours pour les Militaires bless6s et de la 
 Societe Genevoise d'utilite publique; et le Sieur Samuel 
 Lehmann, Colonel Federal, Medeein- en-chef de I'Armee 
 Federale, Membre du Conseil National ; 
 
 Son Altesse Royale le Grand-Due de Bade, le Sieur Robert 
 Volz, Chevalier de I'Ordre du Lion de Zsehringen, Doeteur 
 €n Medecine, Conseiller Medical k la Direction des Affaires 
 M6dieales ; et le Sieur Adolphe Steiner, Chevalier de I'Ordre 
 du Lion de Zsehringen, Medeein- Major ; 
 
 Sa Majeste le Roi des Beiges, le Sieur Auguste Visschers, 
 Officier de I'Ordre de Leopold, Conseiller au Conseil des 
 Mines ; 
 
 Sa Majeste le Roi de Danemark, le Sieur Charles-Emile 
 Fenger, Commandeur de I'Ordre de Danebrog, decore de la 
 Croix d'Argent du meme Ordre, Grand-Croix de I'Ordre 
 de Leopold de Belgique, &c., &c., Son Conseiller d'Etat ; 
 
 Sa Majeste la Reine d'Espagne, le Sieur Don Jose Heri- 
 berto Garcia de Quevedo, Gentilhomme de Sa Chambre avec 
 exercice. Chevalier Grand-Croix d'Isabelle la Catholique, Com- 
 mandeur numeraire de I'Ordre de Charles III, Chevalier de 
 premiere classe de I'Ordre Royal et Militaire de St. Ferdinand, 
 Officier de la Legion d'Honneur de France, Son Ministre 
 Resident aupres de la Confederation Suisse ; 
 
 Sa Majeste I'Empereur des Fran§ais, le Sieur Georges- 
 Charles Jagerschmidt,' Officier de I'Ordre Imperial de la 
 Legion d'Honneur, Officier de I'Ordre de Leopold de Bel- 
 gique. Chevalier de I'Ordre de I'Aigle Rouge de Prusse de 
 troisieme classe, &c., &c., Sous-Directeur au Ministere des 
 Affaires Etrangeres; le Sieur Henri-Eug6ne-Seguineau de 
 Preval, Chevalier de TOrdre Imperial de la Legion d'Hon- 
 
526 APPENDIX. 
 
 neur, decore de I'Ordre Imperial du Medjidie de quatri^me 
 elasse. Chevalier de I'Ordre des Saints Maurice et Lazare 
 d'Ttalie, &c., &c., Sous-intendant militaire de premiere classe; 
 et le Sieur Martin-Frangois Boudier, OfScier de I'Ordre Im- 
 perial de la Legion d'Honneur, decore de I'Ordre Imperial du 
 Medjidie de quatrieme classe, decore de la medaille de la 
 Yaleur militaire d'ltalie, &c., &c., Medecin principal de 
 deuxieme classe ; 
 
 Son Altesse Royale le Grand-Due de Hesse, le Sieur 
 Charles-Auguste Brodruck, Chevalier de I'Ordre de Philippe 
 le Magnanime, de I'Ordre de St. Michel de Baviere, Offieier 
 de I'Ordre Royal du St. Sauveur, &c., &c., Chef de bataillon 
 d'Etat-Major ; 
 
 Sa Majeste le Roi d^Italie, le Sieur Jean Capello, Chevalier 
 de I'Ordre des Saints Maurice et Lazare, Son Consul- General 
 en Suisse ; et le Sieur Felix Baroffio, Chevalier de I'Ordre des 
 Saints Maurice et Lazare, Medecin de Division ; 
 
 Sa Majeste le Roi des Pays-Bas, le Sieur Bernard-Ortuinus- 
 Theodore- Henri Westenberg, OfEcier de Son Ordre de la 
 Couronne de Chene, Chevalier des Ordres de Charles III 
 d' Espagne, de la Couronne de Prusse, d'Adolphe de Nassau, 
 Docteur en Droit, Son Secretaire de Legation a Francfort ; 
 
 Sa Majeste le Roi de Portugal et des Algarves, le Sieur 
 Jose-Antonio Marques, Chevalier de I'Ordre du Christ, de 
 Notre Dame de la Conception de Villa- Vigosa, de Saint 
 Benoit d'Aviz, de Leopold de Belgique, &c., Docteur en 
 Medecine et Chirurgie, Chirurgien de Brigade, Sous-Chef du 
 Departement deSante au Ministere de la Guerre; 
 
 Sa Majeste le Roi de Prusse, le Sieur Charles-Albert de 
 Kamptz, Chevalier de I'Ordre de I'Aigle Rouge de seconde 
 classe, &c., &c., &c.. Son Envoye Extraordinaire et Ministre 
 Plenipotentiaire pres la Confederation Suisse, Conseiller in- 
 time de Legation ; le Sieur Godefroi-Frlderic-Franpois Loef- 
 fler, Chevalier de I'Ordre de I'Aigle Rouge de troisieme classe, 
 &c., &e., Docteur en Medecine, Medeein-General du Qua- 
 trieme Corps d'Armee ; et le Sieur Georges-Hermann-Jules 
 Ritter, Chevalier de I'Ordre de la Couronne de troisieme 
 classe, &c., &c., Conseiller intime au Ministere de la Guerre; 
 
 Sa Majeste le Roi de Wurtemberg, le Sieur Christophe- 
 Ulric Hahn, Chevalier de I'Ordre des Saints Maurice et 
 Lazare, &cc., Docteur in Philosophie et Theologie, Membre de 
 
CONVENTION OF GENEVA, 1864. 527 
 
 la Direction Centrale et Royale pour les Etablissements de 
 Bienfaisance ; 
 
 Lesquels, apr^s avoir echange leurs pouvoirs, trouves en 
 bonne et du forme, sont convenus des Articles suivants : — 
 
 Article I. 
 
 Les ambulances et les hopitaux militaires seront reconnus 
 neutres, et, comme tels, proteges et respectes par les bellige- 
 rants aussi longtemps, qu'il s'y trouvera des malades ou des 
 blesses. 
 
 La neutralite cesserait, si ces ambulances ou ces hopitaux 
 etaient gardes par une force militaire. 
 
 Article II. 
 Le personnel des h6pitaux et des ambulances, comprenant 
 rintendance, les services de sante, d'administration, de trans- 
 port des blesses, ainsi que les aumoniers, participera au bene- 
 fice de la neutralite lorsqu'il fonctionnera, et tant qu'il restera 
 des blesses a relever ou a secourir. 
 
 Article III. 
 
 Les personnes designees dans I'Article precedent pourront, 
 meme apres I'occupation par I'ennemi, continuer a remplir leurs 
 fonctions dans Fhdpital ou I'ambulance qu'elles desservent, ou 
 se retirer pour rejoindre le corps auquel elles appartiennent. 
 
 Dans ces circon stances, lorsque ces personnes cesseront leurs 
 fonctions, elles seront remises aux avant-postes ennemis, par 
 les soins de I'arm^e occupante. 
 
 Article IV. 
 
 Le materiel des hopitaux militaires demeurant soumis aux 
 lois de la guerre, les personnes attach^es h. ces hopitaux ne' 
 pourront, en se retirant, emporter que les objets, qui sont leur 
 propri^te particuliere. 
 
 Dans les memes circonstances, au eontraire, I'ambulance 
 conservera son materiel. 
 
 Article V. 
 
 Les habitants du pays qui porteront seeours aux blesses 
 seront respectes, et demeureront libres-. Les Generaux des 
 Puissances belligerantes auront pour mission de prevenir les 
 habitants de I'appel fait h. leur humanite, et de la neutralite 
 qui en sera la consequence. 
 
528 APPENDIX. 
 
 Tout blessi recueilli et soigne dans une maison y servira de 
 sauvegarde. L'habitant qui aura recueilli chez lui des blesses 
 sera dispense du logement des troupes, ainsi que d'une partie 
 des contributions de guerre qui seraient imposees, 
 
 Aeticle VI. 
 
 Les militaires blesses ou malades seront reeueillis et soignes, 
 a quelque nation qu'ils appartiendront. 
 
 Xics Commandants en chef auront la facul|;6 de remettre 
 immediatement aux avantpostes ennemis, les militaires blesses 
 pendant le combat, lorsque les circonstances le permettront, et 
 du consentement des deux partis. 
 
 Seront renvoyes dans leurs pays ceux qui, apres guerison, 
 seront reconnus incapables de servir. 
 
 Les autres pourront ^tre egalement renvoyes, a la condition 
 de ne pas reprendre les armes pendant la duree de la guerre. 
 
 Les evacuationsj avec le personnel qui les dirige, seront 
 couvertes par une neutralite absolue. 
 
 Aeticle VII. 
 Un drapeau distinctif et uniforme sera adopte pour les 
 hopitaux, les ambulances, et les evacuations. II devra etre, 
 en toute circonstance, aceompagne du drapeau national. 
 
 Un brassard sera egalement admis pour le personnel neu- 
 tralise, mais la delivrance en sera laissee h I'autorite militaire. 
 Le drapeau et le brassard porteront eroix rouge sur fond 
 blanc. 
 
 Aeticle VIII. 
 
 Les details d'exicution de la presente Convention seront 
 regies par les Commandants-en-chef des armees bellig^rantes, 
 d'apres les instructions de leurs Gouvemements respectifs, et 
 conformement aux principes g6neraux ^oncls dans cette 
 Convention. 
 
 Aeticle IX. 
 
 Les Hautes Puissances Contraetantes sont convenues de 
 communiquer la presente Convention aux Gouvemements, qui 
 n'ont pu envoyer des Plenipotentiaires a la Conference inter- 
 nationale de Geneve, en les invitant h y acceder; le Protocole 
 est a cet effet laissi ouvert. 
 
 Aeticle X. 
 La presente Convention sera ratifi^e, et les ratifications en 
 
CONVENTION 01" GENEVA, 1864. 
 
 529 
 
 seront eehangees k Berne, dans I'espace de quatre mois, ou 
 plus tot si faire se peut. 
 
 En foi de quoi les Plenipotentiaires respectifs I'ont signee, 
 et y ont appose le cachet de leurs armes. 
 
 Fait a Geneve, le vingt-deuxieme jour du mois d'Aout, de 
 I'an mil huit cent soixante-quatre. 
 
 (Signe) 
 
 (L.S.) General G.H.DuPOTJE. (L.S 
 
 (L.S.) G. MoYNiEE. (L.S. 
 
 (L.S.) Db. Lehmaijn. (L.S. 
 
 (L.S.) De. Robert Volz. (L.S. 
 
 (L.S.) Steinek. (L.S. 
 
 (L.S.) ViSSCHEES. (L.S. 
 
 (L.S.) Tengee, (L.S. 
 
 (L.S.) J. Heeiberto Garcia (L.S. 
 
 DE QUEVEDO. (L.S 
 
 (L.S.) Ch. Jagbeschmidt. (L.S 
 (L.S.) S. De Peeyal. 
 
 BOUBIEE. 
 
 Brodexjck. 
 Capello. 
 F. Baeoffio. 
 
 Westenberg. 
 
 Jose Antonio Maeqtjbs. 
 
 De Kamptz. 
 
 LffiPPLEE. 
 E.ITTEE. 
 
 Dr. Hahn. 
 
 (Translation.) 
 
 Convention for the Amelioration of the Condition of Soldiers 
 wounded in Armies in the Field. 
 
 The Swiss Confederation, His Royal Highness the Grand 
 Duke of Baden, His Majesty the King of the Belgians, His 
 Majesty the King of Denmark, Her Majesty the Queen of 
 Spain, His Majesty the Emperor of the French, His Royal 
 Highness the Grand Duke of Hesse, His Majesty the King 
 of Italy, His Majesty the King of the Netherlands, His 
 Majesty the King of Portugal and the Algarves, His Majesty 
 the King of Prussia, His Majesty the King of Wurtemberg, 
 being equally animated by the desire to mitigate, as far as 
 depends upon them, the evils inseparable from war, to sup- 
 press useless severities, and to ameliorate the condition of 
 soldiers wounded on the field of battle, have resolved to con- 
 clude a Convention for that purpose, and have named as their 
 Plenipotentiaries, that is to say : — 
 
 The Swiss Confederation, the Sieur William Henry Dufour, 
 Grand Ofiicer»of the Imperial Order of the Legion of Honour, 
 
 PART II. M m 
 
530 APPEKDIX. 
 
 General-in-chief of the Federal Army, member of the Council 
 of the States ; the Sieur Gustavus Moynier, President of the 
 International Committee of Assistance for wounded Soldiers, 
 and of the Genevese Society of Public Utility ; and the Sieur 
 Samuel Lehmann, a Federal Colonel, Physician-in-chief of the 
 Federal Army, a member of the National Council ; 
 
 His Royal Highness the Grand Duke of Baden, the Sieur 
 Robert Volz, Knight of the Order of the Lion of Zsehringen, 
 Doctor of Medicine, Medical Councillor in the Direction of 
 Medical Affairs ; and the Sieur Adolphus Steiner, Knight of 
 the Order of the Lion of Zaehringen, Physician Major ; 
 
 His Majesty the King of the Belgians, the Sieur Augustus 
 Visschers, OflScer of the Order of Leopold, a member of the 
 Council of Mines ; 
 
 His Majesty the King of Denmark, the Sieur Charles Emi- 
 lius Fenger, Commander of the Order of Danebrog, decorated 
 with the Silver Cross of the same Order, Grand Cross of the 
 Order of Leopold of Belgium, &e., &c., his Councillor of State ; 
 
 Her Majesty the Queen of Spain, the Sieur Don Jose 
 Heriberto Garcia de Quevedo, Actual Gentleman of her 
 Chamber, Knight Grand Cross of Isabella the Catholic, Com- 
 mander of the fixed number of the Order of Charles III, 
 Knight of the first class of the Royal and Military Order of 
 St. Ferdinand, OflScer of the Legion of Honour of France, her 
 Minister Resident to the Swiss Confederation ; 
 
 His Majesty the Emperor of the French, the Sieur George 
 Charles Jagersehmidt, OflBcer of the Imperial Order of the 
 Legion of Honour, Officer of the Order of Leopold of 
 Belgium, Knight of the Order of the Red Eagle of Prussia 
 of the third class, &c., &c., Sub-Director in the Department 
 for Foreign Affairs ; the Sieur Henry Eugene Seguineau de 
 Pr^val, Knight of the Imperial Order of the Legion of 
 Honour, decorated with the Imperial Order of the Medjidie 
 of the fourth class. Knight of the Order of St. Maurice 
 and St. Lazarus of Italy, &c., Military Sub-Intendant of the 
 first class ; and the Sieur Martin Francis Boudier, Officer of 
 the Imperial Order of the Legion of Honour, decorated with 
 the Imperial Order of the Medjidie of the fourth class, deco- 
 rated with the medal for military valour of Italy, &e., &c.. 
 Principal Physician of the second class ; 
 
 His Royal Highness the Grand Duke of Hesse, the Sieur 
 
CONVENTION OF GENEVA, 1864. 531 
 
 Charles Augustus Brodruck, KnigM of the Order of Philip 
 the Magnanimous, of the Order of St. Michael of Bavaria, 
 Officer of the Eoyal Order of the Holy Redeemer, &c., &c.. 
 Commandant of a battalion of the Staff ; 
 
 His Majesty the King of Italy, the Sieur John Capello, 
 Knight of the Order of St. Maurice and St. Lazarus, His 
 Consul-General in Switzerland ; and the Sieur Felix Baroffio, 
 Knight of the Order of St. Maurice and St. Lazarus, Physi- 
 cian of Division ; 
 
 His Majesty the King of the Netherlands, the Sieur 
 Bernard Ortuinus Theodore Henry Westenberg, Officer of 
 His Order of the Oaken Crown, Knight of the Orders of 
 Charles III of Spain, of the Crown of Prussia, of Adolphus 
 of Nassau, Doctor of Laws, His Secretary of Legation at 
 Frankfort ; 
 
 His Majesty the King of Portugal and the Algarves, the 
 Sieur Jose Antonio Marques, Knight of the Order of Christ, 
 of Our Lady of the Conception of Villa- Vigosa, of St. Bene- 
 dict of Aviz, of Leopold of Belgium, &c. Doctor of Medicine 
 and Surgery, Surgeon of Brigade, Sub-Chief of the Depart- 
 ment of Health in the Ministry of War ; 
 
 His Majesty the King of Prussia, the Sieur Charles Albert 
 de Kamptz, Knight of the Order of the Eed Eagle of the 
 second class, &c., &c., &c.. His Envoy Extraordinary and 
 Minister Plenipotentiary to the Swiss Confederation, Privy 
 Councillor of Legation ; the Sieur Godfrey Frederick Francis 
 Loeffler, Knight of the Order of the Red Eagle of the third 
 class, &c., &c.. Doctor of Medicine, Physician-General of the 
 fourth Corps d'Armee ; and the Sieur George Hermann 
 Julius Ritter, Knight of the Order of the Crown of the third 
 class, &c., &c.. Privy Councillor in the Ministry of War ; 
 
 His Majesty the King of Wurtemberg, the Sieur Christo- 
 pher Ulric Hahn, Knight of the Order of St. Maurice and 
 St. Lazarus, &c.. Doctor of Philosophy and Theology, Mem- 
 ber of the Central and Royal Direction for Establishments of 
 Beneficence ; 
 
 Who, after having exchanged their powers, found in good 
 and due form, have agreed upon the following Articles :— 
 
 Aeticle I. 
 
 Ambulances and military hospitals shall be acknowledged 
 M m 2 
 
532 APPENDIX. 
 
 to be neuter, and, as suet, shall be protected and respected by- 
 belligerents so long as any sick or wounded may be therein. 
 
 Such neutrality shall cease if the ambulances or hospitals 
 should be held by a military force. 
 
 Aeticle II. 
 
 Persons employed in hospitals and ambulances, comprising 
 the staff for superintendence, medical service, administration, 
 transport of wounded, as well as chaplains, shall participate 
 in the benefit of neutrality whilst so employed, and so long 
 as there remain any wounded to bring in or to succour. 
 
 Akticlb III. 
 
 The persons designated in the preceding Article may, even 
 after occupation by the enemy, continue to fulfil their duties 
 in the hospital or ambulance which they serve, or may with- 
 draw in order to rejoin the corps to which they belong. 
 
 Under such circumstances, when those persons shall cease 
 from their functions, they shall be delivered by the occupying 
 army to the outposts of the enemy. 
 
 Article IV. 
 
 As the equipment of military hospitals remains subject to 
 the laws of war, persons attached to such hospitals cannot, in 
 withdrawing, carry away any articles but such as are their 
 private property. 
 
 Under the same circumstances an ambulance shall, on the 
 contrary, retain its equipment. 
 
 Article V. 
 
 Inhabitants of the country who may bring help to the 
 wounded shall be respected, and shall remain free. The Gene- 
 rals of the belligerent Powers shall make it their care to in- 
 form the inhabitants of the appeal addressed to their humanity, 
 and of the neutrality which will be the consequence of it. 
 
 Any wounded man entertained and taken care of in a 
 house shall be considered as a protection thereto. Any in- 
 habitant who shall have entertained wounded men in his 
 house shall be exempted from the quartering of troops, as 
 well as from a part of the contributions of war which may be 
 imposed. 
 
CONVENTION OP GENEVA, 1864. 533 
 
 Article VI. 
 
 Wounded or sick soldiers shall be entertained and taken 
 care of, to whatever nation they may belong. 
 
 Commanders-in-chief shall have the power to deliver im- 
 mediately to the outposts of the enemy soldiers who have 
 been wounded in an engagement, when circumstances permit 
 this to be done, and with the consent of both parties. 
 
 Those who are recognised, after their wounds are healed, 
 as incapable of serving, shall be sent back to their country. 
 
 The others may also be sent back, on condition of not 
 again bearing arms during the continuance of the war. 
 
 Evacuations, together with the persons under whose direc- 
 tions they take place, shall be protected by an absolute 
 neutrality. 
 
 Article VII. 
 
 A distinctive and uniform flag shall be adopted for hos- 
 pitals, ambulances, and evacuations. It must, on every occa- 
 sion, be accompanied by the national flag. An arm-badge 
 (irassardj shall also be allowed for individuals neutralized, 
 but the delivery tbereof shall be left to military authority. 
 
 The flag and the arm-badge shall bear a red cross on a 
 white ground. 
 
 Article VIII. 
 
 The details of execution of the present Convention shall be 
 regulated by the Commanders-in-chief of belligerent armies, 
 according to the instructions of their respective Governments, 
 and in conformity with the general principles laid down in 
 this Convention. 
 
 Article IX. 
 
 The High Contracting Powers have agreed to communicate 
 the present Convention to those Governments which have 
 not found it convenient to send Plenipotentiaries to the 
 International Conference at Geneva, with an invitation to 
 accede thereto ; the Protocol is for that purpose left open. 
 
 Article X. 
 * The present Convention shall be ratified, and the ratifica- 
 tions shall be exchanged at Berne in four months, or sooner 
 if possible. 
 
534 APPENDIX. 
 
 In witness whereof the respective Plenipotentiaries have 
 signed the same, and have affixed thereto the seal of their 
 arms. 
 
 Done at Geneva, the twenty-second day of August, one 
 thousand eight hundred and sixty-four. 
 
 (Signed) 
 
 (L.S.) General G.H.DuFOTJE. (L.S.) Botjdiee, 
 
 (L.S.) G. MoymEE. (L.S.) Bkodkuck. 
 
 (L.S.) Dr. Lehmajtn. (L.S.) Capello. 
 
 (L.S.) Dr. Robert Volz. (L.S.) P. Baroffio. 
 
 (L.S.) Steiner. (L.S.) Westenberg. 
 
 (L.S.) VisscHEES. (L.S.) Jose Antonio Marques. 
 
 (L.S.) Fengee. (L.S.) De Kamptz. 
 
 (L.S.) J. Heeiberto Garcia (L.S.) Lcefflee. 
 
 DE QuEVEDO. (L.S.) RiTTEE. 
 
 (L.S.) Ch. Jagerschmidt. (L.S.) Dr. Hahn. 
 (L.S.) S. De Peeval. 
 
 And the Swiss Confederation having, in virtue of Ar- 
 ticle IX of the said Convention, invited the Government of 
 Her Britannic Majesty to accede thereto ; 
 
 The Undersigned, Her Britannic Majesty's Principal Sec- 
 retary of State for. Foreign Affairs, duly authorized for that 
 purpose, hereby declares that the Government of Her Bri- 
 tannic Majesty fully accedes to the Convention aforesaid. 
 
 In witness whereof he has signed the present Act of Ac- 
 cession, and has affixed thereto the seal of his arms. 
 
 Done at London, the eighteenth day of February, in the 
 year of Our Lord one thousand eight hundred and sixty-five. 
 
 (L.S.) RUSSELL. 
 
 ACT OF ACCEPTANCE. 
 
 Le Conseil F^d6ral de la Confederation Suisse : 
 Vu I'Acte signe k Londres le i8 Fevrier, 1865, par lequel 
 son Excellence le Ministre des Affaires Etrangeres de Sa 
 Majest6 la Reine du Royaume Uni de la Grande Bretagne ^t 
 d'Irlande, faisant usage de la faculty reservee k I'Article IX 
 de la Convention Internationale conclu k Geneve le 22 AoAt, 
 
CONVENTION OF GENEVA, 1864. 535 
 
 i864jpour ramflioration du sort des militaires blesses dans 
 les armees en campagnej declare que le Gouvernement de Sa 
 Majeste Britannique adhere enti^rement a eette Convention ; 
 acta d'adh^sion dont la teneur suit : — 
 
 (Here follows the Act of Accession.) 
 
 Declare par les presentes : 
 
 En vertu de la disposition finale du proces-verbal d'eehange 
 des ratifications de la dite Convention, sign6 a Berne le 
 ving^-deux Deeembre, mil huit cent soixante-quatre, accepter 
 cette adhesion tant au nom de la Confederation Suisse qu'en 
 celui des autres hauts Etats Contractants, auxquels en est 
 donne acte par la presente Declaration. 
 
 En foi de quoi les presentes ont etd signees par le Pr6sident 
 et le Chancelier de la Confederation, et munis du sceau du 
 Conseil Federal, a Berne, le 3 Mars, 1865. 
 
 Au nom du Conseil Federal Suisse, 
 
 Le President de la Confederation, 
 
 (L.S.) SCHENK. 
 
 Le Chancelier de la Confederation, 
 
 SCHIESS. 
 
 (Translation.) 
 
 The Federal Council of the Swiss Confederation : 
 Having seen the Act signed at London on the 18th of 
 February, 1865, whereby his Excellency the Minister for 
 Foreign Affairs of Her Majesty the Queen of the United 
 Kingdom of Great Britain and Ireland, in exercise of the 
 power reserved by Article IX of the international Convention 
 concluded at Geneva on the 22nd of August, 1864, for the 
 amelioration of the condition of soldiers wounded in armies in 
 the field, declares that the Government of Her Britannic 
 Majesty fully accedes to that Convention; which Act of 
 Accession is as follows : — 
 
 (Here follows the Act of Accession.) 
 
 Declares by these presents : — 
 
 In virtue of the final stipulation of the proces-verbal of the 
 
536 APPENDIX. 
 
 exchange of the ratifications of the said Convention, signed 
 at Berne on the twenty-second of December, one thousand 
 eight hundred and sixty-four, that the Federal Council ac- 
 cepts such Accession, as well in the name of the Swiss 
 Confederation as in that of the other High Contracting 
 Parties, to whom ofiicial communication thereof is given 
 by the present Declaration. 
 
 In witness whereof these presents have been signed by the 
 President and the Chancellor of the Confederation, and fur- 
 nished with the seal of the Federal Council, at Berne the 3rd 
 of March, 1865. 
 
 In the name of the Swiss Federal Council, 
 
 The President of the Confederation, 
 
 (L.S.) SCHENK. 
 
 The Chancellor of the Confederation, 
 
 SCHIESS. 
 
 Martens, Nouveau, Recueil General des Traites. Tom. 
 XVIII, p. 607. 
 
 Articles additionnels a la Convention de Geneve 
 du 22 aoAt 1864 '> sign^s a Geneve, le 20 Octobre 
 1868 ^ 
 
 Les Gouvernements de I'AUemagne du Nord, de I'Autriche, 
 Bade, la Baviere, la Belgique, le Danemark, la France, la 
 Grande-Bretagne, I'ltalie, les Pays-Bas, Suede et Norv%e, 
 la Suisse, la Turquie, le Wurtemberg, 
 
 d^sirant 6tendre aux armees de mer les avantages de la 
 Convention eonclue k Geneve, le aa aout 1864, pour I'amSiio- 
 ration du sort des militaires blesses dans les armees en 
 campagne, et preciser d'avantage quelquesunes des stipulations 
 de la dite Convention, ont nomme pour leurs Commissaires : 
 
 1. Allemagne du Nord. 
 Le Sieur Henri de Rceder, Lieutenant-General, Envoy6 
 
 ' Ces articles ont iti approuv^s par tous les Etats signataires de la Conven- 
 tion de 1864, k Texception des anciens Etats pontificaux. 
 
CONVENTION OF GENEVA, 1868. 537 
 
 extraordinaire et Ministre pl^nipotentiaire de Sa Majeste le 
 Roi de Prusse et de la Confederation de I'Allemagne du Nord 
 pr^s la Confederation suisse, Chevalier de I'aigle rouge, 2d.e. 
 classe, etc., etc. 
 
 Le Sieur Frederic Lceffler, Medeein general de I'arinee, 
 Professeur de medecine militaire. Chevalier de I'ordre de la 
 Couronne, 2de. classe, crois6 d'epees, etc., etc. 
 
 Le Sieur Henry Kcihler, Capitaine de vaisseau. Chef de 
 section au ministere de la Marine, Chevalier de FOrdre de 
 la Couronne, ^me. classe, etc., etc. 
 
 2. Autriche. 
 
 Le Sieur Jaromir, baron Mundy, Docteur en medecine 
 et chirurgie, Medecin-Major de premiere classe, Commandeur 
 de I'ordre de S. M. I'Empereur Franpois- Joseph d' Autriche, 
 Roi de Hongrie. 
 
 8. Bade. 
 
 Le Sieur Adolphe Steiner, M^decin d'fitat-Major, Chevalier 
 de ire. classe de I'ordre du Lion de Zaehringen, avec feuille 
 de Chene. 
 
 4. Baviere. 
 
 Le Sieur Theodore Dompierre, M^decin principal de ire. 
 classe. Chevalier de I'ordre de St. Michel. 
 
 5. Belgique. 
 
 Le Sieur August Visschers, conseiller au Conseil des mines 
 de Belgique, officier de I'ordre de Leopold. 
 
 6. Danemark. 
 
 Le Sieur John Barthelemy Gaifre Galiffe, Docteur en droit, 
 Consul de S. M. le Roi de Danemark pres la Confederation 
 Suisse, Chevalier de Tordre de Danebrog et de celui des 
 S. S. Maurice et Lazare. 
 
 7. France. 
 
 Le Sieur Auguste Coupvent des Bois, Contre-Amiral, 
 Commandeur de I'ordre imperial de la Legion d'honheur, etc., 
 
 etc. 
 
 Le Sieur Henry Eugene Seguineau de Pr^val, sousmtendant 
 
538 
 
 APPENDIX. 
 
 militaire, de ire. classes ofEcier de I'ordre imperial de la 
 Legion d'honneur, etc., etc. 
 
 8. Griande-Bretagne. 
 
 Le Sieur John Savile Lumley, Envoye extraordinaire et 
 Ministre plenipotentiaire de Sa Majeste Britannique pres la 
 ConfiSderation Suisse. 
 
 Le Sieur Hastings Reginald Yelverton^ Contre-Amiral au 
 service de S. M. Britannique^ Compagnon de Fordre du 
 Bain. 
 
 9. Italic. 
 
 Le Sieur Felix Baroffio, medecin-directeur, Chevalier de 
 I'ordre des S. S. Maurice et Lazare, de I'ordre de la Couronne 
 d'ltalie. 
 
 Le Sieur Paul Cottrau, Capitaine de frigate, Chevalier de 
 I'ordre des S. S. Maurice et Lazare, d^core de la medaille 
 d'argent a la Valeur Militaire. 
 
 10. Pays-Bas. 
 
 Le Sieur Jonkeer Hermann Adrien van Karnebeck, Vice- 
 Amiral, Aide-de-camp en service extraordinaire de S. M. le 
 Roi des Pays-Bas^ decore des ordres militaire et civil et des 
 croix et medailles de 1815, de 1830 Neerlandais et des cam- 
 pagnes de Java, Grand-Croix de I'ordre militaire du Christ 
 et de celui de Tunis, Grand-Officier de I'ordre de Charles III 
 d'Espagne, Commandeur des ordres de St. Anne en diamant 
 de Russie, de Leopold de Belgique et du Faucon de Saxe- 
 Weimar, Chevalier de la Legion d'honneur, decore de la 
 medaille de St. Helene. 
 
 Le Sieur Bernhard Ortuinus Theodore Henri Westenberg, 
 docteur en droit, Conseiller de Legation de S. M. le Roi 
 des Pays-Bas, Commandeur de la Couronne de Chene, Grand 
 Commandeur, de I'ordre de St. Michel de Baviere, Chevalier 
 de Fordre de Charles III d'Espagne, de la Couronne de 
 P];usse, du Danebrog de Danemark et d'Adolphe de Nassau. 
 
 11. Suede et Norvege. 
 
 Le Sieur Ferdinand Nathanael Staaf, Lieutenant Colonel, 
 attache militaire de la Legation de Suede et de Norvege a 
 Paris, Chevalier des ordres royaux de I'Epee de Suede et 
 
CONVENTION OF GENEVA, 1868. 539 
 
 de^ Saint-Olaf de Norvege, officier de I'ordre imperial de la 
 Legion d'honneur, ainsi que de rinstruction publique en 
 France, Chevalier de Fordre imperial de la Couronne de fer 
 d'Autriclie, etc., etc. 
 
 13. Suisse. 
 
 Le Sieur Guillaume Henri Dufour, ancien general en chef 
 de I'armee fed6rale, Grand' Croix de la Legion d'honneur ; 
 
 Le Sieur Gustavo Moynier, President du Comite inter- 
 national de secours pour les militaires blesses, officier de 
 I'ordre des S. S. Maurice et Lazare, Chevalier de ire. Classe 
 de^ rOrdre du Lion de Zaehringen, Chevalier des Ordres de 
 I'Etoile polaire et de Notre-Dame de la conception de Villa- 
 Vijosa, etc., etc. ; 
 
 Le Sieur Samuel Lehmann, Colonel federal, m^decin en 
 chef de Tarmee federale, membre du Conseil National. 
 
 13. Turquie. 
 
 Husny EflFendi, Major, attache militaire k TAmbassade 
 de Turquie a Paris, decore de I'ordre imperial du Medjidie 
 de 5naG- classe. 
 
 14. Wurtemberg. 
 
 Le Sieur Christophe Hahn, Doeteur en philosophic et 
 theologie, membre 'de la direction centrale pour les etablisse- 
 ments de bienfaisanee. President du Comite wurtembergeois 
 pour les militaires blesses, Chevalier des Ordres de Frederic et 
 des S. S. Maurice et Lazare. 
 
 Le Sieur Edouard Fichte, Doeteur en medecine, medecin 
 principal de I'armee wurtembergeoise. Chevalier de FOrdre 
 de Frederic et de I'Ordre de la Couronne de Prusse de 3me. 
 classe ; 
 
 Lesquels dAment autoris^s k cet effet, sont convenus, sous 
 reserve d'approbation de leurs Gouvernements, des dispositions 
 suivantes : 
 
 Art. ler. Le personnel designe dans I'artiele deux de la 
 Convention continuera, apres I'occupation par I'ennemi, a 
 donner, dans la mesure des besoins, ses soins aux malades 
 et aux blesses de I'ambulanee ou de I'hopital qu'il dessert. 
 
 Lorsqu'il demandera h, se retirer, le commandant des troupes 
 occupantes fixera le moment de ce depart, qu'il ne pourra 
 
540 APPENDIX. 
 
 toutefois diff^rer que pour une courte duree en cas de n^- 
 cessites militaires. 
 
 Art. 2. Des dispositions devront etre prises par les Puis- 
 sances bellig^rantes pour assurer au personnel neutralis6, 
 tomb^ entre les mains de I'armee ennemie, la jouissance 
 integrale de son traitement. 
 
 Art. 3. Dans les conditions prevues par les articles un et 
 quatre de la Convention, la denomination d'ambulanee s'ap- 
 plique aux li6pitaux de campagne et autres ^tablissements 
 temporaires qui suivent les troupes sur les ctamps de bataille 
 pour J recevoir des malades et des bless6s. 
 
 Art. 4. Conformement k I'esprit de I'article cinq de la 
 Convention et aux reserves mentionn6es au Protocole de 1864, 
 il est expliqu^ que pour la repartition des charges relatives 
 au logement de troupes et aux contributions de guerre, il 
 ne sera tenu compte que dans la mesure de I'equite du zele 
 charitable deploye par les habitants. 
 
 Art. 5- Par extension de I'article six de la Convention, 
 il est stipule que sous la reserve des officiers dont la possession 
 importerait au sort des armes, et dans les limites fix6es 
 par le deuxi^me paragraphe de cet article, les blesses tombes 
 entre les mains de I'ennemi, lors meme qu'ils ne seraient 
 pas reeonnus incapables de servir, devront §tre renvoyes dans 
 leur pays apres leur guerison, ou plus t6t si faire se peut, 
 a la condition toutefois de ne pas reprendrS les armes pendant 
 la duree de la guerre. 
 
 Articles concernant la Marine. 
 
 Art. 6. Les embar cations qui, a leurs risques et perils, 
 pendant et apres le combat, reeueillent ou qui, ayant recueilli 
 des naufrages ou des blesses, les portent a bord d'un navire 
 soit neutre, soit hospitaller, jouiront jusqu'a I'accomplissement 
 de leur mission de la part de neutraHte que les circonstances 
 du comljat et la situation des navires en conflit permettront 
 de leur appliquer. 
 
 L'appreciation de ces circonstances est confiee h, Vhumanit^ 
 de tons les combattants. 
 
 Les naufrages et les blesses ainsi recueillis et sauves ne 
 pourront servir pendant la duree de la guerre. 
 
 Art. 7. Le personnel religieux, medical et hospitalier de 
 
CONVENTION OF GENEVA, 1868. 541 
 
 tout batiment capture, est declare neutre. II emporte, en 
 quittant le navire, les objets et les instruments de chirurgie 
 qui sont sa propriete particuliere. 
 
 Art. 8. Le personnel d^signe dans I'article precedent doit 
 continuer a remplir ses fonctions sur le bfltiment capture, 
 concourir aux evacuations de blesses faites par le vainqueur, 
 puis il doit etre libre de rejoindre son pays, conformement 
 au second paragraphe du premier article additionnel ci- 
 dessus. 
 
 Les stipulations du deuxieme article additionnel ei-dessus 
 sont applicables au traitement de ce personnel. 
 
 Art. g. Les b^timents b6pitaux militaires restent soumis 
 aux lois de la guerre, en ce qui concerhe leur materiel ; ils 
 deviennent la propriety du capteur, mais celui-ci, ne pourra 
 les detourner de leur affection speciale pendant la dur^e de 
 la guerre. 
 
 Art. lO. Tout batiment de commerce, a quelque nation 
 qu'il appartienne, charge exclusivement de blesses et de 
 malades dont il opere I'evacuation, est convert par la iieu- 
 tralite ; mais le fait seul de la visite, notifie sur le journal 
 du bord, par un croiseur ennemi, rend les blesses et les 
 malades incapables de servir pendant la duree de la guerre. 
 Le croiseur aura meme le droit de mettre k bord un com- 
 missaire pour aceompagner le convoi et verifier ainsi la bonne 
 foi de I'operation. 
 
 Si le b&timent de commerce contenait en outre un charge- 
 ment, la neutralite le couvrirait encore pourvu, que ce 
 chargement ne fut pas de nature a etre confisque par le 
 belligerant. 
 
 Les belliglrants conservent le droit d'interdire aux bati- 
 ments neutralises toute communication et toute direction, 
 qu'ils jugeraient nuisibles au secret de leurs operations. 
 
 Dans les cas urgents, des conventions particulieres pourront 
 etre faites entre les commandants en chef pour neutraliser 
 momentanement d'une maniere speciale les navires destines 
 k I'evacuation des blesses et des malades. 
 
 Art. II. Les marins et les militaires embarques, blesses 
 ou malades, a quelque nation qu'ils appartiennent, seront 
 proteges et soignes par les eapteurs. 
 
 Leur repatriement est soumis aux prescriptions de I'article 
 six de la Convention et de .I'article cinq additionnel. 
 
542 APPENDIX. 
 
 Art. 13. Le drapeau distinctif &, joindre au pavilion nar 
 tional pour indiquer un navire ou une embarcation quel- 
 conque qui reclame le benefice de la neutralite, en vertu 
 des principes de cette Conventionj est le pavilion blanc a croix 
 rouge. 
 
 Les belligerants exercent k cet egard toute verification, 
 qu'ils jugent necessaire. 
 
 Les b^timents lidpitaux militaires seront distingues par une 
 peinture ext&ieure blanche avec batterie verte. 
 
 Art. 13. Les navires bospitaliers, equipes aux frais des 
 societes de seeours reconnues par les Gouvernements signa- 
 taires de cette Convention, pourvus de commission emanee du 
 Souverain qui aura donn6 I'autorisation expresse de leur arme- 
 ment, et d'un document de I'autorite maritime competente, 
 stipulant qu'ils ont ete soumis k son eontr61e pendant leur 
 armement et k leur depart final, et qu'ils ^taient alors 
 uniquement appropries au but de leur mission, seront con- 
 sid^res comme neutres ainsi que tout leur personnel, 
 lis seront respectes et proteges par les belligerants. 
 lis se feront reconnaitre en hissant, avec leur pavilion 
 national, le pavilion blanc a croix rouge. La marque dis- 
 tinctive de leur personnel dans I'exercice de ses fonctions sera 
 un brassard aux memos couleurs; leur peinture exterieure sera 
 blanebe avec batterie rouge. 
 
 Ces navires porteront seeours et assistance aux blesses et 
 aux naufrages des belligerants sans distinction de nation-, 
 alite. 
 
 lis ne devront gener en aucune mani^re les mouvements 
 des combattants. 
 
 Pendant et apres le combat, ils agiront k leurs risques et 
 perils. 
 
 Les belligerants auront sur eux le droit de oontrole et 
 de visite ; ils pourront refuser leur concours, leur enjoindre 
 de s'eloigner, et les detenir si la gravite des .circonstances 
 I'exigeait. 
 
 Les blesses et les naufrages recueillis par ces navires ne 
 pourront etre r6clam6s par aucun des combattants, et il 
 leur sera impose de ne pas servir pendant la duree de la 
 guerre. 
 
 Art. 14. Dans les guerres maritimes, toute forte prlsomp- 
 tion, que I'un des belligerants profite du benefice de la neu- 
 
CONVENTION OP GENEVA, 1868. 543 
 
 tralite dans un autre interet que eelui des blesses et des 
 malades, permet a I'autre belligerant, jusqu'^, preuve du -con- 
 traire, de suspendre la Convention h son egard. 
 
 Si cette presomption devient une certitudej la Convention 
 pent mSme lui etre denoncee pour toute la duree de la 
 guerre. 
 
 Art. 15. Le present aete sera dresse en un seul exem- 
 plaire original, qui sera depose aux archives de la Confedera- 
 tion Suisse. 
 
 Une eopie authentique de eet Aete sera d^livree, avee 
 I'invitation d'y adherer, a- chacune des Puissances signataires 
 de la Convention du 2a AoM 1864, ainsi qn'h celles qui y ont 
 suecessivement accM6. 
 
 En foi de quoi les Commissaires soussignes ont dresse le 
 present Projet d'articles additionnels et y ont apposi le cachet 
 de leurs armes. 
 
 Fait a Geneve, le vingtieme jour du mois d'Octobre de I'an 
 mil huit cent soixante-huit. 
 
 Von Roedek. D. Felice Baeofeio. 
 
 F. Loeeler. Paolo Cotteau. 
 
 KOHLEE. H. A. VAN KaENEBBEK. 
 
 De. Mbndy. "Westbnbeeg. 
 
 Steinee. F. N. Staaep. 
 
 De. Dompieeee. G. H. Dtteoue. 
 
 ViSSCHEES. Gr. MOYNIEE. 
 
 J. B. G. Galifeb. De. S. Lehmann. 
 
 A. CoTJPVENT des Bois. Htjsny. 
 
 H. DE Peeval. De. C. Hahn. 
 
 John Savile Lumlby. De. Fichte. 
 H. R. Yelveeton. 
 
 (Translation.) 
 
 Aeticle I. 
 
 The persons designed in Article II of the Convention shall 
 continue after occupation by the enemy to give their services, 
 according to the measure of the necessities, to the sick and 
 the wounded of the ambulance or hospital, which they 
 serve. 
 
544 
 
 APPENDIX. 
 
 When they shall make a demand to withdraw, the com- 
 mander of the occupying forces shall fix the moment of their 
 departure, which he cannot under any circumstances delay, 
 except for a short period in ease of military necessities. 
 
 Aeticle II. 
 
 Dispositions ought to be made by the belligerent Powers 
 to assure to the persons neutralised, who may fall into the 
 hands of the enemy-army, the complete enjoyment of their 
 appointments. 
 
 Akticlb III. 
 
 In the conditions provided for by Articles I and IV of 
 the Convention, the denomination of ambulance applies to 
 country-hospitals and other temporary establishments, which 
 follow the troops on the field of battle to receive there the 
 sick and the wounded. 
 
 Article IV. 
 
 Conformably to the spirit of Article V of the Convention 
 and under the reserves mentioned in the Protocol of 1864, 
 it is explained, that as regards the division of the charges 
 relative to the lodgment of troops and the contributions of 
 war, account will only be taken in an equitable degree of the 
 charitable zeal exhibited by the inhabitants. 
 
 Article V. 
 In extension of Article VI of the Convention, it is stipu- 
 lated that with the reservation of oflBeers, the detention of 
 whom may be of importance to the success of the war, and 
 within the limits fixed by the second paragraph of this article, 
 the wounded who have fallen into the hands of the enemy, 
 although they may not have been recognised as incapable 
 of service, ought to be sent back to their country after their 
 wounds are healed, or sooner if it be possible, on condition 
 always of not resuming their arms during the continuance 
 of the war. 
 
 Articles concerning the Marine. 
 
 Akticle VI. 
 The boats, which at their risk and peril, during and after 
 
CONVENTION OF GENEVA, 1868. 545 
 
 the combat, pick up, or which having picked up the ship- 
 wrecked or the wounded, convey them on board of a neutral 
 or hospital ship, shall enjoy until the completion of their 
 mission such a degree of neutrality as the circumstances of 
 the combat and the situation of the vessels in conflict will 
 allow to be applied to them. 
 
 The appreciation of the circumstances is confided to the 
 humanity of all the combatants. 
 
 The shipwrecked and the wounded persons so picked up 
 and saved cannot serve during the continuance of the war. 
 
 AUTICLE VII. 
 
 Every person employed in the religious, medical or hospital 
 service of any captured vessel is declared neutral. In quitting 
 the vessel, he carries away the articles and the instruments 
 of surgery, which are his private property. 
 
 Article VIII. 
 
 Eveiy person designated in the preceding article ought 
 to continue to fulfill his functions on board of the captured 
 vessel, to assist in the evacuations of the wounded made by 
 the victorious party, after which he ought to be free to rejoin 
 his country, conformably to the second paragraph of the first 
 additional article above-mentioned. 
 
 The stipulations of the second additional article above- 
 mentioned are applicable to the treatment of these persons. 
 
 AUTICLE IX. 
 
 Military hospital-vessels remain subject to the laws of war, 
 in what regards their equipment, they become the property 
 of the captor, but the latter cannot divert them from their 
 special occupation during the continuance of the war. 
 
 Article X. 
 
 Every vessel of commerce, to whatever nation it may be- 
 long, laden exclusively with wounded or sick people, whose 
 evacuation it is eflFecting, has the protection of neutrality, 
 but the fact alone of a visit, notified in her log book by an 
 enemy cruiser, renders the wounded and the sick incapable of 
 serving during the continuance of the war. The cruiser shall 
 even have the right of putting on board a commissioner to 
 
 PART II. N n 
 
546 APPENDIX. 
 
 accompany the convoy and to verify in this manner the good 
 faith of the operation. 
 
 If the vessel of commerce should contain besides a cargo, 
 the neutral character shall still protect it, provided that the 
 cargo be not of a nature to be eoniiscated by the belli- 
 gerent. 
 
 Belligerents retain the right of interdicting to neutralised 
 vessels all communication and all direction, which they shall 
 judge to be prejudicial to the secrecy of their operations. 
 
 In urgent cases, special conventions may be made between 
 the commanders-in-chief to neutralise temporarily in a special 
 manner ships intended for the evacuation of the wounded or 
 of the sick. 
 
 Article XI. 
 
 Mariners and soldiers embarked [in such vessels] wounded 
 or sick, to whatever nation they may belong, shall be pro- 
 tected and taken care of by the captors. 
 
 Their restoration to their country is made subject to the 
 provisions of the sixth article of the Convention and the fifth 
 additional article. 
 
 Article XII. 
 
 The distinctive flag to be joined to the national flag to 
 denote a ship or a boat of any kind, which claims the benefit 
 of neutrality in virtue of the principles of this Convention, 
 is the white flag with a red cross. 
 
 Belligerents exercise in this respect all such verification, 
 as they judge necessary. 
 
 Military hospital-vessels shall be distinguished by white 
 external painting with a green battery. 
 
 Article XIII. 
 
 Hospital ships, equipped at the expense of associations of 
 succour recognised by the governments which have signed 
 this Convention, being provided with a commission issued by 
 the sovereign, who shall have expressly authorised their 
 fitting out, and with a document from a competent maritime 
 authority, certifying that they have been submitted to its 
 control during their fitting out and at their final departure, 
 and that they were then appropriated exclusively to the object 
 
CONVENTION OF GENEVA, 1868. 547 
 
 of their mission, shall be considered as neutral as well as 
 all the persons employed in them. 
 
 They shall be respected and protected by the belligerents. 
 
 They shall make themselves' known by hoisting with their 
 national flag, the white flag with a red cross. The distinctive 
 mark of the persons employed in them during the exercise 
 of their functions shall be an arm-badge of the same colours : 
 their external painting shall be white with a red battery. 
 
 These ships may carry succour and assistance to the 
 wounded and shipwrecked belligerents without distinction 
 of nationality. 
 
 They ought not in any way to embarrass the movements 
 of the combatants. 
 
 During and after the combat, they shall act at their own 
 risk and peril. 
 
 The Belligerents shall have over them the right of control 
 and visit ; they may refuse their assistance, may enjoin them 
 to remove to a distance and may detain them, if the gravity 
 of the circumstances require it. 
 
 The wounded and shipwrecked, picked up by these vessels, 
 cannot be reclaimed by any of the combatants, and there shall 
 be imposed on them the obligation of not again serving 
 during the continuance of the war. 
 
 . Akticle XIV. 
 
 In maritime wars, any strong presumption, that one of the 
 belligerents profits in the benefit of neutrality in another 
 interest than that of the wounded and the sick, allows the 
 other belligerent, until proof of the contrary, to suspend the 
 Convention as regards him. 
 
 If this presumption becomes a certainty, the Convention 
 may be denounced as regards him during the continuance 
 
 of the war. 
 
 AUTICLE XV. 
 
 The present Act shall be drawn up in a single original Act, 
 which shall be deposited in the archives of the Swiss Con- 
 federation. 
 
 An authentic copy of this Act shall be delivered with 
 an invitation to accede thereto to each of the Powers who 
 have signed the Convention of aa August 1864, as likewise 
 to those, who have successively acceded to it. 
 
 N n 2 
 
548 
 
 APPENDIX. 
 
 In faith of which the undersigned Commissioners have 
 drawn up the present project of Additional Articles and have 
 affixed thereto the seal of their arms. 
 
 Done at Geneva the twentieth day of the month of October 
 in the year eighteen hundred and sixty eight. 
 
 (Here follow the signatures.) 
 
 CIECULAIRE du ConseU Fdd^ral Suisse aux 
 Gouvernements signataires de la Convention de 
 Geneve, concernant I'article 9 additionnel du 20 
 Octobre 1868; en date de Berne, le 16 D6cembre 
 1868 \ 
 
 Berne, le i6 Dfoembre 1868. 
 
 Par note du 23 octobre/ 30 novembre dernier) le Conseil 
 federal Suisse a eu I'honneur de donner au Gouvernement . . . 
 connaissance des resultats de la Conference de Geneve, concer- 
 nant I'extension de la Convention pour I'amelioration du sort 
 des militaires blesses. Une communication, que lui a trans- 
 mise ulterieurement le Gouvernement Imperial de France, 
 oblige le Conseil federal k faire a cet egard une ouverture 
 supplementaire. 
 
 Le Gouvernement Imperial desire en premiere ligne qu'il 
 soit apporte une modification k I'article 9 des articles addi- 
 tionnels recemment adoptes sous reserve de ratification et 
 auxquels il declare d'ailleurs etre prSt k adherer. II s'exprime 
 de la maniere suivante sur cette modification : 
 
 " L'article 9 additionnel de ce projet propose de stipuler 
 que les b&timents h6pitaux militaires resteront soumis aux 
 lois de la guerre, en ce qui eoncerne leur materiel, et qu'ils 
 deviendront la propriety du capteur, k la condition toutefois 
 que celui-ci ne pourra les detourner de leur affectation speciale 
 pendant la duree de la guerre. Le Ministre de la Marine 
 de I'Empire a pense que cette disposition s'ecarterait de I'es- 
 prit de la Convention de 1864 en privant dans tous les cas 
 
 ' La proposition du Gouvernement franyais relative d I'article 9 additionnel 
 et contenue dans cette ciruulaire a ft^ acceptcSe par tons lea Etata signataires 
 de la Convention de 1864, h, I'exoeption des anoiens Etata poutificaux. 
 
CONVENTION OF GENEVA, 1868. 549 
 
 les armees navales de la faculte de se faire accompagner par 
 des navires li6pitaux jouissant du benefice de la neutralite. 
 II a, dans ce but, et tout en maintenant la redaction de I'art. 
 9, propose de completer eet article par un paragraphe addi- 
 tionnel ainsi congu : 
 
 Toutefois, les navires Impropres au combat que, pen- 
 dant la pais, les Gouvernements auront officiellement 
 declare ^tre destines k servir d'li6pitaux maritimes flot- 
 tants, jouiront, pendant la guerre, de la neutralite 
 complete au materiel comme au personnel, pourvu que 
 leur armement soit uniquement approprie a leur destina- 
 tion speciale.' " 
 Le Conseil federal estime que I'amendement propose par le 
 Gouvernement frangais constitue eflPectivement une ameliora- 
 tion de I'art. 9 ; il croit done pouvoir le recommander h, I'accep- 
 tation du Gouvernement .... 
 
 Le Gouvernement Imperial declare ensuite qu'il ne con- 
 siderera les articles additionnels comme ayant force et vigueur 
 que quand tous les Etats qui out adhere a la Convention 
 de Geneve les auront adoptes avec I'amendement qu'il pro- 
 pose. II se refere h cet egard aux declarations donnees par 
 les delegues frangais Jl la Conference de Geneve et qu'il con- 
 sidere comme etant conformes aux usages diplomatiques. " II 
 est incontestable, dit-il, que des articles additionnels h, une 
 Convention Internationale ne peuvent etre conclus qu'avec 
 I'assentiment de toutes les Puissances contractantes, soit 
 qu'elles aient signe la Convention principale, ou qu'elles y 
 aient posterieurement adhere.^' 
 
 Bien qu'il puisse concevoir des divergences d'opinion sur ce 
 point, le Conseil federal croit devoir actuellement se borner a 
 porter la declaration du Gouvernement Frangais a la connais- 
 sance du Gouvernement .... en exprimant I'espoir que par 
 des declarations unanimes d'adhesion on evite tout debat 
 ulterieur sur la question soulevee. 
 
 Nous desirons vivement que les Gouvernements europeens, 
 ecartant des scrupules d'une nature toute secondaire, con- 
 tinuent k cooperer tous ensemble a cette ceuvre humanitaire, 
 
 et nous saisissons, etc. 
 
 Ze Conseil Federal etc. 
 
550 APPENDIX. 
 
 NOTE adressee par le Principal Secretaire d'Etat 
 pour les affaires ^trangferes de la Grande-Bretagne k 
 I'Ambassadeur de France k Londres, relativement a 
 I'interprdtation de 1' article lo additionnel k la Con- 
 vention de Geneve; en date de Londres, le 21 
 Janvier 1869. 
 
 Foreign Office, January 21, i86g. 
 
 M. I'Amtassadeur, 
 
 Her Majesty's Government have taken into consideration 
 your Excellency's note of tbe 1,5th ultimo, in which, with 
 reference to the Draft of Articles prepared by the Conference 
 which met at Geneva in the month of October last, and 
 intended as Additional Articles to the Convention of 1864, 
 for the amelioration of the treatment of the wounded in time 
 of war, your Excellency states that the Government of the 
 Emperor is desirous of adding a paragraph, in the terms 
 set forth in your note^ to the 9th of those Articles relating to 
 hospital ships. 
 
 I have the honour to acquaint your' Excellency, that the 
 paragraph in question appears to Her Majesty's Goverimient 
 to be unobjectionable. 
 
 But, before signifying their approval of the Additional 
 Articles, Her Majesty's Government would be glad to as- 
 certain what is the precise interpretation which the Govern- 
 ment of the Emperor proposes to give to the following 
 provision in the loth of those Articles : — " Si le batiment 
 de commerce contenait en outre un chargement, la neutralite 
 le couvrirait encore, pourvu que ce chargement ne filt pas de 
 nature a etre confisque par le belligerant." 
 
 Under the existing practice of nations, if a ship under a 
 cartel has entered the port of an enemy for the purpose of 
 exchanging prisoners, or it may be for the purpose of bring- 
 ing away sick and wounded, the master would be bound to 
 abstain from all traflBc whatever, and any infringement of 
 this rule would work a confiscation of the ship, if captured. 
 Under one interpretation of the passage above recited, the 
 provision would have a limited operation, and its intention 
 
CONVENTION OF GENEVA, 1868. 551 
 
 might be held to be, to exempt vessels employed in " evacua- 
 tions" from capture and confiscation, although the master 
 might have availed himself of the opportunity to bring out 
 cargo, provided the cargo was not contraband of war. The 
 words " la neutralite le couvrirait encore " on this hypothesis 
 would mean, that neutrality would still cover it, that is, the 
 vessel. 
 
 Under another interpretation the passage might be held 
 to give protection to the cargo as well as to the vessel ; and 
 if it should be so intended, then enemy's goods on board an 
 enemy's ship might be privileged from capture as prize, 
 provided only some sick and wounded persons were on board 
 the vessel. With regard to the proviso, Her Majesty's 
 Government apprehend that the words ."pourvu que ce 
 chargement ne fat pas de nature a etre confisqu6 par le bel- 
 ligerant," must be taken to refer to the quality of the goods, 
 as contraband of war or not, and not to their ownership. 
 
 There is another point as regards this Article, which may 
 deserve consideration, namely, under what limitations are 
 " evacuations " of the wounded and sick to be made ? For 
 instance, as regards evacuations made by sea, is it intended in 
 the ease of a blockaded town, that a vessel may come out of 
 the port with sick and wounded, and be privileged from 
 capture ? It might be desirable, in the interests of humanity, 
 that they should be removed ; but under such circumstances 
 their removal would tend to prolong the resistance of the 
 besieged party. 
 
 In offering these observations, I am aware that it is possible 
 that I may not have fully appreciated the use of the term 
 " evacuations." But I presume it to mean the removal of the 
 sick and wounded from temporary or permanent hospitals, at 
 the discretion of either belligerent. 
 
 I request that your Excellency will have the goodness to 
 communicate this note to the Government of the Emperor, 
 and to state that Her Majesty's Government will feel greatly 
 obliged by being made acquainted with their views upon the 
 subject. 
 
 I am, etc. Clarendon. 
 
552 APPENDIX. 
 
 NOTE adressee par I'Ambassadeur de France k 
 Londres au Principal Secretaire d'Etat pour les 
 affaires etrangferes de la Grand e-Bretagne, relative- 
 ment h. I'interprdtation de I'article ib additionnel k 
 la Convention de Glenfeve ; en date de Londres, le 
 26 F^vrier 1869 ^ 
 
 Londres, le 26 Eevrier 1869. 
 
 M, le Comte, 
 
 En m'informant, le 3i Janvier dernier, de I'adhesion que le 
 Gouvemement de la Reine avait donnee aux modifications 
 que M. l^Amiral Rigault de Genouilly a propose d'introduire 
 k TArticle 9 additionnel de la Convention du az aoAt 1864, 
 pour le secours aux blesses militaires, Yotre Excellence m'ex- 
 primait le desir d'obtenir des eclaircissements sur le sens 
 precis que le Gouvernement de I'Empereur entendait attribuer 
 a certaines dispositions de F Article 10 additionnel. 
 
 Je viens de recevoir de mon Gouvernement, efc je m'em- 
 presse de transmettre k votre Excellence, la note explicative 
 ci-jointe. II en resulte que les stipulations de la Convention 
 de Geneve n'ont eu pour objet de modifier sur aucun point les 
 principes generalement admis, en ce qui concerne les droits 
 des belligerants. II demeure done entendu, pour le Gouverne- 
 ment de l''Empereur, que tout navire, porteur de malades ou 
 de blesses, qui aurait a son bord de la contrebande de guerre 
 ou des marchandises ennemies, ne saurait invoquer le benefice 
 de la neutralite. Quant au dernier paragrapbe de 1' Article 10 
 additionnel, il donne seulement a I'assiege la faculte d'entrer 
 en pourparlers avec I'assiegeant, pour I'evacuation d'un port 
 bloqu6 ; c'est-a-dire que le fait de I'entr^e ou de la sortie d'un 
 navire, ayant pour mission speciale de transporter des malades 
 et des blesses, ne pent risulter que d'un accord pr^alable entre 
 les belligerants. 
 
 M. le Marquis de Lavalette, en me cbargeant de faire cette 
 communication h votre Excellence, exprime I'espoir qu'elle 
 
 ' Cette interpretation de I'article lo additionnel du 20 Ootobre 1868 a 4t6 
 approuv^e par tous les fitats signatairee de la Convention de 1864, k I'exception 
 des anciena fitats Pontifioaux. 
 
CONVENTION OP GENEVA, 1868. 553 
 
 s'associera a I'interpretation adoptee par le Gouvernement de 
 TEmpereur. 
 
 Veuillez etc. 
 
 Prince de la Tour d'Auvergne. 
 
 Annexe. 
 
 NOTE sur rinterprgtation de I'article lo additionnel 
 ^ la Convention de Geneve. 
 
 Ledeuxieme paragraphe de I'article lo additionnel est 
 ainsi eongu : 
 
 " Si le Mtiment de commerce contenait en outre un 
 chargement, la neutralite le couvrirait encore (le batiment), 
 pourvu que le chargement ne fM pas de nature a etre con- 
 fisque par le belligerant." 
 
 Les mots " de nature a etre confisque par le belligerant " 
 s'appliquent aussi bien a la nationalite de la marchandise qu'a 
 sa qualite. 
 
 Ainsi, d'apres les dernieres Conventions internationales, les 
 marchandises de nature a etre confisquees par un croiseur 
 sont : 
 
 1. La contrebande de guerre sous tous les pavilions. 
 
 2. La marchandise ennemie sous pavilion ennemi. 
 
 Le croiseur ne doit reconnaitre la neutralite du navire 
 charge de blesses que si aucune partie de son chargement ne 
 peut, en vertu des lois internationales, etre comprise dans 
 Tune ou I'autre de ces deux categories de marchandises. 
 
 La faculte que donne le paragraphe en question de laisser a 
 bord des navires charges de blesses une portion de charge- 
 ment, doit etre consid^r^e comme une facilite pour les affrete- 
 ments, aussi bien qu'un avantage precieux pour les conditions 
 de navigabilite des navires de commerce si defectueuses 
 lorsqu'ils sont uniquement charges de lest ; mais cette faculte 
 ne saurait en rien porter atteinte au droit de confiscation de 
 la cargaison dans les limites fixees par les lois internationales. 
 Tout navire dont le chargement serait sujet k confiscation 
 par le croiseur dans les circonstanees ordinaires n'est done 
 pas susceptible d'etre convert par la neutralite par le seul fait 
 qu'il porte en outre des malades et des blesses. 
 
554 APrENDix. 
 
 Le " navire " et la " eargaison " rentrent alors dans le droit 
 commun de la guerre, lequel n'a €te modifie par la Convention 
 qu'en faveur du batiment exclusivement charge de blesses, ou 
 dont le chargement ne serait sujet h confiscation en aucun 
 cas. Ainsi, par exemplcj le navire de commerce d'un belli- 
 g^rant charge de marchandises neutres en meme temps que 
 de blesses et de malades, est convert par la neutralite. 
 
 Le navire de commerce d'un bellig6rant portant, avec des 
 blesses et des malades, des marchandises ennemies du croiseur 
 ou de la eontrebande de guerre, n'est pas neutre, et le navire 
 ainsi que la eargaison rentrent dans le droit commun de la 
 guerre. 
 
 Un navire neutre portant, avec des blesses et des malades 
 d'un belligerant, de la" eontrebande de guerre, est soumis au 
 droit commun de la guerre. 
 
 Un navire neutre portant des marchandises de toutes na- 
 tionaliteSj mais non eontrebande de guerre, fait participer les 
 blesses et les malades qu'il porte k sa propre nationalite. 
 
 Quant k ce qui concerne la defense expresse faite, d'apres 
 I'usage, au navire porteur " d'un cartel " de se livrer k un 
 commerce quelconque au point d'arrivee, on a pense qu'il n'y 
 avait pas lieu d'j' soumettre specialement les navires charges 
 de blesses, parce que le deuxieme paragraphe de 1' Article lo 
 impose aux belligerants comme aux neutres Texelusion du 
 transport de marchandises, sujettes a confiscation. 
 
 D'ailleurs, si I'un des belligerants abusait de la faculte qui 
 lui est aecordee, et sous le pretexte de transports de blesses 
 neutralisait sous son pavilion une intercourse commerciale 
 importante qui pM influer d'une maniere notoire sur les 
 chances ou stir la duree de la guerre, 1' Article 14 de la Con- 
 vention serait a juste titre invoque par I'autre belligerant. 
 
 Quand au second point de la note du Gouvernement bri- 
 tannique relatif a la faculte de faire sortir d'une ville assiegee 
 et bloquee par mer, d'une maniere effective, sous le couvert 
 de la neutralite, des batiments charges de blesses et de 
 malades, de manidre a prolonger la resistance des assises, la 
 Convention n'autorise point cette faculty. En accordant les 
 bienfaits d'une neutrality, parfois restreinte, aux batiments 
 charges de blesses, elle n'a pu leur donner des droits su- 
 p6rieurs il ceux des autres neutres, qui ne peuvent forcer un 
 blocus effectif sans une autorisation specialc. L'humanit^, 
 
CONVENTION OF GENEVA, 1868. 555 
 
 d'ailleurs, dans un cas semblable, ne perd pas tous ses droits, 
 et si les eirconstances permettent k rassi%eant de se relacher 
 des droits rigoureux du blocus, rassi%6 pent entrer en pour- 
 parlers, ea vertu du quatrieme paragraphe de I'Article lo. 
 
 CIKCULAIEB du Conseil Federal Suisse aux 
 Gouvemements signataires de la Convention de 
 Genfeve, concernant Tarticle 12 additionnel du 20 
 Octobre 1868 ; en date de Berne, le 2 Mai 1870^ 
 
 Berne, le 2 Mai 1870. 
 
 Le Conseil federal Suisse a Fhonneur d'informer le Min- 
 istere des Affaires Etrangeres de . . . . que tous les Etats 
 signataires de la Convention de Geneve du 22 aoAt 1864 
 pour les secours anx blesses militaires ont, a I'exeeption de 
 I'Espagne^ et du St. Siege^ dont les r^ponses ne sont pas 
 encore arrivees a Berne, adhere a I'ensemble des articles 
 additionnels arretes par la Conference de . Geneve, le ao oc- 
 tobre 1868, ainsi qu'a la modification de I'article additionnel 
 
 9 proposee par la France et a 1' interpretation donnee d'un 
 commun accord h I'article additionnel 10 par la France et la 
 Grande-Bretagne. 
 
 Mais en constatant I'accord qui existe entre les Etats con- 
 tractants au sujet de ees diverses propositions, le Conseil 
 federal se voit oblige de soumettre a Son Excellence Monsieur 
 le Ministre des Affaires Etrangeres de . . . une nouvelle pro- 
 position tendant h modifier une des dispositions additionnelles 
 arretees par la Conference de Geneve a la date susindiquee. 
 
 Le 9/ai du mois pass^, le cabinet de St. Petersbourg a, 
 par I'entremise de son Ministre pienipotentiaire pres la Con- 
 federation, attire I'attention du Conseil federal sur ce que 
 
 ' La redaction du second alin^a de I'article 12, proposee par la Eussie, a &t6 
 approuv^e par tous les Etats signataires de la Convention de 1864, k I'exeep- 
 tion de TAUernagne, de la France, de I'ltalie et des anoiens Etats pontificaux. 
 Les Pays-Bas ont propose de conserver la redaction primitive et d'y ajouter la 
 disposition formuMe par le Gouvernement russe." 
 
 ' L'adhesion de I'Espagne a ^te d(5olar<5e par une note en date de Madrid, le 
 
 10 Decenibre 1872. 
 
556 APPENDIX. 
 
 toute la Convention ne eontient aucun article pour pr^venir 
 Tabus du drapeau distinetif de la neutralite, bien que Tarticle 
 additionnel 14 indique ce qu'il y aurait k faire dans le cas 
 d'un pareil abus par I'un des bellig^rants. 
 
 Or, faisant valoir qu'il pent arriver un cas oil I'usage 
 abusif dudit drapeau aurait une influence sur Tissue du com- 
 bat et qu'alors il serait evidemment trop tard d'appliquer les 
 mesures contenues dans I'article additionnel 14, le Ministere 
 Imperial de la Marine de Russie propose de faire remplacer le 
 second alinea de Particle la conju ainsi: "Les belligerants 
 exercent k cet egard tout verification qu'ils jugent neces- 
 saire " — par la redaction suivante : 
 
 "A I'exception des navires hospitaliers qui se dis- 
 tinguent par une peinture exterieure speciale, tout bati- 
 ment de guerre ou de commerce ne peut se servir du 
 pavilion blanc k croix rouge que dans le cas oii il en 
 aurait regu Fautorisation par suite d'une eptente preal- 
 able des belligerants. En I'absence d'une pareille en- 
 tente, le benefice de la neutralite n'est accorde qu'k ceux 
 des navires, dont le pavilion neutre tel qu'il est ^tabli 
 pour les b§,timents hospitallers a ete hisse avant qu'ils ne 
 fussent apergus par I'ennemi." 
 Le Ministere Imperial de la marine exprime la pens^e^ que 
 la modification qu'il propose porte sur un sujet trop serieux 
 pour ne pas meriter de la part des parties contractantes la 
 meme attention qu'elles ont accord^e aux modifications pro- 
 poses par la France et I'Angleterre, et il t^moigne le d^sir 
 que ses observations soient port6es h. la connaissance de qui 
 de droit. 
 
 Conform^ment a ce desir, le Conseil fld6ral a done d^eid^ 
 de soumettre la proposition du Ministere Imperial de Russie 
 a Tapprobation de tous les Etats signataires et il prie Son 
 Excellence Monsieur le Ministre des Affaires fltrangeres de . . . 
 de vouloir bien employer ses bons ofiices pour que Son 
 Gouvernement lui fasse parvenir sa d6claration le plus t6t 
 que faire se pourra. 
 
 En exprimant I'espoir que les bautes parties contractantes, 
 pen6tr6es comme lui du desir de voir I'ceuvre de la Conference 
 de Geneve enfin consacr^e par une entente definitivcj n'hesite- 
 ront pas h acc^der a la demande du Ministere Imperial de la 
 marine de Russie, le Conseil Federal Suisse a I'honneur d'offrir 
 
DECLARATION OP ST. PETERSBURG, 1868. 557 
 
 a Son Excellence Monsieur le Ministre des Affaires Etrangeres 
 de . . . . I'assurance de sa haute consideration. 
 Au nom du Con sail Fdd&al Suisse, 
 
 Le President de la Conf6deration : 
 
 Bubs. 
 
 Le Chancelier de la Confederation : 
 
 Sckiess. 
 
 DECLAEATION relative k 1' interdiction des balles 
 explosibles en temps de guerre; echangde ^ Saint 
 P^tersbourg, le ii Decembre 1868, entre I'Autricbe, 
 la Bavike, la Belgique, le Danemark, la France, la 
 Grande-Bretagne, la Grfece, I'ltalie, les Pays Bas, la 
 Perse, le Portugal, la Prusse et la Confederation de 
 I'AUemagne du Nord, la Eussie, la Su^de et la Nor- 
 wege, la Suisse, la Turquie, et le Wurtemberg. 
 
 Sur la proposition du Cabinet Imperial de Russie, une 
 Commission Militaire Internationale ayant ete reunie a St. 
 Petersbourg, afin d'examiner la convenance d'interdire I'usage 
 de certains projectiles en tems de guerre entre les nations 
 civilisees, et cette Commission ayant fixe d'un commun accord 
 les limites techniques ou les necessit6s de la guerre doivent 
 s'arreter devant les exigences de I'humanite, les Soussignes 
 sont autorises par les ordres de leurs Gouvernements a de- 
 clarer ce qui suit : 
 
 Considerant que les progres de la civilisation doivent avoir 
 pour effet d'attenuer autant que possible les calamites de la 
 guerre ; 
 
 Que le seul but legitime que les Etats doivent se proposer 
 durant la guerre est I'affaiblissement des forces militaires de 
 I'ennemi ; 
 
 Qu'a cet effet, il suffit de mettre hors de combat le plus 
 grand nombre d'hommes possible ; 
 
 Que ce but serait depass6 par I'emploi d'armes qui aggra- 
 
558 APPENDIX. 
 
 veraient inutilement les souffrances des hommes mis hors 
 de combat, ou rendraient leur mort inevitable ; 
 
 Que I'emploi de pareilles armes serait des lors contraire aux 
 lois de Thumanit^ ; 
 
 Les Parties Contraetantes s'engagent a renoncer mutuelle- 
 ment, en cas de guerre entre elles, a I'emploi par leurs troupes 
 de terre ou de mer, de tout projectile d'un poids inferieur 
 a 400 grammes, qui serait ou, explosible ou charge de matieres 
 fulrninantes ou inflammables. 
 
 Elles inviteront tous les EtatSj qui n'ont pas participe par 
 renvoi de Delegues aux deliberations de la Commission 
 Militaire Internationale reunie h St. Petersbourg, a acceder au 
 present engagement. 
 
 Cet engagement n'est obligatoire que pour les Parties Con- 
 traetantes ou Accedantes en cas de guerre entre deux ou 
 plusieurs d'entre elles : il n'est pas applicable vis-a-vis de 
 Parties non-Contractantes ou qui n'auraient pas accede. 
 
 II cesserait egalement d'etre obligatoire du moment ou, 
 dans une guerre entre Parties Contraetantes ou Accedantes, 
 une partie non-Contractante, ou qui n'aurait pas accede, se 
 joindrait a I'un des belligerants. 
 
 Les Parties Contraetantes ou Accedantes se reservent de 
 s'entendre ulterieurement toutes les fois qu'une proposition 
 precise serait formulae en vue des perfectionnements k venir 
 que la science pourrait apporter dans I'armement des troupes, 
 afin de maintenir les principes, qu'elles ont poses et de con- 
 cilier les necessites de la guerre avec les lois de I'humanite. 
 
 Fait k St. Petersbourg, le vingt-neurNovembre mil huit cent 
 
 " ' onze, D^cembre > 
 
 soixante-huit. 
 
 Pour la Grande Bretagne . Andrew Buchanan. 
 „ I'Autricheet laHongrie Vbtseea. 
 
 la Baviere . 
 
 . COMTE DE TaUFFKIRCHEN. 
 
 la Belgique 
 
 . Comte Ekeembault de 
 
 
 DUDZEELE. 
 
 le Danemarck 
 
 . Le Chambellan E. Vind. 
 
 la France . 
 
 . Lb Baron Talleyeand- 
 
 
 Perigoed. 
 
 la Gr^ce 
 
 . Metaxa. 
 
 ritalie 
 
 . Le Marquis di Bella 
 
 
 Caracciolo. 
 
 les Pays Bas 
 
 . Le Baeon Gevees. 
 
DECLARATION OP ST. PETEKSBURG, 1868. 559 
 
 Pour la Perse . . . Mieza Asseduixah Khan. 
 
 „ le Portugal . . Le Vicomte de Rilvas. 
 
 „ la Prusse et la Confedera- 
 tion de I'Allemagne du 
 Nord . . . H. VII. Prince de Reuss. 
 
 „ la Russie . . . Le Prince deGortchacow. 
 
 „ la Suede et la Norwege Le General de Bjornst- 
 
 JERNA. 
 
 „ la Suisse . . . Ad. Glinz. 
 „ la Turquie . . Caratheodory. 
 
 „ le Wurtemberg . . D'Abele. 
 
 (Translation.) 
 Declaration. 
 
 On the proposition of the Imperial Cabinet of Russia, an 
 International Military Commission having assembled at St. 
 Petersburgh in order to examine into the expediency of for- 
 bidding the use of certain projectiles in times of war between 
 civilised nations, and that Commission having by common 
 agreement fixed the technical limits, at which the necessities 
 of war ought to yield to the requirements of humanity, the 
 Undersigned are authorized by the orders of their Govern- 
 ments to declare as follows : — 
 
 Considering that the progress of civilization should have 
 the effect of alleviating as much as possible the calamities 
 of war ; 
 
 That the only legitimate object, which States should en- 
 deavour to accomplish during war, is to weaken the military 
 forces of the enemy ; 
 
 That for this purpose it is sufficient to disable the greatest 
 possible number of men ; 
 
 That this object would be exceeded by the employment of 
 arms, which uselessly aggravate the sufferings of disabled 
 men, or render their death inevitable ; 
 
 That the employment of such arms would, therefore, be 
 contrary to the laws of humanity ; 
 
 The Contracting Parties engage mutually to renounce, in 
 
560 
 
 APPENDIX. 
 
 case of war. among themselves, the employment by their 
 military or naval troops of any projectile of a weight below 
 400 grammes, which is either explosive or charged with 
 fulminating or inflammable substances. 
 
 They will invite all the States which have not taken part 
 in the deliberations of the International Military Commission 
 assembled at St. Petersburgh, by sending Delegates thereto, 
 to accede to the present engagement. 
 
 This engagement is obligatory only upon the Contracting 
 or Acceding Parties thereto, in ease of war between two or 
 more of themselves : it is not applicable with regard to non- 
 Contracting Parties, or Parties who shall not have acceded 
 to it. 
 
 It will also cease to be obligatory from the moment when, 
 in a war between Contracting or acceding Parties, a non- 
 Contracting Party or a non-Acceding Party shall join one 
 of the belligerents. 
 
 The Contracting or Acceding Parties reserve to themselves 
 to come hereafter to an understanding, whenever a precise 
 proposition shall be drawn up in view of future improvements, 
 which science may effect in the armament of troops, in order 
 to maintain the principles which they have established, and to 
 conciliate the necessities of war with the laws of humanity. 
 
 Done at St. Petersburgh, the twenty-ninth of November ojie thou* 
 
 ° ' eleventh of December > """- 
 
 sand eight hundred and sixty-eight. 
 
 For Great Britain . . Akdrew Buchanait. 
 Austria and Hungary . Vetsera. 
 
 Bavaria 
 
 Count Tauffkirchen. 
 
 Belgium 
 
 Count Errembault db 
 
 
 Dudzeele. 
 
 Denmark . 
 
 E. VlND. 
 
 France 
 
 Talleyrand. 
 
 Greece 
 
 S. A. Metaxa. 
 
 Italy . . . . 
 
 Bella Caracciolo. 
 
 Netherlands 
 
 Baron Gevers. 
 
 Persia 
 
 MiRZA ASSEDULLAH KhAN. 
 
 Portugal . 
 
 RlLVAS. 
 
 Prussia and North Ger- 
 
 
 man Confederation . 
 
 H. VII V. Reuss. 
 
 Russia . . . 
 
 Gortchacow. 
 
 Sweden and Norway . 
 
 0. M. Bjornstjerna. 
 
CONFERENCES OP LONDON, 1871. 561 
 
 For Switzerland . . Ad. Glinz. 
 
 , „ Turkey . . . Caeathbodouy. 
 „ Wurtemberg . . C. V. Abelb. 
 
 Martens Eecueil General de Traitds, Tom. XVIII. 
 p. 450. 
 
 PROTOCOLS OF THE CONFEEENCES OF LONDON" 
 of 17 January — 14 March, 187 1, to which is annexed the recogni- 
 tion by the Plenipotentiaries of the Seven Powers, represented at 
 the said Conferences, that it is an essential principle of the Law of 
 Nations that no Power can release itself from the engagements of a 
 Treaty, or modify its stipulations, unless with the assent of the 
 contracting parties by means of an amicable understanding. 
 
 PEOTOCOLS of Conferences held in London re- 
 specting the Treaty of March 30, 1856. 
 
 Protoeole No. i. — SSance du 17 Janvier, 1871. 
 
 Presents : — Pour rAUemagne du Nord— M. le Comte de 
 Bernstorff, &c. ; Pour rAutriche-Hongrie— M. le Comte 
 d'Apponyi, &c.j Pour la Grande Bretagne— M. le Comte 
 Granville, &c.; Pour I'ltalie— M. le Chevalier Ch. Cadorna, 
 &c. ; Pour la Russia— M. le Baron de Brunnow, &c. ; Pour 
 la Turquie — Musurus Pacha, &e. 
 
 MM. les Pl^nipotentiaires de I'AUemagne du Nord, de 
 rAutriche-Hongrie, de la Grande Bretagne, de I'ltalie, de la 
 Russie, et de la Turquie, se sont reunis aujourd'hui en Con- 
 ference au Foreign Office. 
 
 La seance est ouverte par son Excellence Musurus Pacha, 
 qui propose que la Presidence de la Conference soit eonfiee h 
 M le Comte Granville dans les termes suivants :— 
 
 " Messieurs,— Rlunis en Conference pour I'examen d'une 
 question de haute importance, notre premier devoir est de 
 proceder au choix de notre President. Comme vous avez bien 
 voulu me permettre de prendre la parole h cette occasion, j ai 
 I'honneur de vous proposer de confier la Presidence de cette 
 
 PART II. 
 
562 APPENDIX. 
 
 Assemblee k son Excellence le Comte Granville, Principal 
 Secretaire d'Etat de Sa Majeste la Reine pour les AfiFaires 
 Etiangeres, 
 
 " Non seulement c'est un hommage du h I'auguste Souve- 
 raine sous les auspices de qui nous sommes appeles a remplir 
 une importante mission; mais c'est en meme temps un t^- 
 m.oignage de la confiance qu'inspirent h nos Gouvernements-et 
 a nous tous les ^minentes qualites qui rendent le noble Lord 
 si propre k imprimer la meilleure direction aux travaux de la 
 Conference, et la sollicitude eclairee avec laquelle il s'est ap- 
 plique, des le debut de I'incident dont nous aliens nous oc- 
 cuper, a ouvrir la voie a une solution conforme au droit et au 
 voeu general pour la conservation de la paix/' 
 
 Cette proposition ayant ete adoptee a I'unanimite, M. le 
 Comte Granville prend la Presidence, et s'exprime ainsi : — 
 
 " Je m'empresse de remercier I'Ambassadeur de Turquie de 
 la bienveillanee avec laquelle il a formule la proposition que 
 vous, MM. les Plenipotentiaires, avez bien voulu agreer. 
 
 " Je vous propose, MM. les Plenipotentiaires, de confier a 
 M. Stnart le redaction des Protocoles de la Conference." 
 
 Cette proposition ayant ete egalement agreee, M. Stuart 
 est introduit, et MM. les Plenipotentiaires procedent a la 
 verification de leurs pouvoirs respectifs, qui sont trouves en 
 bonne et due forme. 
 
 M. le Comte Granville reprend alors la parole : — 
 
 " Je suis profondement sensible," dit-il, " a Thonneur que 
 vous me faites en m'appelant h presider cette Conference. 
 
 " Au moment de commencer la discussion d'une grande 
 question Europeenne h laquelle la France est fortement inter- 
 ess6e, et pour laquelle elle a fait dans le tems de grands sacri- 
 fices, je ne puis qu'exprimer tous mes regrets, auxquels je suis 
 convaincu, MM. les Plenipotentiaires, que vous vous associez, 
 de ne pas la voir representee aujourd'bui parmi nous. 
 
 " Mais M. Jules Pavre, d^signe comme Plenipotentiaire de 
 la France, ne pouvant se rendre a la reunion d'aujourd'hui, il 
 ne me reste qu'k vous proposer de constater d'un commun 
 accord le vcbu que le Plenipotentiaire Fran9ais adbere even- 
 tuellement a toute decision k prendre dans cette seance, et 
 qu'il me soit permis de communiquer confidentiellement k 
 M. le Charge d'Afiaires de France les details de nos travaux 
 d'aujourd'hui." 
 
CONFERENCES OF LONDON, 1871. 563 
 
 MM. les Plenipotentiaires ayant declare leur parfait accord 
 sur ees points, M. le Comte Granville continue : — 
 
 " La Conference a ete acceptee par toutes les Puissances co- 
 signataires du Traite de 1856, dans le but d'examiner sans 
 aucun parti pris, et de discuter avec une parfaite liberte, les 
 propositions que la Russia desire nous faire par rapport a la 
 revision qu'elle demande des stipulations du dit Traite, quant 
 a la neutralisation de la Mer Noire. 
 
 " Cette unanimite fournit une preuve eclatante que les 
 Puissances reconnaissent que c'est un principe essentiel du 
 droit des gens qu'aucune d'elles ne pent se d6lier des engage- 
 ments d^un Traite, ni en modifier les stipulations, qu'a la 
 suite de Fassentiment des Parties Contractantes, au moyen 
 d'une entente amieale. 
 
 " Ce principe important me parait recevoir une adhesion 
 generale, et j'ai I'lionneur de vous proposer, MM. les Plenipo- 
 tentiaires, de signer un Protocole ad hoc." 
 
 Le Protocole dont il est question est alors presente eI la 
 Conference et signe par tous les Plenipotentiaires, qui de- 
 eident en outre qu'il sera annexe au Protocole general de la 
 stance actuelle, et que des son arriv^e M. le Plenipotentiaire 
 de France sera prie d'y ajouter sa signature. 
 
 Apres avoir exprime combien il partage les regrets de M. 
 le President de ne pas voir la Prance representee dans la 
 reunion d'aujourd'hui, M. le Plenipotentiaire de Turquie de- 
 clare qu'il a adhere, au nom de son Gouvernement au principe 
 formule par M. le President avec d'autant plus d^empresse- 
 ment que la Sublime Porte en a de tout temps reconnu le 
 caractere sacre, et qu'elle y a constamment conform^ sa 
 politique dans ses relations avec les nations etrangeres. 
 
 M. le Plenipotentiaire de I'Autriche-Hongrie dit que le 
 Gouvernement Imperial et Royal n'a pas hesite k accepter la 
 reunion de cette Conference, appel^e a d'onner un nouveau 
 gage a la foi des Traites et aux principes ainsi qu'aux interets 
 qu'ils sont destines a sauvegarder. 
 
 II ajoute que c'est dans un esprit de conciliation et d'appre- 
 eiation Equitable que le Gouvernement de Sa Majeste Imperiale 
 et Royale Apostolique I'a charg6 d'entrer dans I'examen des 
 questions qai vont occuper la Conference. Ces sentiments 
 sont d'autant plus conformes aux intentions du Gouverne- 
 ment Austro-Hongrois qu'il y voit le moyen de constater une 
 
 002 
 
564 APPENDIX. 
 
 fois de plus, a la suite d'un examen impartial, I'aecord des 
 Puissances sur les graves questions qui font I'objet du Traits 
 signe h. Paris le 30 Mars, 1 856. 
 
 M. le Pl^nipotentiaire d'ltalie se rejouit de I'aceord des 
 Puissances resultant du Protocole qu'on vient de signer, et des 
 declarations de MM. les Plenipotentiaires, auxquels il s'em- 
 presse de se joindre. L'ltalie sera heureuse de preter son 
 concours loyal k I'ceuvre importante et d'interet general pour 
 laquelle la Conference se trouve reunie, et d'y porter le plus 
 grand esprit d'equite et de conciliation. 
 
 Sur I'invitation de M. le President, M. le Plenipotentiaire 
 de Russia a pris la parole II demande a la Conference la per- 
 mission de donner lecture d'un resume dont il desire I'in- 
 sertion dans le Protocole : — 
 
 " M. le Plenipotentiaire de Russie a resume les circonstances 
 et les faits qui, depuis la signature du Traite conclu si Paris, 
 le ^% Mars, 1856, ont determine les Puissances signataires h, 
 donner leur adhesion k differentes modifications qui ont con- 
 tribu^ a alterer, en partie, la lettre des stipulations primitives. 
 
 "II a rappele notamment le precedent des Conferences, tenues 
 k differentes epoques a Paris, et cite les decisions prises d'un 
 commun accord, en vue de modifier le regime des Principautes 
 de Moldavie et de Valachie, — changement qui a obtenu la 
 sanction de la Sublime Porte, ainsi que Fassentiment des 
 autres Parties Contractantes. 
 
 " II a constate que ces deviations du Traite n'ont exerce 
 aucune influence sur la ferme intention de I'Empereur de 
 maintenir intacts les-principes generaux du Traite de 1856, qui 
 ont fixe la position de la Turquie dans le concert Europeen. 
 
 " Apres avoir expose a cet egard les vues de son auguste 
 Maitre, le Plenipotentiaire de Russie a signale combien la 
 situation actuelle en Europe est loin de celle qui existait a 
 I'epoque du Congres de Paris. 
 
 " Aujourd'hui, prenant en s^rieuse consideration les ehange- 
 ments produits graduellement par la marche du temps, le 
 Plenipotentiaire de Russie a eru devoir en conclure qu'il serait 
 d'une politique prevoyante et sage de soumettre les stipula- 
 tions de 1856, relatives k la navigation de la Mer Noire, i. 
 une revision k laquelle presiderait un sentiment unanime 
 d'^quite et de Concorde. 
 
 " De fait, ces stipulations, suggerees k une autre epoque sous 
 
CONFBEENCES OP LONDON, 1871. 565 
 
 rinfluence de conjonctures toutes differentes de la situation 
 presente, ne se trouvent plus en accord avec les rapports de 
 bon voisinage qui existent actuellement entre les deux Puis- 
 sances Riveraiues. 
 
 " De plus, le Pl^nipotentiaire de Russia, eonformement aux 
 instructions iont il est muni, a declare que son auguste Maitre 
 attache une juste importance k cette revision 'dans le double 
 interet de la securit6 et de la dignite de son Empire. 
 
 " En s'acquittant k cet egard des ordres de sa Cour, il a ex- 
 prime I'espoir que les nouveaux arrangements r6sultants de 
 cette revision contribueront k I'aflFermissement de la paix, qui 
 forme I'objet de la soUicitude commune de toutes les grandes 
 Puissances dont les Representants se trouvent reunis en Con- 
 ference k Londres." 
 
 M. le Plenipotentiaire de Turquie dit qu'il appreeie I'esprit 
 de conciliation qui a dict6 I'expose de M. le PMnipotentiaire 
 de RussiOj et qu'anime du m^me esprit eonciliant il s'ab- 
 stiendra de discuter certains points de cet expos6 sur lesquels 
 il differe d'avis, et reserve Topinion de son Gouvernement. 
 
 II fait observer cependant que la Sublime Porte envisage 
 ['incident soumis k la consideration de la Conference k un 
 point de vue plus ^leve ; qu'en effet Sa Majeste Imp^riale le 
 Sultan desire entretenir avec Sa Majeste I'Empereur de Russie 
 les meilleurs rapports d'amitie et de bon voisinage ; et que, sur- 
 tout, la Sublime Porte tient k donner dans cette circonstance 
 une preuve de ses dispositions conciliantes et de sa sollicitude 
 pour la cause de la paix, en participant k I'examen d'une 
 question qui coneerne egalement d'autres grandes Puissances, 
 et qui autrement pourrait conduire a des complications qu'il 
 est de I'interet general de prevenir. 
 
 II declare que c'est dans ce desir et dans ces vues que son 
 auguste Maitre lui a donne I'ordre de repr^senter son Gou- 
 vernement au sein de la Conference. 
 
 II conclut en priant M. le President de vouloir bien, avec 
 le consentement des autres Membres de la Conference, remettre 
 k quelques jours la procbaine seance, pour qu'il ait le terns de 
 bien considerer la proposition de M. le Plenipotentiaire de 
 
 Russie. . , 
 
 M. le Plenipotentiaire de I'Allemagne du Nord dit quil 
 tient a constater, des I'ouverture de la Conference, que le 
 Gouvernement du Roi son auguste Maitre, en proposant le 
 
566 APPENDIX. 
 
 premier de reunir en Conference les Plenipotentiaires des 
 Puissances signataires du Traite de Paris du 30 Mars, 1 856, 
 I'a fait dans un esprit de conciliation, d'^quite, et de pais, et 
 que c'est dans ce meme esprit que sa Cour I'a charge d'ap- 
 puyer et de recommander a la serieuse consideration de MM. 
 les Plenipotentiaires des autres Puissances repr6sentees dans 
 la Conference, le desir du Gouvernement Imperial de Russie 
 de voir les stipulations de 1856, relatives k la navigation de 
 la Mer Noire, soumises k une revision qui ferait disparaitre 
 certaines clauses dont le caraetere restrictif, quant i, I'exereice 
 des droits de souverainete des deux Puissances Riveraines 
 semble plut6t de nature k entretenir un etat de malaise entre 
 elles qu'k raffermir de plus en plus, comme il est essentielle- 
 ment desirable pour le maintien de la tranquillite de I'Orient, 
 les rapports de bon voisinage qui se sont heureusement etablis 
 entre les deux Puissances, et que MM. les Pl&ipotentiaires de 
 la Russie et de la Turquie viennent de constater tous les 
 deux. 
 
 Le Gouvernement de Sa Majeste s'est laisse guider en cette 
 circonstance par le desir d'amener sur les questions qui se 
 rattachent k la navigation de la Mer Noire une entente 
 generale entre les Grandes Puissances de I'Europe, qui ne 
 pourra que puissamment contribuer a la securite de I'Orient et 
 au maintien de Findependance et de I'int^grite de I'Empire 
 Ottoman, que toutes les Puissances signataires du Traits de 
 30 Mars, 1856, desirent assurer. Les instructions qui lui ont 
 ete donnees, en consequence, lui prescrivent d'entrer avec une 
 entiere impartialite et une parfaite liberty d'appreciation dans 
 la discussion des propositions qui pourront ^tre soumises de 
 part et d'autre k la Conference, et de les envisager unique- 
 ment du point de vue de I'entente Europeenne et de la conser- 
 vation aetuelle et future de la paix en Orient. 
 
 Se referant a la proposition d'ajournement emise par M. le 
 PMnipotentiaire de Turquie, M. le Comte Granville dit qu'il 
 s'y associe d^autant plus volontiers que la Conference ne 
 s'etant oceupee aujourd'hui que de la question de droit, eet 
 ajournement donnera, il l^espere, I'occasion k M. le Pl^nipo- 
 tentiaire de France de venir prendre part k la discussion des 
 stipulations du Traite de 1856 se rapportant k la neutralisa- 
 tion de la Mer Noire, qui doit etre entamee dans la prochaine 
 seance. 
 
CONFERENCES OF LONDON, 1871. 567 
 
 II rend justice aux sentiments qui ont inspire h la Prusse 
 I'idee de la Conference. Cependant, pour preciser les faits, il 
 tient k rappeler que la premiere idee a ete de la tenir h St. 
 P^tersbourg-j et qu'elle n'a ete acceptee qu^^ la condition de 
 changer le lieu de la reunion, et d'y entrer sans parti pris et 
 avec une parfaite liberte de discussion. 
 
 II se felicite de I'esprit d'^quite et de conciliation dont la 
 discussion d'aujourd'hui a ete empreinte. II en tire un bon 
 augure pour le resultat de I'examen que la Conference va faire 
 de quelques-unes des stipulations du Traite de 1856, en vue 
 de leur revision. 
 
 Apres avoir pris I'engagement d'observer le secret sur tout 
 ce qui se passera dans la Conference, MM. les Plenipotentiaires 
 se s^parent, en convenant que leur prochaine reunion aura 
 lieu le Mardi, 24 Janvier, k i heure. 
 
 (Signe) 
 
 Beknstokff. Cadouna. 
 
 Apponyi. Beunnow. 
 
 Geanville. Mustjeus. 
 
 ANNEXE. 
 
 Les Plenipotentiaires de I'Allemagne du Nord, de I'Autriche- 
 Hongrie, de la Grande Bretagne, de I'ltalie, de la Russie, et 
 de la Turquie, reunis aujourd'hui en Conference, reconnaissent 
 que e'est un principe essentiel du droit des gens qu'aucune 
 Puissance ne pent se delier des engagements d'un Traite, ni 
 en modifier les stipulations, qu'^ la suite de I'assentiment des 
 Parties Contractantes, au moyen d'une entente amicale. 
 
 En foi de quoi les dits Plenipotentiaires ont sign! le present 
 Protocole. 
 
 Fait k Londres, ce 17 Janvier, 1871. 
 
 (Signe) 
 
 Bbenstoeff. Brunnow. 
 
 Apponyi. Mtjsueus. 
 
 Geanville. Beoglie. 
 
 Cadoena. 
 
 13 Mars, 187 
 
 I. 
 
568 APPENDIX. 
 
 (Translation.) 
 Protocol No. 1.-^ Sitting of January ij, 1871. 
 
 Present: — For North Germany — Count BernstorfF, &c.; 
 for Austria-Hungary— Count Apponyi, &c. ; for Great 
 Britain — Earl Granville, &c. ; for Italy — the Chevalier Ch. 
 Cadorna, &c. ; for Russia — Baron Brunnow, &c. ; for Tur- 
 key — Musurus Pasha, &c. 
 
 The Plenipotentiaries of North Germany, of Austria-Hun- 
 gary, of Great Britain, of Italy, of Russia, and of Turkey, met 
 to-day in Conference at the Foreign Office. 
 
 The sitting is opened by his Excellency Musurus Pasha, 
 who proposes that the Presidency of the Conference should be 
 entrusted to Earl Granville in the following terms : — 
 
 " Gentlemen, — Being met in Conference for the examina- 
 tion of a question of high importance, our first duty is to 
 proceed to the choice of our President. As you have been so 
 good as to permit me to speak on this occasion, I have the 
 honour to propose to you to entrust the Presidency of this 
 Assembly to his Excellency Earl Granville, Principal Secre- 
 tary of State of Her Majesty the Queen for Foreign Affairs. 
 
 " Not only is this an act of respect due to the august Sove- 
 reign under whose auspices we are called upon to fulfil an 
 important mission, but it is at the same time an expression of 
 the confidence which is inspired in our Governments and in 
 all of us by the eminent qualities which render the noble 
 Lord so well fitted to give the best direction to the labours 
 of the Conference, and by the enlightened solicitude with 
 which he has applied himself since the commencement of the 
 incident which is to occupy our attention, to preparing the 
 way for a solution in conformity with international law and 
 with the general desire for the preservation of peace." 
 
 This proposal having been unanimously adopted. Earl 
 Granville assumes the Presidency, and expresses himself as 
 follows :— 
 
 " I hasten to thank the Turkish Ambassador for the kind 
 manner in which he has brought forward the proposal which 
 you. Gentlemen, have been so good as to agree to. 
 
 " I propose to you, Gentlemen, to entrust to Mr. Stuart the 
 drawing up of the Protocols of the Conference." 
 
CONFERENCES OP LONDON, 1871. 569 
 
 This proposal having also been agreed to, Mr. Stuart is 
 introduced, and the Plenipotentiaries proceed to the verifica- 
 tion of their respective powers, which are found in good and 
 due form. 
 
 Earl Granville then resumes : — 
 
 " I am deeply sensible," he says, " of the honour which 
 you have done me in calling on me to be President of this 
 Conference. 
 
 " At the moment of commencing the discussion of a great 
 European question in which France is deeply interested, and 
 for which she lias formerly made great sacrifices, I cannot but 
 express my great regret, which I am sure, Gentlemen, is 
 shared by you, at not seeing her represented among us 
 to-day. 
 
 " But M. Jules Favre, designated as Plenipotentiary of 
 France, not being able to be present at our meeting to-day, it 
 only remains to me to propose to you that we should record 
 by general agreement our hope that the French Plenipoten- 
 tiary will eventually adhere to any decision to be taken in 
 this sitting, and that I should be permitted to communicate 
 confidentially to the Charge d'Affaires of France the details of 
 our labours to-day." 
 
 The Plenipotentiaries having declared their complete assent 
 on these points, Earl Granville continues : — 
 
 " The Conference has been accepted by all the co-signatary 
 Powers of the Treaty of 1 856, for the purpose of examining 
 without any foregone conclusioii and of discussing with per- 
 fect freedom the proposals which Russia desires to make to us 
 with regard to the revision which she asks of the stipulations 
 of the said Treaty relative to "the neutralization of the Black 
 Sea. 
 
 " This unanimity furnishes a striking proof that the 
 Powers recognize that it is an essential principle of the law 
 of nations that none of them can liberate itself from the 
 engagements of a Treaty, nor modify the stipulations thereof 
 unless with the consent of the Contracting Parties by means 
 of an amicable understanding. 
 
 "This important principle appears to me to meet with 
 general acceptance, and I have the honour to propose to you, 
 Gentlemen, to sign a Protocol ad hoc." 
 
 The Protocol in question is then submitted to the Con- 
 
570 APPENDIX. 
 
 ference and signed hy all the Plenipotentiaries, who further 
 decide that it shall be annexed to the general Protocol of the 
 present sitting, and that, on his arrival, the Plenipotentiary 
 of France shall be requested to add his signature to it. 
 
 After expressing how much he shares in the regret of the 
 President at not seeing France represented at the meeting of 
 to-day, the Plenipotentiary of Turkey declares that he has 
 agreed in the name of his government to the principle laid 
 down by the President with so much the more readiness, 
 inasmuch as the Sublime Porte has, on all occasions, recog- 
 nized its binding character, and has constantly conformed 
 its policy thereto in its relations with foreign nations. 
 
 The Plenipotentiary of Austria-Hungary says that the 
 Imperial and Royal Government has not hesitated to ac- 
 cept the meeting of this Conference, which has been called 
 to give a fresh pledge for the faith of Treaties and for the 
 principles as well as the interests which they are designed 
 to secure. 
 
 He adds that it is in a spirit of conciliation and of equitable 
 appreciation that the Government of His Imperial and Royal 
 Apostolic Majesty has charged him to enter into the exami- 
 nation of the questions with which the Conference is to be 
 occupied. These sentiments are the more in conformity with 
 the intentions of the Austro-Hungarian Government as it 
 sees in them the means of once more placing on record, by 
 means of an impartial examination, the agreement of the 
 Powers on the important questions which form the object of 
 the Treaty signed at Paris on the 30th of March, 1856. 
 
 The Plenipotentiary of Italy is rejoiced at the agreement of 
 the Powers resulting from the Protocol which has just been 
 signed, and at the declarations of the Plenipotentiaries, in 
 which he hastens to join. Italy Will be happy to lend her 
 hearty assistance to the important work of general interest 
 for which the Conference has met, and to enter upon it in the 
 fullest spirit of equity and conciliation. 
 
 On the invitation of the President the Plenipotentiary of 
 Russia speaks. He requests the permission of the Conference 
 to read a summary which he wishes to be inserted in the 
 Protocol : — 
 
 " The Plenipotentiary of Russia recapitulated the circum- 
 stances and facts which, since the signature of the Treaty 
 
CONFERENCES OP LONDON, 1871. 571 
 
 concluded at Paris on the llth March, 1856, have induced the 
 Powers who signed it to give their assent to different modifi- 
 cations which have contributed to alter in part the letter of 
 the original stipulations. 
 
 " He instanced specially the precedent of the Conferences 
 held at different periods at Paris, and cited the decisions 
 adopted by general agreement with the view of modifying 
 the government of the Principalities of Moldavia and Wal- 
 lachia — an alteration which received the sanction of the 
 Sublime Porte, as well as the assent of the other Contracting 
 Powers. 
 
 " He affirmed that these deviations from the Treaty have 
 exercised no influence on the firm intention of the Emperor 
 to maintain intact the general principles of the Treaty of 
 1856, which have defined the position of Turkey in the 
 system of Europe. 
 
 " After having explained the views of his august Master on 
 this subject, the Plenipotentiary of Eussia pointed out how 
 much the present situation of Europe differs from that which 
 existed at the time of the Congress of Paris. 
 
 " At the present moment, taking into serious consideration 
 the changes gradually produced by the course of time, the 
 Plenipotentiary of Russia thinks the conclusion must be 
 drawn that it would be an act of prudent and wise policy to 
 submit the stipulations of 1856^ relative to the navigation of 
 the Black Sea, to a revision guided by an unanimous senti- 
 ment of equity and concord. 
 
 " In fact, these stipulations, suggested at another period 
 under the influence of conjunctures entirely different from the 
 present situation, are no longer in harmony with the relations 
 of good neighbourhood which exist at this moment between 
 the two Riverain Powers. 
 
 " Further, the Plenipotentiary of Russia, in conformity with 
 the instructions with which he is provided, declared that his 
 august Master attaches a just importance to this revision in 
 the double interest of the security and of the dignity of his 
 Empire. 
 
 « In acquitting himself of the orders of his Court on this 
 point, he expressed the hope that the new arrangements 
 resulting from this revision will contribute to the confirmation 
 of peace, which forms the subject of general solicitude on the 
 
57'3 ,, APPENDIX. 
 
 part of all the great Powers whose representatives are as- 
 sembled in Conference in London." 
 
 The Plenipotentiary of Turkey says that he appreciates the 
 spirit of conciliation which has dictated the statement of the 
 Plenipotentiary of Russia, and that animated hy the same 
 conciliatory spirit he will abstain from discussing certain 
 points of that statement on which he differs, and reserves the 
 opinion of his Government. 
 
 He observes, however, that the Sublime Porte "regards the 
 incident submitted to the consideration of the Conference 
 from a higher point of view ; that^ in fact. His Imperial 
 Majesty the Sultan desires to maintain with His Majesty the 
 Emperor of Russia the best relations of friendship and good 
 neighbourhood ; and that, above all, the Sublime Porte is 
 anxious to give, in the present circumstances, a proof of its 
 conciliatory disposition and of its solicitude for the cause of 
 peace, by joining in the examination of a question which 
 equally concerns other great Powers, and which might other- 
 wise lead to complications which it is in the general interest 
 to prevent. 
 
 He declares that it is with this desire and with these views 
 that his august Master has commanded him to represent his 
 Government in the Conference. 
 
 He concludes by begging the President to be so good as to 
 postpone the next sitting for some days, with the consent of 
 the other members of the Conference, in order that he may 
 have time to consider the proposal of the Plenipotentiary of 
 Russia. 
 
 The Plenipotentiary of North Germany says that he is 
 anxious to place on record, at the opening of the Conference, 
 that the Government of the King his august Master, in being 
 the first to propose a meeting in Conference of the Plenipoten- 
 tiaries of the Powers who signed the Treaty of Paris of March 
 30, 1856, has done so in a spirit of conciliation, of equity, and 
 of peace, and that it is in this same spirit that his Court has 
 instructed him to support and to recommend to the serious 
 consideration of the Plenipotentiaries of the other Powers 
 represented in the Conference the desire of the Imperial Go- 
 vernment of Russia to see the stipulations of 1 856, relative 
 to the navigation of the Black Sea, submitted to a revision 
 which should eliminate certain clauses, the restrictive cha- 
 
CONFERENCES OF LONDON, 1871. 573 
 
 racter of which, as regards the exercise of the rights of 
 sovereignty of the two Riverain Powers, seems rather calcu- 
 lated to maintain a state of uneasiness between them than to 
 confirm more and more, as is essentially desirable for the 
 maintenance of tranquillity in the East, the relations of good 
 neighbourhood which are happily established between the two 
 Powers, and of which the Plenipotentiaries of Russia and 
 Turkey have both of them just given evidence. 
 
 His Majesty's Government has been guided in this incident 
 by the desire of bringing about, on the questions connected 
 with the navigation of the Black Sea, a general understanding 
 between the great Powers of Europe, which cannot but con- 
 tribute powerfully to the security of the East and to the 
 maintenance of the independence and integrity of the Otto- 
 man Empire, which all the Powers who signed the Treaty 
 of Paris of March 30, 1856, desire to secure. The instruc- 
 tions which have been given him consequently desire him to 
 enter with entire impartiality and perfect freedom of judg- 
 ment on the discussion of the proposals which may be sub- 
 mitted on either side to the Conference, and to regard them 
 solely with a view to the harmony of Europe, and to the 
 present and future preservation of peace in the East. 
 
 Referring to the proposal of adjournment made by the 
 Plenipotentiary of Turkey, Earl Granville says that he joins 
 in it the more willingly as the Conference having only been 
 occupied to-day with the question of principle, this adjourn- 
 ment will, he hopes, afford an opportunity for the Plenipo- 
 tentiary of France to arrive and take part in the discussion 
 of the stipulations of the Treaty of 1856, relating to the 
 neutralization of the Black Sea, which is to take place in 
 the next sitting. 
 
 He renders justice to the sentiments which suggested to 
 Prussia the idea of the Conference. Still, with a view to a 
 clear definition of the facts he thinks it right to remark that 
 the first idea was to hold it at St. Petersburgh, and that it 
 was only accepted on condition that the place of meeting 
 should be changed, and that it should be entered upon 
 without foregone conclusion, and with perfect freedom of 
 
 discussion. 
 
 He congratulates himself on the principle of equity and 
 conciliation with which the discussion of to-day has been 
 
574 APPENDIX. 
 
 pervaded. He draws from it a good omen for the result of 
 the examination which the Conference is to make of some of 
 the stipulations of the Treaty of 1856, with a view to their 
 revision. 
 
 After having engaged to observe secrecy on all that may 
 jMiss in the Conference, the Plenipotentiaries separate, agree- 
 ing that their ne^^t meeting shall take place on Tuesday, 
 January 24, at i o'clock. 
 
 (Signed) 
 
 Bernstorff. Cadoena. 
 
 Appomyi. Brunnow. 
 
 Geauville. Musueus. 
 
 ANNEX. 
 
 The Plenipotentiaries of North Germany, of Austria- 
 Hungary, of Great Britain, of Italy, of Russia, and of Turkey, 
 assembled to-day in Conference, recognize that it is an 
 essential principle of the law of nations that no Power can 
 liberate itself from the engagements of a Treaty, nor modify 
 the stipulations thereof, unless with the consent of the Con- 
 tracting Powers by means of an amicable arrangement. 
 
 In faith of which the said Pltenipotentiaries have signed 
 the present Protocol. 
 
 Done at London, the 17th January, 187 1, 
 
 (Signed) 
 
 Beenstoeff. Brunnow. 
 
 Apponyi. Musueus. 
 
 Geanvillb. Brogue. 
 
 Cadoena. 
 
 March 13, 187 1. 
 
 Protocole No. 5. — Stance du it. Mars, 187 1. 
 
 Presents : — M. le Plenipotentiaire d'Allemagne, d'Autriche- 
 Hongrie, de France, de la Grande Bretagne, d'ltalie, de 
 Russie, de Turquie. 
 
 A l'ouveetuee de la seance M. le President presente M . le 
 
CONFEREKCES OF LONDON, 1871. 575 
 
 Due de Broglie k la Conference comme Plenipotentiaire de 
 France, en disant: — 
 
 " Je crois gtre le fidele interprete de MM. les Plenipoten- 
 faaires en exprimant a M. le Due de Broglie la vive satisfac- 
 tion avec laquelle nous accueillons ici aujourd'hui le Repre- 
 sentant de la France. 
 
 _" J'ai I'espoir que M. le Due aura eu roceasion de se con- 
 vaincre par les ajournements successifs de nos seances, par les 
 Protoeoles que nous avons signes, et par les informations que 
 MM. les Plenipotentiaires m'ont permis de donner presque 
 journellement k M. le Charge d'Affaires de France, que nous 
 avons fait notre possible pour nous assurer I'indispensable 
 concours de la France." 
 
 M. le Plenipotentiaire de France, apres avoir present! ses 
 pleins pouvoirs, trouv^s en bonne et due forme, repond a M. le 
 Comte Granville dans les termes suivants : — 
 
 " Je remereie sincerement, au nom du Gouveruement 
 Frangais, M. le president de la Confgrence des paroles pleines 
 d'amiti! et de bienveillance pour la France qu'il vient de pro- 
 noncer; j'offre les memes remerciements k MM. les Pleni- 
 potentiaires qui veulent bien y donner leur assentiment. Je de- 
 vrais en meme temps leur presenter mes excuses pour le retard 
 que j'ai mis k prendre seance au milieu d'eux et I'abus que j'ai 
 fait de leur patience ; mais le monde entier connait les causes 
 douloureuses qui ont retenu le Representant de la France. 
 
 " Bien que r%ulierement inform! par vos communications 
 bienveillantes du cours de vos deliberations, le Gouvernement 
 Frangais n'a pu y prendre part, et elles sont aujourd'hui 
 arrivees presqu'a leur terme. Le principal objet qui a motive 
 la reunion de cette Conference a ite rig\6 d'un commun ac- 
 cord entre les Plenipotentiaires presents. Le Gouvernement 
 Frangais aurait peut-etre prefer! s'abstenir jusqu'au bout de 
 s'assoeiei: k des decisions k la discussion desquelles il est rest! 
 !tranger. 
 
 " Mais il aurait craint, en prolongeant son abstention main- 
 tenant que la triste cause en a disparu, de ne pas t!moigner 
 assez hautement le prix qu'il attache a tout ce qui pent entre- 
 tenir ou r!tablir I'harmonie entre les Grands Etats. II saisit 
 aussi avec empressement v I'occasion de maintenir la regie 
 salutaire de la soci!t! Europ!enne,— a savoir, de a n'apporter 
 auGun changement essentiel aux relations des peuples entr'eux, 
 
576 APPENDIX. 
 
 sans Texamen et le consentement de toutes les Grandes 
 Puissances, — pratique tutelaire, veritable garantie de paix et 
 de civilisation, a laquelle trop de derogations ont ete apportees 
 dans ces dernieres annees. 
 
 " En ce qui touche I'objet principal de la Conference, le 
 Gouvernement Frangais, partageant les sentiments exprimes 
 par M. le Plenipotentiaire de Turquie, n'aurait aper9U per- 
 sonnellement aucune raison suffisante pour modifier les stipu- 
 lations stabiles par le Traite de 1856, et aurait pr6fer6 leur 
 maintien. Mais au point ou les choses sont parvenues, et du 
 moment ou I'arrangement nouveau, agr^able au Gouverne- 
 ment Russe, est agr6e par celui de la Sublime Porte, principal 
 interesse dans la question, le Gouvernement Frangais entre 
 volontiers dans la pensee de conciliation, qui I'a dicte, et il 
 apporte son adhesion, a toutes les decisions de la Conference." 
 M. le Plenipotentiaire de Russie s'empresse d'offrir k M. 
 I'Ambassadeur de France I'expression de ses sinceres remercie- 
 ments des bonnes dispositions qu'il a bien voulu enoncer a 
 I'egard de la Russie ; il se fera un devoir d'en rendre compte 
 k sa Cour, et il ajoute que I'esprit de conciliation qui a preside 
 aux determinations du Gouvernement Frangais, en ee qui 
 regarde la question soumise aux deliberations de la Conference, 
 sera vivement apprecie par le Cabinet de St. Petersbourg. 
 
 Sur I'invitation de M. le President, M. le Plenipotentiaire 
 de France appose sa signature au Protocole annexe k celui de 
 la seance du 17 Janvier. 
 
 (Translation.) 
 Protocol No. 5. — Sitting of March 13, 1871. 
 
 Present :— The Plenipotentiary of Germany, of Austria- 
 Hungary, of France, of Great Britain, of Italy, of Russia, of 
 Turkey. 
 
 At the commencement of the sitting the President presents 
 the Due de Broglie to the Conference as Plenipotentiary of 
 France, saying : — 
 
 " I believe that I represent correctly the feelings of the 
 Plenipotentiaries in expressing to the Due de Broglie the 
 warm satisfaction with which we welcome here to-day the 
 Representative of France, 
 
CONFERENCES OP LONDON, 1871. 577 
 
 ^ " I hope that the Duke will have been able to convince 
 himself from the successive adjournments of our sittings, from 
 the Protocols we have signed, and from the communications 
 which the Plenipotentiaries have allowed me to make almost 
 daily to the Charge d' Affaires of France, that we have done 
 all in our power to secure the indispensable concurrence of 
 France." 
 
 The Plenipotentiary of France, after having presented his 
 full powers, which are found to be in good and due form, 
 replies to Earl Granville in the following terms : — 
 
 " I thank the President of the Conference sincerely in the 
 name of the French Government for the expressions of friend- 
 ship and goodwill towards France which he has just made 
 use of; I offer the same thanks to the Plenipotentiaries who 
 are so good as to join in those expressions. I ought, at the 
 same time, to apologize to them for having delayed so long to 
 take my seat among them, and for having so far abused their 
 patience ; but the whole world knows the painful causes 
 which detained the Representative of France. 
 
 " Although regularly informed by your kind communica- 
 tions of the progress of your deliberations, the French Go- 
 vernment has not been able to take part in them, and they 
 are now almost come to a conclusion. The principal object 
 which led to the assembly of this Conference has been settled 
 by general agreement between the Representatives present. 
 The French Government would, perhaps, have preferred to 
 abstain to the last from joining in decisions in the discussion 
 of which it has taken no part. 
 
 "But it would have feared that, by continuing its ab- 
 stention now that the sad cause of it has disappeared, it 
 might have failed to give sufficient evidence of the value 
 which it attaches to all that can maintain or re-establish 
 harmony between the Great Powers. It therefore avails 
 itself eagerly of the opportunity to maintain the salutary rule 
 of the European family of nations,— namely, that no essential 
 change should be introduced into the relations of nations 
 towards one another without the examination and consent of 
 all the Great Powers,— a practice which protects and affords 
 a true guaraintee for peace and civilization, and which has 
 been too often disregarded in these last years. 
 
 "As regards the principal object of the Confetence the 
 
 PART II. P P 
 
578 APPENDIX. 
 
 French Government, sharing the feelings expressed by the 
 Plenipotentiary of Turkey, would not personally have seen 
 any sufficient reason to modify the stipulations established by 
 the Treaty of 1856, and would have preferred their main- 
 tenance. But, at the stage at which affairs have arrived, and 
 from the moment that the new arrangement, agreeable to the 
 Russian Government, is agreed to by that of the Sublime 
 Porte, the Party principally interested in the question, the 
 French Government willingly enters into the feeling of con- 
 ciliation which has dictated itj and gives its assent to all the 
 decisions of the Conference." 
 
 The Plenipotentiary of Russia hastens to offer to the Am- 
 bassador of France the expression of his sincere thanks for 
 the friendly feelings which he has been so good as to express 
 with regard to Russia ; he will make it his duty to report 
 them to his Court, and he adds that the spirit of conciliation 
 which has guided the decisions of the French Government as 
 regards the question submitted to the deliberations of the 
 Conference will be warmly appreciated by the Cabinet of 
 St. Petersburgh. 
 
 On the iavitation of the President, the Plenipotentiary of 
 France attaches his signature to the Protocol annexed to that 
 of the sitting of January 1 7. 
 
 TEEATY between Her Majesty, the Emperor of 
 Germany, King of Prussia, the Emperor of Austria, 
 the French Eepublic, the King of Italy, the Emperor 
 of Russia, and the Sultan, for the Eevision of certain 
 Stipulations of the Treaty of March 30, 1856. 
 
 Signed at London, March 13, 1871. 
 
 [Ratifications exchanged at London, May 15, 1871.] 
 
 AU NOM DE DiEU TOUT-PUISSANT. 
 
 Sa Majeste la Reine du Royaume Uni de la Grande Bre- 
 tagne et d'Irlande, Sa Majeste I'Empereur d'Allemagne, Roi 
 de Prusse, Sa Majesty I'Empereur d'Autriche, Roi de Boheme, 
 &c., et Roi Apostolique de Hongrie, le Chef du Pouvoir 
 Executif de la Republique Frangaise, Sa Majesty le Roi 
 
TREATY OP LONDON, 1871. 579 
 
 d'ltalie, Sa Majeste I'Empereur de toutes les Russies, ct Sa 
 Majesty TEmpereur des Ottomans, ont juge necessaire de 
 reunir leurs Representants en Conference k Londres, afin 
 de s'enteiidre, dans un esprit de coneorde, sur la revision des 
 stipulations du Trait6 conclu k Paris le 30 Mars, 1856, re- 
 latives k la navigation de la Mer Noire, ainsi qui^ celle du 
 Danube ; desirant en meme temps assurer dans ses contr^es 
 de nouvelles facilites au developpement de I'activite com- 
 merciale de toutes les nations, les Hautes Parties Contrac- 
 tantes ont r^solu de conclure un Traite, et ont nomme a cet 
 effet pour leurs Plenipotentiaires, savoir : — 
 
 Sa Majeste la Reine du Royaume Uni de la Grande Bre- 
 tagne et d'Irlande, le Tres Honorable Granville George, 
 Comte Granville, Lord Leveson, Pair du Royaume Uni, 
 Chevalier du Tres Noble Ordre de la Jarretiere, Conseiller 
 de Sa Majesty en Son Conseil Prive, Lord Gardien des 
 Cinque Ports et Conn^table du Chateau de Douvres, Chan- 
 celier de FUniversit^ de Londres, Principal Secretaire d'Etat 
 de Sa Majeste pour les Affaires Etrangeres, &c. ; 
 
 Sa Majeste I'Empereur d'Allemagne, Roi de Prusse, le 
 Sieur Albert, Comte de Bernstorff-Stintenburg, Son Ministre 
 d'Etat et Chambellan, Grand Commandeur de Son Ordre de la 
 Maison Imperiale et Royale de HohenzoUern en diamants, et 
 Grand-Croix de Son Ordre de I'Aigle Rouge avec des feuilles 
 de chene, Grand-Croix de I'Ordre Ducal de la Branche 
 Ernestine de la Maison de Saxe, Chevalier de I'Ordre Impe- 
 rial de St. Stanislas de Russie de premiere classe, et de I'Ordre 
 Royal du Lion d'Or de la Maison de Nassau, Grand-Croix 
 de I'Ordre Royal du Merite Civil de la Couronne de Baviere, 
 de rOrdre de la L6gion d'Honneur de France, de I'Ordre 
 Imperial du Lion et du Soleil de Perse, de I'Ordre Royal et 
 Militaire du Christ de Portugal, &c., Ambassadeur Extra- 
 ordinaire et P16nipotentiaire de Sa Majeste Imperiale et 
 Royale pres Sa Majeste Britannique, &e. ; 
 
 Sa Majeste I'Empereur d'Autriche, Roi de Boheme, &c., 
 et Roi Apostolique de Hongrie, le Sieur Rodolphe, Comte 
 Apponyi, Chambellan, Conseiller Intime de Sa Majeste Im- 
 periale et Royale Apostolique, Chevalier de I'Ordre de la 
 Toison d'Or, Grand-Croix de I'Ordre Imperial de L6opokl, 
 Son Ambassadeur Extraordinaire prcs Sa Majesty Britan- 
 nique, &c. ; 
 
 p p a 
 
580 APPENDIX. 
 
 Le Chef du Pouvoir Executif de la R6publique Fran9ai3e, 
 le Sieur Jacques Victor Albert, Due de Broglie, Chevalier de 
 rOrdre de la L%ion d'Honneur, Ambassadeur Extraordinaire 
 et Plfoipotentiaire de la Eepublique pres Sa Majeste Bri- 
 tannique, &c. ; 
 
 Sa Majeste le Roi d'ltalie, le Chevalier Charles Cadorna, 
 > Ministre d'Etat, Senateur du Royaume, Chevalier Grand- 
 Croix deeore du Grand Cordon de Ses Ordres de St. Maurice 
 et de St. Lazare et de la Couronne d'ltalie, Son Envoye 
 Extraordinaire et Ministre Plenipotentiaire pres Sa Majeste 
 Britannique, &c. ; 
 
 Sa Majest6 I'Empereur de toutes les Russies, le Sienr 
 Philippe, Baron de Brunnow, Son Conseiller Priv6 Actuel, 
 Chevalier des Ordres de Russie, de I'Aigle Rouge de Prusse 
 de la premiere classe, Commandeur de St. Etienne de Hongrie, 
 Grand-C^roix de TOrdre de la Legion d'Honneur de France, de 
 rOrdre da M6rite de Turquie, Son Ambassadeur Extraordi- 
 naire et Plenipotentiaire pr^s Sa Majest6 Britannique, &c. ; 
 
 Et Sa Majeste I'Empereur des Ottomans, Constantin Mu- 
 surus Pacha, Muchir et Vizir de I'Empire, d^core des Ordres 
 Imp^riaux de TOsmanie et du Medjidi^ de premiere Classe, 
 Grand-Croix de I'Ordre des Saints Maurice et Lazare, et de 
 plusieurs autres Ordres Etrangers, Son Ambassadeur Extra- 
 ordinaire et Plenipotentiaire pres Sa Majeste Britannique, 
 &c. ; 
 
 Lesquels, apres avoir ^change leurs pleins pouvoirs, trouves 
 en bonne et due forme, sont eonvenus des Articles suivants: — 
 
 AUTICLE I. 
 
 Les Articles XI, XIII, et XIV du Traite de Paris du 30 
 Mars, 1856, ainsi que la Convention speciale conclue entre la 
 Sublime Porte et la Russie, et annexee au dit Article XIV, 
 sont abrog^s et remplaces par I'Article suivant. 
 
 AimcLE II. 
 
 Le principe de la cloture des Detroits des Dardanelles et du 
 Bosphore, tel qu'il a et6 6tabli par la Convention s6par& du 
 30 Mars, 1856, est maintenu, avec la facnlte pour Sa Majesty 
 Imperiale le Sultan d'ouvrir les dits Detroits en temps de paix 
 aux batiments de guerre des Puissances amies et alli&s, dans 
 le cas ou la Sublime Porte le jugerait n^cessaire pour sauve^ 
 
TREATY OF LONDON, 1871. 581 
 
 grarder rex6cution des stipulations du Traite de Paris du 30 
 Mars, 1856. 
 
 Article III. 
 
 La Mer Noire reste ouverte, comme par le passe, k la marine 
 marchande de toutes les nations. 
 
 Article IV. 
 
 La Commission etablie par TArticle XVI du Traite de 
 Paris, dans laquelle les Puissances co-signataires du Traite 
 sont chacune representees par un Delegue, et qui a ete 
 chargee de designer et de faire ex^cuter les travaux n^ces- 
 saires depuis Isakteha, pour d^gager les embouchures du 
 Danube, ainsi que les parties de la Mer Noire y avoisinantes, 
 des sables et autres obstacles qui les obstruent, afin de mettre 
 cette par tie du fleuve et les dites parties de la Mer dans les 
 meilleures conditions de navigabilite, est maintenue dans sa 
 composition actuelle. La dur6e de cette Commission est fix6e 
 pour une p^riode ulterieure de douze ans, a compter du 2,4 
 Avril, 1 87 1, c'est a dire jusqu^au 24 Avril, 1883, terme de 
 I'amortissement de I'emprunt contracte par cette Commission 
 sous la garantie de la Grande Bretagne, de I'Allemagne, de 
 rAutriche-Hongrie, de la France, de I'ltalie, et de la Turquie. 
 
 Article V. 
 
 Les conditions de la reunion nouvelle de la Commission 
 Riveraine, 6tablie par PArticle XVII du Traite de Paris du 
 30 Mars, 1856, seront fixees par une entente pr^alable entre 
 les Puissances Riveraines, sans prejudice de la clause relative 
 aux trois Principautes Danubiennes ; et en tant qu'il s'agirait 
 d'une modification de I'Article XVII du dit Traite, cette 
 derniere fera Tobjet d'une Convention speciale entre les Puis- 
 sances co-signataires. 
 
 Article VI. 
 Les Puissances Riveraines de la partie du Danube oil les 
 Cataractes et les Portes de Per mettent des obstacles k la 
 navigation, se reservant de s'entendre entr'elles a I'effet de 
 faire disparaitre ces obstacles, les Hautes Parties Contractantes 
 leur reconnaissent des-A-pr6sent le droit de percevoir un taxe 
 provisoire sur les navires de commerce sous tout pavilion qui 
 
582 APPENDIX. 
 
 en profiteront desormais, jusqu'^ rextinction de la dette 
 contvactee pour I'ex^cution des travaux; et elles d^elarent 
 I'Artiele XV du Traits de Paris de 1856 ioapplicable k cette 
 partie du fleuve pour un laps de temps n&essaire au rem- 
 boursement de la dette en question. 
 
 Article VII. 
 
 Tons les ouvrages et 6tab]issement de toute nature cr^es par 
 la Commission Europeenne en execution du Traite de Paris 
 de 1856, ou du present Trait6, continueront a jouir de la 
 meme neutrality qui les a proteges jusqu'ici, et qui sera 
 egalement respeetee a I'avenir dans toutes les circonstances 
 par les Hautes Parties Contractantes. Le b^n^fice des im- 
 munites qui en d^rivent s'etendra a tout le personnel ad- 
 ministratif et technique de la Commission. II est, cependant, 
 bien entendu que les dispositions de cet Article n'affecteront 
 en rien le droit de la Sublime Porte de faire entrer, comme de 
 tout temps, ses batiments de guerre dans le Danube en sa 
 quality de Puissance territoriale. 
 
 Aeticle VIII. 
 
 Les Hautes Parties Contractantes renouvellent et confir- 
 ment toutes les Stipulations du Traite du 30 Mars, 1856, 
 ainsi que de ses annexes, qui ne sont pas annulees ou modi- 
 fiees par le present Trait6. 
 
 Aeticle IX. 
 
 Le present Traite sera ratifie, et les ratifications en seront 
 eehangees ^ Londres dans I'espace de six semaines^, ou plus 
 tot si faire se peut. 
 
 En foi de quoi les Plenipotentiaires respectifs Tout signe et 
 J ont appose le sceau de leurs armfis. 
 
 Fait El Londres, le treizieme jour du mois de Mars de I'an 
 mil huit cent soixante-onze. 
 
 (L.S.) Granville. (L.S.) Cadoena. 
 
 (L.S.) Beenstorff. (L.S.) Brunnow. 
 
 (L.S.) Apponyi. (L.S.) MusuEus. 
 
 (L.S.) Broglie. 
 
 ' This period was afterwards extended to the 15th of May. 
 
TKEATY OP LONDON, 1871. 683 
 
 (Translation.) 
 In the Name oe Almighty God. 
 
 Her Majesty the Queen of the United Kingdom of Great 
 Britain and Ireland, His Majesty the Emperor of Germany, 
 King of Prussia, His Majesty the Emperor of Austria, King 
 of Bohemia, &e., and Apostolic King of Hungary, The Chief 
 of the Executive Power of the French Eepublic, His Majesty 
 the King of Italy, His Majesty the Emperor of all the 
 Russias, and His Majesty the Emperor of the Ottomans, have 
 judged it necessary to assemble their Eepresentatives in Con- 
 ference at London, in order to come to an understanding, in 
 a spirit of concord, with regard to the revision of the stipu- 
 lations of the Treaty concluded at Paris on the 30th March, 
 1856, relative to the navigation of the Black Sea, as well as 
 to that of the Danube ; being desirous, at the same time, to 
 ensure in those regions new facilities for the development of 
 the commercial a-ctivity of all nations, the High Contracting 
 Parties have resolved to conclude a Treaty, and have for that 
 purpose named as their Plenipotentiaries, that is to say : — 
 
 Her Majesty the Queen of the United Kingdom of Great 
 Britain and Ireland, the Bight Honourable Granville George 
 Earl Granville, Lord Leveson, a Peer of the United Kingdom, 
 Knight of the Most Noble Order of the Garter, a Member 'of 
 Her Majesty's Privy Council, Lord Warden of the Cinque 
 Ports and Constable of Dover Castle, Chancellor of the 
 University of London, Her Majesty's Principal Secretary of 
 State for Foreign Affairs ; 
 
 His Majesty the Emperor of Germany, King of Prussia, 
 the Sieur Albert, Count BernstorfF-Stintenburg, His Mini- 
 ster of State and Chamberlain, Grand Commander of His 
 Order of the Imperial and Royal House of Hohenzollern 
 in Diamonds, and Grand Cross of His Order of the Red 
 Eagle with Oak Leaves, Grand Cross of the Ducal Order of 
 the Ernestine Branch of the House of Saxony, Knight of the 
 Imperial Order of St. Stanislaus of Russia of the First Class, 
 and of the Royal Order of the Golden Lion of the House of 
 Nassau, Grand Cross of the Royal Order of Civil Merit of 
 the Crown of Bavaria, of the Order of the Legion of Honour 
 of France, of the Imperial Order of the Lion and Sun of 
 
584 APPENDIX. 
 
 Persia J of the Royal and Military Order of Christ of 
 Portugal, &c., Ambassador Extraordinary and Plenipoten- 
 tiary of His Imperial and Royal Majesty to Her Britannic 
 Majesty, &e. ; 
 
 His Majesty the Emperor of Austria, King of Bohemia, 
 &c., and Apostolic King of Hungary, the Sieur Rudolph 
 Count Apponyi, Chamberlain, Privy Councillor of His 
 Imperial and Royal Apostolic Majesty, Knight of the 
 Order of the Golden Fleece, Grand Cross of the Imperial 
 Order of Leopold, His Ambassador Extraordinary to Her 
 Britannic Majesty, &e. ; 
 
 The Chief of the Executive Power of the French Republic, 
 the Sieur James Victor Albert Due de Broglie, Knight of 
 the Order of the Legion of Honour, Ambassador Extraor- 
 dinary and Plenipotentiary of the Republic to Her Britannic 
 Majesty, &c. ; 
 
 His Majesty the King of Italy, the Chevalier Charles 
 Cadorna, Minister of State, Senator of the Kingdom, Knight 
 Grand Cross decorated with the Grand Cordon of His Orders 
 of St. Maurice and St. Lazarus and of the Crown of Italy, 
 His Envoy Extraordinary and Minister Plenipotentiary to 
 Her Britannic Majesty, &c. ; 
 
 His Majesty the Emperor of all the Russias, the Sieur 
 "Philip Baron Brunnow, His Actual Privy Councillor, Knight 
 of the Orders of Russia, of the Red Eagle of Prussia of 
 the First Class, Commander of St. Stephen of Hungary, 
 Grand Cross of the Order of the Legion of Honour of France, 
 of the Orcler of Merit of Turkey, His Ambassador Extra- 
 ordinary and Plenipotentiary to Her Britannic Majesty, &c. ; 
 
 And His Majesty the Emperor of the Ottomans, Constan- 
 tine Musurus Pasha, Muchir and Vizir of the Empire, de- 
 corated with the Imperial Orders of the Osmani^ and of the 
 Medjidie of the First Class, Grand Cross of the Order of St. 
 Maurice and St. Lazarus, and of several other Foreign 
 Orders, His Ambassador Extraordinary and Plenipotentiary 
 to Her Britannic Majesty, &c. ; 
 
 Who, after having exchanged their full powers, found in 
 good and due form, have agreed upon the following Articles : 
 
 Aeticle I. 
 Articles XI, XIII, and XIV of the. Treaty of Paris of 
 
TREATY OF LONDON, 1871. 585 
 
 March 30, 1856^ as well as the special Convention concluded 
 between Russia and the Sublime Porte, and annexed to the 
 said Article XIV, are abrogated, and replaced by the follow- 
 ing Article. 
 
 Aeticle II. 
 
 The principle of the closing of the Straits of the Darda- 
 nelles and the Bosphorus, such as it has been established by 
 the separate Convention of March 30, 1856, is maintained, 
 with power to His Imperial Majesty the Sultan to open the 
 said Straits in time of peace to the vessels of war of friendly 
 and allied Powers, in case the Sublime Porte should judge it 
 necessary in order to secure the execution of the stipulations 
 of the Treaty of Paris of March 30, 1856. 
 
 Article III. 
 
 The Black Sea remains open, as heretofore, to the mer- 
 cantile marine of all nations. 
 
 Article IV. 
 
 The Commission established by Article XVI of the Treaty 
 of Paris, in which the Powers who joined in signing the 
 Treaty are each represented by a delegate, and which was 
 charged with the designation and execution of the works ne- 
 cessary below Isaktcha, to clear the mouths of the Danube, as 
 well as the neighbouring parts of the Black Sea, from the 
 sands and other impediments which obstruct them, in order 
 to put that part of the river and the said parts of the sea in 
 the best state for navigation, is maintained in its present 
 composition. The duration of that Commission is fixed for a 
 further period of twelve years, counting from April 24, 1871, 
 that is to say, till April 24, 1883, being the term of the 
 redemption of the loan contracted by that Commission, under 
 the guarantee of Great Britain, Germany, Austria-Hungary, 
 France, Italy, and Turkey. 
 
 Article V. 
 The conditions of the re-assembling of the Riverain Com- 
 mission, established by Article XVII of the Trealy of Pans 
 of March 30 1856, shall be fixed by a previous understandmg 
 between the Riverain Powers, without prejudice to the clause 
 
586 APPENDIX. 
 
 relative to the three Danubian Principalities ; and in so far 
 as any modification of Article XVII of the said Treaty may 
 be involved, this latter shall form the subject of a special 
 Convention between the co-signatary Powers. 
 
 Aeticle VI. 
 
 As the Powers which possess the shores of that part of the 
 Danube where the Cataracts and the Iron Gates offer impedi- 
 ments to navigation reserve to themselves to come to an 
 understanding with the view of removing those impediments, 
 the High Contracting Parties recognize from the present 
 moment their right to levy a provisional tax on vessels of 
 commerce of every flag which may henceforth benefit thereby, 
 until the extinction of the debt contracted for the execution 
 of the works ; and they declare Article XV of the Treaty of 
 Paris of 1856 to be inapplicable to that part of the river for a 
 space of time necessary for the repayment of the debt in 
 question. 
 
 Article VII. 
 
 All the works and establishments of every kind created by 
 the European Commission in execution of the Treaty of Paris 
 of 1856, or of the present Treaty, shall continue to enjoy the 
 «ame neutrality which has hitherto protected them, and which 
 shall be equally respected for the future, under all circum- 
 stances, by the High Contracting Parties. The benefits of 
 the immunities which result therefrom shall extend to the 
 whole administrative and engineering staff of the Commission. 
 Tt is, however, well understood that the provisions of this 
 Article shall in no way affect the right of the Sublime Porte 
 to send, as heretofore, its vessels of war into the Danube in 
 dts character of a Territorial Power. 
 
 Article VIII. 
 
 The High Contracting Parties renew and confirm all the 
 stipulations of the Treaty of March 30, 1856, as well as of 
 dts annexes, which are not annulled or modified by the present 
 Treaty. 
 
 Article IX. 
 
 The present Treaty shall be ratified, and the Ratifications 
 
TREATY OF LONDON, 1871. 587 
 
 shall be exchanged at London in the term of six weeks ', 
 or sooner if possible. 
 
 In witness whereof the respective Plenipotentiaries have 
 signed the same, and have affixed thereto the Seal of their 
 Arms. 
 
 Done at London, the thirteenth day of the month of 
 March, in the year one thousand eight hundred and seventy- 
 
 one. 
 
 (L.S.) Granville. (L.S.) Cadoena. 
 
 (L.S.) Bernstoiijfp. (L.S.) Butjnnow. 
 
 (L.S.) Apponyi. (L.S.) Mdsuexis. 
 
 (L.S.) Beoglie. 
 
 Proces- Verbal d'Echange. 
 
 Les Soussignes s etant reunis afin de proeeder k lechange 
 des ratifications du Traite conclu et signe le 13 Mars, 1871, 
 entre Sa Majeste la Eeine du Eoyaume Uni de la Grande 
 Bretagne et d'Irlande, Sa Majeste I'Empereur d'Allemagne, 
 Roi de Prusse, Sa Majeste FEmpereur d'Autriche, Roi de 
 Boh^me, &c., et Roi Apostolique de Hongrie, le Chef du 
 Pouvoir Executif de la Republique Fran9aise, Sa Majeste le Roi 
 d'ltalie, Sa Majeste I'Empereur de toutes les Russies, et Sa 
 Majesty I'Empereur- des Ottomans, pour la revision des stipu- 
 lations du Traite du 30 Mars, 1855, relatives h, la navigation 
 de la Mer Noire, ainsi qu'§, celle du Danube ; et les ratifi- 
 cations respectives ayant ete soigneusement collationnees et 
 trouvees en bonne et due forme, I'echange en a eu lieu au- 
 jourd'hui dans les formes usitees. 
 
 Les P16nipotentiaires de Russie et de la Sublime Porte ont 
 en meme temps echange les Ratifications de la Convention qui 
 a ete conclue entre leurs Cours respectives le 13 Mars, pour 
 abroger les stipulations de celle signee h Paris le ^f Mars, 
 1856, relative au nombre et h, la force des batiments de guerre 
 des Puissances Riveraines dans la Mer Noire, et ont com- 
 munique cette Convention a la Conference d'apres les termes 
 du Protocole No. 5, du 13 Mars. 
 
 » This period was afterwards extended to the isth of May. 
 
588 
 
 APPENDIX. 
 
 En foi de quoi les Soussign^s ont sign^ 
 
 le present Prooes- 
 
 "Verbal d'Ecihange, et y ont appos6 
 
 le caetet de leurs armes. 
 
 Fait A Londres, le 15 Mai, 187 1 
 
 . 
 
 
 (Signe) 
 
 
 
 
 (L.S.) 
 
 Geanville. 
 
 (L.S.) 
 
 Cadorna. 
 
 (L.S.) 
 
 Bernstoefp. 
 
 (L.S.) 
 
 Brunnow. 
 
 (L.S.) 
 
 A. WOLKENSTEIN. 
 
 (L.S.) 
 
 MUSURCS. 
 
 (L.S.) 
 
 BUOGLIB. 
 
 
 
 (Translation.) 
 
 The Undersigned having met together for the purpose of 
 exchanging the ratifications of the Treaty concluded and 
 signed on the 13th of March, 187 1, between Her Majesty the 
 Queen of the United Kingdom of Great Britain and Ireland, 
 His Majesty the Emperor of Germany, King of Prussia, His 
 Majesty the Emperor of Austria, King of Bohemia, &c., and 
 Apostolic King of Hungary, the Chief of the Executive 
 Power of the French Republic, His Majesty the King of 
 Italy, His Majesty the Emperor of all the Eussias, and His 
 Majesty the Emperor of the Ottomans, for the revision of the 
 stipulations of the Treaty of the 30th of March, 1856, relative 
 to the navigation of the Black Sea, as well as to that of the 
 Danube ; and the respective ratifications having been care- 
 fully compared and found in good and due form, the exchange 
 took place this day in the usual form. 
 
 The Plenipotentiaries of Russia and of the Sublime Porte, at 
 the same time, exchanged the ratifications of the Convention 
 concluded between their respective Courts on the 13th of 
 March, for abrogating the stipulations of that signed at Paris 
 on the Jfth of March, 1856, relative to the number and force 
 of the vessels of war of the Riverain Powers in the Black 
 Sea ; and communicated that Convention to the Conference, 
 according to the terms of the Protocol No. 5, of the 13th 
 March. 
 
 In witness whereof the Undersigned have signed the 
 present Proces- Verbal of Exchange, and have affixed thereto 
 the seal of their arms. 
 
CONVENTION OF LONDON, 1871. 589 
 
 Done at London, the 15th of May, 1871. 
 (Signed) 
 
 (L.S.) Granville. (L.S.) Cadorna. 
 
 (L.S.) Bernstorff. (L.S.) Brunnow. 
 
 (L.S.) A. WOLKENSTEIN. (L.S.) MuSURUS. 
 
 (L.S.) Broglie. 
 
 CONVENTION between Russia and Turkey, signed 
 at London, March 13, 187 1. 
 
 (Communicated to the Conference, on the exchange of the 
 Batifications, May 15, 1871.) 
 
 Au NoM DE DiEU Tout-Puissant. 
 
 Sa Majeste FEmpereur de toutes les Bussies et Sa Majeste 
 Imperiale le Sultan mutuellement animes du desir de con- 
 solider les relations de paix et de bonne intelligence heureuse- 
 ment existant entre leurs Empires, ont resolu de conclure 
 dans ce but une Convention, et ont nomme h cet eifet pour 
 leurs Plenipotentiaires, savoir : 
 
 Sa Majeste I'Empereur de toutes les Russies, le Sieur 
 Philippe Baron de Brunnow, Son Conseiller Prive Actuel 
 et Son Ambassadeur Extraordinaire et P16nipotentiaire pres 
 Sa Majeste Britannique, Chevalier des Ordres de Russie et 
 decore de I'Ordre Imperial Ottoman du Nishan Iftihar ; 
 
 Et Sa Majesty Imperiale le Sultan, Constantin Musurus 
 Pacha, Muchir et Vizir de I'Empii-e, d6cor6 des Ordres Im- 
 periaux de I'Osmani^ et du Medjidi^ de premiere classe, Son 
 Ambassadeur Extraordinaire et Plenipotentiaire pres Sa 
 Majeste Britannique ; 
 
 Lesquelsj apres avoir ^chang^ leurs pleins pouvoirs, trouv^s 
 en bonne et due forme, sont convenus des Articles suivants : — 
 
 Article I. 
 
 La Convention Sp^ciale conclue k Paris entre Sa Majeste 
 I'Empereur de toutes les Russies et Sa Majeste Imperiale le 
 Sultan le dix -huit Mars de I'an mil huit cent cinquante-six, 
 relative au nombre et a la force des batiments de guerre des 
 
590 APPENDIX. 
 
 deux Hautes Parties Contractantes dans la Mer Noire, est et 
 demeure abrog^e. 
 
 AllTICLE II. 
 
 La pr^sente Convention sera ratifiee, et les ratifications en 
 seront ^chang^es k Londres dans l^espace de six semaines, ou 
 plus tot si faire le peut. 
 
 En foi de quoi les Pl^nipotentiaires respeetifs I'ont signee 
 et y ont appose le sceau de leurs armes. 
 
 Fait k Londres le p™mi«r iour du mois de Mars de I'an mil 
 
 treizieme J 
 
 huit cent soixante-onze. 
 
 (L.S.) Bkunnow. (L.S.) Mustjeus. 
 
 Pour copie conforme k I'original. 
 (Signe) 
 
 Le Comte de Brunnow, 
 
 Ambassadeur de Russie. 
 Londres, le -^^ Mni, 1871. 
 
 (Translation.) 
 In the Name of Almighty God. 
 
 His Majesty the Emperor of all the Russias and His Im- 
 perial Majesty the Sultan, being mutually animated with the 
 desire to consolidate the relations of peace and good under- 
 standing happily existing between their Empires, have re- 
 solved to conclude for this purpose a Convention, and have 
 named to that elFect as their Plenipotentiaries, that is to say : 
 
 His Majesty the Emperor of all the Russias, the Sieur 
 Philip Baron Brunnow, His Actual Privy Councillor and 
 His Ambassador Extraordinary and Plenipotentiary to Her 
 Britannic Majesty, Knight of the Orders of Russia, and 
 decorated with the Imperial Ottoman Order of the Nishan 
 Iftihar ; 
 
 And His Imperial Majestj^ the Sultan, Constantino Mu- 
 surus Pasha, Mnchir and Vizir of the Empire, decorated with 
 the Imperial Orders of the Osmanie and of the Medjidie of 
 the first class, His Ambassador Extraordinary and Plenipo- 
 tentiary to Her Britannic Majesty ; 
 
CONVENTION OF LONDON, 1871. 591 
 
 Who, after having exchanged their full powers, found in 
 good and due form, have agreed upon the following Articles : 
 
 Article I. 
 
 The Special Convention concluded at Paris between His 
 Majesty the Emperor of all the Russias and His Imperial 
 Majesty the Sultan, on the ^^^^^^ of March, in the year one 
 thousand eight hundred and fifty-six, relative to the number 
 and force of the vessels of war of the two High Contracting 
 Parties in the Black Sea, is and remains abrogated. 
 
 Article II. 
 
 The present Convention shall be ratified, and the ratifi- 
 cations shall be exchanged at London in the space of six 
 weeks, or sooner if possible. 
 
 In witness whereof the respective Plenipotentiaries have 
 signed the same, and have afiixed thereto the seal of their 
 arms. 
 
 Done at London, the thiSith ^^y ^^ ^^^ month of March, 
 in the year one thousand eight hundred and seventy-one. 
 (L.S.) BuuNNOw. (L.S.) MusoRus. 
 
 A true copy from the original. 
 
 (Signed) 
 
 Count Brunnow, 
 
 Ambassador of Russia. 
 
 London, May ^%, 1871. 
 
 CONVENTION' between, Turkey and Russia, signed 
 
 at London, March 13, 187 1. 
 
 (Communicated to the Conference, on the exchange of the 
 
 Ratifications, May 15, 187 1.) 
 
 Au NoM DE DiEU Tout-Ptiissant. 
 
 Sa Majesty Imp^riale le Sultan et Sa Majestg I'Empereur 
 
 de toutes les Russies, mutuellement animes du d^sir de con- 
 
 solider les relations de paix et de bonne intelligence heureuse- 
 
 ment existant entre leurs Empires, ont resolu de conclure 
 
 dans ce but une Convention, et ont nomme a cet efi'et pour 
 
 leurs Plenipotentiaires, savoir : 
 
592 APPENDIX. 
 
 Sa Majesty Imp&iale le Sultan, Constatitin Musurus 
 Pacha, Muchir et Vizir de I'Empire, dleore des Ordres Ira- 
 p^riaux de TOsmanie et du Medjidie de premiere classe, Son 
 Ambassadeur Extraordinaire et Plenipotentiaire pres Sa 
 Majesty Britan^ique ; 
 
 Et Sa Majeste I'Empereur de toutes les Russies, le Sieur 
 Philippe Baron de Brunnowy Son Conseiller Priv6 actual, et 
 Son Amhassadt'ur Extraordinaire et Plenipotentiaire pres Sa 
 Majesty Britanniqu6, Chevalier des Ordres de Russie et decor6 
 de rOrdre Imperial Ottoman du Nishan Iftihar ; 
 
 Lesquels, apres avoir Ichange leurs pleins pouvoirs, trouv^s 
 en bonne et due forme, sont convenus des Articles suivants : 
 
 Article I. 
 
 La Convention Sp^ciale conclue a Paris le "^fgn^p Mars, de 
 I'an mil huit cent cinquante-six, entre Sa Majesty Imperiale 
 le Sultan et Sa Majeste I'Empereur de toutes les Russies, 
 relative au nombre et a la force des batiments de guerre des 
 deux Hautes Parties Contractantes dans la Mer Noire, est et 
 demeure abrog6e. 
 
 Akticle II. 
 
 La pr^sente Convention sera ratifiee, et les ratifications en 
 seront 6changees k Londres dans I'espace de six semairieSj ou 
 plus tot si faire se peut. 
 
 En foi de quoi les Plenipotentiaires respectifs I'ont signee 
 et y ont appose le sceau de leurs armes. 
 
 Fait a Londres le treizi^me jour du mois de I'an mil huit 
 cent soixante-onze. 
 
 (L.S.) Musuiius. (L.S.) Brunnow. 
 
 Pour copie conforme k I'original. 
 (Signe) 
 
 MUSUEUS, 
 
 Amhassadenr de Turguie. . 
 Londres^ le 15 Mai, 1871. 
 
 (Translation.) 
 
 In the Name of Almighty God. 
 
 His Imperial Majesty the Sultan and His Majesty the 
 Emperor of all the Russias, being mutually animated with 
 
CONVENTION OF LONDON, 1871. 593 
 
 the desire to consolidate the relations of peace and good 
 understanding happily existing between their Empires, have 
 resolved to conclude for this purpose a Convention, and have 
 named to that effect as their Plenipotentiaries, that is to 
 say: 
 
 His Imperial Majesty the Sultan, Constantine Musurus 
 Pasha, Muchir and Vizier of the Empire, decorated with the 
 Imperial Orders of the Osmanie and of the Medjidie of the 
 first class, His Ambassador Extraordinary and Plenipoten- 
 tiary to Her Britannic Majesty ; 
 
 And His Majesty the Emperor of all the Russias, the Sieur 
 Philip Baron Brunnow, His Actual Privy Councillor, and 
 His Ambassador Extraordinary and Plenipotentiary to Her 
 Britannic Majesty, Knight of the Orders of Russia, and 
 decorated with the Imperial Ottoman Order of the Nishan 
 Iftihar ; 
 
 Who, after having exchanged their full powers, found in 
 good and due form, have agreed upon the following Articles : 
 
 Article I. 
 
 The Special Convention concluded at Paris on the ^^^^^^ 
 of March, in the year one thousand eight hundred and fifty- 
 six, between His Imperial Majesty the Sultan and His 
 Majesty the Emperor of all the Russias, relative to the 
 number and force of the vessels of war of the two High Con- 
 tracting Parties in the Black Sea, is and remains abrogated. 
 
 Article II. 
 
 The present Convention shall be ratified, and the ratifi- 
 cations shall be exchanged at London in the space of six 
 weeks; or sooner if possible. 
 
 In witness whereof the respective Plenipotentiaries have 
 signed the same, and have afiixed thereto the seal of their 
 arms. 
 
 Done at London, the thirteenth ^^Y °^ *^^ month of March, 
 in the year one thousand eight hundred and seventy-one. 
 (L.S.) MusuEus. (L.S.) Brunnow. 
 
 A true copy from the original. 
 (Signed) 
 
 Musurus, 
 Ambassador of Turkey. 
 London, May 15, 1871. 
 
 PAKT II. Q q 
 
594 APPENDIX. 
 
 FOREIGN ENLISTMENT ACT. 
 
 33 and' 34 Vict., Chap. 90. 
 
 An Act to regulate the conduct of Her Majesty's 
 subjects during the existence of hostilities between 
 foreign states with which Her Majesty is at peace. 
 
 [9th August, 1870.] 
 
 Whereas it is expedient to make provision for the regula- 
 tion of the conduct of Her Majesty's subjects during the 
 existence of hostilities between foreign states with which Her 
 Majesty is at peace : 
 
 Be it enacted by the Queen's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 Preliminary. 
 
 Short title I. This Act may be cited for all purposes as " The Foreiga 
 of Act. Enlistment Act, 1870." 
 
 Applioa^ 2i. This Act shall extend to all the dominions of Her Ma- 
 
 lon c . jgg^-y^ including the adjacent territorial waters. 
 Com- 3. This Act shall come into operation in the United King- 
 
 menrof '^°^ immediately on the passing thereof, and shall be pro- 
 Act, claimed in every British possession by the governor thereof 
 as soon as may be after he receives notice of this Act, and 
 shall come into operation in that British possession on the day 
 of such proclamation, and the time at which this Act comes 
 into operation in any place is, as respects such place, in this 
 Act referred to as the commencement of this Act. 
 
 Illegal Enlistment. 
 
 Penalty on 4. If any person, without the license of Her Majesty, being 
 
 S'serXe* ^ British subject, within or without Her Majesty's dominions, 
 
 of foreign accepts or agrees to accept any commission or engagement in 
 
 state. ^jjg military or naval service of any foreign state at war witi 
 
 any foreign state at peace with Her Majesty, and in this Act 
 
 referred to as a friendly state, or whether a British subject 
 
 or not within Her Majestj-'s dominions, induces any other 
 
 person to accept or agree to accept any commission or engage- 
 
FOREIGN ENLISTMENT ACT, 1870. 595 
 
 ment in the military or naval service of any such foreign state 
 
 as aforesaid, — 
 
 He shall be guilty of an offence against this Act, and shall 
 be punishable by fine and imprisonment, or either of 
 such punishments, at the discretion of the court before 
 which the offender is convicted ; and imprisonment, if 
 awarded, may be either with or without hard labour. 
 
 5. If any person, without the license of Her Majesty, being Penalty on 
 a British subject, quits or goes on board any ship with a view ^''"'^ ■,„ 
 ot quittmg Her Majesty s dommions, with intent to accept ty's domi- 
 any commission or engagement in the military or naval ser- "nte^'to'' 
 vice of any foreign state at war with a friendly state, or, serve a 
 whether a British subject or not, within Her Majesty's 3°^^^^" 
 dominions, induces any other person to quit or to go on board 
 
 any ship with a view of quitting Her Majesty's dominions 
 
 with the like intent, — 
 
 He shall be guilty of an offence against this Act, and shall 
 be punishable by fine and imprisonment, or either of such 
 punishments, at the discretion of the court before which 
 the offender is convicted j and imprisonment, if awarded, 
 may be either with or without hard labour. 
 
 6. If any person induces any other person to quit Her Penalty on 
 Majesty's dominions or to embark on any ship within Her pctsous un- 
 Majesty's dominions under a misrepresentation or false repre- der false re- 
 sentation of the service in which such person is to be engaged, tions as to 
 with the intent or in order that such person may accept or service. 
 agree to accept any commission or engagement in the military 
 
 or naval service of any foreign state at war with a friendly 
 
 state, — 
 
 He shall be guilty of an offence against this Act, and shall 
 be punishable by fine and imprisonment, or either of such 
 punishments, at the discretion of the court before which 
 the offender is convicted ; and imprisonment, if awarded, 
 may be either with or without hard labour. 
 
 7. If the master or owner of any ship, without the license Penalty on 
 
 .-,■•11 taking 
 
 of Her Majesty, knowmgly either takes on board, or engages jHegaUy 
 to take on board, or has on board such ship within Her enlisted 
 Majesty's dominions any of the followmg persons, m this Act ^n board 
 referred to as illegally enlisted persons ; that is to say,— ship, 
 
 (i) Any person who, being a British subject within or 
 without the dominions of Her Majesty, has, without 
 Q q 2 
 
596 APPENDIX. 
 
 the license of Her Majesty, accepted or agreed to 
 accept any commission or engagement in the mili- 
 tary or naval service of any foreign state at war with 
 any friendly state : 
 
 (2) Any person, being a British subject, who, without the 
 
 license of Her Majesty, is about to quit Her 
 Majesty's dominions with intent to accept any com- 
 mission or engagement in the military or naval ser- 
 vice of any foreign state at war with a friendly 
 state.: 
 
 (3) Any person who has been induced to embark under a 
 
 misrepresentation or false representation of the ser- 
 vice in which such person is to be engaged, with 
 the intent or in order that such person may accept 
 or agree to accept any commission or engagement 
 in the military or naval service of any foreign state 
 at war with a friendly state : 
 Such master or owner shall be guilty of an offence against 
 this Act, and the following consequences shall ensue ; that is 
 to say, — 
 
 (i) The oiFender shall be punishable by fine and imprison- 
 ment, or either of such punishments, at the dis- 
 cretion of the court before which the offender is 
 convicted ; and imprisonment, if awarded, may be 
 either with or without hard labour : and 
 (a) Such ship shall be detained until the trial and convic- 
 tion or acquittal of the master or owner, and until 
 all penalties inflicted on the master or owner have 
 been paid, or the master or owner has given security 
 for the payment of such penalties to the satisfaction 
 of two justices of the peace, or other magistrate or 
 magistrates having the authority of two justices of 
 the peace : and 
 (3) All illegally enlisted persons shall immediately on the 
 discovery of the offence be taken on shore, and shall 
 not be allowed to return to the ship. 
 
 Illegal Shipbuilding and Illegal Expeditions. 
 Penalty on 8. If any person within Her Majesty's dominions^ without 
 b'lfdin'^'^" *^^ license of Her Majesty, does any of the following acts ; 
 and illegal that is to say, — 
 
FOREIGN ENLISTMENT ACT, 1870. 597 
 
 (l) Builds or agrees to build, or causes to be built any ship expedi- 
 with intent or knowledge, or having reasonable *^°'"'" 
 cause to believe that the same shall or will be em- 
 ployed in the military or naval service of any foreign 
 state at war with any friendly state : or 
 
 (a) Issues or delivers any commission for any ship with 
 intent or knowledge, or having reasonable cause to 
 believe that the same shall or will be employed in 
 the military or naval service of any foreign state at 
 war with any friendly state : or 
 
 (3) Equips any ship with intent or knowledge, or having 
 
 reasonable cause to believe that the same shall or 
 will be employed in the military or naval service of 
 any foreign state at war with any friendly state : 
 or 
 
 (4) Despatches, or causes or allows to be despatched, any 
 
 ship with intent or knowledge, or having reasonable 
 cause to believe that the same shall or will be em- 
 ployed in the military or naval service of any foreign 
 state at war with any friendly state : 
 Such person shall be deemed to have committed an offence 
 against this Act^ and the following consequences shall ensue : 
 (i) The offender shall be punishable by fine and imprison- 
 ment, or either of such punishments, at the discre- 
 tion of the court before which the offender is con- 
 victed ; and imprisonment, if awarded, may be either 
 with or without hard labour. 
 (•Z) The ship in respect of which any such offence is com- 
 mitted, and her equipment, shall be forfeited to Her 
 Majesty : 
 Provided that a person building, causing to be built, or 
 equipping a ship in any of the cases aforesaid, in pursuance 
 of a contract made before the commencement of such war as 
 aforesaid, shall not be liable to any of the' penalties imposed 
 by this section in respect of such building or equipping if he 
 satisfies the conditions following ; that is to say,— 
 
 (i) If forthwith upon, a proclamation of neutrality bemg 
 issued by Her Majesty he gives notice to the Secre- 
 tary of State that he is so building, causing to be 
 built, or equipping such ship, and furnishes such 
 particulars of the contract and of any matters 
 
598 APPENDIX. 
 
 relating to, or done, or to be done under the contract 
 as may be required by the Secretary of State : 
 (2) If he gives such security, and takes and permits to be 
 taken such other measures, if any, as the Secretary 
 of State may prescribe for ensuring that such ship 
 shall not be despatched, delivered, or removed with- 
 out the license of Her Majesty until the termination 
 of such war as aforesaid. 
 Presump- 9. Where any ship is built by order of or on behalf of any 
 tion as to foreign state when at war with a friendly state, or is delivered 
 
 evidence m o . 
 
 case of to Or to the order of such foreign state, or any person who to 
 illegal ship. ^YiQ knowledge of the person building is an agent of such 
 foreign state, or is paid for by such foreign state or such 
 agent, and is employed in the military or naval service of such 
 foreign state, such ship shall, until the contrary is proved, be 
 deemed to have been built with a view to being so employed, 
 and the burden shall lie on the builder of such ship of proving 
 that he did not know that the ship was intended to be so 
 employed in the military or naval service of such foreign state. 
 Penalty on lo. If any person within the dominions of Her Majesty, 
 wfrUke^^ and without the license of Her Majesty,— 
 equipment By adding to the number of the guns, or by changing those 
 8hiDs™'^° on board for other guns, or by the addition of any equipment 
 for war, increases or augments, or procures to be increased or 
 augmented, or is knowingly concerned in increasing or aug- 
 menting the warlike force of any ship which at the time of 
 her being within the dominions of Her Majesty was a ship in 
 the military or naval service of any foreign state at war with 
 any friendly state, — 
 
 Such person shall be guilty of an offence against this 
 Act, and shall be punishable by fine and imprisonment, 
 or either of such punishments, at the discretion of the 
 court before which the offender is convicted ; and im- 
 prisonment, if awarded, may be either with or without 
 hard labour. 
 Penalty on II. If any person within the limits of Her Majesty's 
 fitting out dominions, and without the license of Her Maiesty, — 
 
 naval or n, , i -i-, ,. . 
 
 mUitary Prepares or fats out any naval or military expedition to pro- 
 
 expedi- ggg^ against the dominions of any friendly state, the following 
 out license, consequences shall ensue : 
 
 (i) Every person engaged in such preparation or fitting 
 
FOREIGN ENLISTMENT ACT, 1870. 599 
 
 out, or assisting therein, or employed in any capacity 
 in such expedition, shall be guilty of an offence 
 against this Act, and shall be punishable by fine and 
 imprisonment, or either of such punishments, at the 
 discretion of the court before which the offender is 
 convicted ; and imprisonment, if awarded, may be 
 either with or without hard labour. 
 (2) All ships, and their equipments, and all arms and 
 munitions of war, used in or forming part of such 
 expedition, shall be forfeited to Her Majesty. 
 13. Any person who aids, abets, counsels, or procures the Punish- 
 
 commission of any offence against this Act shall be liable to ™^"* ?^^" 
 
 be tried and punished as a principal offender. 
 
 13. The term of imprisonment to be awarded in respect of Limitation 
 
 any offence against this Act shall not exceed two years. 
 
 imprison- 
 ment. 
 
 Illegal Prize. 
 
 14. If, during the continuance of any war in which Her Illegal 
 Majesty may be neutral, any ship, goods, or merchandise cap- ^"o^ught 
 tured as prize of war within the territorial jurisdiction of Her into 
 Majesty, in violation of the neutrality of this realm, or cap- ^^^ 
 tured by any ship which may have been built, equipped, com- restored. 
 missioned, or despatched, or the force of which may have been 
 augmented, contrary to the provisions of this Act, are brought 
 within the limits of Her Majesty's dominions by the captor, 
 or any agent of the captor, or by any person having come 
 into possession thereof with knowledge that the same was 
 prize of war so captured as aforesaid, it shall be lawful for the 
 original owner of such prize, or his agent, or for any person 
 authorised in that behalf by the Government of the foreign 
 state to which such owner belongs, to make application to the 
 Court of Admiralty for seizure and detention of such prize, 
 and the court shall, on due proof of the facts, order such prize 
 to be restored. 
 
 Every such order shall be executed and carried into effect in 
 the same manner, and subject to the same right of appeal, as 
 in case of any order made in the exercise of the ordinary juris- 
 diction of such court ; and in the meantime and until a final 
 order has been made on such application the court shall have 
 power to make all such provisional and other orders as to the 
 
600 APPENDIX. 
 
 care or custody of such captured ship, goods, or merchandise, 
 and (if the same he of perishable nature, or incurring risk of 
 deterioration) for the sale thereof, and with respect to the 
 deposit or investment of the proceeds of any such sale, as may 
 be made by such court in the exercise of its ordinary jurisdic- 
 tion. 
 
 General Provision. 
 
 License by 1 5- For the purposes of this Act, a license by Her Majesty 
 Her Ma- ^^^ be under the sign manual of Her Majesty, or be signi- 
 granted. fied by Order in Council or by proclamation of Her Majesty. . 
 
 Legal Procedure. 
 
 Jurisdio- 1 6- ^^Y offence against this Act shall, for all purposes of 
 
 tion in re- and incidental to the trial and punishment of any person 
 offences by gu^i^ty of ^^7 such offence, be deemed to have been committed 
 persons either in the place in which the offence was wholly or partly 
 ^ct. committed^ or in any place within Her Majesty's dominions 
 
 in which the person who committed such offence may be. 
 Venue in 17- -A-uy offence against this Act may be described in any 
 respect of indictment or other document relating to such offence, in 
 persons. cases where the mode of trial requires such a description, as 
 24 & 21; having been committed at the place where it was wholly or 
 Vict. c. 97. partly committed, or it may be averred generally to have been 
 committed within Her Majesty's dominions, and the venue or 
 local description in the margin may be that of the county, 
 city, or place in which the trial is held. 
 Power to 18. The following authorities, that is to say, in the United 
 o^ndera Kingdom any judge of a superior court, in any other place 
 for trial, within the jurisdiction of any British court of justice, such 
 court, or, if there are more courts than one, the court having 
 the highest criminal jurisdiction in that place, may, by war- 
 rant or instrument in the nature of a warrant in this section 
 included in the term " warrant," direct that any offender 
 charged with an offence against this Act shall be removed to 
 some other place in Her Majesty's dominions for trial in cases 
 where it appears to the authority granting the warrant that 
 the removal of such offender would be conducive to the 
 interests of justice, and any prisoner so removed shall be 
 
FOREIGN ENLISTMENT ACT, 1870. 601 
 
 triable at tlie place to which he is removed, in the same 
 manner as if his offence had been committed at such place. 
 
 Any warrant for the purposes of this section may be 
 addressed to the master of any ship or to any other person or 
 persons, and the person or persons to whom such warrant is 
 addressed shall have power to convey the prisoner therein 
 named to any place or places named in such warrant, and to 
 deliver him, when arrived at such place or places, into the 
 custody of any authority designated by such warrant. 
 
 Every prisoner shall, during the time of his removal under 
 any such warrant as aforesaid, be deemed to be in the legal 
 custody of the person or persons empowered to remove 
 him. 
 
 19. All proceedings for the condemnation and forfeiture of Jmisdio- 
 a ship, or ship and equipment, or arms and munitions of war, j-emect of 
 in pursuance of this Act shall require the sanction of the forfeiture 
 Secretary of State or such chief executive authority as is in "ffgnoea 
 this Act mentioned, and shall be had in the Court of Admi- against 
 ralty, and not in any other court ; and the Court of Admiralty 
 shall, in addition to any power given to the court by this 
 Act, have in respect of any ship or other matter brought 
 before it in pursuance of this Act all powers which it has 
 in the case of a ship or matter brought before it in the exer- 
 cise of its ordinary jurisdiction. 
 
 30. Where any offence against this Act has been committed Eegala- 
 by any person by reason whereof a ship, or ship and equip- '"o^ge^. " 
 ment, or arms and munitions of war, has or have become inga 
 liable to forfeiture, proceedings may be instituted contempo- o|g™der 
 raucously or not, as may be thought fit, against the offender and against 
 in any court having jurisdiction of the offence, and against ^ ^ ^^' 
 the ship, or ship and equipment, or arms and munitions of 
 war, for the forfeiture in the Court of Admiralty ; but it shall 
 not be necessary to take proceedings against the offender 
 because proceedings are instituted for the forfeiture, or to take 
 proceedings for the forfeiture because proceedings are taken 
 against the offender. 
 
 21. The following officers, that is to say. Officers 
 
 (i) Any officer of customs in the United Kingdom, subject ^^^^^^ 
 nevertheless to any special or general instructions offending 
 from the Commissioners of Customs or any officer of ° 'P^' 
 ■ the Board of Trade, subject nevertheless to any 
 
602 APPENDIX, 
 
 special or general instructions from the Board of 
 Trade ; 
 («) Any officer of customs or public officer in any British 
 possession, subject nevertheless to any special or 
 general instructions from the governor of such pos- 
 session ; 
 
 (3) Any commissioned officer on full pay in the military 
 
 service of the Crown, subject nevertheless to any 
 special or general instructions from his commanding 
 officer ; 
 
 (4) Any commissioned officer on full pay in the naval ser- 
 
 vice of the Crovpn, subject nevertheless to any special 
 or general instructions from the Admiralty or his 
 superior officer, 
 may seize or detain any ship liable to be seized or detained in 
 pursuance of this Act, and such officers are in this Act referred 
 to as the " local authority "; but nothing in this Act contained 
 shall derogate from the power of the Court of Admiralty to 
 direct any ship to be seized or detained by any officer by 
 whom such court may have power under its ordinary jurisdic- 
 tion to direct a ship to be seized or detained. 
 Powers of 33. Any officer authorised to seize or detain any ship in 
 authorised I'Sspect of any offence against this Act may, for the purpose of 
 to seize enforcing such seizure or detention, call to his aid any con- 
 stable or officers of police, or any officers of Her Majesty's 
 army or navy or marines, or any excise officers or officers of 
 customs, or any harbour-master or dock-master, or any officers 
 having authority by law to make seizures of ships, and may 
 put on board any ship so seized or detained any one or more 
 of such officers to take charge of the same, and to enforce the 
 provisions of this Act, and any officer seizing or detaining 
 any ship under this Act may use force, if necessary, for the 
 purpose of enforcing seizure or detention, and if any person 
 is killed or maimed by reason of his resisting such officer in 
 the execution of his duties, or any person acting under his 
 orders, such officer so seizing or detaining the ship, or other 
 person, shall be freely and fully indemnified as well against 
 the Queen's Majesty, her heirs and successors, as against all 
 persons so killed, maimed, or hurt. 
 Special 23. If the Secretary of State or the chief executive autho- 
 
 power of j,j^y -g satisfied that there is a reasonable and probable cause 
 
FOREIGN ENLISTMENT ACT, 1870. 603 
 
 for believing that a ship within Her Majesty's dominions has of State or 
 been or is being built, commissioned, or equipped contrary to outive 
 this Act, and is about to be taken beyond the limits of such authority 
 dominions, or that a ship is about to be despatched contrary ^-^^ 
 to this Act, such Secretary of State or chief executive autho- 
 rity shall have power to issue a warrant stating that there is 
 reasonable and probable cause for believing as aforesaid, and 
 upon such Warrant the local authority shall have power to 
 seize and search such ship, and to detain the same until it has 
 been either condemned or released by process of law, or in 
 manner hereinafter mentioned. 
 
 The owner of the ship so detained, or his agent, may apply 
 to the Court of Admiralty for its release, and the court shall 
 as soon as possible put the matter of such seizure and deten- 
 tion in course of trial between the applicant and the Crown. 
 
 If the applicant establish to the satisfaction of the court 
 that the ship was not and is not being built, commissioned, 
 or equipped, or intended to be despatched contrary to this 
 Act, the ship shall be released and restored. 
 
 If the applicant fail to establish to the satisfaction of the 
 court that the ship was not and is not being built, commis- 
 sioned, or equipped, or intended to be despatched contrary to 
 this Act, then the ship shall be detained till released by order 
 of the Secretary of State or chief executive authority. 
 
 The court may in cases where no proceedings are pending 
 for its condemnation release any ship detained under this sec- 
 tion on the owner giving security to the satisfaction of the 
 court that the ship shall not be employed contrary to this 
 Act, notwithstanding that the applicant may have failed to 
 establish to the satisfaction of the court that the ship was not 
 and is not being built, commissioned, or intended to be des- 
 patched contrary to this Act. The Secretary of State or the 
 chief executive authority may likewise release any ship de- 
 tained under this section on the owner giving security to the 
 satisfaction of such Secretary of State or chief executive 
 authority that the ship shall not be employed contrary to this 
 Act, or may release the ship without such security if the 
 Secretary of State or chief executive authority think fit so to 
 
 release the same. 
 
 If the court be of opinion that there was not reasonable and 
 probable cause for the detention, and if no such cause appear 
 
B04 APPENDIX. 
 
 in the course of the proceedings, the court shall have power 
 to declare that the owner is to be indemnified by the payment 
 of costs and damages in respect of the detention, the amount 
 thereof to be assessed by the court, and any amount so 
 assessed shall be payable by the Commissioners of the Trea- 
 sury out of any moneys legally applicable for that purpose. 
 The Court of Admiralty shall also have power to make a like 
 order for the indemnity of the owner, on the application of 
 such owner to the court, in a summary way, in cases where 
 the ship is released by the order of the Secretary of State or 
 the chief executive authority, before any application is made 
 by the owner or his agent to the court for such release. 
 
 Nothing in this section contained shall affect any proceed- 
 ings instituted or to be instituted for the condemnation of 
 any ship detained under this section where such ship is liable 
 to forfeiture, subject to this provision^ that if such ship is 
 restored in pursuance of this section all proceedings for such 
 condemnation shall be stayed ; and where the court declares 
 that the owner is to be indemnified by the payment of costs 
 and damages for the detainer, all costs, charges, and expenses 
 incurred by such owner in or about any proceedings for the 
 condemnation of such ship shall be added to the costs and 
 damages payable to him in respect of the detention of the 
 ship. 
 
 Nothing in this section contained shall apply to any foreign 
 
 non-commissioned ship despatched from any part of Her 
 
 Majesty's dominions after having come within them under 
 
 stress of weather or in the course of a peaceful voyage, and 
 
 upon which ship no fitting out or equipping of a warlike 
 
 character tas taken place in this country. 
 
 Special 24. Where it is represented to any local authority, as de- 
 
 fcaf au- ^^^^ by ^^^^ ^^^' ^"<^ s'^ch local authority believes the repre- 
 
 thorifcyto sentation, that there is a reasonable and probable cause for 
 
 detain ship, i^gj-g^-jjg, ^j,g^^ ^^ gj^jp within Her Majesty's dominions has 
 
 been or is being built, commissioned, or equipped contrary to 
 
 this Act, and is about to be taken beyond the limits of such 
 
 dominions, or that a ship is about to be despatched contrary 
 
 to this Act, it shall be the duty of such local authority to 
 
 detain such ship, and forthwith to communicate the fact of 
 
 such detention to the Secretary of State or chief executive 
 
 authority. 
 
FOREIGN ENLISTMENT ACT, 1870. 605 
 
 Upon the receipt of such communication the Secretary of 
 State or chief executive authority may order the ship to be 
 released if he thinks there is no cause for detaining her, but 
 if satisfied that there is reasonable and probable cause for 
 believing that such ship was built, commissioned, or equipped 
 or intended to be despatched in contravention of this Act, he 
 shall issue his warrant stating that there is reasonable and 
 probable cause for believing as aforesaid, and upon such war- 
 rant being issued further proceedings shall be had as in cases 
 where the seizure or detention has taken place on a warrant 
 issued by the Secretary of State without any communication 
 from the local authority. 
 
 Where the Secretary of State or chief executive authority 
 orders the ship to be released on the receipt of a communica- 
 tion from the local authority without issuing his warrant, the 
 ovraer of the ship shall be indemnified by the payment of 
 costs and damages in respect of the detention upon applica- 
 tion to the Court of Admiralty in a summary way in like 
 manner as he is entitled to be indemnified where the Secretary 
 of State having issued his warrant under this Act releases the 
 ship before any application is made by the owner or his agent 
 to the court for such release. 
 
 Q,K. The Secretary of State or the chief executive authority Power of 
 may, by warrant, empower any person to enter any dockyard ^^ g^^^^ ^^ 
 or other place within Her Majesty's dominions and inquire executive 
 as to the destination of any ship which may appear to him to t" gran/ 
 be intended to be employed in the naval or military service of ^«^™^_^^ 
 any foreign state at war with a friendly state, and to search '^*™'' ' 
 
 such ship. 
 
 26. Any powers or jurisdiction by this Act given to the Exe^se of 
 Secretary of State may be exercised by him throughout the g°^^etary 
 dominions of Her Majesty, and such powers and jurisdiction of sute 
 may also be exercised by any of the followmg officers, m this g^^^.tive 
 Act referred to as the chief executive authority, within their authority, 
 respective jurisdictions; that is to say, 
 
 (I) In Ireland by the Lord Lieutenant or other the chiet 
 governor or governors of Ireland for the time being, 
 or the chief secretary to the Lord Lieutenant : 
 fa) In Jersey by the Lieutenant Governor : 
 In Guernsey, Alderney, and Sark, and the dependent 
 islands by the Lieutenant Governor : •. 
 
606 APPENDIX. 
 
 (4) In the Isle of Maa by the Lieutenant Governor : 
 
 (5) In any British possession by the Governor. 
 
 A copy of any warrant issued by a Secretary of State or by 
 
 any officer authorised in pursuance of this Act to issue such 
 
 warrant in Ireland, the Channel Islands, or the Isle of Man 
 
 shall be laid before Parliament. 
 
 Appeal 27. An appeal may be had from any decision of a Court of 
 
 from Admiralty under this Act to the same tribunal and in the 
 
 Admiralty, same manner to and in which an appeal may be had in cases 
 
 within the ordinary jurisdiction of the court as a Court of 
 
 Admiralty. 
 
 Indemnity 38. Subject to the provisions of this Act providing for the 
 
 to oflacers. award of damages in certain cases in respect of the seizure or 
 
 detention of a ship by the Court of Admiralty no damages 
 
 shall be payable, and no officer or local authority shall be 
 
 responsible^ either civilly or criminally, in respect of the 
 
 seizure or detention of any ship in pursuance of this Act. 
 
 Indemnity 29. The Secretary of State shall not^ nor shall the chief 
 
 to Seore- executive authority, be responsible in any action or other legal 
 
 State or proceedings whatsoever for any warrant issued by him in pur- 
 
 chief exe- gyance of this Act, or be examinable as a witness, except at 
 
 cutive au- ^ / ' r 
 
 thority. his own request, in any court of justice in respect of the 
 circumstances which led to the issue of the warrant. 
 
 Interpretation Clause. 
 Interpreta- 30. In this Act, if not inconsistent with the context, the 
 
 tion of 
 terms. 
 
 state 
 
 following terms have the meanings hereinafter respectively 
 assigned to them ; that is to say, 
 
 Foreign " Foreign state " includes any foreign prince, colony, pro- 
 vince, or part of any province or people, or any person or 
 persons exercising or assuming to exercise the powers of 
 government in or over any foreign country, colony, pro- 
 vince, or part of any province or people : 
 
 Militaij "Military service" shall include military telegraphy and 
 any other employment whatever, in or in connexion with 
 any military operation : 
 
 Naval ^^ " Naval service " shall, as respects a person, include service 
 as a marine, employment as a pilot in piloting or directing 
 the course of a ship of war or other ship when such ship 
 
 service 
 
 service 
 
FOREIGN ENLISTMENT ACT, 1870. 607 
 
 of war or other ship is being used in any military or naval 
 operation, and any employment whatever on board a ship 
 of war, transport, store ship, privateer or ship under 
 letters of marque ; and as respects a ship, include any 
 user of a ship as a transport, store ship, privateer or ship 
 under letters of marque : 
 
 " United Kingdom " includes the Isle of Man, the Channel "United 
 Islands, and other adjacent islands : ?"™°".. 
 
 " British possession " means any territory, colony, or place <• British 
 being part of Her Majesty's dominions, and not part of posses- 
 the United Kingdom, as defined by this Act : 
 
 "The Secretary of State" shall mean any one of Her "The Sec- 
 Majesty's Principal Secretaries of State : ^^^^^, ?^ 
 
 " The Governor " shall as respects India mean the Governor " Gover- 
 General or the governor of any presidency, and where a ^°^ •" 
 British possession consists of several constituent colonies, 
 mean the Governor General of the whole possession or the 
 Governor of any of the constituent colonies, and as re- 
 spects any other British possession it shall mean the officer 
 for the time being administering the government of such 
 possession ; also any person acting for or in the capacity 
 of a governor shall be included under the term " Go- 
 vernor " : 
 
 "Court of Admiralty" shall mean the High Court of Ad- "Court of 
 miralty of England or Ireland, the Court of Session of •'V^'"',^' 
 Scotland, or any Vice-Admiralty Court within Her 
 Majesty's dominions : 
 
 " Ship " shall include any description of boat» vessel, floating " Ship : " 
 battery, or floating craft ; also any description of boat, 
 vessel, or other craft or battery, made to move either on 
 the surface of or under water, or sometimes on the surface 
 of and sometimes under water : 
 
 " Building " in relation to a ship shall include the doing ;• Buiid- 
 any act towards or incidental to the construction of a '"^ ' 
 ship, and all words having relation to building shall be 
 construed accordingly • 
 
 " Equipping " in relation to a ship shall include the fur- " Equip- 
 nishing a ship with any tackle, apparel, furniture, provi- ^^"^ ' 
 sions, arms, munitions, or stores, or any other thing 
 which is used in or about a ship for the purpose of fitting 
 or adapting her for the sea or for naval service, and all 
 
608 
 
 APPENDIX. 
 
 " Ship and 
 equip- 
 ment : " 
 " Master." 
 
 words relating to equipping shall be construed accord- 
 ingly : 
 
 " Ship and equipment " shall include a ship and everything 
 in or belonging to a ship : 
 
 " Master " sball include any person having the charge or 
 command of a ship. 
 
 Repeal of 
 
 Foreign 
 
 Enlistment 
 
 Act. 
 
 59 G. 3. 0. 
 
 69. 
 
 to oommis- 
 
 eioned 
 
 foreign 
 
 Penalties 
 not to ex- 
 tend to 
 persons en- 
 tering into 
 military 
 service in 
 Asia. 
 
 69 G. 3. c. 
 6g. s. 12. 
 
 Repeal of Acts, and Saving Clauses. 
 
 3 1 . From and after the commencement of this Act, an Act 
 passed in the fifty-ninth year of the reign of His late Majesty 
 King George the Thirds chapter sixty-nine, intituled "An 
 "Act to prevent the enlisting or engagement of His Majesty's 
 " subjects to serve in foreign service, and the fitting out or 
 " equipping, in His Majesty's dominions, vessels for warlike 
 "purposes, without His Majesty^s license," shall be repealed: 
 Provided that such repeal shall not affect any penalty, for- 
 feiture, or other punishment incurred or to be incurred in 
 respect of any offence committed before this Act comes into 
 operation, nor the institution of any investigation or legal 
 proceeding, or any other remedy for enforcing any such 
 penalty, forfeiture, or punishment as aforesaid. 
 
 33. Nothing in this Act contained shall subject to forfeiture 
 any commissioned ship of any foreign state, or give to any 
 British court over or in respect of any ship entitled to recog- 
 nition as a commissioned ship of any foreign state any juris- 
 diction which it would not have had if this Act had not 
 passed. • 
 
 33. Nothing in this Act contained shall extend or be con- 
 strued to extend to subject to any penalty any person who 
 enters into the military service of any prince, state, or poten- 
 tate in Asia, with such leave or license as is for the time being 
 required by law in the case of subjects of Her Majesty enter- 
 ing into the military service of princes, states, or potentates 
 in Asia. 
 
INDEX TO VOL. 11. 
 
 Act of the Congresa of the United 
 States of America, of 7 April 1 790, 
 sect. 9, p. 417. of 1794, 491. of 
 1818,475. of 3 March 1847, 419. 
 
 Actseon, the, 330. 
 
 Action, International, Right of, 5. 
 
 Adelaide, the, 204, 224. 
 
 Adeline (schooner) and her cargo, the, 
 
 346. 
 Adet'a, Mr., I^etter to Mr. Pickering, 
 
 ir March 1796, 298. 
 Admiral, the office of, 142. 
 Admiralty, Blacli Book of, 26, 338, 
 
 365- 
 Admiralty Jurisdiction, Growth of, 25. 
 Admiralty Jurisdiction over booty, 
 
 137. over prize, exclusive, 115. 
 Adonis, the, 223. 
 
 Affirming gun, Bule of an, 181, 182. 
 Albericus Gentilis, 243, 246, 248, 344, 
 
 437- 
 Alberoni, Cardinal, 7.1;. 
 Alerta, the brig, v. Bias Moran, 459, 
 
 482. 
 Alexander, the, 223. 
 Alexander the Great at Thebes, 105. 
 Algiers, French Blockade of, 208. 
 Alicant, Port of, 221. 
 Alphonso X of Castile, 146. 
 Alvanley, Lord, 106. 
 America, Confederate States of, 165. 
 Amistad, la, de Rues, 490. 
 Amiti^ r, 365. 
 Ancient Jurisdiction exercised by 
 
 Neutral Powers in matters of Prize, 
 
 484. 
 Ann, the, 301. 
 Anna, the, 409, 442. 
 Anna Catherina, the, 308, 310. 
 Anne, the, 442, 488, 489. 
 Annuaire des Deux Mondes, 1852-53, 
 
 474- 
 Antonia Johanna, the, 310. 
 ApoUo, the, 278. 
 Aragon, Peter III of, 24- Maritime 
 
 Law of, 26. 
 
 PAKT II, 
 
 Arbitration in disputes of Germanic 
 States, II. in international dis- 
 putes, 7. 
 
 Archives, Public, 128. 
 
 Ardea, dispute of, with Arioinm, 9. 
 
 Argentine Republic, Blockade of, 208. 
 
 Aries, compact of, with Pisa in 12 21, 
 149. 
 
 Armada, Spanish, 62. 
 
 Armed Neutrality of the Baltic 
 Powers in 1780, 162, 268. 
 
 Arrogante Barcelona, the, 411, 494. 
 
 Art, Works of, 129. 
 
 Arthur, the, 215. 
 
 Atalanta, the, 315. 
 
 Attila, 125. 
 
 Audieme, Bay of, 95. 
 
 AusterUtz, Column of, 134. 
 
 Austria, Declaration of, as to Con- 
 traband of War, 268. 
 
 Avocatoria Edicta, 84. 
 
 Azuni, Droit Maritime, 360. 
 
 B. 
 
 Baltic Powers, Confederations of the, 
 in 1782 and 1801, 244. Convention 
 of the, in 1801, 178. 
 
 Barcelona, 146. 
 
 Beawes' Lex Mercatoria, 391, 397. 
 
 Bell V. Beidi 432, 462. 
 
 BeUeisle, Due de, seizure of, 39. 
 
 Belligerent privilege of Asylum in 
 Neutral Waters, 453. 
 
 Belligerent Powers may grant Com- 
 missions of War to aliens, 391. 
 
 Belligerent Right of Capture recon- 
 cilable with the Independence of 
 Neutral Nations, 505. 
 
 Belligerent Bight of Visit and Search, 
 the exercise of the, regulated by 
 Treaties, 403. 
 
 Belligerents, the passage of, through 
 neutral territory, 443. 
 
 Belligerents may not interfere with 
 Trade within the jurisdiction of a 
 Neutral State, 295. 
 
 Bellona, the, 366. 
 
 ar 
 
610 
 
 INDEX TO yOL. II. 
 
 Betsey, the, 197, 206, 213. 
 
 Blaokbuni v. Thompson, 328. 
 
 Blockade, object of, 192. Penalties 
 for violating a, 193. 
 
 Blockade of 1806,' 207, 224. from 
 Brest to the Eiver Elbe, 224, 227. 
 of the Polls in the Baltic in 1854, 
 226. of the Seabo.ird of the Con- 
 federal e S.ales in 1861, 226. of the 
 MoHlhs of the Danube, 227. 
 
 Blnchei-, Piince, 131, 134. 
 
 Boebm v. Bell, 350. 
 
 Bolletia, the, 322. 
 
 Bolognn, Law School of, 10. 
 
 Booty 01 Wai-, Juiiijdiction over, 136. 
 
 Bosphoras, tlie, 195. 
 
 Bousbmaker, Ex parte, 1 1 o. 
 
 British practice in issuing Cominis- 
 sions to the commanders of private 
 ships, 392. 
 
 Brown v. the United States, loi, 104, 
 108, 116. 
 
 Brussels, Hevalds-at-Arms at, 62. 
 
 Brutus, the, 277, 289. 
 
 Brymer v. Atkins, 337. 
 
 Buchanan, Prcsideni;, note to Sir B. 
 Pakenliam, 225. 
 
 Bull, Golden, of Charles IV, 59. 
 
 Burlamaqui on Declaration of War, 
 72. 
 
 Butin, 141. 
 
 Byfield, the, 214, 228. 
 
 Byng, Admiral, 75. 
 
 Bynkershoek, Quaestiones Jnr. Publ., 
 
 3ii> 352. 4I!9n57- 
 
 Bynkershoek 's views as to the rela- 
 tions between BeUigei-ents and Neu- 
 trals, 426. on Coniraband of War, 
 26S. 
 
 Bynkershoek on Eeprisals, 36. on the 
 Eight of Visitation, J 78. 
 
 C. 
 
 Calypso, the, 217. 
 
 Cambac&fes, the Minister, 97. 
 
 Camden, History of Queen Elizabeth, 
 240. 
 
 Camden, Lord, 323, 324. and others 
 V. Home, 336. 
 
 Cape of Good Hope, the, 366. 
 
 Cape Town, Capitulation in 1795, 
 128. 
 
 Capitol at Washington, 133. 
 
 Capture and its incidents, 329. 
 
 Capture, what is essential to consti- 
 tute a, 332. 
 
 Carolina, la, 209. the, 314. 
 
 Cartel between France and Great 
 BriUin in 1 780, 354. France and 
 Holland in 1675, 353. France and 
 Italy in 1701, 353. Great Brilain 
 and the Uoited States in 1813, 354. 
 the Emperor Leopold and Louis 
 
 XIV in 1692, 353. Louis XTV 
 and the States General, 26 March 
 
 1673. 353- 
 
 Cartel Ships, 355. 
 Ca^saregis, de Commercio, 442. 
 Castlereagh, Viscount, Letter of, 130. 
 Catherine Elizabeth, the, 187. 
 Catherine, Empress of Russia, 37. 
 Cecil, Mr. Secretary, 242, 246. 
 Certificate of Registry, 184. 
 Cession, Treaties of, 320. 
 
 Ceylon, the, 337, 343, 344. 345- 
 Chalmers's " Opinions of Eminent 
 
 Lawyers," 415. 
 Character, Mercantile, not affected 
 
 by the Consular character, 316. 
 Chailes V of France, 93. 
 Charles VI, Emperor, in. 
 Charles XII of Sweden, 125. 
 Charlotta, ihe, 215, 217, 232. 
 Charlotte, the, 277. 
 .Chai-lotte, Witt, the, 393. 
 Charter Party, 184. 
 Christianberg, the, 222. 
 Christopher, the, 370. 
 Cicero's Offices, 54. '' ^ 
 
 Cochrane, Admiral, 133. 
 Codex Augusteus Saxonious Eleo- 
 
 toralis, 84. 
 Collectanea Maritima, 145, 191, 196, 
 
 34°- 
 Columbia, the, 202, 210, an, 223. 
 Comet, the, 216. 
 Comity between Belligerent Powers 
 
 at the outset of war, 95. 
 Commercen, the, 279, 293, 295. 
 Commercial Contracts suspended by 
 
 war, 109. 
 Commission of Admiral of the Sea 
 
 granted by Henry VIII (a.d. 1512), 
 
 376. 
 Commission of War, what constitutes 
 
 a lawful, 387. 
 Commission of War must be on board 
 
 a Privateer, 384. 
 Commissions for Private Men of War, 
 
 397 
 Commissions to carry on hostilities, 
 
 84. 
 Compromise, examples of, 6. 
 Concordia, the, 316. 
 Condemnation of Prizes brought into 
 
 the port of an Ally, 369. 
 Confederate States of Arnerica, En- 
 voys of, 39. 
 Conference, Amicable, 6. of Vienna 
 
 in 1855, 16. 
 Conflict of jurisdiction between a 
 
 Neutral Admiralty Court and a 
 
 Belligerent Prize Court, 497. 
 Congress of Paris, 16 April 1856, 
 
 41, 163, 422. Declaration as to 
 
 Blockade, 198. 
 
INDEX TO VOL. II. 
 
 611 
 
 Congress of the United States in 
 
 1775. 378. 
 Consolat del Mar, 145, 342. 
 Constable of the King, 136. 
 Constructive Notice of a Blockade, 
 
 203. 
 Contraband, EarKest Catalogue, 234. 
 
 origin of the term, 232. 
 Contrabannum, ■234. 
 Contravando, 234. 
 Contremarque, Letters of, 24. 
 Contiibutions, Military, in lieu of 
 
 Booty, 124. 
 Convention of France and England 
 (10 May 1854), 354, 371. be- 
 tween Great Britain and Sweden 
 (25 July 1803), 286. of London (19 
 May 1815), 113. (22 Sept. 1827), 8. 
 (16 Not. 1S31), 114. with Russia 
 (17 Jan. 1861), 197. of Schwedt 
 (6 Oct. 1713), 127. of Sweden and 
 Denmark (1693% 260. 
 Conventions, Early, in restraint of 
 Neuti'al trade, 245. against the 
 Employment of Privateers, 421. 
 Conway, the Countess of, 301. 
 Copenhagen, Heialds-at-Arms at, 62. 
 Corfu, Island of, 320. 
 Corinth, Destruction of, 121. 
 Comer v. Blackbume, 360. 
 Correspondence de Napoleon, 96, 97. 
 Corso, la guerra del, 143. 
 Coup d' Assurance, 182. 
 Courir sus aux ennemia, 84. 
 Course, Aimemens en, 26. 
 Court of Chivalry, 1 36. 
 Crawford v. Lucena, 349. 
 Croke, Sir Alexander, 132, 229. 
 Crompton on the Jurisdiction of 
 
 Courts, 136. 
 Crops, Devastation of, 125. 
 Crown, the, its absolute control over 
 
 all captures, 340. 
 Gushing, Letter of Attorney General, 
 
 of 7 Aug. 1854, 467. 
 Cussy, Baron Ferdinand de. Phases 
 et Causes G^febres du Droit Mari- 
 time des Nations, 401, 467. 
 Customs of the Sea, 146, 
 
 D. 
 
 D'Abrantes, M. la Duchesse, 97. 
 D'Abreu on Contraband of War, 271. 
 Tratado sobre Pressas de Maj, 
 
 399- 
 Daifjie, the, 355. 
 Danckebaar Afrioaan, the, 321, 
 Danish Prize Instructions of 10 March 
 
 18 10, 399. 
 Danous, the, 301. 
 Debts due to Enemy-subjects, 100. 
 Deooan, the Army of the, 137. 
 
 Declaration of the Congress of Paris, 
 422. 
 
 Declaration of Maritime Law at Pa- 
 ris, 163, 198. 
 
 Declaration of War in 1 702, last Bri- 
 tish, 65. 
 
 Declaration of War by Louis XIV in 
 16C6, 94. 
 
 Declaration of War against Spain in 
 1762, 84. 
 
 Declarations of War, disuse of formal, 
 65. 
 
 Decrfes, Contve-Amiral, 96. 
 
 De Hautefeuille on Declaration of 
 War, 71. on Blockade, 205. 
 
 Delictum, Duration of, after Egress, 
 218. 
 
 De Lovio v. Boit, 378. 
 
 Demetrius, King, 195. 
 
 Demophoou, 83. 
 
 De Negotie en Zeevaart; case of, 
 
 323. iH- 
 Des Droits et des Devoirs des Nations 
 
 Neuti-es, 4.01. 
 Despatch, the, 188, 214. 
 Despatch, the brig, and her cargo, 369. 
 De Tastet v. Taylor, 432, 462. 
 Detention of British Subjects in 
 
 France in 1803, 96. 
 De Tlioii, 246. 
 
 Dettingen, battle of, in 1743. 74- 
 De Witt, Grand Pensionary, 30, 35, 
 
 156, 2.i;2. 
 Diet of Numberg, 58. of Koncaglia, 
 
 59- 
 
 Difficulty of specifying articles con- 
 ditionally contraband, 274. 
 
 Diffidatio, 79. 
 
 Dion Prusaeensis, 52. 
 
 Distinction between enemies de facto 
 and enemies dejure, 311. 
 
 Distinction between piracy under spe- 
 cial Convention, and piracy under 
 the Common Law, 418. 
 
 Distinction between trade on the 
 High Seas and trade within the 
 Teri'itory of a Neutral Power, 434. 
 
 Distribution of Prize amongst joint 
 captors, 367. 
 
 Divina Pastora, the, 505. 
 
 Division of Prize, 368. 
 
 Domicil, an acquired, may be aban- 
 doned at the outset of war, 304. 
 
 Domicil, the criterion of National Cha- 
 racter for purposes of war, 299. 
 
 Donaldson v. Thompson, 320. 
 
 Dree Gebroeders, the, 308, 318, 366. 
 
 Drie Vrienden, the, 218. 
 
 Duckworth v. Tucker, 369. 
 
 Dumont, Corps Diplomatique, 353. 
 
 Dutch Resident at the Court of St. 
 James in 1656, 344. 
 
 Dutch War (4.D. 1664), 382. 
 
612 
 
 INDEX TO VOL. II. 
 
 Duties of a Neutral Power in oases of 
 Civil War, 499. 
 
 Duty of captora to bring in their cap- 
 tures for adjudication as Prize, 329. 
 
 Duty of Moderation, 17. 
 
 E. 
 
 EJagle, the, 201. 
 
 Edict of Henry III of France in 1584, 
 
 150, 161, 381. 
 Edicta inhibitoria and avooatoria, 84. 
 Edicts of States General in 1652, 
 
 1657, i68g, 269. 
 Edit oonoemant la jurisdiction de 
 
 I'Amiraut^ de France, 381, 401. 
 Edward I of England, 27. 
 Edward II, Letter of, to Philip V, 
 
 191. 
 Edward III of England, 23. 
 Edwai-d, the, 278, 292. 
 Edward and Mary, the, 333. 
 Egress from a blockaded post, 217. 
 Eldon, Lord Chancellor, no. 
 Eliza Ann, the, 409, 443, 472. 
 EUenborough, Lord, 106. 
 Elsebe, the, 341. 
 Embargo of enemy merchants, 92. of 
 
 enemy's property afloat, 114. 
 Embargo equivocal, 21. President 
 
 Jefferson on, 23. provisional, 22. 
 
 where Reprisals cannot be granted, 
 
 22. on Sicilian vesiiels in 1839, 
 
 36- 
 Emerigon, Traits des Assurances, 
 
 356. 
 Employment of the property of a 
 
 neutral subject in the service of a 
 
 belligerent Power, 313. 
 Enemies have no locus stamdi in a 
 
 Prize Court, 331. 
 Enemy character, 299. may attach 
 
 to places in the occupation of an 
 
 enemy, 326. may be engrafted sub 
 
 modo on the neutral character, 
 
 309- 
 
 Enemy subjects in the country 
 of a belligerent, 86. m transitu 
 through the territory of a belli- 
 gerent, 93. 
 
 Envoys of Confederate States of Ame- 
 rica, 39. Political, exempt from 
 Reprisals, 38. 
 
 Equity as to conditional Contraband, 
 288. 
 
 Erie, Chief Justice, 103. 
 
 Erskine, Lord, Speech of, on 8 March 
 1808, 272. 
 
 Estrella, the, 386, 473, 504. 
 
 European Nations, Concert of, aa to 
 Articles of Contraband, 267. 
 
 Eurysthenes, Ambassador of, 84. 
 
 Exception in transactions of good 
 
 faith originating in time of peace, 
 
 324- 
 Exceptional status of the merchant 
 
 on the High Seas, 436. 
 Bykellenburg, Mr., the case of, 316. 
 
 F. 
 
 Fadrelandet, the, 365. 
 
 Fama, the, 321. 
 
 Fanny, the, 188, 493. 
 
 Fanny, Ingraham, 289. 
 
 Fanucoi, 147. ' 
 
 Fecials, College of, 7. 
 
 Felicity, the, 332. 
 
 Fenwick, Mr., the case of, 316. 
 
 Financier, the, 365. 
 
 Fitzsimmons «. the Newport Insu- 
 rance Company, 20 z. 
 
 Fladoyen, the, 100, 371, 484. 
 
 Flag of Foreign Privateers, 397. 
 
 Flore, La, 364, 365, 366. 
 
 Fontainbleau, Abdication of Napo- 
 leon at, 134. 
 
 Foreign Enlistment Act, the, 471. 
 (59 Geo. III. c. 69.) 
 
 Forster, Mr., British Envoy to the 
 United States in 1807, 206, 225. 
 
 Fortune, the, 215. 
 
 Fox, Mr., Notification of blockade by, 
 207, 224. 
 
 Frances, the ship and cargo, 306, 322. 
 
 Francis, Emperor of Austria, 134. 
 
 Franciska, the, 199, 201, 203, 206, 
 230, 231. 
 
 Franklin, the, 188, 292. 
 
 Fraud in egress from a blockaded 
 port, 221. 
 
 Fran Margaretha, the, l^S. 
 
 Frederick Barbarossa, 58. 
 
 Frederick Molke, the, 216. 
 
 Free Ships, Free Goods, 156. 
 
 Freight upon goods captured by the 
 enemy, 155. 
 
 French Prize Courts, Law of, 151. 
 
 French Revolution of 1789, 129. 
 
 Friendly character may attach to 
 places in the occupation of an ally, 
 
 327- 
 Fnendschaft,- the, 310. 
 Friendship, the, 315. 
 Fuero de Layron, 146. 
 Furtado v. Rogers, 106. 
 
 G. 
 
 Galen, the, 365. 
 
 General doctrine of British Prize tri- 
 bunals, 276. 
 General Hajnilton, the, 219, 221. 
 Georgiana, the, 345. 
 Gildermester, Mr., the case of, 316. 
 Glass V. the Sloop Betsey, 487. 
 
INDEX TO VOL. II. 
 
 613 
 
 Gloire, the, 356. 
 
 Golden Bull of Charles IV, 59. 
 
 Goss V. Withers, 349. 
 
 Gradual Kestraint of Private Expedi- 
 tions on the Sea, 376. 
 
 Gran Para, the, 410, 481. 
 
 Grange, the, 44^. 
 
 Grant, Sir William, 151, 201. 
 
 Gratitudine, the, 361. 
 
 Groot Plaoaart Boek, 414. 
 
 Grose, Mr. Justice, 350. 
 
 Grotius, de Jure Belli et Paois, 426. 
 
 Grotius, Doctrine of, as to Contraband 
 of War, 250. on Reprisals, &c., 
 36, 342, 350. -views of, as to the 
 relations between Belligerents and 
 Neutrals, 425. 
 
 Grotius, the, 336. 
 
 H. 
 
 Haabet, the, 283. 
 
 Hagerdon v. Bell, 320. 
 
 Hale's Pleas of the Crown, 63 
 
 69. 
 Halleck's lutemational Law, 69, 98, 
 
 131- 
 Hamburg, City of, 319. Senate of, 
 
 10. Statute of (anno 1270), 174. 
 Hansard's Parliamentary Debates, 
 420. 
 
 Hanse League, the, 242. 
 
 Hanse Towns, capture of the fleet, 
 241. Confederation of the, 244. 
 
 Hautefeuille, M. de, 135, 401. on 
 Blockade, 205. 
 
 Havre, blockade of, 212. 
 
 Hay, Sir George, 314. 
 
 Heffter on Contraband of War, 244. 
 
 Helena, the, 501. 
 
 Henric and Alida, the, 314. 
 
 Henrick and Maria, the, 369, 499. 
 
 Henry III of England, 92. 
 
 Heralds' College in London, 60. 
 
 H&ault, Abreg^ Chronologique de 
 I'Histoire de la France, 93. 
 
 Hercules, the, 333. 
 
 Hertslet's Treaties, 406. 
 
 Het Huys, the, 316. 
 
 High Seas, distinction between trade 
 on the, and trade within the Terri- 
 tory of a Neutral Power, 434. ex- 
 ceptional status of the merchant on 
 the, 436. 
 
 HofFnung, the, 227. 
 
 Holland, blockade of, in 1806, 214. 
 
 Hollinshed'e Chronicles, 61. 
 
 Hood, Commodore, 205. 
 
 Hoop, the, 109, 173, 361- 
 
 Horatio, the, 346. 
 
 HospitaUty to belligerent ships dis- 
 cretional on the part of Neutral 
 Powers, 446. 
 
 Hostages, 360. 
 
 Hubner's Territorial Theory as to 
 
 merchant vessels, 166. 
 Hurtige Hane, the, 192, 196, 215. 
 
 I. 
 
 Iramanuel, the, 308. 
 
 Immovable property of enemies in 
 
 the country of a Belligerent, 118. 
 ludependencia del Sud, the, 463. 
 Indian Chief, the, 305, 316. 
 Inhibitoria Edicta, 84. 
 Instructions for the Colleges of Ad- 
 
 mttalty, 15 Aug. 1597, 381. 
 Insurable interest of British captors, 
 
 348. 
 Invincible, the, 387, 486, 497, 507. 
 Inviolability of the Territory of a 
 
 Neutral Nation, 441. 
 Ionian Islands, the, 322. 
 Irish Regiments in the service of the 
 
 Emperor, 81. 
 
 J. 
 
 Jan Frederick, the, 326. 
 
 Jarvia, Admiral, 206. 
 
 Jefferson, President, on Embargo, 23. 
 
 on Marque and Reprisals, 32. 
 Jena, bridge of, 134. 
 Jenkins, Sir LeoUne, on Contraband 
 
 of War, 261, 275. Life and Works 
 
 of, 484. on Neutral Jurisdiction, 
 
 483, 484, 488. on Reprisals, 36. 
 Johanna Emilia, the, 467. 
 Johnson, Mr. Justice, 280, 487. 
 Johnson v. Greaves, 328. 
 Joint captures, 364. 
 Jonge Classina, the, 309. 
 Jonge Margaretha, the, 268, 273, 278. 
 Jonge Pieter, the, 226. 
 Jonge Thomas, the, 292. 
 Juffrow Maria Schroeder, the, 217, 
 
 218. 
 JuUa, the, 316. 
 Juno, the, 215, 217, 229. 
 Junot, General, 97. 
 Jurisdiction over Captures in Neutral 
 
 waters exercised by the Neutral 
 
 Power, 482. 
 Jurisdiction of Courts to distribute 
 
 Prize, 336. 
 Jurists, French, on Contraband ot 
 
 War, 271. Italian and Spanish, 
 
 on Contraband of War, 270. 
 
 Kamptz, Neue Literatur des V61- 
 
 kerrechts, 84. 
 Karasan, the, 396. 
 Keene, Mr., British Minister at 
 
 Madrid, 64. 
 
614 
 
 INDEX TO VOL, II. 
 
 Kent's Commentaries on American 
 
 Law, 298, 417, 494. 
 Keuyon, Lord, 350. 
 Kinders Kinder, the, 191. 
 Kliiber, on Contraband of War, 244. 
 
 Droit dea Gens, 297. 
 
 L'Aotif, 345. 
 
 Lampredi, du Commerce des Neutrea, 
 
 399, 433. del Commercio de Po- 
 
 poU Neutrall in tempo di guerra, 
 
 410. 
 Lawrence, Mr. Juatice, 350. 
 Lawrence's Wheaton, second edition, 
 
 1863, 420, 423. 
 Lebeau, Nouveau Code dea Prisea, 
 
 360. 
 Le Caux v. Eden, 115. 
 Le Cras v. Hughes, 350. 
 Lee, Sir George, iii. 
 Leo X, Pope, 9. 
 Letters Patent of Henry III (16 Aug. 
 
 1582), 339. 
 Lettrea d'Bstrades, 352. 
 Lex Talionia, 19. 
 Libraries, Public, 129. 
 Licensea, favourable conatruction of, 
 
 214. 
 Lindo V. Eodney, 336, 382. 
 Lisette, the, 222, 435. 
 Liverpool, Lord, 259. 
 Livingstone, Mr. Juatice, 280. 
 Lloyd, Sir Nathaniel, Queen's Advo- 
 cate General in 1710, 285, 382. 
 Loan, Ruaaian-Dutch, conduct of Great 
 
 Britain in regard to the, u 2. Sile- 
 
 sian, conduct of Prussia in regard to 
 
 the. III. 
 Louis IX of France, 92. 
 Louia XI of Prance, hia Treaty with 
 
 the Hanse Towna in 1483, 93. 
 Louia XIV of France, Declaration of 
 
 War in 1666 against England, 94. 
 Louis, le, 418. 
 Louisa, la, 209. 
 Louisiana, Cession of, 321. 
 Louvre, Gallery of the, 130. 
 Lubeck, Statute of (a.d. 1299), 174. 
 Lupum auribus teneo, 188. 
 Liishington, Dr., 199, 231. 
 
 M. 
 
 Madeiros v. HiU, 211. 
 
 Maisonnaire et al. v. Keating, 279, 
 
 Malta, Knighta of, 31. 
 Manifeatoea of War, 70. 
 Manilla, the, 328. 
 Mansfield, Lord, 349. 
 Maroare akin to pignorare, 24. 
 Marciac, Council o^ 24. 
 
 Marescalchi, Letter of Napoleon to, 
 
 97- 
 
 Margaret, the, 293. 
 
 Maria, the, 177, 185, 187. 
 
 Mariamne, the, 395. 
 
 Mariana Flora, the, 180, 182. 
 
 Maria Theresa, Empreas,' ill. 
 
 Maritime Code of Christian Y (1670- 
 1699), 345- 
 
 Maritime intercourae of Nations, 139. 
 
 Maritime Law, Declaration of, at 
 Paris, in 1856, 163, 198. 
 
 Marque, origin of the term, 24. prac- 
 tice of, 23. Eight of, 40. 
 
 Marriott, Sir Jamea, 67, 324, 394, 
 415- 
 
 Marriott's Formulary, 391, 397. 
 
 Marseilles, Merchant flag of, 174, 
 Statute of, 148. 
 
 Marshal, Earl, of the King, 136. 
 
 Marshall, Chief Justice, 100, 211, 
 280. 
 
 Marshall on Insurance, 152. 
 
 Martens, (Charles de) Causes Cflebrea 
 du Droit dea Gena, 401 . 
 
 Martens (G.P.de) on Privateers, 403. 
 E&ueil, 353. Precia du Droit des 
 Gens, 409. 
 
 Maiy and Susan, the, 391, 42J. 
 
 Mediation, differs from Arbitration, 12. 
 Puffendorf 's view, 13. of France in 
 1840, 35. in the case of Greece, 
 14. in the case of Sweden and 
 Denmark, 14. 
 
 Melomane, the, 384. 
 
 M^moire Justificatif of France in 
 1779, 70. 
 
 Mercantile Flag, origin of, 172. 
 
 Merourius, the, 197, 206, 293. 
 
 Michell'a, Mr., Memorial, in. 
 
 Milan, Arch of the Simplon in, 134. 
 
 Military Contributions in lieu of booty, 
 124. 
 
 Military Stores, destruction of, 125. 
 
 Miller v. The Eesolution, 358. 
 
 Milton, John, 284. 
 
 Mithridatea, War against, 195. 
 
 Modem restraints upon Eansom, 361. 
 
 Modified Neutrality under Treaty- 
 engagements, 469. 
 
 Mole, Count, Instructions of, 208. 
 
 Monte Allegro, the, 481. 
 
 Mornac, Maxim of, 149. 
 
 Movable Property, booty of war, 122. 
 
 Municipal prohibitions against Sub- 
 jects accepting Lettera of Marque 
 from foreign Powera, 414. 
 
 Munroe, Mr. Secretary, 133. 
 
 Murray, Mr., SoUoitor General, in. 
 
 N. 
 Nancy, the, 201, 293. 
 
INDEX TO VOL. 11. 
 
 615 
 
 Napoleon, Abdication of, 134. Cor- 
 respondence of, 96. Message to 
 the French Senate on 20 May 1803, 
 96. 
 
 Navigation Act of 1651, 251. 
 
 Nayade, the, 301. 
 
 Nemesis, the, 350. 
 
 Neptune, Gibbs, 289. 
 
 Neptunus, the, 203, 206, 210, 218, 
 224, 277. 
 
 Nereide, the, 153, 163, 188, 212, 
 316. 
 
 Netherlands, award of King of the, 8. 
 
 Neustra Senora de la Caridad, the, 
 
 505- 
 
 Neutral Courts do not entertain ques- 
 tions of Damages, 488. 
 
 Neutralitet, the, 292, 316. 
 
 Neutrality, ArmeJ, of 1780, 158, 197, 
 268. 
 
 Neutral merchant-vessel cannot claim 
 to verify a privateer's belligerent 
 character, 401. 
 
 Neutral Nation, Inviolability of the 
 territory of a, 441 . 
 
 Neutral Power, a, may claim a vessel 
 captured in violation of its territory, 
 before a belligerent Piize Court, 
 493. Bight of a, to eiclade priva- 
 teers and all piizes of war from its 
 ports, 451. Right of a, to prohibit 
 the enlistment of troops within its 
 territoiy, 458. Trade within the 
 territory of a, 434. 
 
 Neutral Powers, Purchase and Sale of 
 Ships by the subjects of, 463. 
 
 Neutral Powers do not intei-pose their 
 jurisdiction in cases of Kesoue, 495. 
 
 Neutral Powers, on the Eights and 
 Duties of, 425. Bynkershoek's 
 views, 427. views of Martens, 431. 
 views of Wolff and of Vattel, 429. 
 
 Neutral Eights of police over Belli- 
 gerent vessels of war in Neutral 
 waters, 4.^7. 
 
 Neutral State, Trade within the terri- 
 tory of a, 460. 
 
 Neutral vessels may not saU under 
 Convoy, 186. 
 
 Neutrals ignorant of hostilities, 77. 
 
 NevUe, Sir Henry, 242, 247, 253. 
 
 Newcastle, Duke of, Letter of 8 Feb. 
 1753,111,486. 
 
 Non-interference with trade consistent 
 with the Neutrality of a State, 
 472. 
 
 Nostra Signora de Begona, the, 279. 
 
 Nostra Signora del Kosario, the, 345. 
 
 Notification of Blockade, 204. 
 
 Notification of Great Britain (1836) 
 as to Contraband of War, 266. 
 
 Notoriety of a blockade, 204. 
 
 Nurnberg, Diet of, 58. 
 
 Ocean, the, 226, 306. 
 
 Odin, the, 367. 
 
 Oleron, Eooles or Jugemens d', 146. 
 
 Oliveiraj). Union Insurance Company, 
 216. 
 
 Opinions of the Attorneys General of 
 the United States, 389, 432, 467, 
 496. 
 
 Orange, Prince of, 387. 
 
 Ordenanza di Corso of 1718, 150. 
 
 Order in Council of 4 Feb. 1664, 382. 
 of 6 March, 1665-6, 384, 394. of 
 1808,272. of 29 March 1854, 116, 
 230, 304. 334- of 15 April 1854, 
 327- 
 
 Ordinance of Maximilian of Austria, 
 1487, 379. of Denmark in 1810, 
 348. of Henry VI of England 
 (A.D. 1496), 370. of Charles 11 of 
 France, 160. of Chailes VI of 
 France (7 Dec. 1400), 338, 370, 
 377. of Louia XII of Fir.nce, on 
 15 April 16S9, 398. of France (15 
 May 1756), 362. (30 Aug. 1782), 
 ibid, of Great Britain in 1649, 345. 
 of Holland in 1659, and in 1677, 348. 
 of Portugal in 1797, 348. of Spain 
 ini62i, 389, 399. of 18 June 1653, 
 449. in 1 718, 386, 399, 402. in 
 1779, 405. in iSoi, 347. of the 
 States General, 210, 220. of Swe- 
 den on 19 Feb. 1715; 392> 399, 402, 
 405,412. in 1788, 348. of Sweden 
 and Noi-way on 24 March 1854, 451. 
 of the United Provinces of South 
 America in 181 7, 402. 
 
 Ordonnance de la Marine in 168 1, 150, 
 160, 360, 386, 389, 397, 402, 415. 
 
 Orion, the, 230, 317. 
 
 Orozemho, the, 314. 
 
 Ortolan, Diplomatic de la Mer, 297. 
 
 Ortolan, Eegles Internationales, 448. 
 
 P. 
 
 Packet de Eiiboa, the, 325. 
 
 Pahnerston, Lo:d, on Eeprisals, 34. 
 
 Papers, Ship's, 184. 
 
 Paidessus, Lois Maritimes, 376. 
 
 Paris, Congress of. See Congress. 
 
 Paris, Matthew, 92. 
 
 Partidas, las Siete, 146. 
 
 Pass or Sea-Letter, 173. 
 
 Passaro, battle of, 76. 
 
 Passes, Mediterranean, 174. 
 
 Passiioi-t of a Ship, 172. 
 
 Pati-on of a Ship, 174. 
 
 Paul, Dr., III. 
 
 Paule's Church, 61. 
 
 Peace of the Empire, 59. 
 
 Peace of Munater (a.d. 1648), 353. 
 
616 
 
 INDEX TO VOL. II. 
 
 of Paris, 1763, 65. ofWestphalia 
 
 (A.D. 1648), 251. 
 Pembroke, the Earl of, 394. 
 Perfect Liberty of commerce within 
 
 the territory of a Neutral Power, 
 
 432. 
 Permanent Residence constitutes Do- 
 
 micil, 302. 
 Peter the Great, 125. 
 Philadelphia, Academy of Arts at, 
 
 132. 
 Phoenix, the, 308, 318. 
 Pictures, as works of Art, 1 29. 
 Pierce (President), Message of (31 
 
 December 1854), 476. 
 Pignoratio, 23. 
 Pigou, the, 316. 
 Piracy under special Convention, and 
 
 Piracy under the Common Law, 
 
 Distinction between, 418. 
 Pisa, compact of, with Aries in 1221, 
 
 148. 
 Pisa, the Society ofUmili at, 143. 
 Pistoye et Duverdy, Traits des Prises 
 
 Maritimes, 362. 
 Placaarts of the States General in the 
 
 sixteenth century, 247. 
 Polish Envoy and Queen Elizabeth, 
 
 240. 
 Pompey the Great, 195. 
 Posten, the, 213. 
 Postilion, the, 304. 
 Pothier, Traits de Propriety, 359. 
 Practice of British Prize Courts as to 
 
 Contraband of War, 272. 
 Practice of European Powers at the 
 
 end of the sixteenth century, 247. 
 Practice of the seventeenth century, 
 
 249. 
 Practice of United States of America 
 
 on commencing war, 73. 
 Praris it. Captain Martine and his 
 
 owners (A.D. 1675), 396. 
 Pratt on Contraband of War, 291. 
 Pratt's edition of Story's Notes on. 
 
 Prize Law, 89. 
 Preemption, Eight of, 282. 
 Prince George of Denmark, 394. 
 Prisoners of War, ancient practice as 
 
 to, 350. 
 Privateer, Texian, 72. 
 Privateer, verification of the military 
 
 flag of a, 399. 
 Privateers, origin of name, 374. 
 Privateers may not have two Com- 
 missions of War from different 
 
 Powers, 389. 
 Privateers not admitted to the same 
 
 Comity as Public Ships of War, 407. 
 Privateers, Conventions against the 
 
 Employment of, 421. 
 Privateers distinguishable from Letters 
 
 of Marque, 374. 
 
 Privateers, Distinguishing Flag of 
 British, 397. Disuse of, 42, the 
 Flag of Foreign, 397. Purport of 
 Instructions issued to British, 396. 
 
 Privateers in the sixteenth and seven- 
 teenth centuries, 380. under special 
 conventions piratical vessels, 416. 
 
 Prize Act of 1 708, 341. of 22 Geo. Ill, 
 c. 25 (A.D. 1782), 362. of 1812, 
 
 395- 
 
 Prize Eegulations of July 1704 and 
 1778, 466. of France of 1854, 
 368. 
 
 Proclamation of Charles I (31 Dec. 
 1625), 236, 295. (4 March 1626), 
 237, 290. (23 July 1628), .352. 
 of Queen Elizabeth of England in 
 1602, 381. of Henry III, 190. of 
 Henry VI in 1426, 379. of 29 
 March 1854, 368. 
 
 Proclamation of War, object of, 68. 
 
 Produce of land, its character varies 
 with the character of the country 
 and not of the owners, 318. 
 
 Property, its character cannot be 
 changed in transitu on the High 
 Seas, 322. 
 
 Property, its character is not always 
 identical with the character of its 
 owner, 306. 
 
 Protocol of Paris (i I Sept. 181.0, 130. 
 
 Protocol, No. 24, of Congress of Paris, 
 166. 
 
 Prussia, Declarations of, as to Contra- 
 band of War, 268. 
 
 Pultowa, Battle of, 1 26. 
 
 Purchase and Sale of Ships by the 
 subjects of Neutral Powers, 463. 
 
 Q. 
 
 Quatre Frferes, the, 266. 
 Queen Anne, 336. Proclamation of 
 (I June 1702), 339. 
 
 E. 
 
 Kainha de los Anjos, the, 481. 
 
 Eanger, the, 277, 292. 
 
 Eansom Bills, 357. 
 
 Ransom of Captures at Sea, 356. 
 
 Eebeokah, the, 337, 384. 
 
 Recapture, Practice of France, Spain, 
 Denmark, Sweden, and Holland, 
 346. Practice of Great Britain and 
 of the United States of America as 
 to, 345. Salvage on, 345._ 
 
 Eecaptures subject to the jus postli- 
 minii, 341. 
 
 E^cueil, van Zeezalten, 379. 
 
 Reeves's History of Shipping, 1 74. 
 
 Efeglement of Francis I of France in 
 1543. 150, i<5o. 
 
INDEX TO VOL. II. 
 
 617 
 
 E&glemetit of iJjS, 151. 
 
 Eeid V. Ship Vere, 496. 
 
 Kendsborg, the, 308, 326. 
 
 Beprisals, 20, 33. against persons, 
 37- Bynkershoek, 36. Grotius on, 
 36. Hale, Chief Justice, on, 32. 
 President Jefferson on, 32. Sir 
 Leoline Jenkins on, 36. Vattel, 
 36. Consistent with Peace, 28. 
 
 Reprisals differ from War, 140. 
 
 Reprisals, Law of, 27. Negative and 
 Positive, 29. not always lawful, 
 35. Political Envoys exempt from, 
 38. against Spain in 1739, 33i ^5- 
 Special and General, 30. against 
 the Two Sicilies in 1839, 33. 
 
 Eesolutiou, the, 334. 
 
 Restraints upon Privateer.'?, 394 . 
 
 Restrictions upon Privateers in neu- 
 tral waters, 409. 
 
 Retaliation, Active, 19. 
 
 Retortion of Fact, 18. of Right, 18. 
 
 Revolution of 1789, 129. 
 
 Richardson v. Marine Insurance Com- 
 pany, 298. 
 
 Richmond, the, 277, 289, 292. 
 
 Right of Approach, 179. of Deten- 
 tion for inquiry, 185. of a Neutral 
 Power to exclude privateers and 
 all prizes of war from its ports, 451. 
 of a Neutral Power to prohibit the 
 enlistmeiit of troops within its ter- 
 ritory, 458. of a Neutral State to 
 allow Belligerent Powers to recruit 
 troops within its territory, 454. of 
 Preemption, 282. of Redress, 23. 
 
 Right of Visitation according to Byn- 
 kershoek, 178. 
 
 Right of Visitation and Search re- 
 cognised between Christians and 
 Mohammedans, 147. 
 
 Rights and Duties of Neutral Powers, 
 increased importance of the, in the 
 eighteenth century, 426. of Neu- 
 tral Powers as to the sale of ships 
 of war, 467. 
 
 Eingende Jacob, the, 278, 290. 
 
 Robe d'ennemi, 149. 
 
 Robinson's Collectanea Maritima, 370, 
 
 382. 
 EoUa, the, 203. 
 Romilly, Sir Samuel, 131.. 
 Roncaglia, Diet of, 59, 
 Rooles d'Oleron, 146. 
 Rose V. Himely, 328. ^ 
 
 Rose in Bloom, the, 218. 
 Rosine, la, 355. 
 Rule of twenty-four hours' possession, 
 
 343. 
 Russia, war of the Allied Powers 
 
 against (1854-56), 354. 
 Russian Dutch Loan, conduct ol 
 
 Great Britain in regard to the, 112. 
 
 Russian Reciprocity in 1854, 117. 
 Russian Regulations of 1787, 399. 
 Ryder, Sir Dudley, iii. 
 Rymer, Fcedera, 290. 
 
 S. 
 
 Sadler's, Sir Ralph, Letters and Ne- 
 gotiations in Scotland, 246. 
 Saladiu the Great, 59, 
 Sale of ships of war by a Neutral 
 
 Power, 467. 
 San Jose Indiano and cargo, 307. 
 San Juan Baptista, iSi, 184. 
 Santa Anna, General, 388. 
 Santa Brigada, the, 365. 
 Santa Cruz, city o^ 318. the, 346. 
 Santissima Trinidad, the, and the 
 St. Ander, 298, 41 1, 480, 488, 499, 
 505- - 
 Sarah Christina, the, 273, 278, 283, 
 
 292, 317. 
 Sasonicus Codex Electoralis, 84. 
 Schmauss, Corpus Jur. Gent. Acade- 
 
 micum, 379. 
 Scotch Regiments in the service of 
 
 Sweden and of France, 81. 
 Scott, Sir William, 278, 282. 
 Sea, early Law of the, 142. 
 Sea Letter, 172, 184. 
 Self-preservation, a primary duty of 
 
 National life, 3. 
 Semonce, la, 182. 
 Shepherdess, the, 213. 
 Ships of War, sale of, by a Neutral 
 
 Power, 467. 
 Ships' papers, catalogue of, 185. 
 Ships taken at Genoa, 363. 
 Ships under circumstances Contraband 
 
 of War, 288. 
 Short Staple, the, v. the United 
 
 States, 188. 
 Sigismund, King of Poland, 240. 
 Silesian Loan, conduct of Prussia in 
 
 regard to the, iii. 
 Simplon, Arch of the, 1 34. 
 Sir Henry Blunt's case, 137. 
 Snelle Zeylder, the, 305. 
 Somerueles, Marquis de, 132, 
 Soult, J. F., V. L'Afrioaine, 442. 
 Spanish Armada, 62. 
 Spanish Ordinance of 24 Deo. 1621, 
 
 381. of 1 718, 150. 
 Spes and Irene, the, 203, 213. 
 St. Ambrose on Commerce, 19. 
 St. Ander, the, 411, 480, 464, 488, 
 
 499. 5°5- . , „ 
 
 St. Juan, the Danish Corvette, 401. 
 St. Pierre, the Abbe, 11. 
 Stackelberg, Baron de, 37. 
 Stadt Embden, the, 277, 292. 
 Stair, Lord, 344. 
 Star, the, 346. 
 State Papers, 128. 
 
 PART II. 
 
 S S 
 
618 
 
 INDEX TO VOL. II. 
 
 States General, Ordinance as to 
 
 Blockade, 196. Placaart in 1599, 
 
 247, 248. 
 Statues, as works of Art, 129. 
 Statute of 6 Anne, 0. 13, in 1708, 339. 
 
 of 17 Edward III. § 12. 0. 17, 23. 
 
 of 43 Geo. III. 0. 96, 392. of 4 
 
 Henry V. c. 7 (anno 1416), 378. 
 
 of Truces, 1414, 378. of 4 and 5 
 
 Win. and Mary, c. 25. § 18, 339. 
 
 of II and 12 Will. III. c. 7, 417. 
 Stettin, city of, 127. 
 Stiernhdok de Jure Sueonum, 92. 
 Stockton, Commodore, 225. 
 Story, Mr. Justice, 279, 306, 307, 
 
 491. on the confiscation of debts 
 
 due to enemies, 100. 
 StoweU, Lord, 273, 290, 313, 316, 
 
 317. 318, 321, 322, 323, 325, 327, 
 
 330. 332, 334. 336, 340, 344, 349. 
 Stuart, Lord Dudley, 114. 
 Sully, Minister of Henri IV, 1 2. 
 Sulphur Monopoly in Sicily, 33. 
 Swedish Convoy, the, 177. 
 Swedish Ordinance of 17 15, 340. 
 Swiss Regiments in the service of 
 
 Spain and of Naples, 81. 
 
 T. 
 
 Tastet, De, v. Taylor, 432, 462. 
 
 Territorial theory as to Merchant 
 vessels, 166. 
 
 Territoriality of ships at sea, 170. 
 
 Texas and Mexico, 72. 
 
 Texian Privateer in 1836, 72. 
 
 Thiers, M., Histoire du Consulat, 97, 
 
 Thirty Hogsheads of Sugar v. Bent- 
 zon, 319. 
 
 Thirty Years' War, 63. 
 
 Thomas Gibbons, the, 395. 
 
 Thurlow, Lord Chancellor, 65, 67. 
 
 Tobacco adjudged contraband of war 
 by Spain, 238. 
 
 Toulon, sea-fight off, in 1 744, 74. 
 
 Tractatus Depraedationis between 
 Henry VIII of England and Francis 
 I of France in 1526, 379. 
 
 Trade, unless interdicted, not a viola- 
 tion of the Sovereignty of a Neutral 
 State, 477. 
 
 Trade within the territory of a. Neu- 
 tral State, 460, 
 
 Treaties, British, as to Free Ships, 
 Free Goods, 157. of Breda and 
 Madrid in 1667, 256. of Cession, 
 320. of Edward III vfith Bisoaye 
 and Castile in 1351, 149. of Por- 
 tugal in 1353, 149. of Rio Janeiro, 
 76. between Sweden and Great 
 Britain in 1664, 1665, 1666, 257. 
 of Utrecht in 1713, 74, 157, 262, 
 265, 292. 
 
 Treaty between Denmark and Genoa 
 
 (30 July 1789), 371. Denmark and 
 Great Britain in 1670, 265, 465. 
 Denmark and the Two Sicilies in 
 1748,413. Henry "VII of England 
 and the Duke of Burgundy in 1495, 
 379. Edward IV of England and 
 Henry IV of Castile in 1467, 455. 
 Henry VI of England and Louis 
 XI of France in' 1270-71, 455. 
 between England and France on 
 7 May 1360, 23. 
 
 Treaty of Peace and Commerce be- 
 tween Henry VII of England and 
 Charles VIII of France (24 May 
 ''497)j 37°> 379- between Charles 
 II of England and Charles XI of 
 Sweden (anno t66i), 464. in 1667 
 between England and the States 
 General, 94. between Charles II of 
 England and the States General 
 (i Dec. 1674), 249. in 1483 between 
 France and the Hanse Towns, 93. 
 between France and Russia in 1 78 7, 
 404. of 1662 between France and 
 the States General, 94. between 
 France and the States General (21 
 Dec. 1739), 413. between France 
 and Svritzerland in 152 1, 456. be- 
 tween France and the United 
 States of America in 1778, 87, 409, 
 414, 451. between Great Britain 
 andBra2;il(i7 Aug. 1827), 280, 281. 
 between Great Britain and France 
 (1786), 264, 404. between Great 
 Britain and Holland in 1674, 267. 
 between Great Britain and Portugal 
 in 1842, 266. between Great Bri- 
 tain and Russia in 1858, 267. be- 
 tween Great Britain and Spain in 
 1630, 351. between Holland and 
 Louis XIV at Paris in 1662, 256. 
 between Portugal and the States 
 Generalini66o,94. Treaty-Engage- 
 ments between Prussia and the 
 United States of America, 293. of 
 Commerce between Russia and 
 France ( 1 6 Sept. 1 846), 1 1 7 . in 1 766 
 between Russia and Great Britain, 
 267. between Russia and Great 
 Britain (11 Jan. 1843), 117. in 
 1604 between Philip III of Spain, 
 the Archduke Albert and his wife 
 Isabella, and James I of England, 
 243, 380. between Spain and the 
 Emparor of Germany (anno 1725), 
 271. between Spain and Holland 
 (anno 1650), 271. in 1550 between 
 the Emperor Charles V of Spain 
 and Mary Queen of Scotland, 380. 
 in 1795 between Spain and the 
 
 ' United States of A.merica, 406, 
 4I4, 419. between the States Gene- 
 ral and England in 1625, 252. be- 
 
INDEX TO VOL. ll. 
 
 619 
 
 tween the States General and the 
 Hanse Towns, and between the 
 States General and Sweden in 1613, 
 252. between Sweden and Great 
 Britain in 1664, 1665, 1666, 257. of 
 commerce between Sweden and the 
 Two Sicilies in 1743, 403, 413. be- 
 tween Sweden and the United Pro- 
 vinces (16 July 1667), 256. inl675 
 between Sweden and the United 
 Provinces, 421. of peace between 
 Sweden and the United Provinces 
 in 1679, 421. between Sweden 
 and the United States of America 
 in 1783, 406. between the Two 
 Sicilies and the Ottoman Porte in 
 1740, 413. between the United 
 Provinces and the Two Sicilies in 
 1753, 413. between the United 
 States and Great Britain in 1795, 
 414. between the United States 
 and Morocco (25 Jan. 1787), 448. 
 between United States and Prus- 
 sia in 1785, 414, 422. between the 
 United States and Prussia (i May 
 1828), 414. between United States 
 and Tripoli (4 Nov. 1796), 448. 
 between United States and Tunis 
 (28 Aug. 1797), 448. between the 
 United States and the United 
 Mexican States in 1831, 388. be- 
 tween the United States and the 
 United Provinces in 1782, 414. 
 of Aix-la-Chapelle in 1748, 74. 
 of Amiens in 1802, 126. of Aus- 
 tria with England in 1495, 149- 
 of Boulogne in 1797, 145. of 
 Breda in 1655, 157. of Breslau 
 (11 June 1742), III. British with 
 United States (19 Nov. 1794). 202. 
 277, 451. British with the United 
 States (4 Nov. 1796), 280, 281. 
 of Brittany with England in 1468, 
 149. of Burgundy with England 
 in 1406, 149. of Copenhagen in 
 1670, 266. of Dresden (25 Dec. 
 1745), III. of Genoa with England 
 in 1462, 149. of Ghent, 8. in 1667 
 between Great Britain and Spain, 
 261, -265, 271, 406. of the Hague 
 (10 Sept. 1785), 293. oftheHague 
 (II July 1799), 293. of Kiel in 
 1814, 265, 465. of London in 1674, 
 158. of Madrid in 1814, 264, 405, 
 470. of Munster (30 Jan. 1648), 
 127, 4,55. of Orebro in 1812, 265, 
 266, 287, 464. ofOsnabruck and 
 Munster, 16. of Paris in 1646, 156. 
 of Paris in 1655, ^53- ™ '^S^, 
 266, 354. of the Pyrenees m 1650, 
 250. (7 Nov. 1659), 184, 254, 351. 
 of Rio Janeiro in 1810, 265. of 
 Southampton '(17 Sept. 1625), 234, 
 
 249, 250, 253. of St. Germain-en- 
 Laye in 1677, 257, 263. of St. Pe- 
 tersburg in 1797 and 1801, 267. 
 of Tilsit, 322. of Upsal in 1654, 
 287. of Versailles in 1783, 265, 
 406. of Westminster in 1654, 252, 
 409. in 1656, 284. in 1669, be- 
 tween Charles II of England and 
 Frederick III of Denmark, 412, 
 414. of Whitehall in 1661, 256, 
 261, 265, 284, 286, 287. in 1689, 
 
 259- 
 
 Treaty-Eestraints upon neutral Sub- 
 jects accepting Commissions from 
 belligerent Powers, 411. 
 
 Trent, British Packet, 39. 
 
 Tutela, the, 205. 
 
 Twee Gebroeders, the, 410, 444, 446. 
 
 Twende Brodre, the, 278. 
 
 Twilling Kiget, the, 156. 
 
 U. 
 
 Umili, at Pisa, 143. 
 
 Union, the, 365. 
 
 United States v. Palmer, 385, 
 
 SOS- 
 United States Government, views 
 of, as to a Belligerent enlisting 
 troops within neutral territory, 
 456. 
 United States, Law as to enemy s 
 
 goods in a neutral ship, 153. 
 United States' Laws, 369. 
 United States of America, Recogni- 
 tion by France, 66. 
 United States of America, their 
 Policy, as a Neutral Power, to in- 
 terdict certain branches of trade. 
 
 475- 
 
 V. 
 
 VaKn, Ordonnauce de la Marine, 360. 
 
 Traite des Prises, 359, 484. 
 Vattel on Contraband of War, 270. 
 Vattel on Reprisals, 36. 
 Vattel's Droit des Gens, 429. 
 Venus, the, 355. 
 Verification of the military flag of a 
 
 Privateer, 399. 
 Vigilantia, the, 173, 308, 399. 
 Virginia, the, 364. 
 Virginie, la, 365. 
 Visitation and Search, 177. Right of, 
 
 recoonised by Mohammedan States, 
 
 147.° 
 Vreede Scholtys, the, 176. 
 Vrow Anna Catherina, the, 308, 318, 
 
 410. 
 Vrow Johanna, 212. 
 Vrow Judith, the, 205, 216. 
 Vrow Margaretha, the, 322, 325. 
 
620 
 
 INDEX TO VOL. II. 
 
 w. 
 
 Waite's American State Papers, 475. 
 
 War, commencement of, in 1854, 
 116, 447. Definition, by Albericus 
 Gentilis, 48. Lord Bacon's view 
 of, 51. Bynkershoek, 44. Defi- 
 nition by Grotius, 43. Declara- 
 tion by Herald-at-Arms, 60. For- 
 mal Declaration of, 57. by Letters 
 of Defiance, 57. of 1778 between 
 Engl.iud and France, 66. between 
 Great Britain and the United States 
 of America in 1812, 73. Lawful 
 recourse to, 54. Manifestoes to 
 Neutral Nations, 63. between 
 Mexico and the United States of 
 America in 1846, 69. Object of 
 Manifestoes to Neutral Powers, 70. 
 Object of Proclamations of, at home, 
 68. Offensive and Defensive, 56. 
 Private, view of Grotius as to, 46. 
 Private Peace inconsistent with 
 Public, 52. Proclamation of, at 
 home, 60. Effect upon Treaties, 264. 
 
 War of the Allied Powers against 
 Russia in 1854, 408, 447, 451, 466. 
 
 Washington, Mr. Justice, 334. 
 
 Washington, the, 188. 
 
 Washington, public edifices at, 133. 
 
 Webster, Mr., Letter of, 8 July 1842, 
 296. 
 
 Weelvaart, the, 278. 
 
 Weelvaairt Van Pillaw, the, 219, 320. 
 
 Wenok, Codex Juris Gentium, 413. 
 
 Wheaton's Keports, 399, 402. 
 
 William, the Little, 214. 
 
 William of Orange, 352. 
 
 Wiseman, Sir Eobert (Advocate Ge- 
 neral), 285, 291. 
 
 Wolff, Jus Gentium, 458. 
 
 Wolffs. Oxholni, 106. 
 
 Wolff and Vattel, views of, as to 
 Rights and Duties of Neutral 
 Powers, 429. 
 
 Works of Art, 129. 
 
 Yates V. Hall, 358, 361. 
 Yeaton v. Fry, 212. 
 York, the Duke of, 394. 
 
 Zacharie, Coopman and Company, 
 
 the case of, 309. 
 Zacheman, the, 286. 
 Zealand, Admiralty Court of, 220. 
 Zelden Rust, the, 278.