COMMERCE 
 I N W A R 
 
 LAATHERLEY -JONES 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
Cornell University Library 
 JX 5281.A86 
 
 Commerce in war, 
 
 3 1924 005 230 119 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924005230119 
 
COMMERCE IN WAR 
 
COMMERCE IN WAR 
 
 BY 
 
 L. A. ATHERLEY-JONES, K.C., M.P. 
 
 ' OF BRASENOSE COLLEGE, OXFORD 
 ASSISTED BY 
 
 HUGH H. L. BELLOT, M.A., D.C.L. 
 
 OF TRINITY COLLEGE, OXFORD 
 
 D. APPLETON & COMPANY 
 
 NEW YORK 
 
 1907 
 
CONTENTS 
 
 Preface pages ix-x 
 
 Table of Cases xi-xxii 
 
 CHAPTER I 
 
 Contraband : Definition — Theory — Doctrine of neutrality — Bynkershoek's defi- 
 nition — Sale of armed ships by neutrals — Foreign enlistment acts — View of 
 Wolfius — Immunity from visit and search — Grotius's three classes of contraband 
 —Modern classification — Qualified capture— Gentilis's distinction — Imperial or- 
 dinances — Lateran Council — Early treaties — England, Spain, and Burgundy — 
 England and Spain — Sweden and the Low Countries — Great Britain and the 
 Low Countries — Letters of Mareschal de Bassompierre — France and the 
 United Provinces — England and Portugal — Spain and Hanseatic towns — 
 England and Sweden — England and the United Provinces — France and Han- 
 seatic towns — France and England — France and Spain — Portugal and United 
 Provinces — France and United Provinces — Great Britain and Spain — Great 
 Britain and United Provinces — Great Britain and Denmark — Great Britain 
 and United Provinces — France and Great Britain — France and United Pro- 
 vinces — Great Britain and Algiers — Denmark and United Provinces — Treaty 
 of Utrecht — France and Hanseatic towns — Sweden and England — Great Britain 
 and Russia — France and Holland — Great Britain and Russia — Russian 
 manifesto — United States and France — First Armed Neutrality — Russia and 
 Sweden — Great Britain and Denmark — United Provinces and United States — 
 United States and Prussia — England and France — Russia and Two Sicilies — 
 Russia and Sweden — Second Armed Neutrality — Great Britain and Russia — 
 Danish ordinance— Great Britain and United States— And Portugal — Den- 
 mark and Prussia — United States and Confederation of Central America — 
 France and Brazil — Prussia and Brazil— Great Britain and Brazil — Denmark 
 and Brazil — United States and Mexico — Hanseatic towns and Mexico — United 
 States and Chili — And Venezuela — Hanseatic towns and Guatemala — United 
 States and Guatemala — ^And Peru— Crimea War — Declaration of Paris, 1856 
 — France and Honduras — And Nicaragua — British proclamation, 1861 — 
 United States declaration — Slidell and Mason — Earl Russell's despatch — 
 Prussian regulations, 1864— Canadian proclamation, 1864 — Danish proclama- 
 tion, 1864 — Austrian ordinance — United States and Hayti — United States 
 proclamation, 1865 — Spanish declaration, 1866— Coal— Argentine Republic 
 and Peru — Intention as a test — Dominica — Guatemala — British proclamation, 
 1877 — Russian decree, 1877— Danish proclamation, 1877 — Egyptian proclama- 
 tion, 1882— Franco-Chinese War, 1885— Rice— Spanish decree, 1898— Japanese 
 declaration, 1904— Russian declaration, 1904 — Cotton — Horses — Money- 
 Ships — Naval stores— Provisions— Troops— List of treaties— Policy of principal 
 
vi COMMERCE IN WAR 
 
 maritime powers reviewed — Table of cases — Decisions — Pitch and tar — Masts, 
 spars, deals — Guns, powder, soldiers — Deals, guns, iron, shot — Hemp, pewter, 
 copper, hogsheads — Sailcloth, deals, copper sheets, iron, tar, pitch — Masts — 
 Cheese — Pitch and tar — Balks, fir planks, battens — Tallow, sailcloth — Cordilla 
 hemp — Pitch and tar — Wines — Resin — Ships — Masts — Copper sheets — Cheese 
 — Biscuit and flour — Ship timber — Despatches — Grain — Corn — Army bluchers, 
 artillery, harness, army boots, regulation blankets — Money, plate, bullion — 
 Provisions — Horses, tar, coal — The "AUanton" — Judgment of Vladivostock 
 prize court — The "Calchas" — Judgement of Vladivostock prize court — Judgment 
 of supreme prize court pages 1-91 
 
 CHAPTER II 
 
 Blockade : Definition — Pacific — Origin of right — Hautefeuille — Gessner — Grotius 
 — Bynkershoek — Vattel — Kliiber — Bluntschli — Dupuis — Ortolan — Effective 
 — Bluntschi — Calvo — Scott — First Armed Neutrality — Blockade of Martinique 
 and Guadeloupe — French blockade of 1806 — Black Sea, 1855 — China, 1857 — 
 Formosa, 1884 — Hayti, 1888 — Confederate States, 1861 — Russo-Japanese War 
 — Notification — Practice — Calvo — France — Great Britain — United States — 
 Pacific — Greece — Hautfefeuille — Portugal — Louis Philippe — Blockade of the 
 Scheldt — Mexico — Argentine, 1838 — Argentine and Uruguay, 1845 — Greece, 
 1850 — Ecuador, 1858 — Rio de Janeiro, 1861 — Gaeta, i86i — Formosa, 1885 — 
 Greece, 1886 — Crete, 1897 — Venezuela, 1902 — British regulations — Blockade 
 act of sovereign state — Delegation — Cessation of— Hautefeuille— English doc- 
 trine — United Prdvinces — Treaty between Great Britain and Holland, 1689 — 
 Sweden — Russia — Blockade of Gibraltar — Great Britain — Russia and Sweden 
 — Great Britain and Russia — Berlin decree — Post-Napoleonic blockades — 
 Chronological table of cases — Decisions of British prize courts — Decisions of 
 United States prize courts 92-252 
 
 CHAPTER III 
 
 Continuous Voyage: Rule of war of 1756- English dpctrine — United States 
 doctrine-^Gessner — Scott on internal communication — Canal transit — Belli- 
 gerent destination — Decisions of prize courts 253-283 
 
 CHAPTER IV 
 
 Carriage of Property at Sea— Enemy's Goods in Neutral Ships- 
 Neutral Goods in Enemy's Ships : Declaration of Paris, 1856- The com- 
 peting rules — Doctrine of Consolato del mare — Quality of goods determined 
 by character of owner — English policy — France — Prussian memorial, 1753 — 
 Free ships, free goods ; enemy's ships, enemy's goods — Quality of goods deter- 
 mined by character of carrier — United Provinces — France — Spain — Russia — 
 United States — Great Britain— Incidental loss 284-298 
 
 CHAPTER V 
 
 Right of Search, or Right of Visit and Search: Definition— Origin — 
 Antiquity — Merchant vessels^Mail-boats — Modern practice — Immunities of 
 mail-boats by treaty — On the high seas — Noxious despatches — Character of 
 
CONTENTS vii 
 
 despatches — Noxious pewons — Ignorance — Compulsion — Right of belligerent 
 to take out of an innocent neutral vessel noxious persons — Dana — Exceptions 
 to right of visit and search — Scott— Vattel — Slidell and Mason — Belligerent 
 ship of war lawfully commissioned — Story — Hall — Sir L. Jenkins — Sea laws — 
 Privateering — Inviolability of private property at sea — Prussian decree, 1870 — 
 Italy — Austria — Institut de Droit International — United States and Spain, 1898 
 — Lawfully commissioned — Prince of Orange — Mexican civil war — Columbian 
 civil war — Neutral merchantmen under convoy not exempt — Great Britain — 
 Continental powers — United States — Directions to resist visitation — Hautefeuille 
 — Ortolan — Right of search limited to duration of the war — Exception to right 
 of visit and search — Right limited by treaty — Great Britain — France — German 
 Empire — United States — Russia — Italy pages 299-337 
 
 CHAPTER VI 
 
 Formalities of Visit and Search : The approach — Ortolan — General rule 
 — Semonce, coup de canon d'assurance — Lampredi — Story — False colours — 
 Hautefeuille — Azimi — British regulations — Thevisit — Modern practice — British 
 regvilations — Ship's papers — Certificate of registry — Passport — Sea-letter, or 
 sea-brief— Charter-party — Official log-book — Ship's log — Builder's contract — 
 Bill of sale — Bills of lading — Invoices — Manifest — Clearance — Muster roll — 
 Shipping articles — Bill of health — List of papers — Austria, Belgium, Brazil, 
 Denmark, France, German Empire, Great Britain, Greece, Holland, Italy, 
 Portugal, Norway, Russia, Finland, Spain, Sweden, Turkey, and United States 
 — Institut de Droit International — The Search — Lampredi — Azuni — Ortolan — 
 De Martens — Mass^ — British regulations — Spanish regulations — United States 
 regulations — Institut de Droit International 338-360 
 
 CHAPTER Vn 
 
 Capture and Condemnation : Resistance to visitation and search — Scott — 
 United States — The "Nereide" — Story — Kent — Johnson — Acting as enemy's 
 transport, or carrying enemy's military or naval officers or crews — Scott — 
 Carrying enemy's despatches— Scott — Carrying contraband of war — Ancient 
 practice — Modern practice : (i) where ship and cargo belong to the same person ; 
 (2) where cargo carried with false destination, false papers, or other circum- 
 stances of war ; (3) where owner of ship bound by treaty not to carry contra- 
 band — Ortolan — Hautefeuille — Freight and expenses — Scott — Ignorance no 
 excuse — United States — Confiscation attaches from commencement of illicit 
 voyage — Scott — Right to continue voyage upon surrender of contraband goods 
 — Institut de Droit International — Treaties— Attempting to break a de facto 
 blockade after oflScial notice, or with knowledge : (i) effect on the ship, Scott, 
 liability to penalty ceases from moment blockade is raised ; (2) effect on the 
 cargo, Lushington, Scott, deviation presumed to be in favour of cargo, Scott — 
 Effect of contingent destination— Engaging in colonial trade of enemy — Rule 
 of war of i7S6^Scott's decisions — Forfeiture of freight — Coasting trade of 
 belligerent — Rule of war of 1756 — Scott's decisions— American view of rule of 
 war — Sale of vessels equipped for war to a belligerent — British decisions^ 
 United States decisions — American view— Equipping, furnishing, fitting out, 
 or arming, or allowing the same to be so equipped, furnished, fitted out, or armed, 
 for the use of belligerents— United States— Statutes— Cases— Augmentation 
 
Missing Page 
 
Missing Page 
 
X COMMERCE IN WAR 
 
 tion, whose repute as a writer on International Law gives pecu- 
 liar value to the suggestions he has been good enough to make, 
 and the many valuable emendations and additions he has con- 
 tributed. 
 
 With his kind consent I dedicate this work to my Right 
 Honourable friend Mr. Asquith, K.C., m.p., Chancellor of the 
 Exchequer, who, felicitously for the purposes of this dedication, 
 combines the attributes of a great lawyer and a distinguished 
 statesman. 
 
 L. A. ATHERLEY-JONES 
 
 4 Paper Buildings, Temple 
 
TABLE OF CASES 
 
 Actaon, The, 2 Dods., 48 
 
 Actif, The, Edw., 184 
 
 Adela, The, 6 Wall., 267 
 
 Adelaide^ The, 2 Rob., 1 10 note (a) 
 
 Adelaide, The, 3 Rob., 281 
 
 Adeline, The, 9 Cranch, 244 
 
 Admiral, The, 3 Wall., 603 
 
 Admittance, The {set Jeckery. Montgomery) 
 
 Adonis, The, 5 Rob., 256 
 
 .4rf«/a, The, 176 U. S. Rep., 361 
 
 Adventure, The, i Wheaton, 127 («.) 
 
 Alerta, The Brig, g Cranch, 365 
 
 Alexander, The, 1 Gall., 532 
 
 Alexander, The, 3 Mason, 175 
 
 Alexander, The, 4 Rob., 93 
 
 Alexandra, The (see .(4.-G. v. Silleni) 
 
 Alfred, The, Moodie v., 3 DalL, 307 
 
 Alirie and Fanny, The, Spinks, 322 ; 10 Moo. P. C, 
 
 Allanton, The 
 
 Allen, Parkman v., i Stair's Decisions, 529 
 
 Alligator, The, i Gall., 145 
 
 Ambrose Light, The, 25 Federal Rep., 408 
 
 America, The, 3 Rob., 36 
 
 Ames, United States v., 99 U. S. Rep., 35 
 
 Amiable Isabella, The, 6 Wheaton, i 
 
 Amistadde Rues, The, H. Curtis, 673 
 
 Amitie, The, 6 Rob., 261 
 
 Andromeda, The, 2 Wall., 481 
 
 Anna, The, S Rob., 373 
 
 Anna Dorothea, The, 3 Rob., 233 
 
 Antelope, The, 10 Wheaton, 56 
 
 Anthon v. Fisher, Dougl., 649 («.) 
 
 Apollo, The, 4 Rob., 158 
 
 Apollo, The, 5 Rob., 286 
 
 Arabia, The 
 
 Argos, The, Code des Prises, II, 1044 
 
 Aries, The, 2 Sprague, 262 
 
 Armroyd, Williams v., 7 Cranch, 423 
 
 Arnold, Del Col v., 3 Dall., 333 
 
 Arthur, The, Edw., 202 
 
 Arthur The, i Dods. 425 
 
 491 
 
 PAGE 
 
 531, 532, 589, 60s 
 . 618, 620 
 
 • 249 
 194, 234 
 
 . 200 
 . 626 
 
 • 245 
 
 20s, 368, 393, 397 
 
 • 117 
 . 636 
 3,425 
 
 513, 516 
 
 • 435 
 202, 393, 397 
 
 • 424 
 239, 247, 252, 576 
 
 • 83 
 . 214 
 
 • 497 
 322, 496 
 
 • 259 
 
 • 497 
 
 • 293 
 . 426 
 
 ■ 544 
 
 ■ 243 
 ,513, 576, 586 
 
 . 401 
 
 • 435 
 . 640 
 
 69, 74, 76 
 . 206 
 
 ■ 90 
 . 606 
 
 • 565 
 . 223 
 
 S17, 523 
 
 . 220 
 
 223, 251 
 
xii COMMERCE IN WAR 
 
 PAGE 
 
 Assievtedo\. Cambridge, iMcaSfjg '"' '• 6^9 
 
 Astreea, The, i Wheaton, 125 630 
 
 Atalanta, The, 6 Rob., 440 79. y>7 
 
 Atalanta, The, 3 Wheaton, 415 293> 37i 
 
 Atlanta, The, 3 Wall., 425 5^2 
 
 Atlanta, The, 2 Sprague, 251 5^3 
 
 .4i^/(M, The, 3 Rob., 299 404) 51° 
 
 Attorney-General V. Sillem, 2 m. & C, ^'^i 44° 
 
 Atty, Dawson v., 7 East, 367 S08 
 
 Austin Friars Steam Shipping Co. v. Struck, [1905] 2 K. B. 315 . . . • 44i 
 
 Baigorry, The, 2 Wall., 474 246 
 
 Ballam, Justin w., I SaXk., ■^i^ 640 
 
 Baltazziy. Ryder, 12 Moo. P. C. C, 173 (and see the Panaghia Rhomba) . 392, 396 
 
 Baltic, The, i Acton, 25 ... 270 
 
 Baring v. Christie, 5 East, 398 5o7 
 
 Baring v. Royal Exchange Assurance Co., 5 East, 99 507 
 
 Barker v. Phcenix Assurance Co., 8 John., 307 507 
 
 Barton v. Pinkerton, 2 Ex., 340 441 
 
 Belle Coquette, The, I Dods., 18 SS2 
 
 .B««zV(7 £'j/e«^er, The, 176, U. S. Rep., 568 82,511 
 
 .e^rwwrfa, The, 3 Wall., 514 276,279,282 
 
 ^e/wy, The, 36 Ct. CI., 256 510 
 
 Betsey, The, Moodie v., 3 Dall., 288 424 
 
 Betsy, The (Murphy), I Rob., 92 98, 188, 231, 516 
 
 Betsy, The (Goodhue), i Rob., 332 102, 103, 192 
 
 Betsy, The, 2 Rob., 210 («.) 585 
 
 Bettenham,Ricordv.,'&\xr[.,V]2,i, 640,643 
 
 Bird, The, 38 Ct. CI. (U. S.), 228 83 
 
 Blagge V. N. Y. Insurance Co., i Caines, 549 506 
 
 Blenden Hall, The, i Dods., 414 631 
 
 Brita Cecilia, The, Marriott, 234 71 
 
 British Consul, The, v. The Mermaid, Bee's Am. Ad. Rep., 69 . . . 423 
 
 British Consul, The, v. The Nancy, Bee's Am. Ad. Rep., 73 423 
 
 Brothers, The, Benj. Moodie v.. Bee's Am. Ad. Rep., 76 423 
 
 Brutus, The, 5 Rob., 331 and Appx. 77, 407 
 
 Buenos Ayres Prize-money, i Dods., 28 550 
 
 Calchas, The 48, 49, 61, 87 
 
 Calypso, The (Schultz), 2 Rob., 298 196 
 
 Calypso, The, 2 Rob., 154 259, 500 
 
 Cambridge, Assievedo v., Lucas, 79 619 
 
 Cancre v. Union Insurance Co., Cond. Marsh, 406a 508 
 
 Cape of Good Hope, 2 'Rob., 27^ 553 
 
 Car/, The, Spinks, 238 551 
 
 Car/oj 7^ /?4»j«. The, 177 U. S. Rep., 655 510 
 
 Carlotta, The, 4 Rob., 156 601 
 
 Carolina, The, 3 Rob., 75 ig6, 259 
 
 Carolina, The, 4 Roh., 2^6 375, S 16 
 
 Caroline, The, 6 Roh., 461 ,66,79,304,307,308,313 
 
 Carondelet, The, 37 Federal Rep., 799 485 
 
 Castor, The, i Dods., 397 622 
 
 Catharina Elizabeth, The, 5 Rob., 232 ; i Acton, 309 362, 365, 368, 514, 586, 597, 598 
 
TABLE OF CASES xiii 
 
 PAGE 
 
 CaiAaritte and Anna, The, 4 Roh., 3g 516,587 
 
 Ctylon, The, i Dods., 105 607, 620 
 
 Charloita, The, Edw., 252 ... .... 220, 221 
 
 Charlotte, The (Koltzenberg), 5 Rob., 305 .... . . 72, 77, 78 
 
 Charlotte, The (Witt), 5 Rob., 281 550 
 
 Charlotte, The (Focks), 5 Rob., 275 382 
 
 Charlotte Caroline, The, i Dods., 192 . . . .631 
 
 Charlotte Christine, The, 6 Rob., loi 208 
 
 Charlotte Sophia, The, i Acton, 56 ; 6 Rob., 204 («.) . . 210, 212, 259, 267 
 
 Chavasse,exp.,inreGrazebrook,'i4'L.].,'Ra.-n)s..,i7 ... . 409,412 
 
 Cheshire, The, 3 Wall., 235 .... .... 245 
 
 Christiansberg, The, 6 Rob., 376 213 
 
 Christie, Baring v., 5 East, 398 507 
 
 Christopher, The, 2 Rob., 209 585 
 
 Circassian, The, 2 Wall., 135 241 
 
 Columbia, The, i Rob., 154 191, 205 
 
 Comet, The, Edw 32 . 216 
 
 Comet, The, 5 Rob., 96 586 
 
 0/«»2«nr^«, The, I Wheat., 382 .... 61,80,81,82,271,376,385 
 
 Concordia, The, 2 Rob., 102 523 
 
 Concordia Affinitatis, The, i Marriott, 169 71 
 
 Conferenzrath, The, 6 Rob., 362 396, 402 
 
 Conserva, The, 38 Federal Rep., 431 ... 487 
 
 Constantia, The, 6 Rob., 261 («.) 305 
 
 Convenientia, The, 4 Rob., 201 259 
 
 Cornelius, The, 3 Wall., 214 243 
 
 Croudson v. Leonard, 4 Cranch, 434 214 
 
 Dashing Wave, The, 5 Wall., 170 247 
 
 Dawson v. Atty, 7 East, 367 508 
 
 Delaware Insurance Co., King \.,(> Cranch, T I 222 
 
 Decatur v. U. S., Div. Ct. CI., 201 569 
 
 Del Col V. Arnold, 2 'DtW., ^23 ■ 517)523 
 
 Z>^r yJ/sAr, The, 3 Rob., 129 517 
 
 Despatch, The, 2 Gall., i 561 
 
 2?«a/ej/v. tA. 5., 178 U. S. Rep., 510 ... ... 563,568 
 
 Diana, The, 7 Wall., 354 250 
 
 Dickelmann, United States v., 92 U. S. Rep., 520 82 
 
 Diligentia, The, i Dods., 404 630, 633 
 
 Dispatch, The, 3 Rob., 278 596, 598 
 
 Dispatch, The, i Acton, 163 219 
 
 Divina Pastora, The, 4 Curtis, 345 425 
 
 Doelwijk, The, 88 British State Papers, 973 256 
 
 Dordrecht,The., 2 'Roh.jSS 557 
 
 Dos Hermanos, The, 10 Wheaton, 306 564 
 
 Drie Vrienden, The, i Dods., 269 222, 223, 244 
 
 Duckworth V. Tucker, 2 Taunt., 7 560 
 
 Eagle, The, 5 Rob., 401 260, 263, 269 
 
 Eagle, The (Marsan), i Acton, 65 217 
 
 Ebeneser, The, 6 Rob., 250 267, 402 
 
 Eden, Le Caux v., 2 Dougl., 594 619 
 
xiv COMMERCE IN WAR 
 
 FACE 
 
 Edward, The, 4 Rob., 68 76, 259, 381 
 
 Edward and Mary, The, 3 Roh., 30s 343i 576, 629 
 
 Eenrom, The, 2 Rob., i 499 
 
 Eleanor, The, 2 Wheaton, 245 340, 34i 
 
 Eleonora Catherina, The, 4 Rob., 156 600 
 
 .£/?>« a«rfA'a/)', The, 6 Rob., 185 266,498 
 
 Elizabeth, The, Edw., 198 220 
 
 Elizabeth, The, i Acton, 10 576 
 
 Elize, The, Spinks, 93 226 
 
 Ella, The, and the Anna, 2 Sprague, 267 566, 567 
 
 Elsebe, The, 5 Rob., 174 323, 325, 328, 368, 524 
 
 Siting w. Scott and Seaman, 2 ]oh.n., 157 508 
 
 Emanuel, The, i Rob., 296 403, 405 
 
 Emily S. Pierre, The, Snow's Cases, 361 598 
 
 Emily and Caroline, The, 9 Cranch, 381 435 
 
 Endraght, The, i Rob., 21 73 
 
 Enoch, The, S Rob., 370 265, 266 
 
 jE^/^, The. Z,', 6 Rob., 220 523 
 
 Essex, The, 5 Rob., 369, 402 265, 266, 269 
 
 Estrella, The, 4 Curtis, 406 426, 494 
 
 Etoile de Bonaparte, The, I Pistoye et Duverdy, 409 78 
 
 Evert, The, 4 Rob., 354 76 
 
 Exchange, The, Edwards, 39 259, 392, 395 
 
 Exchange \. McFadden,T Q,xa.vx^,\\t 300,542 
 
 Fanny, The, 5 Rob., Appx. ^^, 408 
 
 Fanny, The, i Dod., 447 362 
 
 Felicity, The, 2 Dod., 381 529, 531, 533, 589 
 
 Fier Darner, The, 5 Rob., 357 522 
 
 Financier, The, Dods., 61 548 
 
 Fisher, Anthon v., Dougl., 649 («.) 640 
 
 Fitzsimmons V. Nev/port Insurance Co., 4 Cia.nch, iSs 214 
 
 Flad Oyen, The, I Roh., 13s 589,636 
 
 Flora, The, 6 Roh., g 264 
 
 Flore, The, 5 Rob., 268 545 
 
 Florida, The, 4 Ben., 452 431, 488 
 
 Flying Fish, The, 2 Gall., 374 586 
 
 Flying Scud, The, 6 Wall., 263 249 
 
 Forsigheid,The,'E.A^., z\4 2l8 
 
 Forsigheid,The, 3'R.oh.,3\i 546,556 
 
 Fortuna, The, I Dods., 81 . 576 
 
 Fortuna, The, 5 Rob., 27 104, 203 
 
 Fortuna, The, 10 Moo. P. C. C, 307 238, 244 
 
 Franc, The, 2 Rob., 285 («.) 555, 560 
 
 Franciska, The, Northcote v. Douglas, 10 Moo. P. C. C, 37, 73 99, 119, 174, 226, 251 
 
 Franklin, The, 4 Rob., 147 259, 380, 384, 628 
 
 Frau Houwina, The, Calvo, sec. 2767 273, 279 
 
 Frau Ilsabe, The, 4 Rob., 63 201 
 
 Frau Margaretha, The, 6 Rob., 92 . 64, 78, 83, 256 
 
 Frederic Molke, The, xRa^i^Z-j . . . ... . 231,251,389,391 
 
 Freeport, The, 5 Rob., 402 264, 269 
 
 Friede, The, Spinks, 330 («.) 239 
 
TABLE OF CASES xv 
 
 PAGE 
 
 Friendship, The, 6 Rob., 420 375 
 
 Fry, Yeaton v., 5 Cranch, 335 219 
 
 Gage, The, 6 Rob., 273 633 
 
 Galbraith v. Grade, Cond. Marsh, 406^ 508 
 
 Gauntlet, The, L. R., 4 P. C, 184 467 
 
 Geipelv. Smith, L. R., 7 Q. B., 410 98, 250 
 
 Gelston v. Hoyt, 13 Johns. (U. S.), 141, 561 . • 494 
 
 General Hamilton, Tht, 6 Koh., 61 208 
 
 Genoa Ships, 4 Rob., 388 642 
 
 Georgiana, i Dods., 397 621 
 
 Gerasimo, The, 1 1 Moo. P. C. C, 88 239, 520, 585 
 
 Gertrude, The, 5 Wall., 8 276 
 
 Geyer v. Michel, 3 Dall., 285 423 
 
 Gibson v. Service, 5 Taunt., 133 414 
 
 Glierktigheii, The, 6 Rob., 58 576 
 
 Goede Vreede, The, 4 Rob., 163 75 
 
 Gowja/ez, ZTewrffvVvJj v., 67 Federal Rep., 351 488 
 
 Gooding, U. S. v., 12 Wheaton, 460 435 
 
 Goodrich v. Gordon, 15 John. (U. S.), 6 ........ . 644 
 
 Gordon, Goodrich v., IS John. (\J. S.), 6 644 
 
 Goss V. Withers, 2 Burr., 694 619, 632 
 
 Graaf Bemstorff, The, 3 Rob., 109 502 
 
 Grade, Galbraith v., Cond. Marsh, 406^ 508 
 
 Gran Para, The, 7 Wheaton, 471 428, 494 
 
 Gratitudine, The, 3 Rob., 240 642 
 
 Grazebrook, In re, ex p. Chavasse, 34 L. J., Bank., 17 409, 412 
 
 Guestier, Hudson v., 4 Cranch, 293 ; 6 Cranch, 281 630 
 
 Guinet, U. S. v., 2 Dall., 328 421 
 
 Gute Erwarterung, The, 6 Roh., 182 210 
 
 Gute Gesellschaft Michael, The, 3 Rob., 108 73 
 
 ZTaa**/', The, 6 Rob., 54 117,251,255,264,576 
 
 Hampton, The, 5 Wall., 372 564 
 
 Hare, The, i Acton, 252 219, 220 
 
 Hart, The (see the Stephen Hart) 
 
 Hart, United States v., T/^Ytde.ra\'Rt.'p.,72i^ 491 
 
 Hartley, Roberts v., I HovigX., ^11 560,561 
 
 Heathcote, Tottie v., 10 Moo. P. C. C. 70 390 
 
 Helen, The, L. R., i Adm. and Ecc. i 412 
 
 HendrikandAlida,T:he,\yiMr^o\X,<fo 7° 
 
 A'fi«^«/ijv. Go«ja/«5^, 67 Federal Rep., 351 488 
 
 Henning,Hobbs\.,i7C.'B.,'^.S.,7gi 82,282,412 
 
 HenrickandMaria,T:he,i'R.oh.,iA% 117,189,235 
 
 Henrick and Maria, The, 4 Rob., ^S 576,586 
 
 Henriette, The, 2 Dods., 96 224 
 
 Hercules, The, 2 Dods., 353 577 
 
 Hiawatha, The, 2 Black, 635 240, 245 
 
 Hildebrandt, Reg. \. {The Aline and Fanny), S^\xiks, 322 . . . 239,247,252 
 
 Hobbs'v.Henning,i7C.'Q.,'i^.S.,79^ 82,282,412 
 
 .flb^«K«^, The, 6Rob., 112 209,219 
 
 Hogan, The Mary N., v., 17 Fed. Rep., 813 497 
 
 b 
 
xvi COMMERCE IN WAR 
 
 PAGB 
 
 Hoop, The, I Rob., 196 640 
 
 Hope, The, I Acton, 43 270 
 
 Hope, The, 6 Rob., 463 306 
 
 Hopper, The, Edw., 369 576 
 
 Horatio, The, 6 Rob., 320 621 
 
 Hoyt, Gelston v., 13 Johns. (U. S.), 141, 561 : . . 494 
 
 Hudson V. Guesiier, 4 Cranch, 293 ; 6 Cranch, 281 630 
 
 Hughes, United States v., 70 Federal Rep., 972 49' 
 
 Huldah, The, 3 Rob., 235 520 
 
 Hunter, The, i Dods., 480 S04, 514, 586 
 
 Huntress, The, 6 Rob., 104 601 
 
 Hurtige Hane, The, 2 Rob., 124 I95j 259 
 
 Hurtige Hane, The, 3 Rob., 324 200, 234 
 
 Imina, The, 3 Rob., 167 40, 202, 261, 283, 386 
 
 Immanuel, The, 2 Rob., 186 259, 262, 399, 402, 404 
 
 Independencia del Sud, The, 7 Wheaton's Rep., 285 2 
 
 Indian Chief, The, 3 Rob., 22 276 
 
 Infanta Maria Theresa, The, 188 U. S. Rep., 283 569 
 
 International, The, L. R., 3 Ad. and Ecc, 321 466 
 
 /ww/wt^/tf, The, Opinions A.-G., U.S.A., Ill, 120 322 
 
 Invincible, The, i Wheaton, 238 422, 432 
 
 James Cook, The, Edw., 261 221, 259, 395, 397 
 
 Jansen, Talbot \., 2, Dall., 133 422 
 
 Jeanne Marie, The, Spinks, 167 239 
 
 Jeckery. Montgomery, 18 Howard (Sup. Ct.), no 276, 277, 530 
 
 Jenny, The, 5 Wall., 183 247 
 
 Johanna Maria, The, 10 Moo. P. C. C, 70 220, 238, 390 
 
 Johanna Tholen, The, 6 Rob., 72 259, 402 
 
 John, The, i Acton, 39 270 
 
 John, The, 2 Dods., 336 576 
 
 John and Jane, The, 4 Rob., 216 632 
 
 Jonge Hermanus, The, 4 Rob., 95 74 
 
 Jonge Margaretha, The, i Rob., 188 S6> 72, 74, 82, 380 
 
 Jonge Petronella, The, 2 Rob., 131 ig6 
 
 Jonge Pieter, The (I), 4 Rob., 79 202, 256, 262, 276 
 
 /i3«g-«/'/«/er, The (II), 4 Rob., 162 74,75 
 
 Jonge Thomas, The, 3 Rob., 233 401 
 
 Jonge Tobias, The, i Rob., 329 380, 384 
 
 Josefa Segunda, The, 10 Wheaton, 312 435 
 
 Josephine, The, 3 Wall., 83 244 
 
 Juffrow Anna Gedruth, The, Marriott, 221 . . 71 
 
 Juffrow Maria, The, ^'Roh., 16^ 117 
 
 Juffrow Maria Schrceder,T:h& {I), ^'Roh.,iti'i .... 118,197,391,577 
 
 Juffrow Maria Schrceder, The (II), 4 Rob., 89 («.) 203 
 
 Juffrow Wobetha, The, 4 Rob., 163 75 
 
 Julia, The, i Gall., 594 ; 8 Cranch, 181 81 
 
 Juliana, The, 4 Rob., 328 402 
 
 Jungfer Charlotta, The, i Acton, 171 271 
 
 Juno, The, 2 Rob., 116 194 
 
TABLE OF CASES xvii 
 
 PAGE 
 
 Juno, The, 38 Ct. CI. (U. S.), 465 83 
 
 Justin V. Ballam, 1 Salk., 34 640 
 
 Keating, Maisonnaire v., 2 Gallison, 325 81, 644 
 
 King V. Delaware Insurance Co., 6 Cxa.nc\i,'ji 222 
 
 Laurada, The, 98 Fed. Rep., 983 497 
 
 La Caux v. Eden, 2 Dougl., 613 619 
 
 Leonard, Croudson v., 4 Cranch, 434 214 
 
 Leucade, The, Spinks, 217 529, 534, 576, 589 
 
 Lindo V. Rodney, 2 Dougl., 613 619 
 
 Lisette, The, 6 Rob., 387 . 212, 391 
 
 Little William, The, i Acton, 141 . _ 218 
 
 Lively, The, i Gall., 315 522 
 
 Livingstone v. Maryland Insurance Co., 7 Cranch, 544 505, 509 
 
 London Packet, The, 5 Wheaton, 137 293 
 
 Z<7«^, The, A.-G.'s Opinions (U.S.A.), Ill, 337 599 
 
 Lord Nelson,1\i.&,'£.A^.,^^ 632 
 
 Louis, The Le, 2 Dods., 243 331 
 
 Lucretia, The, 4 Rob., 217 («.) 630 
 
 Ludwig and Vorwarts, The, Calvo, § 3033 298 
 
 Luna, The, Edw., 191 216, 248 
 
 Lushington, Nesbit v., 4 T. R., 783 495 
 
 Madison, The, Edw., 224 306 
 
 Madonna del Burso,'Vat, i,V..(io., \b() 505,521 
 
 Maine Insurance Co., Richardson v., 6 Mass., 102 414 
 
 Maisonnaire v. Keating, 2 Gallison, 325 81, 644 
 
 Mangrove, The, 188 U. S. Rep., 720 563, 566 
 
 Manilla Prize Cases, 188 U. S. Rep., 254 568 
 
 ilf«;yar^/. The, 9 Wheaton, 421 435 
 
 Margaretha Charlotte, The, 3 Rob., 78 («.) 259 
 
 Maria, The, i Rob., 359 ... 299, 325, 326, 328, 331, 333, 361 
 
 Maria, The (Jackson), 5 Rob., 365 266 
 
 Maria, The (Monses), 6 Rob., 201 210, 212, 259, 266 
 
 Mariana Flora, The, 1 1 Wheaton, i 338, 339 
 
 J/3ni?Z(?«w, The, State Papers, Vol. LXXII I, 940 173 
 
 Mars, The, 6 Rob., 79 259 
 
 Mary, The, 2 Wheaton, 223 634 
 
 Mary Anne, The, 8 Wheaton, 380 435 
 
 Mary Ford, The, 3 DalL, 188 632, 635 
 
 Mary N. Hogan, The, United States v., i%¥&die.xa\'R.t^.,$2() 484 
 
 Mary N. Hogan, The, 17 Fed. Rep., 813 497 
 
 Maryland, The, i Acton, 310 514, 586 
 
 Maryland Insurance Co. w. Woods, 6 Cranch, 2g 221 
 
 Maryland Insurance Co., Livingstone v., 7 Crunch, $44 S^Si SOQ 
 
 Mauran v. Insurance Co., L. R., 3 P. C, 218 496 
 
 McFadden, The Exchange v., 7 Cranch, 116 300 
 
 Melanie, The, 2 Dods., 122 224 
 
 Melomane, The, 5 Rob., 41 553 
 
 Mentor, The, Edw., 207 259, 521 
 
 Mercurius, The (Meincke), i Rob., 288 384 
 
xviii COMMERCE IN WAR 
 
 FAGR 
 
 Mercurius, The, Lords, 7 Mch., 1795 403 
 
 Mercurius, The, i Rob., 80 .... 240, 251, 288, 392, 397, 576 
 
 Mercury, The (Roberts), 5 Rob., 400 260, 263, 269 
 
 jl/^rfar)'. The, Code des Prises, II, 789 605 
 
 Mercury, The, i Acton, 66 271 
 
 Merino, The, 9 Wheaton, 391 435 
 
 Mermaid, The, The British Consul y.,'Bt&'s km. k.d.'R.t^.,6() . . . .423 
 
 Meteor, The, 17 Fed. Ca., 178 ; 26 ?A, 1241 43° 
 
 Michel, Geyer v., 3 Dall., 285 423 
 
 Minerva, The, 3 Rob., 229 4oO) 40i 
 
 Minerve, The, i Pistoye and Duverdy, 410 7° 
 
 Montara, The, Law Mag., Feb., 1906, p. 220 254 
 
 Montgomery, Jecker\.,\Z'Ro■vl&x&.{^yx$.Q,^.:)ll^ 276,278,530 
 
 Moodie {Benj.) v. The Brothers, Bee's Am. Ad. Rep., 76 423 
 
 Moodie v The Betsey, the Alfred, and the Phcebe Anne, 3 Dall., 288, 307, and 319 . 424 
 
 Nancy, The (Hurd), i Acton, 58 216 
 
 A^a«0/, The (Joy), 3 Rob., 82 259,399 
 
 Nancy, The, 27 C. Cls. R., 99 323. 329 
 
 Nancy, The, Bee's Am. Ad. Rep., 73 423 
 
 Nancy, The, 4 Rob., 327 («.) 552 
 
 Nancy, The (Woodberry), I Acton, 63 217, 226, 251 
 
 Nancy Benjamine, The, Tudor 401 
 
 Naples Grant, The, 2 Dods., 273 224 
 
 Naylor v. Taylor, i Moo. and M., 207 225 
 
 Nelly, The, i Rob., 219 5^4 
 
 Neptune, The, 5 Rob., Appx. 77, 4^3 
 
 Neptunus, The, 3 Rob., 108 73, 385 
 
 Neptunus, The (Hempel), 2 Rob., no 193, 194, 234 
 
 Neptunus, The (Kuyp) I, i Rob., 170 98, 191, 242 
 
 A^i?/^K««j, The (Kuyp), II, 3 Rob., 173 . . 196,385 
 
 Nereide, The, 9 Cranch, 418 . . 292, 293, 315, 324, 363, 372, 598 
 
 Nereyda, The, 8 Wheaton, 108 428 
 
 Nesbit V. Lushington, 4 T. R., 783 495 
 
 Neutralitet, The, 3 Rob., 295 3, 377, 382 
 
 Neutralitet, The, 6 Rob., 30 207 
 
 New Adventure, The, 4 Rob., Appx., p. 4 402 
 
 New York Insurance Co., Blagge v., I Caines, 549 506 
 
 Newport Insurance Co., Fitzsimmons -v., ^Cxaxich., 1%^ 214 
 
 Niemen, The, i Dods., 9 547, 549 
 
 Nordstern, The, i Acton, 128 217 
 
 Norihcote\. Douglas, The Franciska, 10 M.00. v. CC.,yj,T^ . . 99,119,174 
 
 Nossa Setihora de Adjuda, The, 5 Rob., 52 204 
 
 Nostra Signora de Begona, The, 5 Rob., 97 76 
 
 iVoj^ra 52'f«(7ra<^'Oi'a//i;, The, Code des Prises, II, 1021 605 
 
 Nueva Anna and Liebre, 6 Wheaton, 193 494 
 
 Oakesv. United States, ly/^XJ. 5. 'RQ^.,y'j% 558 
 
 O'Brien, United States v., 75 Federal Rep., 900 492 
 
 Ocean, The, 3 Rob., 297 199, 201, 262 
 
 Odessa, The, Spinks, 208 576 
 
 f^/w, The, 4 Rob., 318 546,551,552 
 
TABLE OF CASES xix 
 
 FAGB 
 
 Olt'nde Jiodri^uen, The, 174 U.S. Rep., Sio 221,250 
 
 Olivera v. Union Insurance Co., 3 Wheaton, 183 225 
 
 Orozembo, The, 6 Rob., 430 66, 308, 376 
 
 Osier Hisoer, /^ Rob., I2g 385 
 
 Ostsee, The, 9 Moo. P. C. C, 150; Spinks, 174 237, 576 
 
 Otsu, The, Spinks, 174 576 
 
 Otto and Olaf, The, 10 Moo. P. C. C, 257 238 
 
 Palmyra, The, 12 Wheaton, i 429 
 
 Panagia Rhomba, The, 12 Moo. P. C. C, 168 (and see Baltazzi v. Ryder) . 240, 396 
 
 Panama, The, 176 U. S., 535 302 
 
 Parkman v. Allen, i Stair's Decisions, 529 214 
 
 Parlement Beige, The, 42 L. T., 273 301, 542 
 
 Patapsco, The, i Acton, 270 258, 259, 271 
 
 Pearl, The (1704) ... 285 
 
 Pearl, The, 5 Wall., 574 248 
 
 Peacock, The, 4 Rob., 185 339, 519, 585, 586 
 
 Pena, United States v., 69 Federal Rep., 983 490 
 
 Pensamenio Peliz, The, Kdw., 11$ 629 
 
 Pennsylvania, The, i Acton, 33 512, 586 
 
 Peterhoff, The, 5 Wall., 28 64, 81, 105, 281, 282 
 
 Peters, United States v., ^ T>a\[., 12,1 421 
 
 Phoebe Anne, The, Moodie v., 3 Dall., 319 424 
 
 Phoenix, The, 3 Rob., 186 259, 498 
 
 Pinkerton, Barton v., 2 Ex., 340 441 
 
 Pioneer, The (Brazilian capture) 272 
 
 Plattsburg, The, 10 Wheaton, 133 435 
 
 Polly, The, 2 Rob., 361 ...... 262, 266, 267, 269 
 
 Polly, The, 4 Rob., 217 («.) , 630 
 
 Porter v. United States, 106 U. S. Rep., 607 560 
 
 Portsmouth, The, 6 Rob., 317 (n.) . 518 
 
 Posten, The, I Rob., 335 («.) . ... ... 193 
 
 Potsdam, The, 4 Rob., 89 203 
 
 Principe, The, Edw., 70 515, 586 
 
 Prins Frederick,The,iT)oA%., ii,'-,\ 300 
 
 Providentia, The, 2 Rob., 142 259 
 
 Quincy, U. S. v., 6 Peters, 445 429, 435, 456, 495 
 
 Rand, U. S. v., 17 Fed. Rep., 142 484 
 
 Ranger, The, 6 Rob., 125 78, 381 
 
 Rapid, The, Edwards, 228 66 
 
 Raven, The, S Rob., Appx. ,.. 77, 408 
 
 Rebecca,The,2Acton,ii() 253 
 
 Rebecca, The, 2 Rob., loi 402 
 
 Reg. V. Hildebrandt (The Aline and Fanny), Spinks, 322 . . . 239, 247, 252 
 
 Reg. -v. Jameson {i?,()b), 2 Q. '&., /[2i 469 
 
 Reg. V. Sandoval, 56 L. T. R., 526 ; 16 Cox, C. C, 206 ; 3 T. L. R., 411, 436, 498 . 468 
 
 Rendsberg, The, 6 Rob., 156 524 
 
 Resolution, The, 6 Roh., 13 512,586 
 
 Richardson v. Maine Insurance Co., 6 Mass., 102 414 
 
 Richmond, The, 5 Rob., 325 259, 381, 385, 408 
 
XX COMMERCE IN WAR 
 
 PAGE 
 
 Ricord\. Bettenham, Burr., 1734 640^ 643 
 
 Ringende Jacob, The, i Rob., 89 381 
 
 Rising Sun, The, 2 Rob., 104 S02, 504 
 
 Riia, The, 89 Fed. Rep., 763 57° 
 
 Robert, The, 3 Rob., 194 S4S. S^o 
 
 Roberts V. Hartley, I Dovigl., Ill S^Oj S^i 
 
 Rodney, Lindo v., 2 Dougl., 613 619 
 
 ;?o//a. The, 6 Rob., 364 117,210,231,234,392 
 
 Rosalie and Betty, The, 2 Rob., 343 262 
 
 Rose, The, v. United States, 36 Ct. of CL, 291 329 
 
 Rose, The, 2 Rob., 206 4oi 
 
 Rowena, The, s Rob., 370 265, 266 
 
 Royal Exch. Assurance Co., Baring v., 5 East, 99 S°7 
 
 RufuSf The, 2 Dods., 48 S33 
 
 Ryder, Baltazzi v., 12 Moo. P. C. C, 173 (and see the Panaghia Rhomba) . 392, 396 
 
 S'/./a«*, The, Burrell, 160 188 
 
 St.Jago,T'\[ie,M.a.r\.tTL's Captures, iZq 613,624 
 
 St. John, The, 2 Sprague, 266 566 
 
 St. Juan Baptista, The, s 'Roh., 33 521,522 
 
 St. Nicholas, The, 1 Wheaton, 417 503 
 
 Sally, The, 8 Cranch, 382 564 
 
 Salvador, The, L. R., 3 P. C, 218 442, 496 
 
 Sanctissimo Sacramento, The 75 
 
 Sandoval, Reg. v., 56 L. T. R., 526 ; 16 Cox, C. C, 206 ; 3 T. L. R., 41 1, 436, 498 . 468 
 
 Sansom, The, 6 Rob., 410 603 
 
 Santa Brigida, The, 3 Rob., 52 544, 545 
 
 Santa Crug, The, i Rob., 49 622 
 
 Santo Domingo, The, 1 19 Federal Rep., 386 569 
 
 Santissima Cora^ao, The, 2 Acton, 91 259 
 
 Santissima Trinidad, The, 7 Wheaton, 283 .... 409, 412, 416, 421, 426 
 
 Sarah, The, 3 Rob., 330 503 
 
 Sarah and Bernhardus,1)xe, iMaxnott, ly^ 70 
 
 Sarah Christina, The, i Rob., 237 73, 258, 384 
 
 Scott and Seaman, Elting v., 2 John., 157 508 
 
 Sea Witch, The, 6 Wall., 242 249, 250 
 
 Seeman, Talbot v., i Cranch, i . . 604 
 
 Service, Gibson v., 5 Taunt., 133 414 
 
 Seymour v. London and Provincial Marine Insurance Co., 41 L. J., C. P., 193 . 64 
 
 Shepherdess, The, 5 Rob., 262 206, 398 
 
 Sibery v. Connelly, 22 T. L. R., 174 441 
 
 Sillem, A.-G. v., 2 H. & C, 431 440 
 
 Sir William Peel,l\iS.,lV^z!X., ^17 247 
 
 Siren, The, 13 Wall., 389 559 
 
 ^iWwr/fA/v. ./4//e«, [1906] 2 K. B., 81 . . 441 
 
 Smith, Geipel v., L. R., 7 Q. B., 410 98, 250 
 
 Snipe, The, Edw., 381 259 
 
 5oj>>4«V, The, 6Rob., 251 («.) 267 
 
 Sparkler, The, i Dods., 359 224 
 
 5/«f«/<3!/«V7», The, 2 Rob., 293 517,586 
 
 Spes, The, and the Irene, 5 Rob., 76 103, 204, 219 
 
 springbok. The, 5 Wall., i 256, 257, 279, 281, 282 
 
TABLE OF CASES 
 
 Staadt Embden, The, i Rob., 26 
 
 Star, The, 3 Wheaton, 78 
 
 Stella del Norte, The, 5 Rob., 349 
 
 Stephen Hart, The, 3 Wall, 559 ; 5 Wall, 
 
 Stert, The, 4 Rob., 65 
 
 Stovel V. United States, 36 Ct. CL, 392 
 
 Success, The, i Dods., 134 
 
 Susa, The, 2 Rob., 251 
 
 Susan, The, 6 Rob., 461 («.) 
 
 Susanna, The, 6 Rob., 48 
 
 Talbot v. Jansen, 3 DalL, 133 
 
 Talbot V. Seeman, I Cranch, i 
 
 Taylor, Naylor v., i Moo. & M., 207 
 
 Teresita, The, 5 WalL, 170 
 
 Thorny ris. The, Edw., 17 
 
 7%r« Friends, The, 166 U. S. Rep., i 
 
 7'<7//?V V. Heathcote, 10 Moo. P. C. C, 70 
 
 Trende Sostre, The, 6 Rob., 390 («.) 
 
 Triheten, The, 6 Rob., 65 
 
 Trumbull, United States v., 48 Federal Rep., 99 
 
 Tucker, Duckworth v., 2 Taunt., 7 
 
 r«/'«/a. The, 6 Rob., 177 
 
 Twee Gebroeders, The (Alberts), 3 Rob., 162 
 
 yw^e Gesuster, The, 2 Rob., 284 («.) 
 
 Twee Juffrowen, The, 4 Rob., 243 
 
 Two Brothers, The, 2 Acton, 38 
 
 Tie/^ Friends, The, i Rob., 271 
 
 7a/<7 Hundred, etc., United States v., 20 Federal Rep., 50 
 
 Union, The, i Dods., 346 
 Union, The, Spinks, 164 . . 
 
 Union Insurance Co., Cancre v., Cond. Marsh, 406a 
 Union Insurance Co., Olivera v., 3 Wheaton, 183 
 Union Insurance Co., Wilcocks v., 2 Binn., 574 
 United States v. Ames, 99 U. S. Rep., 35 . 
 United States v. Decatur, Div. Ct CI., 201 
 United States, Dewey v., 178 U. S. Rep., 510 . 
 United States v. Dickelmann, 92 U. S. Rep., 520 
 United States \. Gooding, 12 Wheaton, 460 
 United States v. Guinet, 2 Dall., 328 
 United States v. ,ffiar/, 74 Fed. Rep., 724 
 United States v. Hughes, 70 Fed. Rep., 972 
 United States v. 7%^ M TV. Hogan, 18 Federal Rep., 529 
 United States v. O'Brien, 75 Fed. Rep., 900 
 United States, Oakesv., 174 U. S. Rep., 778 
 United States v. /"«««, 69 Federal Rep., 983 
 United States v. Peters, 3 DalL, 121 
 United States, Porter v., 106 U. S, Rep., 607 
 "^ United States v. Quincy, 6 Peters, 445 
 United States \. Rand, 17 Federal Rep., 142 
 United States, The Rose v., 36 Ct. CL, 291 
 
 555. 
 
 XX 
 
 PAGE 
 
 . 71, 380 
 
 . 625 
 
 • • 558 
 
 ■ 279 
 
 201, 256, 263 
 
 . 566 
 
 . 231 
 
 • 259 
 
 • 30s 
 5 19, 522, 585 
 
 . 422 
 604, 605 
 . 225 
 . 247 
 254, 267, 269 
 
 ■ 493 
 
 • 390 
 265, 387 
 
 208, 209, 219 
 487 
 560 
 209 
 248 
 560 
 
 75 
 258, 259, 271 
 
 • 597 
 
 • 48s 
 
 • 549 
 
 • 239 
 . 508 
 . 225 
 . 512 
 
 • 497 
 
 • 569 
 563, 568 
 
 . 82 
 
 • 435 
 . 421 
 
 • 491 
 
 • 491 
 
 ■ 484 
 
 • 492 
 
 • 558 
 
 • 490 
 . 421 
 . 560 
 
 429, 435. 456 
 484, 49S 
 
 • 329 
 
xxii COMMERCE IN WAR 
 
 PAGE 
 
 United States, Stovel v., z(> Ci. C\., 29'i . . 566 
 
 United States v. Trumbull, 48 Federal Rep., 99 487 
 
 United States v. Two Hundred, etc., 20 Federal Rep., 50 485 
 
 United States v. Wibor^, 163 U. S. ; 16 S. C. Rep., 1127, 1197 • • • -490 
 
 Fe«j<ra*, The, 3 Rob., IS9(«.) '98 
 
 Verwagtig, The, Lords, 28 Febr., 1786 406 
 
 Vier Gebroeders, The, Burrell, 159 188 
 
 Vigilantia, The, i Rob., I S08 
 
 Volant (Bessom), The 401 
 
 Vrow Johanna, The, i Rob., 109 192 
 
 Vrow Johanna, The, 4 Rob., 348 5^4 
 
 Vrow Judith, The, i Rob., 150 19I) 231 
 
 Vryheid, The, i Marriott, 74 68 
 
 Vryheid, The, 2 Rob., 16 544, S4S 
 
 War Onskan, The, 2 Rob., 299 600, 646 
 
 Washington, Tiis, 6 Kdb.,2'js Si Si 586 
 
 Wasser Hundt, The, i Dods., 270 (».) 222 
 
 Welvaart van Pillau, 2 'R.oh., 12Z 195,249,391 
 
 Wiborg\. United States, 163 U. S., 632 ; 16 S. C. Rep., 1127, 1197 . . .490 
 
 Wilcocksw. Union Insurance Co., 2 'Bran., IJ^ 512 
 
 Wilhelmina, The, 4 Rob., Appx. 4 400 
 
 Wilhelmsburg, The, 5 Rob., 143 5 1 5, 586 
 
 William, The, 5 Rob., 385 64, 254, 260, 267, 270 
 
 William, The, 6 Rob., 316 .... ... 518, 533 
 
 Williams v. Armroyd, 7 Cranch, 423 223 
 
 Withers, Goss v., 2 Burr., 694 619, 632 
 
 Woods, Maryland Insurance Co. v., 6 Ciimch, 2g 221 
 
 Wren, The, 6 Wall., 582 250 
 
 Yeaton v. Fry, 5 Cranch, 335 219 
 
 Zee Star, The, 4 Rob., 71 518 
 
 Zelden Bust, The, 6 Rob., 93 64, 73, 78 
 
COMMERCE IN WAR 
 
 CHAPTER I 
 CONTRABAND 
 
 CONTRABAND of war, in the sense assigned by international 
 law, means those things which, in accordance with the rules 
 that by universal assent are binding on belligerent and neutral 
 states, a belligerent state absolutely or conditionally forbids the 
 subjects of neutral states to supply to its belligerent enemy. 
 
 The theory of contraband finds its origin in the natural desire 
 of belligerents to impair the strength of their enemies by the total 
 or partial suppression of their commercial intercourse with other 
 nations.^ 
 
 The modifying influence that restrains the belligerent from the 
 application of this theory to the total suppression of all comrherce 
 between the subjects of neutral states and those of his enemy is 
 to be found in the solicitude of neutral states to preserve their 
 commerce, and in the practical recognition of the doctrine that war 
 is a contention between states and not private persons, and is to 
 be waged against the public forces of a state and not against its 
 private citizens while in the pursuit of peaceful occupations. This 
 doctrine is asserted by Gentilis in his treatise " De Jure Belli " : * 
 " Bellum est publicorum armofum justa contentio. . . . Neque 
 enim bellum est rixa, pugna, inimicitia privatorum. Et publica 
 esse arma utrinque debent." ~-~- 
 
 In considering the law of contraband, it is necessary in the first 
 place clearly to distinguish between the acts of a neutral state in 
 its organic or corporate character and those of its subjects. The 
 modern law of nations recognizes the right, apart from treaty 
 obligations, of a sovereign state to observe peace while other 
 nations are at war, but such right involves the reciprocal obligation 
 to maintain an attitude of impartiality in all that pertains to the 
 
 * Dupuis, " Le Droit de la Guerre Maritime," c. Vli., 236. 
 
 " Lib. I. c. II. See also Grotius "De Jure Belli," lib. I. c. Ii. and Vattel, lib. III. c. I. & xv. 
 B 
 
2 COMMERCE IN WAR 
 
 carrying on of the war ; it is true that this obligation may, 
 perhaps, even at the present day, be subject to limitations result- 
 ing from treaties or even from circumstances which may oblige or 
 cause a neutral state to extend favours to one belligerent to the 
 prejudice of another.* Bynkershoek' gives the following defini- 
 tion of neutrals : " Non hostes appello qui neutrarum partium sunt 
 nee ex foedere his, illis ve quiquam debent, si quid debeant federati 
 sunt non simpliciter amici." This definition would appear too 
 wide, and probably the most accurate and precise definition is that 
 given by Calvo, "la neutralitd est la non participation k une 
 lutte engag^e entre deux ou plusieurs autres nations,"' though it 
 must be conceded that this definition is not exhaustive of the true 
 meaning of the term neutrality. 
 
 But the neutral state is under an obligation to protect belliger- 
 ents from certain hostile acts of her subjects. This obligation is 
 indeed of comparatively recent recognition, and was at first 
 grounded upon municipal law and not on any canon of inter- 
 national law.* By the common law no such obligation existed, 
 and during a war between Russia and Sweden complaint was 
 made by the latter country, then at peace with England, to the 
 English Government that ships of war were being fitted out in 
 English ports and sold to the Czar. The House of Lords, before 
 whom the lawfulness of this act was in 1721 considered, ordered 
 the judges to attend and give their opinion, and all save one 
 answered that there was no power by law to prohibit the same." 
 A similar question came before the Supreme Court of the United 
 States in the case of the Independencia del Sud, * which having 
 been equipped and fitted out as a ship of war at Baltimore, in the 
 territory of the United States, was sent to Buenos Ayres to be 
 sold to the Government of that state, which was then at war with 
 Spain. 
 
 In modern times neutral states have recognized the expediency 
 of restraining their subjects from fitting out armaments, naval or 
 military, or supplying levies for foreign belligerents, and in 1794 
 the United States enacted a law making it a misdemeanour to 
 prepare a military expedition or to raise military levies or hire 
 troops, or to be concerned in fitting out any vessel to cruise 
 or commit hostilities in foreign service against a foreign nation 
 with which the United States was at peace. The example of 
 America was followed by England in passing "an Act to prevent 
 the enlisting or engaging of His Majesty's subjects to serve in 
 
 1 Vattel, lib. III. c. vi. s. loi and c. vii. s. 103 et seq. 
 
 2 " Queestiones Juris Publici," lib. I. c. ix. 
 
 ' " Le Droit International," vol. IV. s. 2493. 
 
 * Vattel, lib. III. c. Vii. s. no. » Fortescue's Reports, p. 388. 
 
 • 7 Wheaton's Rep., 285. 
 
CONTRABAND 3 
 
 foreign service and the fitting out or equipping in His Majesty's 
 dominions vessels for warlike purposes without His Majesty's 
 license." * 
 
 But the capacity of a neutral state to prevent the levy or en- 
 listment of troops within its territories arises primarily from her 
 rights of sovereignty rather than from her duties as a neutral, 
 Wolfius points out that it is a violation of sovereign right to levy 
 troops in a foreign country without the license of its Government. 
 " Quoniam nemini in alieno territorio militem conscribere licet 
 invito superiore, si quis legere audet, jus gentis violat ac ideo 
 injuriam eidem facit, cumque injuria haec crimen sit a peregrino 
 commissum, peregrini autem in territorio alieno delinquentes jiixta 
 leges loci puniendi sint, si peregrinus in territorio alieno invito 
 superiore militem legere audet, deprehensus puniri potest."^ 
 
 In another place will be discussed the rules of international and 
 municipal law in respect of the fitting out of armaments by the 
 subjects of a neutral state for the service of a belligerent ; for the 
 present purpose it is sufficient to observe that the obligation of a 
 neutral state to prohibit the rendering of military or naval 
 assistance to a belligerent is confined to cases of levying of troops 
 or fitting out or provision of armaments for a direct hostile 
 expedition, naval or military, within its territories, and that, in the 
 absence of any treaty with a foreign state by which the Govern- 
 ment of a neutral state is bound not to suffer its subjects to supply 
 contraband to a belligerent enemy of that state,^ the subjects of 
 a neutral state are entitled to carry on their usual commercial 
 intercourse with belligerent states in all things contraband or 
 otherwise, subject to the risk of capture and forfeiture or other 
 penalty, at the hands of the belligerent enemy of the state to 
 which they may attempt to export contraband. 
 
 It has recently been urged that neutrals might well bargain for 
 immunity from the vexations of visit and search for their vessels, 
 by undertaking to prevent the export of contraband and the 
 sailing of blockade-runners. Such surveillance to be effective, 
 would involve enormous expense, and would substitute the cer- 
 tainty of continual vexation to commerce on land for the possibility 
 of naval interference. Even then, belligerents would constantly 
 find occasion for complaints of the inefficacy of the measures 
 taken. 
 
 In discussing the law of contraband of war, jurists for the most 
 part have accepted the view of Grotius that articles of commerce 
 in relation to the rights of belligerents and neutrals may be 
 
 * 59 Geo. III. c. LXIX., and 33 & 34 Vict. c. XC, and supestea p. 437. 
 
 * Jus Gentium, s. 754. Brig AUrta, 9 Cranch, 365. 
 ' Neutralitet, 3 Rob., 295 (1801), vide posted, p. 207. 
 
4 COMMERCE IN WAR 
 
 divided into three classes — (i) those which are useful only for the 
 purposes of war; ^2) those which manifestly cannot serve such 
 purposes ; and (3) those ancipitis usus, i.e. that may be useful for 
 the purposes of war or peace indiscriminately.^ He thus states 
 his view : " Sed et quaestio incidere solet, quid liceat in eos qui 
 hostes non sunt, aut dici nolunt, sed hostibus res aliquas subminis- 
 trant. Nam et olim et nuper de ea re acriter certatum scimus, cum 
 alii belli rigorem, alii commerciorum libertatem defenderent. 
 
 " Primum distinguendum inter res ipsas. Sunt enim quae in 
 bello tantum usum habent, ut arma : sunt quae in bello nullum 
 habent usum, ut quae voluptati inserviunt : sunt quae in bello et 
 extra bellum usum habent ut pecuniae, commeatus et naves et 
 quae navibus adsunt. In primo genere verum est dictum 
 Amalasuinthae ad Justinianum, in hostium esse partibus qui ad 
 bellum necessaria hosti administrat. Secundum genus querelam 
 non habet. Sic Seneca tyranno gratiam se relaturum ait, si bene- 
 ficium illi neque vires majores daturum est ad exitium commune, 
 neque confirmaturum quas habet, id autem est quod reddi illi sine 
 pernicie publica possit ; quod explicans addit : pecuniam, quae 
 satellitem stipendio teneat non subministrabo, si marmora et 
 vestes desiderabit, nihil oberit cuiquam id quo luxuria ejus 
 instruitur ; militem et arma non suggeram. Si pro magno petet 
 munere artifices scenae et quae feritatem ejus emolliant, libens 
 offeram. Cui triremes et aeratas non mitterem, lusorias et cubi- 
 culatas et alia ludibria regum in mari lascivientium mittam. Et 
 Ambrosio judice largiri ei qui conspiret adversus patriam non est 
 probabilis liberalitas. 
 
 "In tertio illo genere usus ancipitis, distinguendus erit belli 
 status. Nam si tueri me non possum nisi quae mittuntur inter- 
 cipiam, necessitas, ut alibi exposuimus jus dabit sed sub onere 
 restitutionis, nisi causa alia accedat. Quod si juris mei execu- 
 tionem rerum subvectio impedierit, idque scire potuerit qui 
 advexit, ut si oppidum obsessum tenebam, si portus clauses, et 
 jam deditio aut pax expectabatur, tenebitur ille mihi de damno 
 culpa dato ut qui debitorem carceri exemit aut fugam ejus in 
 meam fraudem instruxit et ad damni dati modum res quoque ejus 
 capi, et dominium earum debiti conSequendi causa quaeri poterit. 
 Si damnum nondum dederit sed dare voluerit jus erit rerum 
 retentione eum cogere ut de futuro caveat obsidibus, pignoribus 
 aut ullo modo. Quod si praeterea evidentissima sit hostis mei in me 
 injustitia et ille eum in bello iniquissimo confirmet, jam non tantum 
 civiliter tenebitur de damno sed et criminaliter, ut is qui judici 
 imminenti reum manifestum eximit : atque eo nomine licebit in 
 eum statuere quod delicto convenit, secundum ea quae de paenis 
 1 "De Jure Belli," lib. III. c. i. s. 5. 
 
CONTRABAND 5 
 
 diximus ; quare intra eum modum etiam spoliari poterit. Et has ob 
 causas solent a bellum gerentibus publicae significationes fieri ad 
 alios populos, turn ut de jure causae, turn etiam de spe probabili 
 juris exequendi appareat. 
 
 " Hanc autem quaestionem ad jus naturae ideo retulimus quia ex 
 historiis nihil comperire potuimus ea de re jure voluntario gentium 
 esse constitutum. Romanes qui Carthaginiensium hostibus com- 
 meatus attulerant, ipsi Carthaginienses aliquando ceperunt, eosdem 
 iidem Carthaginienses repetentibus Romanis reddiderunt. Deme- 
 trius cum Atticam teneret exercitu, jamque vicina oppida Eleu- 
 sina et Rhamnuntem cepisset Athenis famem facturus navis fru- 
 mentum inferre parantis et magistrum et gubernatorem suspendit 
 atque eo modo deterritis ceteris potitus urbe est," 
 
 With regard to this classification by Grotius of articles of com- 
 merce, the advance of science has transformed things which were 
 formerly innocuous, into objects capable of becoming, by the facile 
 application of some mechanical treatment, the most powerful in- 
 struments of war ; such, for instance, is cotton, which can, under 
 the hand of the chemist, be rendered a most powerful explosive ; 
 and so the introduction of steam navigation and the railway has 
 rendered coal, machinery, and certain classes of iron and steel 
 manufacture as much, under certain circumstances, obnoxious to 
 the belligerent as in earlier times were sails, cordage, hemp, 
 and tar. 
 
 But in addition to cotton, coal, machinery, and railway plant, 
 things which in themselves constitute no small portion of the 
 world's commerce, there are many other things in constant use 
 for the peaceful purposes of mankind which niay, under certain 
 conditions and circumstances, be justly regarded and treated by 
 a belligerent as contraband, nor is it material what the intent of 
 the merchant or shipper may be ; it is enough that the captor 
 is entitled to infer from the facts of its nature and destination that 
 the commodity will find its way into the military or naval service 
 of his belligerent enemy ; and his action in seizing the commodity 
 will be confirmed by the Prize Court if he establish that his view 
 of its ultimate destination was correct, notwithstanding the intent 
 as to destination of the shipper or carrier. 
 
 Whatever, indeed, may be the controversies of jurists, to which 
 is added further confusion in the conflicting decisions of Prize 
 Courts and the inconsistencies of ordinances and treaties, the 
 only safe course to be followed by the merchant and carrier is to 
 recognize that articles whose intrinsic character is such that they 
 may be useful for the purposes of war, are likely to be, treated 
 as contraband until these questions receive some settlement. 
 
 But, on the other hand, the general trend of international law, 
 
6 COMMERCE IN WAR 
 
 as evidenced by treaties, ordinances, and judgments, has been, 
 despite some notable aberrations, to limit the rights of bel- 
 ligerents against neutral commerce, and to restrain them from 
 extending the right of unqualified capture beyond those things 
 which are primarily useful for warlike purposes, and may directly 
 assist the belligerent in his naval or military operations. And 
 this is believed to be the prevalent view taken on the Continent 
 at the present time.^ 
 
 It is, however, true that a right of qualified capture (subject to 
 pre-emption) was conceded by the Institute at Venice in 1896, 
 in cases where other goods were susceptible of military use.^ 
 
 Gentilis,* indeed, in 1 583, some forty years before the work of 
 Grotius was published, thus broadly enunciates the principle 
 which should govern the action of belligerent States in relation 
 to commerce : "Est sequo aequius et favorabili favorabilius et utili 
 utilius. Lucrum hi commerciorum sibi perire nolunt. I Hi nolunt 
 quid fieri quod contra salutem est. Jus commerciorum aequum 
 est, et hoc aequius tuendae salutis ; est illud gentium jus, hoc 
 naturae est, est illud privatorum hoc regnorum." 
 
 Gentilis in this passage draws a distinction between inter- 
 national and natural law. Apart from this somewhat unnecessary 
 antithesis, his observations scarcely warrant the criticisms that 
 some jurists* have passed upon them to the effect that they 
 sanction the most arbitrary acts and the most extravagant pre- 
 tensions upon the part of belligerents. They appear rather to 
 indicate that private rights can only be respected during war so 
 long as their exercise does not conflict with the safety of States, 
 to wit, with the right of self-preservation, and would seem infer- 
 entially to impose a greater limitation upon the rights of belligerents 
 than what has been in practice accorded or recognized as necessary 
 or just by the great bulk of judicial or juridical authority, which 
 extends the right of belligerents to interfere with the commerce 
 of neutrals not merely so far as may be necessary for preserving 
 their own safety, but for the purpose of impairing the enemy's 
 power of offence or resistance. ^ 
 
 The theory of contraband^ was recognized in very early times, 
 as the references in the passage of Grotius above cited show,® but 
 it was only with the advance of civilization that the theory found 
 expression in international rules and regulations, which placed 
 upon a fairly intelligible and reasonable basis the relations between 
 neutrals and belligerents in respect of their commercial intercourse. 
 
 ' " Annuaire de I'Institut de Droit International," XV. p. 205 ei seq. 
 ^ Ibid., p. 250. ' Alberic Gentilis, " De Jure Belli." 
 
 * Calvo, lib. V. s. 2709. 
 
 6 Ital. contra, against ; and bando, proclamation or statute : late Latin, bandum, bannum, 
 confer bandom, ban. * Ante, p. 4. 
 
CONTRABAND 7 
 
 The first glimpses we secure of a tendency towards the recognition 
 of some certain principle upon which the law or custom of contra- 
 band should rest are to be found in treaties of alliance and amity 
 between sovereign states, and therefore for the purpose of appreci- 
 ating how the modern doctrine of contraband has, with some 
 approach to certainty and precision, been established, it is well to 
 trace its gradual evolution through the operation of treaties, 
 ordinances, and judgments. 
 
 The earliest instances of reducing into the form of an ordinance 
 the doctrine of contraband are to be found in the ordinances of 
 the Emperors Valentinian, Gratian, Honorius, Marcian, and 
 Theodosius.^ Article XLI of the " Codex Justinianus " runs as 
 follows: "Ad Barbaricum transferendi vini et olei et liquaminis 
 nuUam quisquam habeat facultatem ne gustus quidem causa aut 
 usus commerciorum. 
 
 " Nemo alienigenis barbaris cujuscumque gentis ad hanc 
 urbem sacratissimam sub legationis specie vel sub quocumque 
 alio colore venientibus aut in diversis aliis civitatibus vel locis 
 loricas et scuta et arcus, sagittas et spathas et gladios vel alterius 
 cujuscumque generis arma audeat venumdare, nulla prorsus isdem 
 tela, nihil penitus ferri vel facti jam vel adhuc infecti ab aliquo 
 distrahatur. Perniciosum namque Romano imperio et proditioni 
 proximum est barbaros quos indigere convenit telis eos, ut 
 validiores reddantur instruere — si quis autem aliquid armorum 
 genus quarumcumque nationum barbaris alienigenis contra pietatis 
 nostrse interdicta ubicumque yendiderit bona ejus universa pro- 
 scribi protinus ac fisco addici, ipsam quoque capitalem paenam 
 subire decernimus." 
 
 The policy pursued by the Roman emperors in relation to 
 traffic with Barbarians was copied by the Pontificate regarding 
 trade by Christians with the Saracens,^ and in the year 1 1 79 the 
 Lateran Council promulgated the following canon : "Itaquorun- 
 dam animos occuparit sseva cupiditas, ut cum glorientur nomine 
 Christiano, Saracenis arma, ferrum et lignamina galearum deferant, 
 et pares eis, aut etiam superiores in malitia fiant, dum ad impug- 
 nandos Christianos, arma eis et necessaria subministrant. Sunt 
 etiam qui pro sua cupiditate in galeis et piraticis Saracenorum 
 navibus regimen et curam gubernationis exerceant. Tales igitur 
 a communione ecclesise praecisos, et excommunicationi pro su^ 
 iniquitate subjectos et rerum suarum per sseculi principes catholicos 
 et consules civitatum privatione mulctari et capientium servos, si 
 capti fuerint fore censemus. Prsecipimus etiam ut per ecclesias 
 
 ' "Codex Justinianus," lib. IV. art. XLI. 
 
 * Vide Canon 24 of the Third Council of the Lateran ("Coleti CoUectio Conciliorum," 
 vol. XIII.). 
 
8 COMMERCE IN WAR 
 
 maritimarum urbium crebra et solemnis excommunicatio proferatur 
 in eos. . . ." 
 
 The first treaty in which we can discover any attempt at pre- 
 cision in defining contraband, and any sure recognition of the 
 duties of a neutral State in relation thereto, is that made in the 
 year 1604 between England, Spain, and Burgundy,^ of which 
 Article IV states — 
 
 " That neither of the parties shall afford nor consent to their vassals, 
 subjects, or inhabitants affording assistance, favour, or counsel, directly, 
 or indirectly, either by land, sea, or fresh water, nor furnish, nor consent 
 to his said vassals, inhabitants, or subjects furnishing soldiers, provisions, 
 money, arms, ammunition, or any other kind of assistance to foment war 
 with the enemies or rebels of the other party, of whatsoever sort they be, 
 either invading the kingdoms, countries, and dominions of the other, 
 or withdrawing themselves from the obedience of the other." 
 
 This treaty is interesting. The term contraband is not used, 
 neither is any power expressly given, nor any recognition accorded, 
 to the rights of visit, search, capture, or prize ; but, on the other 
 hand, in the widest possible terms prohibition is imposed upon the 
 neutral State and its subjects from furnishing the belligerent enemy 
 with commodities "to foment" war. Moreover, provisions (vzvres) 
 and money are expressly included among prohibited things, and, 
 what is entirely in conflict with later doctrines and practice, there 
 is imposed upon the neutral State the duty to take care that its 
 subjects shall not supply prohibited things to the enemy. 
 
 By a treaty between Great Britain and Spain, made in 1604,^ we 
 find a description of prohibited contraband identical with that of 
 the treaty already cited : — 
 
 " And as the said kings solemnly promise never to give any warlike 
 assistance to the enemies of either, it is further provided that their subjects, 
 or inhabitants, of whatever nation or quality they be, shall not, either on 
 pretence of trade or commerce, or under any other colour, assist the 
 enemies of the said princes, or of either of them, in any manner, nor 
 furnish them with money, provisions, arms, engines, guns, or instruments 
 fit for war, nor afford any other warlike furniture ; and all contraveners 
 shall be liable to the severest punishment as covenant-breakers and 
 seditious persons." 
 
 In 1 6 14 a treaty was entered into between Sweden and the 
 Low Countries^ which presents many points of similarity to that 
 last cited, but it should be observed that this treaty partakes of 
 the nature of an offensive and defensive alliance. Article V 
 
 ^ Vide "A General Collection of Treaties between 1495 and 1712," published by 
 Knapton and others in 1732. 
 
 * '* A Complete Collection of Marine Treaties," published by J. Millan, 1779. 
 ' Dumont, vol. V. part ii. p. 245. 
 
CONTRABAND 9 
 
 thus enunciates the mutual obligation of the two States in 
 respect of rendering assistance to the enemies of either : — 
 
 "Et comme il n'importe pas peu a sa Susditte Majeste d'une part 
 et leur Hautes Puissances les Seigneurs Etats Generaux d'autre que leurs 
 ennemis ne puissent se renforcer en quelque maniere que ce soit, les uns 
 ni les autres ne permettront pas que les ennemis d'a present ni ceux de cy 
 aprds puissent jamais etre assistez de conseHs, gens, argent, munitions de 
 guerre, victuailles ou semblables assistances de leurs sujets mais ils con- 
 courront a deffendre qu'ils soient aidez d'aucune chose qui pourroit faire 
 r6ussir leurs desseins." 
 
 In the year 1625, for the first time, the term contraband was 
 employed in a treaty, for the purpose of designating things which 
 a neutral, or at any rate an ally — for the treaty in question was in 
 the nature of an alliance, defensive and offensive, between Great 
 Britain and the Low Countries^ — was prohibited from supplying 
 to a belligerent enemy of the State with which the treaty was 
 made. It was made in the year that the work of Grotius, who 
 does not employ the term "contraband," was published. The 
 three articles of the treaty, below quoted, are interesting because 
 of the wide interpretation which is placed upon the word contra- 
 band, the uses of the term "neutral," the recognition of a duty 
 on the part of a neutral State to prohibit its subjects from carrying 
 contraband to an enemy, the imposition of the obligation not to 
 carry goods extending not only to the seat of war, but to all 
 colonies and dependencies of the belligerent enemy, and, finally, 
 the recognition of the duty on the part of naval officers not 
 to interfere with legitimate commerce. It is noteworthy that 
 distinction is not drawn between absolute and conditional contra- 
 band, which forms so marked a feature in the doctrines of Grotius 
 and the later jurists. It should also be noted that this is one of 
 the few treaties which include ships as things which cannot lawfully 
 be carried to a belligerent ; and it went very far in including 
 metals of various kinds without regard to their unwrought state. 
 
 "Article XX. All contraband goods, such as ammunition and pro- 
 visions, ships, arms, sails, cordages, gold, silver, copper, iron, lead, and the 
 like designed to be carried by any one from any port into Spain or into 
 any other dominions under the obedience of the said King of Spain or his 
 adherents, shall be good prize, together with the men and ships that 
 carry them. 
 
 " Article XXI. His said Majesty shall deal with other neutral kings, 
 princes, states, towns, and communities to forbid their subjects to trade, 
 during this present war, with the kingdoms and other possessions of the 
 said King of Spain and of his adherents so they may not run any hazard. 
 
 "Article XXII. Which if it cannot be obtained, it is agreed that the 
 
 * A collection of treaties published by Knapton and others in 1732, p. 248. 
 
lo COMMERCE IN WAR 
 
 ships which shall be found at sea and suspected of taking their course 
 towards Spain, the isles or other states of the said King of Spain and his 
 adherents, shall be obliged to stop, to be known and visited, but not 
 retarded or endamaged." 
 
 There are interesting letters in the year 1626 of the Mareschal 
 de Bassompierre,^ the French Ambassador in London, who com- 
 plained to the English Government of the capture by English 
 warships of French vessels carrying goods to the belligerent 
 enemy of England. Commissioners were appointed by England 
 to inquire into the complaint, and the commissioners thus stated 
 what they conceived to be the law of contraband then obtaining 
 in Europe. " Que c'est une coutume usited et pratiqude, et une 
 loy establie et observde entre les roys et princes, que lors qu'aucun 
 d'eux est en guerre avec un autre, il est aussy d^fendu par expres 
 aux marchands trafiquans originaires des princes neutres, de ne 
 prester leur nom, ny intervention, pour faire porter, passer, ddbiter 
 ou vendre aux autres marchands des pays guerroyans leur mar- 
 chandises et denrdes ni les mesler avec les leurs, sur peine, non 
 seulement de confiscation desdites marchandises ennemies, mais 
 aussy de celles qui leur appartiendront et de leur navires et 
 Equipages. 
 
 " Et au cas que les marchands des pays neutraux trafiquent de 
 leurs marchandises sur les vaisseaux et navires des marchands 
 sujets des princes guerroyans si lesdits navires sont pris, lesdites 
 marchandises sont tenues et declardes de bonne prise et con- 
 fisqu^es sur lesdits marchands des pays neutraux. 
 
 "II est aussi defendu aux marchands neutraux de faire compagnie 
 ny association avec les marchands des pays guerroyans, sur peine 
 de confiscation de leur marchandises au cas qu'elles soient im- 
 miscdes avec celles desdits marchands des pays qui sont en 
 guerre." 
 
 To this response of the English commissioners the French 
 Ambassador made the following reply : " Le Marechal de Bassom- 
 pierre convient que les marchands des pays neutres ne doivent 
 porter dans leurs navires, ny faire passer sous leur nom et adveu 
 les denr^es des marchands des pays guerroyans, mais il ddclare 
 que les vaisseaux des dits marchands neutres et les marchandises 
 qui vdritablement leur appartiennent ne sont pas pour cela con- 
 fiscables, ains seulement les estrangeres qu'ils auront avoudes." 
 
 In his comment upon the above reply of the English com- 
 missioners the Marshal thus writes : " Finalement, il faut specifier 
 quelles sortes de marchandises sont d^clar^s contrebande ; car 
 
 ' See Ortolan, "Ragles Internationales, et Diplomatie de la Mer," vol. II. pp. 113, 185; 
 also Bassompierre's "Embassy to England," published by Murray, 18 19. 
 
CONTRABAND ii 
 
 messieurs les commissaires entendent toutes sortes de vivres, et 
 munitions de guerre, et le Mareschal de Bassompierre s'arreste a 
 ce qui a est6 dfeclard contrebande par le pass6 et rien de plus." 
 
 As already stated, the great work of Grotius was published in 
 1625, and its effect in causing a distinction to be drawn in sub- 
 sequent treaties between things necessarily of military or naval 
 use and these ancipitis usus is noticeable. In 1646 a treaty was 
 entered into between France and the United Provinces,^ and in 
 this treaty we find that contraband is distinctly limited to muni- 
 tions of war and horses, with the express provision that corn and 
 provisions may not be carried to a place "attaqu^e" by either of 
 the contracting parties. Probably the proper meaning to be given 
 to this word is "invested." In Article I contraband is described 
 as follows : — 
 
 "Poudres, mousquets at toutes sortes d'armes, munitions, chevaux et 
 Equipages servans k la guerre." 
 
 The treaty goes on to provide that ships 
 
 "mfeme ne pourront porter ny transporter des hommes pour la service 
 des ennemis, auquel cas le tout sera de bon prise, navires appareils et 
 marchandises. Ce qui cera aussi sev^rement pratique k regard de ceux 
 qui auront secouru et jett6 des hommes, blez et vivres dans une place 
 attaquee par les armees de sa Majeste." 
 
 In 1642 a treaty of alliance and friendship was entered into 
 between England and Portugal.^ Calvo * refers to this treaty as 
 an instance of the right being conceded by treaty to a neutral to 
 carry contraband including arms and munitions of war to a 
 belligerent enemy of the treaty-making states. Two years before 
 the making of this treaty Portugal had thrown off the yoke of 
 Spain, but the war between the two countries lasted for many 
 years,* and under the peculiar and unsettled conditions of the 
 provinces of Spain at this period one is not able to attach a very 
 high importance to the exceptional character of the provisions of 
 this treaty relating to contraband. 
 
 Calvo also refers to a treaty made in 1647 between Spain 
 and the. Hanseatic towns* as conceding a mutual right on 
 the part of treaty-making Powers to carry to the belligerent 
 enemies of either contraband of war, but he appears to have over- 
 looked in Article III the words " a la reserve de celles qui sont a 
 I'usage de la guerre." 
 
 » Dumont, " Recueil des Traites," vol. VI. part i, p. 342. 
 
 2 Hid., vol. VI. part i. p. 238 ; see Article VI. 
 
 3 Calvo, " Le Droit International," vol. V. sec. 2714. 
 
 * B. St. Hilaire, "Histoire d'Espagne," vol. XI. 
 
 * Dumont, vol. VI. part i. p. 403. 
 
12 COMMERCE IN WAR 
 
 " Que suppose qu'il se commit des actes d'hostilit6 entre les Provinces- 
 Unies et sa Majesty ou quelqu' autre ennemi que ce pflt etre, les villes 
 Hanseatiques jouiront du benefice de la Neutrality que Ton _ne refuse pas 
 m^me aux ennemis de sa Majesty, et il leur sera aussi permis de negocier 
 en quelque tems que ce puisse fitre avec les Provinces-Unies et avec 
 quelques autres ennemis de sa Majestd que ce soit, d'aller et venir dans 
 leurs pais et de conduire et voiturer des marchandises par terre ou par 
 mer, a la reserve de celles qui sont ci I'usage de la guerre . . . des terres de 
 la domination Espagnole; et en ce cas la, pourveu qu'il n'y ait point 
 de fraude, on observera ce qui est port^ par 1' Article XI dudit traite 
 de 1607 a condition de ne point emmener de marchandises d'Espagne 
 dans lesdites Provinces-Unies, et d'observer tout ce qui est d'obligation a 
 regard de I'introduction des marchandises dans les places du pais ennemi." 
 
 In Article XI of a treaty made in 1654 between England and 
 Sweden,^ we find the following provision for the protection of 
 neutral commerce : — 
 
 " Quamvis superioribus articulis hujus foederis ac amicitiae legibus pro- 
 hibitum sit neutrum confaederatorum alterius hostibus auxilium atque 
 subsidium praestiturum ; subintelligi tamen nuUo modo debet commercia 
 et navigationem illi confaederato ejusque subditis et incolis, qui bello non 
 est immixtus, cum hostibus illius faederati qui in bello versatur omnino 
 denegata esse. Cautum tantummodo sit interim, donee rit^ magis de 
 omnibus hue pertinentibus legibus convenerit nullas ejusmodi merces 
 contrabandcB vocatas de quarum speciali designatione vel catalogo intra 
 quatuor adhuc menses rite conveniet ad hostes alterius devehendas esse, 
 sine periculo, si ab altero faederatorum deprehendantur, quod praedae 
 cedant, absque spe restitutionis." 
 
 The supplementary treaty was made at Westminster in 1656,^ and 
 Article II is as follows : — 
 
 " Whereas in the eleventh article of the treaty lately made at Upsal in 
 1654 betwixt England and Sweden it was agreed and specified what goods 
 and merchandise should hereafter be declared contraband and prohibited ; 
 it is now, by virtue of the said article, established that only those hereafter 
 mentioned shall be reckoned prohibited ; and consequently not to be 
 disposed of to the enemies of either : viz. bombs with their fuses and 
 other appurtenances, fireballs, gunpowder, matches, cannon-ball, spears, 
 swords, lances, pikes, halberds, guns, mortars, petards, granadoes, musket- 
 rests, bandaliers, saltpetre, muskets, musket-balls, helmets, head-pieces, 
 breast-plates, coats of mail, cuirasses, and the like kind of arms, soldiers, 
 horses with all their furniture, pistols, holsters, belts, and all other warlike 
 instruments, and also ships of war. Money shall also be reckoned among 
 the goods with which the enemy are not to be supplied, and which it shall 
 not be lawful to be carried to the enemies of either, any more than the 
 things above-mentioned, on the penalty of being made prize, without hopes 
 of redemption, if they are seized by either of the confederates. Nor shall 
 either of the confederates permit that the enemies or rebels of the other be 
 
 ' Dumont, vqL VI. part ii. p. 80. See also Hertslet, vol. 11. p. 310. 
 2 Hertslet, vol. II. p. 317. 
 
CONTRABAND 13 
 
 assisted by any of their subjects, or that their ships be sold, lent, or in any 
 manner made use of by the enemies or rebels of the other to his dis- 
 advantage or detriment." 
 
 Article III makes the following broad declaration as to general 
 trading between a belligerent and neutrals : — 
 
 " But it shall be lawful for either of the confederates and his people or 
 subjects to trade with the enemies of the other, and to carry them any goods 
 whatsoever, which are not excepted 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 to sell their goods to the 
 besiegers or to repair with them to any other port which is not besieged." 
 
 It is material to notice that in this treaty the list of contra- 
 band, which appears to have been carefully considered by the 
 two countries, both then of considerable naval power, does not 
 include sails, cordage, copper, lead, iron, or provisions. 
 
 However, by Article XI of a further treaty made between the 
 same states^ at Whitehall in 1661, "provisions" were added to 
 the list of contraband. 
 
 This treaty, moreover, is important in that it attempts to make 
 an exhaustive list of contraband goods, and this list, as will be 
 seen, with occasional exceptions or additions (such as the inclusion 
 of ships and money), is almost identical with those which were 
 adopted in most of the treaties entered into between European 
 states. It also expressly recognizes the right of commerce by 
 neutrals with belligerent enemies in all but the excepted articles — 
 save only in that they may not carry articles of any sort to ports 
 that are besieged. 
 
 In 1654 a treaty was made at Westminster between England 
 and the United Provinces.^ Article IX is as follows : — 
 
 " Item, quod neutra dictarum rerumpublicarum, populusve alterutrius 
 hostem vel hostes rebellem vel rebelles, profugum vel profugos alterius 
 reipublicae declaratos vel declerandos in ejus dominia, terras, regiones, 
 portus, sinus aut districtus eorumve aliquod recipiet, neque iis, vel eorum 
 alicui in praedictis locis vel alio quocunque etiam extra sua dominia, patrias, 
 regiones, terras, portus, sinus aut districtus, auxilium, consilium, hospitium, 
 milites, naves, pecunias, arma, apparatum bellicum vel commeatum con- 
 cedet, prcebebit aut ministrabit neve alteruter status istiusmodi hostes, 
 rebelles, profugos a quacunque persona vel personis recipi permittet in sua 
 dominia, patrias, regiones, terras, portus, sinus, districtus, nee istiusmodi 
 hostibus, rebellibus, profugis, ullum auxilium, consilium, hospitium, 
 favorem, arma, apparatum, milites, naves, pecunias aut commeatum praes- 
 tari, ministrari aut concedi permittet se expresse et cum effectu contradicet 
 obstabit atque impedimentum realiter praestabit." 
 
 ^ Hertslet, vol. II. p. 328. 
 
 2 Dumont, vol. VI. part ii. p. 74. 
 
14 COMMERCE IN WAR 
 
 This was a very close treaty of alliance. It was even thought 
 by some that the commonwealths of Britain and Holland might 
 form an incorporate union in the near future. The list is there- 
 fore very full, and comprises ships, money, and provisions. 
 Curiously, as in the Anglo-Dutch treaty of 1625, it does not 
 mention horses, which are henceforward uniformly included, on 
 the French model of their treaty of 1640 with Holland. The con- 
 cluding engagement to prohibit contraband traffic is noticeable. 
 
 Article II of a treaty made at Paris in 1655 between France 
 and the Hanseatic towns ^ defines contraband not to be carried 
 
 " aux pais et places ennemis de la couronne. . . . Lesquelles marchandises 
 de contrebande sont entendues dtre munitions de guerre, armes k feu [here 
 follows list of arms and equipments], poudre, meche, salpestre, . . . des 
 chevaux, des cordages et des toiles noyales, qui ne puisse servir qu'a faire 
 voiles : pourront n?anmoins porter des bleds et grains de toutes sortes, 
 legumes et autres choses servans k la vie, si ce n'est que les villes et places 
 oil ils les transporteront fussent attaqu^es par sa majestd, et que volon- 
 tairement ils les y transportassent, sans y ^tre forcez par les ennemis de sa 
 majesty, et se servant par violence de leurs vaisseaux trouvez dans leurs 
 ports, ou ailleurs ; auquel cas pourront les commandans des vaisseaux de 
 sa majesty retenir lesdits grains et autres choses servans a la vie, en payant 
 leur juste valeur, suivant I'estimation qui en sera faite, sinon et a faute 
 d'estimation et de payement en deniers comptans ; les sujets des dites 
 villes anseatiques pourront se retirer librement avec leurs vaisseaux et 
 marchandises, si ce n'est qu'elles fussent de la qualite de celles specifics cy- 
 dessus pour ^tre de contrebande. Ne voulant sadite majeste que les 
 capitaines de ses vaisseaux puissent arrester aucuns navires appartenans 
 aux Habitans desdites villes apseatiques que ceux qui se trouveront 
 chargez de marchandises de contrebande, lesquelles seront jugees suivant 
 les ordonnances du Royaume, de Fran5ois Premier annee 1 554, et de Henry 
 Troisieme 1 584.^ Et s'il se trouvoit desdites contrebandes sur des vaisseaux 
 desdits habitans chargez a cueuillette en un ou plusieurs lieux, elles seront 
 confisquees purement et simplement sans que les autres marchandises ni 
 le vaisseau le puissent 6tre et celui qui les aura charg^es sera tenu k tous 
 les depens, dommages et interests soufferts pour raison de ce par les 
 interressez aux vaisseaux, et ce cas arrivant il sera jug6 selon la rigjueur du 
 present Article et non suivant lesdites ordonnances, et ce faisant et aprfes 
 le Jugement rendu, le vaisseau pourra partir librement avec le reste de sa 
 charge, et pour cet effet seront les Officiers de I'Admirautd tenus de 
 proceder incessamment au jugement desdite prises." 
 
 This treaty leaves entirely alone the position of ships and 
 money regarded as possible subjects of contraband, as was the 
 French practice. It is peculiar, however, in including cordages et 
 toiles noyales, and seems to be the Only French treaty in which 
 the diplomatists of that country have embodied the view that 
 naval stores should be regarded as contraband. It is peculiar, 
 
 * Dumont, vol. VI. part ii. p. 103. 
 
 ' " Recueil d'anciennes lois," vols. XII and XIV. 
 
CONTRABAND 15 
 
 again, m being apparently the first treaty to make specific excep- 
 tions to the list of contraband articles. For at least thirty years ^ 
 the question of confiscating provisions had been more or less 
 acute, and it appears to have been felt dangerous to leave the 
 matter open. Henceforward we have a series of express exemp- 
 tions, to which even England under the Restoration was brought 
 to assent. It was not for twenty years more that the position of 
 naval stores reached the same acute stage. At the moment, 
 France was willing to include them. 
 
 In the next treaty it will be seen that the French and English 
 interests came in contact. It was accordingly silent on the 
 subjects of money and provisions, with regard to which different 
 policies were pursued by each ; and less intelligibly, on the sub- 
 ject of naval stores. 
 
 Articles XV of a treaty made at Westminster between France 
 and England in 1655 : — * 
 
 "Quod donee de malis et incommodis quae super mari poterunt 
 accidere tollendis certius atque alsolutius quid statuatur, convenit uti 
 in spatium quattuor annorum Ratificationetn praesentis tractatus proxime 
 insequentium omnes naves ad subditos et populates alterutrinque perti- 
 nentes et in mari Mediterraneo orientale seu oceano negotiantes liberse 
 sint atque etiam onus suum liberum reddant, licet in iis invehantur 
 mercimonia imo grana leguminave quae alterutrius hostium sint exceptis 
 nihilominus et reservatis mercimoniis vetitis et contrabandis, i.e. pulvere 
 nitrato, sclopis seu tubis ferreis atque omne genus armis, munitione, equis, 
 bellicoque apparatu, neque viros trajicient aut transportabunt in usum 
 hostium alterutrius quo in casu tam naves quam apparatus et mercimonia 
 legitimae praedae erunt. Quod etiam severe exercebitur in eos qui viros 
 frumentum seu victualia quibuscumque locis inferent ab utralibet parti 
 obsessis." 
 
 The treaty between France and Spain made in 1659 and 
 known as the Treaty of the Pyrenees' is important, inasmuch as 
 in express terms (like the treaty of 1655 between France and the 
 Hanseatic towns) it recognizes the freedom from contraband of 
 provisions save to places blockaded or invested. 
 
 "Article XII. En ce genre de marchandises de contrebande s'entend 
 seulement estre comprises toutes sortes d'armes a feu et autres assortisse- 
 mens d'icelles : comme canons, mousquets, mortiers, petards, bombes, 
 grenades, saucisses, cercles poissez, affusts, fourchettes, bandolieres, 
 poudres, mSches, salpestre, balles, picques, espies, morions, casques, 
 cuirasses, hallebardes, javelines, chevaux, selles de cheval, fourneaux 
 de pistolets, baudriers et autres assortissemens servans a 1 'usage de la 
 guerre. 
 
 "Article XIII. Ne seront compris en ce genre de marchandises de 
 
 ' See p. 10, supra. 
 
 ' Dumont, vol. VI. part ii. p. 122. 
 
 ^ /iiii., vol. VI. part ii. p. 266. 
 
i6 COMMERCE IN WAR 
 
 contrebande les fromens, bleds et autres grains, legumes, huiles, vins, 
 sel, ny generalement tout ce qui appartient k la nourriture et sustenta- 
 tion de la vie : mais demeureront libres comme toutes autres marchan- 
 dises et denrdes non comprises en I'article precedent ; et en sera le 
 transport permis, mesme aux lieux ennemis de la couronne d'Espagne 
 sauf en Portugal, comme il a est6 dit et aux villes et places assieg£es, 
 bloqu^es ou investies." 
 
 The treaty between Portugal and the United Provinces, made 
 at La Haye in 1661,* is interesting as constituting the second 
 instance of a treaty entered into by Portugal wherein she concedes, 
 and there is conceded to her, the unrestrained right to carry 
 contraband of war to the belligerent enemies of either of the 
 contracting parties. Article XII of the treaty provides as 
 follows : — 
 
 " Liberum praeterea Belgarum Faederatorum populo ac permissum 
 sit praeter mercis omne genus arma etiam res bellicas et annonam tam 
 ex Faederatarum Belgii provinciarum quam ex aliis quibusvis portubus 
 ac terris in quascunque orbis regiones et ad quascunque gentes transferre 
 tam inimicas regi regnoque Lusitanize quam arnicas ac fcederatas nee 
 dicto Regi ejusve subditis aut ministris huic rei moram aut impedimentum 
 afferre liceat per detentiones, repressalias, pignorationes ullove alio modo 
 sive id directe aperteque sive oblique ac occulte fiat, dummodo dictus 
 foederatorum Belgarum populus ex ipsis portubus Lusitanis armorum 
 nihil apparatus aut rerum bellicarum ad dicti Regis regnique hostes et 
 adversarios transvectet ; nee minus iisdem fcederatis Belgis integrum 
 relinquatur ac permittatur in universam ditionem dicti regis quascunque 
 merces res etiam ad armaturam, bellum ac militarem annonam per- 
 tinentes inferre easque non minus magni quam exigui copi^ venales 
 exponere. ..." 
 
 In 1662 France and the United Provinces entered into a treaty 
 of alliance, commerce,^ and navigation, in which the provisions 
 of Articles XXVIII and XXIX, dealing with contraband, are 
 identical with those of the treaty between France and Spain, 
 made in 1659.* Unlike the treaty of France with the Hanseatic 
 League,* these were silent on the subject of "cordages et voiles." 
 
 In a treaty between Great Britain and Spain, made at Madrid 
 in 1667,* it is provided as to contraband as follows : — 
 
 "Article XXIV. II a est6 en outre declare et accords que pour mieux 
 prevenir les differens, qui pourroient arriver touchant la quality des mar- 
 chandises defifendues et de contrebande que sous ce nom la seront com- 
 prises toute sorte d'armes a feu, comme d'artillerie mousquets, mortiers, 
 petards, bombes, grenades, saucisses, boulets a feu, fourchettes, bandolieres, 
 poudres, m^che, salpStre, balles, comme aussi que sous le nom de mar- 
 
 1 Dumont, vol. VI. part ii. p. 368. Seep. 11 anie. 
 " /did., vol. VI. part ii. p. 414. 
 ' Vide dnie, p. 15. * Vide ante, p. 14. 
 
 ^ Dumont, vol. VII. part i. p. 30. 
 
CONTRABAND 17 
 
 chandises deffendUes seront comprises et entendiies toutes autres sortes 
 d'armes comme picques, espies, morions, casques cuirasses, hallebardes, 
 javelines et toutes autres sortes d'armes et que sous ce nom on deffend 
 encore le transport de soldats, de chevaux, leurs harnois, pistolets, four- 
 reaux, baudriers et autres assortissemens servans k I'usage de la guerre. 
 
 "Article XXV. II a dte pareillement convenu et accord^ que pour 
 prevenir toute sorte de disputes et de contestations sous le nom de 
 marchandises deffendiies et de contrebande, ne seront point compris les 
 fromens, bleds, orges, et autres grains ou legumes, sel, vinaigre, huile et 
 generallement tout ce qui appartient k la nourriture et sustentation de la 
 vie, mais qu'ils demeureront libres ; comme pareillement toutes autres 
 marchandises non comprises en I'article precedent et le transport en sera 
 libre et permis m6me aux villes et places ennemies, k I'exception des 
 villes et places assieg^es, blocqudes ou investies." 
 
 This treaty marks the subjection of Britain to French ideas. 
 But for the mention of "soldats" it is on precisely the same lines 
 as the Franco- Spanish and Franco- Dutch treaties of 1659 and 
 1662. Money is not included, and provisions are carefully 
 exempted. A similar treaty with Holland (which did not include 
 " soldats ") followed immediately. 
 
 In 1668 Great Britain entered into a treaty with the United 
 Provinces made at La Haye.^ Article I provides for general 
 freedom of commerce on behalf of the subjects and inhabitants 
 of both the contracting states, and then proceeds as follows : — 
 
 "Article II. Quae navigandi commercandique libertas se extendet ad 
 omnes omnino mercimoniorum species, iis duntaxat exceptis, quae contra- 
 bandae indigitantur. 
 
 "Article III. Quo in numero solummodo comprehendentur omne 
 genus arma igniaria et quae eo spectant, ut machinae seu tormenta bellica, 
 bombardae, mortariae, piloclastra vulgo petardae, borabae, mala punica, 
 vulgo granadae, saucisae, coronae piceae, machinarum vehicula vulgo assutae, 
 thecae sclopetariae, balthea, pulvis pyrius, funes igniarii, nitrum, globi, 
 hastae, gladii, galeae, cassides, loricae, bipennes, lanceae, equi, ephippia, 
 minorum tuborum sive sclopetorum equestrium vaginae aut reconditoria, 
 cinguli, caeteraque instrumenta, quae formam acceperunt ut in bello usui 
 esse possint, gallice dicta assortiments servans a I'usage de la guerre." 
 
 In a treaty made at Copenhagen between Great Britain and 
 Denmark in 1670,^ we find the unusual provision^ that both of 
 the contracting parties shall be under the obligation of proceed- 
 ing against their respective subjects who might carry contraband 
 to the belligerent enemies of either. Article III provides that 
 the contracting parties "undertake and promise that they will 
 not aid or furnish the enemies of either party that shall be 
 
 1 Ibid., vol. VII. part i. p. 74. 
 
 2 Ibid., vol. VII. part i. p. 133. 
 
 ' See also the treaties of 1604 (England-Spain-Burgundy) and of 1654 (Britain- 
 Holland), ante, pp. 8 and 13. 
 C 
 
i8 COMMERCE IN WAR 
 
 aggressors with any provisions of war, such as soldiers, arms, 
 engines, guns, ships, or other necessaries for the use of war, or 
 suffer any to be furnished by their subjects, but if the subjects of 
 either prince shall presume to act contrary hereunto, then that 
 they whose subjects shall have so done shall be obliged to pro- 
 ceed against them with the highest severity as against seditious 
 persons and breakers of the league." 
 
 By a treaty made in 1674 between Great Britain and the United 
 Provinces^ an attempt is made to set out exhaustive lists of articles 
 to which the law of contraband shall and shall not apply. 
 
 "Article III. Sub isto nomine contrabandse seu mercimoniorum pro- 
 hibitorum solummodo comprehendentur arma, bombardae, cum suis 
 ignariis et aliis ad eas pertinentibus, ignes missiles, pulvis tormentarius, 
 fomites, globi, cuspides, enses, lanceae, hastae, bipennes, tormenta, tubi 
 catapultarii, vulgo mortaria, inductiles sclopi, vulgo petardae, glandes, 
 igniarii missiles, vulgo grenadae, furcae sclopetariae, bandeliers, salpetrae, 
 sclopeti, globuli seu pilae, quae sclopetis jaculantur cassides, galeae, thoraces 
 loricati, vulgo cuirasses, et similia armaturae genera, milites, equi, omnia 
 ad instruendos equos necessaria, sclopethecae, balthei et quaecunque alia 
 bellica instrumenta. 
 
 "Article IV. Inter bona prohibita haudquaquam censebuntur haec 
 quae sequuntur mercimonia, omnes scilicit pannorum species omnesque 
 aliae manufacturae textae ex quacunque lani, lino, serico, gossipio vel alid 
 quacunque materia, omnia vestium et indumentorum genera, una cum 
 speciebus ex quibus confici solent, aurum et argentum tam signatum quam 
 non signatum, stannum, ferrum, plumbum, cyprium et carbones focarii, 
 triticum etiam et hordeum et aliud quodcumque frumenti vel leguminis 
 genus, herba nicotiana vulgo tabaco necnon omne genus aromatum, carnes 
 salitae et fumo duratae, pisces saliti et arefacti, caseus et butyrum, cervisia 
 olea, vina, sacchara et omne genus salis necnon omnis generatim annona 
 quae ad victum hominum et vitae sustentationem facit : gossipii porro, 
 cannabis, lini et picis omne genus, funes, vela et anchorae, mali item navales 
 ut et asseres, tabulae et trabes ex quibuscumque arboribus, omniaque alia 
 ad naves seu construendas seu reficiendas comparata, quin plane inter 
 mercimonia libera censebuntur, juxta atque aliae quaelibet merces et res 
 quae in articulo proxime praecedenti non comprehenduntur ; ita ut a sub- 
 ditis Regiae Majestatis antememoratae etiam ad loca dominis ordinibus^ 
 inimica ut et a subditis dominorum ordinum vice versa ad loca hostibus 
 domini Regis obtemperantia, liberrime transportari et invehi possint 
 exceptis duntaxat Oppidis locisve obsidione cinctis, circumseptis vel 
 investitis, Gallice blocqudes ou investies."^ 
 
 It will be seen that this treaty and the Anglo-French one of 
 1677* mark a still further step in the progress of restrictive 
 
 1 Dumont, vol. VII. part i. p. 282. 
 
 2 The Estates General. 
 
 ' On the 8th March, 1675, ^ supplementary treaty of one article was made between 
 England and France (Dumont, vol. VII. part i. 288), whereby it was agreed that 
 should any dispute arise between the two countries the same should be referred to 
 arbitration. * Post, p. 19. 
 
CONTRABAND 19 
 
 doctrine. Britain now agreed to the express exemption of 
 money, as well as of provisions. Naval stores receive the 
 same exemption. Henceforward troops (which it had gener- 
 ally been the British practice to include in conventional stipula- 
 tions as contraband) disappear for a time from the list ; this 
 treaty is the last which so includes them until we come to a 
 treaty in 1803 between Great Britain and Sweden. 
 
 By a treaty made at St. Germain in 1677 between France 
 and England,^ in Article III "arms, munitions of war, saltpetre, 
 horses, harness and "assortimens fa9onnez et formez k I'usage de 
 la guerre " are declared contraband. 
 
 Article IV, following very much the precedent of the treaty 
 between England and the Low Countries last quoted, provides as 
 follows : — 
 
 " Au nombre des marchandises de contrebande et defendues ne sont 
 comprises les marchandises suivantes : S9avoir les etoffes et manufactures 
 de laine, lin, soye, coton, 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 ou non monnoyd, estain, fer, plomb, cuivre, charbon, 
 blez, orges et autres grains et legumes, tabac, espiceries, chairs sal6es 
 et fumees, poisson sec et sal^, fromage, beurre, biere, huile, vin, sucre, sels 
 et tout ce qui appartient a la nourriture et sustentation de la vie. Ne 
 seront aussi compris dans les marchandises defendues les cotons, chanvres, 
 lins, poix, cordages, voiles, ancres, mats, planches, poultres et bois travaill^ 
 de toute espece d'arbres et qui peut servir a construire des vaisseaux ou a 
 les radouber : et demeureront les dites marchandises libres, de m^me que 
 toutes les autres generalement qui ne sont comprises dans I'article 
 precedent. De telle sorte que les sujets du serenissime roi tres-chr6tien 
 pourront en faire le transport non seulement d'un lieu ou il y ait neutrality 
 a un autre lieu oii il y ait aussi neutrality ; ou d'un lieu ou port oil il y ait 
 neutralite en un autre qui soit ennemi du serenissime roi de Grande 
 Bretagne; ou enfin d'un endroit ennemi en un endroit ou la neutrality 
 soit gardee, mais encore d'un port ou autre lieu appartenant aux ennemis 
 dudit seigneur roi, en un autre appartenant aussi a ses ennemis, soit que 
 ses ports ou autres lieux soient sous I'obeissance d'un seul prince ou 6tat, 
 ou de plusieurs princes ou 6tats avec lequel ou avec lesquels le dit seigneur 
 roi de la Grande Bretagne soit en guerre." 
 
 The article goes on to give reciprocal rights to the other 
 contracting power, and finally provides " Ne pourra n^anmoins 
 ledit transport etre fait aux villes et places assiegdes ou bloqudes 
 ou investies." 
 
 By a treaty made at Nimeguen, in 1678, between France and 
 the United Provinces,^ Article XV declares contraband to be 
 weapons, munitions, saltpetre, horses and their saddles, "et 
 autres assortimens servans a I'usage de la guerre." 
 
 ' Dumont, vol. VII. part i. p. 328. 
 2 lii'd., vol. VII. part i. p. 359. 
 
20 COMMERCE IN WAR 
 
 " Article XVI. Ne seront compris dans ce genre de marchandises de 
 contrebande les froments, bleds et autres grains, legumes, huiles, vins, sel 
 ni generalement tout ce qui appartient k la nourriture et sustentation de 
 la vie, mais demeureront Hbres comme autres marchandises et denr^es non 
 comprises en I'article precedent et en sera le transport permis mesme aux 
 lieux ennemis desdits seigneurs 6tats sauf aux villes et places assieg^es, 
 blocqudes, ou investies." 
 
 The exemption of provisions was not in terms extended to 
 money and stores. Probably it was not thought necessary. 
 
 By an Ordonnance de la Marine, made by France in 1681, it 
 was decreed (Article XI) as follows : — 
 
 " Les armes, poudres, boulets, et autres munitions de guerre, mdme les 
 chevaux et Equipages qui seront transportees pour le service de nos 
 ennemis, seront confisqu6s en quelque vaisseau qu'ils soient trouv^s et 
 k quelque personne qu'ils appartiennent, soit de nos sujets ou allies." 
 
 By Article II of a treaty between Great Britain and Algiers, 
 made at Algiers in 1682,' and renewed by treaty made in 1729, 
 the following things are described as contraband absolute : 
 " powder, brimstone, iron, planks and all sorts of timber fit for 
 building of ships, rope, pitch, tar, fusils, and other habiliments 
 of war." 
 
 Not much reliance can be placed on inferences drawn from a 
 Moorish treaty, but it is evident that naval stores at least would 
 not long retain the exemption which France and Holland had 
 extorted from Britain. 
 
 Article XIII of a treaty made in 1701^ between Denmark and 
 the United Provinces provides as follows : — 
 
 " Sous ce nom de marchandise de contrebande on entendra seulement 
 toutes sortes de feux d'artifice et ce qui y appartient, comme canons, 
 mousquets [and other arms], salpStre, chevaux, selles, fourreaux de pistolet, 
 ceinturons, voilage, cordage, poix, goudron et chanvre outre tout ce qui 
 sert a I'equipement par mer et a la guerre par terre, sans y comprendre 
 aucune autre marchandise de quelle nature quelle puisse 6tre ; mais il sera 
 permis au sujets de part et d'autre de transporter lesdites marchandises 
 dans des pais ennemies d'y en aller querir except^ dans les villes, for- 
 teresses, chateaux et ports assiegez." 
 
 Naval stores are here again included : and we shall see them 
 included even by France in 1742. 
 
 By Article XIX of the treaty of Utrecht,* made in 1713 
 between France and Great Britain, it is provided that arms and 
 
 1 Dumont, vol. VII. part ii. p. 20. 
 ' Hid., vol. VIII. part i. p. 35. 
 ' Hid., vol. VIII. part i. p. 348. 
 
CONTRABAND 2X 
 
 munitions of war, saltpetre, horses and their equipment shall 
 alone be contraband. 
 
 " Article XX enacts : On ne mettra point au nombre des marchandises 
 deffendues celles qui suivent, sgavoir toutes sortes de drap, et tous ouvrages 
 de manufactures de laine, de lin, de soye, de coton et de toute autre 
 mati^re, tous genres d'habillement avec les choses qui servent ordinaire- 
 ment k les faire, or, argent, monnoyd et non monnoy^, estain, fer, plomb, 
 cuivre, laiton, charbons k fourneau, bled, orge et toute autre sorte de grains 
 et de legumes, la nicotiane, vulgairement appellee tabac, toutes sortes 
 d'aromates, chairs saldes et fumdes, poissons salez, fromage et beurre, 
 biere, huile, vins, sucres, toutes sortes de sels et de provisions servant ^ la 
 nourriture et k la subsistance des hommes, tous genres de cotons, chanvre, 
 lin, poix tant liquide que seche, cordages, cables, voiles, toiles propres 
 i faire des voiles, ancres et parties d'ancres, quelles qu'elles puissent ^tre, 
 mats de navires, planches, madriers, poutres de toute sorte d'arbres et 
 toutes les autres choses necessaires pour construire ou pour radouber les 
 vaisseaux ; On ne regardera pas non plus comme marchandises de contre- 
 bande, celles qui n'auront pris la forme de quelque instrument ou atterail 
 servant a I'usage de la guerre sur terre ou sur mer, encore moins celles qui 
 sont prepar^es ou travaillees pour tout autre usage. Toutes ces choses 
 seront cens^es marchandises libres de mesme que toutes celles qui ne sont 
 pas comprises et specialement designees dans I'article precedent ensorte 
 qu'elles pourront estre librement transport^es par les sujets des deux 
 R'oyaumes mSme dans les lieux ennemis except^ seulement dans les places 
 assieg^es, blocqu^es et investies." 
 
 Article XXI of the treaty provides that the merchant vessels 
 of each of the contracting parties shall carry a certificate setting 
 forth particulars concerning the vessel, the character of its cargo, 
 and its destination. 
 
 The treaty made also at Utrecht between France and the 
 United Provinces in 1713,^ in its enumeration of contraband 
 articles follows the classification of the treaty between England 
 and France of the same year (Article XIV), but Article XX 
 does not attempt nearly so exhaustive a list of merchandise not 
 to be accounted contraband. The article is as follows : — 
 
 " Ne seront compris dans ce genre de marchandises de contrebande les 
 froments, bleds et autres grains, legumes, huiles, vins, sel ni generalement 
 tout ce qui appartient k la nourriture et sustentation de la vie, mais de- 
 meureront libres, comme autres marchandises et denr^es non compris 
 en I'article precedent et en sera le transport permis m^mes aux lieux 
 ennemis desdits Seigneurs Etats sauf aux villes et places assieg^es, 
 blocqu^es ou investies," 
 
 By a treaty between France and the Hanseatic towns made 
 at Paris in 1716,^ Article XIV confines contraband to arms and 
 munitions of war, saltpetre, horses and their saddles, " et tous les 
 autres assortimens servans k I'usage de la guerre." 
 
 ' /did., vol. VIII. part i. p. 377. " /did, vol. VIII. part i. p. 478. 
 
22 COMMERCE IN WAR 
 
 Article XV provides : — 
 
 "Ne seront compris dans ce genre de marchandises de contrebande 
 les fromens, bleds et autres grains, legumes, huiles, vins, sel ni generale- 
 ment tout ce qui sert k la nourriture et sustentation de la vie, mais au 
 contraire, les dites denrees demeuroront libres comme les autres mar- 
 chandises non comprises dans I'article precedent, quand mSme elles 
 seroient destinies pour une place ennemie de sa majesty, a moins que 
 ladite place ne fut actuellement investie, blocqu^e ou assieg6e par les 
 armes de sa majesty, ou qu'elles appartinssent aux ennemis de I'^tat, auquel 
 cas lesdites marchandises et denrdes seront confisqu^es." 
 
 Article XVI permits the vessel upon which contraband may be 
 found to go free. 
 
 Article XVIII of a treaty made between Sweden and Great 
 Britain in 1720^ is interesting because it omits to particularize what 
 are articles of contraband, and assumes that there is a general 
 consensus of opinion among nations as to what constitutes contra- 
 band : — 
 
 " Et quamvis Foederati auxilia sibi invicem mittere modo superius dicto 
 teneantur, ista obligatio tamen neutiquam eo extendi debet, ut propterea 
 omnis protinus amicitia et mutuorum commerciorum usus cum alterius 
 Foederati hostibus, eorumque subditis omnino tollendus et interdicendus 
 veniat ; nam existente tali casu quod unus confoederatorum etiam si 
 auxilia requisitus tulerit, bello ipse non fuerit immixtus, ejus subditis ac 
 incolis cum hostibus illius Foederati qui in bello versatur commercia et 
 navigationes libera erunt, licitumque omnino erit merces ipsis quascunque 
 advehere, iis tantummodo exceptis quae expresse vetitse, vulgo contra- 
 bandae dictse, et communi omnium nationum consensu tales declaratae 
 sunt." 
 
 By a treaty of amity, commerce, and navigation made in 1734 
 between Great Britain and Russia," it is provided by Articles XI 
 and XII as follows : — 
 
 " Article XI. The subjects of either party may freely pass, repass, and 
 trade in all countries which now are or hereafter shall be at enmity with the 
 other of the said parties provided they do not carry any warlike stores or 
 ammunition to the enemy, as for all other effects, their ships, passengers, 
 and goods shall be free and unmolested. 
 
 "Article XII. Cannons, mortars, firearms, pistols, bombs, granadoes, 
 bullets, balls, fuzees, flints, matches, powder, saltpetre, sulphur, cuirasses, 
 pikes, swords, belts, pouches, cartouche boxes, saddles and bridles in any 
 quantity beyond what may be necessary for the ship's provision, and may 
 properly appertain to and be judged necessary for every man of the ship's 
 crew or for eadi passenger, shall be deemed ammunition of war, and if 
 any such then be found they may seize and confiscate the same according 
 to law ; but neither the vessels, passengers, or the rest of the goods shall 
 be detained for that reason or hindered from pursuing their voyage." 
 
 * Dumont, vol. VIII. part ii. p. 20. 
 
 ' " A Complete Collection of Marine Treaties," published by J. Millan in 1779. 
 
CONTRABAND 23 
 
 By a treaty made between France and Holland in 1739,^ the 
 same description of articles contraband of war is given as is con- 
 tained in the treaty between France and Spain in 1659.^ 
 
 In an ordinance of the King of France, made 21 October, 1744,' 
 it is provided as follows : — 
 
 "Article III. Comme aussi leur fait defenses d'arrSter les navires 
 appartenans aux sujets des dits Princes neutres, sortis des portes d'un 6tat 
 neutre ou alli6 de Sa Majesty, pour s'en aller en un autre 6tat pareillement 
 neutre ou alli6 de Sa Majestd, pourvu qu'il ne soit charge de marchandises 
 du cru ou fabrique de ses ennemis au quel cas les marchandises seront de 
 bonne prise et les navires r^lich^s. 
 
 "Article IV. Defend pareillement Sa Majesty aux dits armateurs 
 d'arr^ter les navires appartenans aux sujets des dits princes neutres, sortis 
 des ports d'un etat alli6 a sa Majeste ou neutre, pour aller dans un port 
 d'un ^tat ennemi de sa Majeste pourvu qu'il n'y ait sur le dit navire aucunes 
 marchandises de contrebande, ni du cru ou fabrique des ennemis de Sa 
 Majesty, dans le quel cas les dites marchandises seront de bon prises et les 
 navires seront rdliches." 
 
 By Article X of a treaty made in 1766 at St. Petersburg 
 between Great Britain and Russia,* it is provided : — 
 
 "Tons les canons, mortiers, armes k feu, pistolets, bombes, grenades, 
 boulets, balles, fusils, pierres a feu, meches, poudre, salp^tre, soufre, 
 cuirasses, piques, ep6es, ceinturons, poches k cartouche, selles et brides 
 a dela de la quantity qui peut ^tre necessaire pour I'usage du vaisseau ou 
 a del^ de celle que doit avoir chaque homme servant sur le vaisseau et 
 passager seront reputes munitions ou provisions de guerre, et s'il s'en 
 trouve ils seront confisquds selon les lois comme contrebande ou effets 
 prohib^s, mais ni les vaisseaux ni les passagers ni les autres marchandises 
 qui s'y trouveront en mSme temps ne seront point detenus ni emp€ch6s de 
 continuer leur voyage." 
 
 By a manifesto of Russia in 1772* she declares ; — 
 
 " Que des aujourd'hui tous les navires marchands, qui feront voile pour 
 les ports ennemis avec des chargemens de provisions de guerre ou de 
 bouche et qui auront ainsi k bord des choses qui procurent a I'ennemi 
 des moyens essentiels de pousser la guerre seront non seulement 
 arrSt^s mais pris et confisqu^s sans le moindre dedommagement pour 
 ceux qui les ont frett^s , . . et en m6me tems nous r^itdrons notre 
 declaration qa'k I'exception des munitions mentionnds toutes autres sortes 
 de marchandises seront non seulement libres et franches mais aussi 
 prot^gdes et defendues." 
 
 By a circular* to the officers of their navy, made in 1777, the 
 
 > Merlin, " Repertoire de Jurisprudence," Vol. XXV, sec. 3, Art. Ill, p. 90. 
 
 ^ Vide ante, p. 23. 
 
 ' Valin, "Ordonnance de la Marine," Vol. II, p. 250. 
 
 * Martens, "Traitds, Conventions, etc," Vol. I, p. 45. 
 
 « Ibid., Vol. II, p. 35. 
 
 « JHd., Vol. Ill, p. 17. 
 
24 COMMERCE IN WAR 
 
 United States of America limit the right to seize neutral vessels 
 to those having on board soldiers, arms, munitions, provisions, and 
 other contraband intended for the British army and its warships. 
 
 A regulation of the King of France, made in 1778,^ without 
 defining contraband, directs that neutral ships on which contraband 
 may be found shall be released after confiscation of contraband, 
 and only made prize if three parts of their whole cargo be contra- 
 band. 
 
 It may be worth noting that in 1776'' an ordinance was issued 
 by Great Britain declaring all ships, neutral or otherwise, lawful 
 prize if trading or proceeding to or returning from trade with any 
 of the American colonies then in rebellion. 
 
 Article XXIV of a treaty between the United States of America 
 and France, made in 1 778, provides as follows : — ^ 
 
 " The liberty of navigation and commerce shall extend to all kinds 
 of merchandise, excepting only those which are distinguished by the name 
 of contraband, and under this name of contraband or prohibited goods 
 shall be comprehended arms, great guns, bombs, with all the fusees and 
 other things belonging to them, cannon-ball, gunpowder, metal pikes, 
 swords, lances, spears, halberds, mortars, petards, grenades, saltpetre, 
 muskets, musket-ball, bucklers, helmets, breast plates, mail and the like 
 kind of arms proper for arming soldiers, musket rests, belts, horses with 
 their furniture, and all other warlike instruments whatever. These 
 merchandize which follow shall not be reckoned among contraband or 
 prohibited goods ; that is to say, all sorts of cloths and all other manu- 
 factures woven of any wool, flax, silk, cotton, or any other materials 
 whatever ; all kinds of wearing apparel, together with the species whereof 
 they are used to be made ; gold and silver, as well coined as uncoined ; 
 tin, iron, latten, copper, brass, coals, as also wheat and barley, and any 
 other kind of corn and pulse ; tobacco, and likewise all manner of spices, 
 salted and smoked flesh, salted fish, cheese and butter, beer, oil, wines, 
 sugars, and all sorts of salts, and in general all provisions 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 ; also ship's masts, planks, boards, and 
 beams of what trees soever, and all other things proper either for building 
 and 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 sea, shall not be reputed contraband, much less such as have 
 been already wrought and made up for any other use : all which shall be 
 wholly reckoned among free goods : as likewise all other merchandise and 
 things which are not comprehended and particularly mentioned in the 
 foregoing enumeration of contraband goods, so that they may be trans- 
 ported and carried in the freest manner by the subjects of both con- 
 federates even to places belonging to an enemy, such towns or places being 
 only excepted as are at that time besieged, blocked up, or invested." 
 
 ' Martens, Vol. Ill, p. 19. 
 ^ Ibid., Vol. Ill, p. 105. 
 ' State Papers, Vol. V, p. 6. 
 
CONTRABAND 25 
 
 In 1780 the maritime supremacy of England caused her to 
 renew her attempt to extend the doctrine of contraband so as 
 to include almost all articles of commerce. It was this attitude 
 of England which led to what is termed the Armed Neutrality 
 of 1780, the immediately provoking cause of which was the 
 seizure by England of two Russian ships laden with corn, which 
 were believed to be destined for Gibraltar. By a declaration 
 of 1780, Russia asserted that Articles X and XI of her treaty with 
 England in 1 766 were conclusive of what constituted contraband,^ 
 and to this declaration the following Powers subscribed : Den- 
 mark, Sweden, Holland, Prussia, Austria, Portugal, the Two 
 Sicilies, France, Spain, and the United States, then at war with 
 England. The result of this action of the other Powers, while 
 failing to cause the withdrawal by England of her pretensions, 
 was to induce her to exercise her alleged rights with greater 
 moderation. 
 
 Later on, the outbreak of the French Revolution caused 
 the allied Powers arbitrarily to enlarge the list of articles con- 
 traband of war, and they went so far as to treat as contraband 
 provisions and foreign merchandise which were being carried 
 to any French port. France on her part retaliated by interdicting 
 neutrals from supplying her enemies with corn or provisions ; but 
 pretensions so preposterous were scarcely attempted to be enforced, 
 and were tacitly abandoned by all parties. 
 
 This declaration of Russia was coincident with a treaty made 
 by her in 1780 with Sweden.^ Article III declares these rights 
 as follows : — 
 
 "La contrebande determin^e et exclue du commerce des nations 
 neutres en conformity des traites et stipulations expresses, subsistantes 
 entre les hautes parties contractantes et les Puissances en guerre et 
 nommdment en vertu du traits de commerce conclu entre la Suede et 
 la Grande Bretagne le 21 Octobre, 1661, et du traits preliminaire 
 de commerce entre la SuMe et la France fait en 1741, ainsi que du traits 
 de commerce conclu entre la Russie et la Grande Brdtagne le 20 Juin, 
 1766. Sa Maj. le Roi de Su^de et Sa Maj. Imp6riale de toutes les Russies 
 entendent et veulent que tout autre trafic soit et reste parfaitement libre. 
 Leurs Majest^s apr^s avoir deja r^clamd dans leurs declarations faites aux 
 Puissances belligerantes les principes generaux du droit naturel dont 
 la liberty du commerce et de la navigation de m^me que les droits des 
 peuples neutres sont une consequence directe ont r^solu de ne les point 
 laisser plus long temps ddpendre d'une interpretation arbitraire, suggeree 
 par des int^r^ts isol^s et momentands. — Dans cette vue elles sont con- 
 venues. 
 
 " (i) Que tout vaisseau peut navigeur librement de port en port et sur les 
 c6tes des nations en guerre. 
 
 ' Vide supra, p. 23. 
 
 ^ Martens, ut supra. Vol. Ill, p. 198. 
 
26 COMMERCE IN WAR 
 
 "(2) Que les effets appartenans aux sujets des dites puissances en 
 guerre soient libres sur les vaisseaux neutres k I'exception des marchandises 
 de contrebande." 
 
 By a declaration of Great Britain and Denmark, made in 1780, 
 and renewed by the Treaty of Kiel in 18 14, Article III of the 
 1670 treaty was explained as follows : — 
 
 " In order to leave no doubt upon what is to be understood by the term 
 contraband, it is agreed that this denomination is meant only to com- 
 prehend arms " (and here follows a list of arms), " matches, saltpetre, horses, 
 saddles, belts, and generally all other warlike implements; also ship timber, 
 tar, pitch, and rosin, sheet copper, sails, hemp, and cordage, and generally 
 whatever immediately serves for the equipment of vessels ; unwrought iron 
 and deal planks, however, excepted. 
 
 " But it is expressly declared that this kind of contraband merchandise 
 shall by no means comprehend fish and flesh, fresh or salted ; wheat, flour, 
 corn, or other grain, vegetables, oil, wine, and generally what serves for the 
 nourishment and support of life, so that all these articles may always be 
 sold and transported like other merchandise, even to places in the 
 possession of an enemy of the two crowns, provided that such places are 
 neither besieged nor blockaded." 
 
 In a treaty made in 1782 between the United Provinces and 
 the United States of America,^ by Article XXIV contraband is 
 strictly confined to arms, munitions of war, horses, and harness. 
 The article goes on to declare : — 
 
 "Tons autres effets et marchandises non specifies ci-dessus expresse- 
 ment et mSme toutes sortes de matieres navales quelque propres qu'elles 
 puissent ^tre a la construction et k I'equipment de vaisseaux de guerre ou 
 k la fabrique de I'une ou I'autre machine de guerre terrestre ou maritime 
 ne seront ainsi censes ni k la lettre, ni selon quelqse interpretation 
 pretendue d'icelle quelconque, devoir ou pouvoir ^tre compris sous les 
 effets prohib6s et de contrebande ; en sorte que tous ces effets et marchan- 
 dises, qui ne se trouvent pas expressement nommee ci-dessus pourront 
 sans aucune exception et en toute liberty, etre transportes par les sujets 
 et habitans des deux allies des places et vers les places appartenans 
 k I'ennemi, excepte seulement les places, qui, dans le mSme temps, se 
 trouveront assi^gdes blocquees ou investies et pour telles sont tenues 
 uniquement les places entourdes de pres par quelqu'une des puissances 
 belligerantes." 
 
 By Article XXI of a treaty made between Russia and Denmark 
 in 1782^ contraband is strictly confined as follows : — 
 
 "On ne comprendra sous la rubrique de contrebande que les choses 
 suivantes; comme canons, mortiers, armes k feu, pistolets, bombes, 
 grenades, boulets, balles, fusils, pierres k feu, mfeches, poudre, salpdtre, 
 souffre, cuirasses, piques, epees, ceinturons, poches k cartouches, selleS et 
 
 ^ Martens, Vol. Ill, p. 451. 
 2 Hid, Vol. Ill, p. 474. 
 
CONTRABAND 27 
 
 brides, en exceptant toutefois la quantite qui peut ^tre necessaire pour la 
 defense du vaisseau et de ceux qui en composent I'^quipage : et tous les 
 autres articles quelconques non ddsignes ici ne seront reputes munitions 
 de guerre et navales, ni sujettes a coniiscation, et par consequent passeront 
 librement sans Stre assujettis k la moindre difficult^." 
 
 It will be observed that horses are not accounted contraband 
 either in this treaty or in that made by Russia in the same year 
 with the United States of America, and that the list, while made 
 subject to no express detailed exceptions, is drawn up in the 
 narrowest terms. This is for the future a notable characteristic 
 of Russian treaties. 
 
 By a treaty made at the Hague in 1785 between the 
 United States of America and Prussia^ it was provided by 
 Article XIII :— 
 
 " Dans le cas ou I'une des parties contractantes se trouverait en guerre 
 avec une autre puissance, il a 6t6 convenu que pour prevenir les difficult^s 
 et les discussions qui surviennent ordinairement par rapport aux mar- 
 chandises ci-devant appellees de contrebande telles que armes, munitions 
 et autres provisions de toute espece, aucun de ces articles charges a bord 
 des vaisseaux des citoyens ou sujets de I'une des parties et destines pour 
 I'ennemi de I'autre ne sera cense de contrebande au point d'impliquer 
 confiscation ou condamnation et d'entrainer la perte de la proprilt^ des 
 individus. . . ." 
 
 By Article XXII of a treaty between Great Britain and France 
 at Versailles in 1786^ it was provided : — 
 
 " On comprendra sous ce nom de marchandises de contrebande, ou 
 defendues les armes, canons, arquebuses, mortiers, petards, bombes, grenades, 
 saucisses, cercles-poissds, assuts, fourchettes, bandoulieres, poudre a canon, 
 meches, salpetre, balles, picques, aptes, morions, casques, cuirasses, hal- 
 bardes, javelines, fourreaux de pistolet, baudriers, chevaux avec leurs 
 harnois et tous autres semblables genres d'armes et d'instruments de 
 guerre servant a I'usage des troupes." 
 
 "Article XIII. On ne mettra point au nombre des marchandises defen- 
 dues celles qui suivent, savoir, toutes sortes de draps, et tous autres ouvrages 
 de manufacture de laine, de lin, de sole, de coton, et de toute autre mati^re, 
 tous genres d'habillemens avec les choses qui servent ordinairement a les 
 faire, or, argent, monnoie ou non monnoi^, etains, fer, plomb, cuivre, laiton, 
 charbon k fourneau, bled, orge et toute autre sorte de grains et de legumes, le 
 tabac, toutes sortes d'aromates, chairs salies et fumies, poissons sa.\6s^ fro- 
 mages et beurre, biferes,huiles, vins, sflcre, toutes sortes de sels et de provisions 
 servant k la nourriture et a la subsistance des hommes, tous genres de 
 coton, cordages, cables, voiles, toile propre a faire des voiles, chauvre, suif, 
 goudron, brai et resine, ancres et parties d'ancres, quelles qu'elles puissent 
 Itre, mits de navires, planches madders, pofltres de toutes sortes d'arbres 
 et de toutes les autres choses necessaires pour construire ou pour radouber 
 les vaisseaux. On ne regardera pas non plus comme marchandises de 
 
 » /iid, Vol. IV, p. 43. 
 2 /dtif., Vol. IV, p. 169. 
 
28 COMMERCE IN WAR 
 
 contrebande celles qui n'auront pas pris la forme de quelque instrument ou 
 atterail servant k I'usage de la guerre sur terre ou sur mer encore moins 
 celles qui sent prepar^es ou travailldes pour tout autre usage. Toutes ces 
 choses seront cens^es marchandises non defendues, de mSme que toutes 
 celles qui ne sont pas comprises, et specialement designees dans I'article 
 precedent ; en sorte qu'elles pourront 6tre librement transport^es par les 
 sujets des deux Royaumes, m^me dans les lieux ennemis except^ 
 seulement dans les places assiegees, blocqu^es et investies." 
 
 Article XXIII of a treaty between Russia and the Two Sicilies, 
 made in 1787 at Zarskoe Selo,^ is a reproduction of Article XXI 
 of the treaty of 1782 between Russia and Denmark." 
 
 A declaration of the Russian Government, made at St. 
 Petersburg in 1 789,* after stating that the policy of the Russian 
 Government had ever been to afford protection to commerce 
 in the Baltic under the neutral flag, goes on to say that no 
 obstacle is to be put by the Russian authorities in the way of 
 merchantmen of neutral Powers, and that they are to be rendered 
 by the authorities all assistance in their power ; but it qualifies 
 this by observing : — 
 
 " En exceptant seulement de ce nombre les bdtimens marchands qui 
 viendront porter des munitions de guerre aux ennemis de la Russie 
 attendu que celles-ci, selon I'usage universellement re^u, sont envisag^es 
 comme contrebande et susceptibles de confiscation." 
 
 By a rescript of the King of Denmark, made in 1793,* it is 
 provided as follows : — 
 
 " Article IV. Unter der Bennennung von Kriegs-Contrebande werden 
 einzig feuergewehre und audere Art Waffen als Kanonen, flinten, morser, 
 etc. verstanden woriiber die Tractaten nachzusehen. 
 
 " Article V. Aber unter Kriegs-contrebande versteht man nicht, etc, 
 Siehe die Tractaten." 
 
 In 1793 England, during her war with the French Republic, 
 frequently violated the usage of nations as to contraband, and in 
 consequence of her seizure of neutral ships conveying food and 
 other non -contraband merchandise to the ports of France, the 
 Republic, by way of reprisal, issued a decree in 1793° authorizing 
 her ships of war and privateers to seize and make prize of all 
 cargoes of food or other merchandise destined for hostile ports. 
 The decree proceeds as follows : — 
 
 " Dans tous les cas les navires neutres seront relich^s au moment ou 
 le d^chargement des comestibles. arrSt^s ou des marchandises saisies aura 
 
 ' Martens, Vol. IV, p. 239. ' Ante, p. 26. 
 
 3 /did., Vol. IV, p. 428. « Martens, ut supra. Vol. V, p. 557. 
 
 Ibid., Vol. V, p. 381. 
 
CONTRABAND 29 
 
 ete effectud Le fret en sera paye au taux qui aura ete stipule par les 
 chargeurs. Une juste indemnity sera accordee a raison de leur detention 
 par les tribunaux qui doivent connoltre de la validity des prises. 
 
 " La presente loi, applicable k toutes les prises qui ont 6te faites depuis 
 la declaration de guerre cessera d'avoir son effet d^s que les puissances 
 ennemies auront d6clar6 libres et non saisissables quoique destines pour 
 les ports de la Republique les comestibles qui seront propridtes neutres 
 et les marchandises charg^es sur des navires neutres qui appartiendront au 
 gouvernement ou aux citoyens Frangais." 
 
 In a treaty between Russia and Sweden, made at Petersburg in 
 1800,^ Article II provides as follows : — 
 
 "Pour prevenir toute equivoque ou malentendu sur ce qui doit ^tre 
 regard^ comme contrebande S. M. le roi de Suede et S. M. I'Empereur de 
 toutes les Russies d^clarent qu'elles ne reconnaissent pour contrebande 
 que les objets suivans, savoir, canons, mortiers, pistolets, bombes, granades, 
 boulets, fusils, pierres a feu, meche, poudre, salpStre, souffre, cuirasses, piques, 
 ep^es, ceinturons, gibernes, scelles et brides, k I'iexception de la quantite de 
 ces choses qui pourrait fitre necessaire a la defense du batiment et de 
 r^quipage. Tous les autres articles qui ne sont point ici design^s 
 ne doivent point ^tre regard^s comme munitions de guerre ni de marine 
 ni dtre sujets a confiscation et par consequent doivent passer librement 
 et sans difficult^. On est aussi convenu que le present article ne prejudi- 
 ciera en rien aux dispositions particuli^res de trait^s conclus ant^rieurement 
 avec les puissances belligerantes dans lesquels il aurait stipuld des reserves, 
 defense ou permission relativement a des objets de pareille nature." 
 
 This treaty, commonly known as the Second Armed Neutrality, 
 and to the provisions of which other Powers, viz. Denmark, etc., 
 gave adhesion, was preceded by a preamble, which asserted 
 in solemn form the right of neutral nations as follows : — 
 
 " La liberte de la navigation et la suret6 du commerce des puissances 
 neutres ayant 6t6 compromises dans la pr6sente guerre, et les principes du 
 droit des gens mdconnus, S. M. le roi de Suede et S. M. I'Empereur de 
 toutes les Russies guides par leur amour de I'equitd et leur commune 
 sollicitude pour tout ce qui peut contribuer k la prosperity publique dans 
 leurs dtats, ont jug^ convenable de donner une nouvelle sanction aux 
 principes de neutrality qui de leur nature indestructibles, n'exigent pour 
 €tre respect^s que I'accession des puissances interess^es a leur maintien. 
 C'est dans cette vue que S. M. I. par sa declaration du 1 5 Aout aux cours 
 du Nord qu'une parite d'interet et de circonstances invite a prendre les 
 mSmes mesures, leur a temoign^ combien elle desiroit de retablir dans son 
 inviolability le droit commun qu'ont tous les peuples de naviguer et 
 de commercer librement et independamment de I'interet momentan6 
 des puissances belligerantes. . , ." 
 
 The attitude of Russia in respect of contraband of war was 
 emphatically enunciated in her famous declaration of 2 1 February, 
 
 1 /foy., Vol. VII, p. 516. 
 
30 COMMERCE IN WAR 
 
 1780, and her laudable desire was "d'^tablir un syst^me naturel 
 et fondd sur la justice et qui par son avantage rdel servit de r^gle 
 aux siecles a venir."^ It is not here the place to discuss this 
 branch of the subject; but equally important with her desire 
 to place definite limits upon what should constitute contraband 
 was her assertion of the inviolability of merchant ships sailing 
 under convoy of neutral men-of-war from visitation or search 
 on declaration of the officer commanding the man-of-war that the 
 merchant vessel carried no contraband. Before the war of 1 793 
 with France broke out, there was a general consensus of opinion 
 among the Powers that corn and provisions should be excluded 
 from contraband, saving, of course, the case of their being in 
 transit to places blockaded or besieged; but in 1793 England, 
 Russia, and Prussia made common cause to replace corn and 
 provisions in the list of contraband on the shallow pretext that 
 the rights of neutrals should be in abeyance during a war carried 
 on against the Revolutionary Government of France. 
 
 By a treaty made at St. Petersburg between Russia and Great 
 Britain in 1801," after reciting the desire of the contending 
 parties to establish fixed principles respecting the rights of 
 neutrals, Article III provides as follows : — 
 
 "(i) Que les vaisseaux de la puissance neutre pourront naviguer libre- 
 ment aux ports et sur les c6tes des nations en guerre. 
 
 "(2) Que les effets embarqu^s sur les vaisseaux neutres seront libres 
 a I'exception de la contrebande de guerre et des propridt^s ennemies ; et 
 il est convenu de ne pas comprendre au nombre des derniferes les 
 marchandises du produit, du cru ou de la manufacture des pays en guerre, 
 qui auroient 6t6 acquises par des sujets de la puissance neutre, et seroient 
 transport6es pour leur compte ; les quelles marchandises ne peuvent Stre 
 except^es en aucun cas de la franchise accordde au pavilion de la dite 
 puissance. 
 
 "(3) Q"6 pour 6viter aussi toute equivoque et tout m^sentendu sur 
 ce qui doit Stre qualifi6 de contrebande de guerre sa Maj. Imp. de toutes 
 les Russies et sa Maj. Britannique d^clarent conform6ment a I'art. XI du 
 traitd de commerce conclu entre les deux couronnes le 10 (22) Fdvrier 
 1797 qu'elles ne reconnoissent pour telles que les objets suivans, s9avoir, 
 ' canons, mortiers, armes a feu, pistolets, bombes, grenades, boulets, balles, 
 fusils, pierres a feu, meches, poudre, salpfetre, souffre, cuirasses, piques, ep^es, 
 ceinturons, gibernes, selles et brides,' en exceptant toutefois la quantity 
 des susdits articles qui peut ^tre necessaire pour la defense du vaisseau 
 et de ceux qui en composent I'^quipage ; et tous les autres articles 
 quelconques non d^signes ici ne seront pas r^put^s munitions de guerre et 
 navales ni sujets a confiscation et par consequent passeront librement sans 
 fetre assujettis a la moindre difficult^, a moins qu'ils ne puissent ^tre 
 r6put6s propri6t6s ennemies dans le sense arr^td ci-dessus. II est aussi 
 
 1 See Martens, "Supplement au Recueil des Traitds de I'Europe," Vol. II, p. 344. 
 ^ Hid, "Supplement," II, p. 476. See also /did., Ill, p. 192. 
 
CONTRABAND 31 
 
 convenu que ce qui est stipuld dans le present article ne portera aucun 
 prejudice aux stipulations particuli^res de I'une ou de I'autre couronne 
 avec d'autres puissances par lesquelles des objets de pareil genre seroient 
 rdservds, prohib^s ou permis." 
 
 Article XIII of an Ordinance of the King of Denmark, dated 
 4 May, 1805,^ declares the following to be contraband of war : — 
 
 " Canons, mortiers, armes de toute espece, pistolets, bombes, grenades, 
 boulets, balles, fusils, pierres a feu, m^ches, poudre, salpStre, soufre, 
 cuirasses, piques, epdes, ceinturons, gibernes, selles et brides, en exceptant 
 toutefois la quantity qui peut Stre necessaire pour la defense du vaisseau 
 et de ceux qui en composant I'^quipage." 
 
 Articles I and IV of a treaty made to explain Article XI of 
 the treaty of 1661 between Great Britain and Sweden, made at 
 London in 1803," provide as follows: — 
 
 " Dans le cas qu'une des parties contractantes restit neutre dans une 
 guerre, dans laquelle I'autre partie contractante seroit belligerante, les 
 batimens de la puissance neutre ne pourront conduire a I'ennemi ou aux 
 ennemis de la puissance belligerante de I'argent monnoy^, des armes, 
 bombes avec leur fusdes et appartenances, carcasses, poudre a tirer, meches, 
 boulets, lances, 6pees, piques, hallebardes, canons, mortiers, petards, fourches 
 de mousquets, bandoulieres, salpStre, mousquets et leurs balles, casques, 
 morions, cuirasses ou cottes de maill6s ou autres especes d'armes, des 
 troupes, chevaux ou rien de ce qui est necessaire a I'equipement de la 
 cavalerie, pistolets, ceinturons, ou d'autres instruments de guerre, vaisseaux 
 de guerre ou de garde ni aucun article manufacture servant imm^diate- 
 ment k leur ^quipement, et cela sous peine de confiscation quand ces 
 articles seront saisis par I'une ou I'autre des parties contractantes. 
 
 " Article IV. Le hareng, fer en barres, acier, cuivre rouge, laiton et fil 
 de laiton, planches et madriers, hors ceux de ch6ne et esparres ne seront 
 point soumis a confiscation, ni au droit de preemption de la part de la 
 puissance belligerante, mais ils pourront passer librement dans les bdtimens 
 du pays neutre, bien entendu qu'ils ne seront point propri^te ennemie." 
 
 After a long interval, we find Great Britain once more including 
 money, ships, and troops in the category of contraband. On the 
 other hand, naval stores are expressly exempted (except when 
 manufactured). 
 
 By a regulation of the King of Sweden, m/ide in 1804,* it 
 is declared in Article VI : — / 
 
 "Pour eviter toute Equivoque et tout mal-entendui sur le qui doit Stre 
 proprement qualifi^ de contrebande de cette nature, nous declarons qu'on 
 ne comprend sous cette denomination que les marchandises suivantes 
 comme : canons, mortiers, armes a feu, pistolets, bombes, grenades, boulets 
 
 » /iid, III, p. 528. 
 
 2 /did., Ill, p. 525. 
 
 3 /did., Ill, p. 547. 
 
 / 
 
32 COMMERCE IN WAR 
 
 de toutes esp^ce, fusils, pierres a feu, m^ches, poudre, salpfitre, soufre, 
 cuirasses, piques, ep^es, ceinturons, gibernes, selles et brides, en exceptant 
 toutefois la quantity de tous ces objets qui peut ^tre necessaire pour 
 la defense du vaisseau et de I'^quipage. Tous les autres articles quelconques 
 non designees ici ne seront pas rdput^s munitions de guerre et navales, ni 
 sujets k confiscation, et par consequent, autant qu'ils ne pourront pas ^tre 
 consider6s comme propri^t^s ennemies ils passeront librement. . . ." 
 
 The article reserves the case of England under the treaty 
 of 1805. 
 
 In a treaty made in London between Great Britain and the 
 United States, in 1806,^ Article IX provides: — 
 
 " In order to regulate what is in future to be esteemed 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, grenades, 
 carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gun- 
 powder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, 
 halberts, lances, javelins, horse furniture, holsters, belts, and generally all 
 other implements of war; as also timber for shipbuilding, copper in 
 sheets, sailcloth, hemp and cordage, and in general (with the exception 
 of unwrought iron and fir planks, and also with the exception of tar 
 and pitch, when not going to a port of naval equipment, in which case 
 they shall be entitled to preemption) whatever may serve directly to the 
 equipment of vessels, and all the above objects are declared to be just 
 objects of confiscation whenever they are attempted to be carried to an 
 enemy, but no vessel shall be detained on pretence of carrying contraband 
 of war unless some of the above-mentioned articles not excepted are 
 found on board of the said vessel at the time it is searched." 
 
 The exception of "unwrought iron and fir planks" is believed 
 to be new. And Lord Stowell's criterion of the contraband 
 character of articles ancipitis usus — ^viz. the port of destination — 
 is incorporated as the test of the nature of pitch and tar. That 
 such was the criterion adopted by him is denied by Wheaton 
 (sec. 489) ; but the case on which Wheaton relies merely de- 
 cides that manufactured spars are absolute contraband, not that 
 they may be contraband in certain cases, although not destined 
 for a military or naval port.^ 
 
 By a treaty between Great Britain and Portugal, made at Rio 
 de Janeiro in 1809,^ Article XXXV declares contraband : — 
 
 " Debaixo da denomina§ao de contrabando de guerra ou generos pro- 
 hibidos se comprehenderao armas, pe9as de artilheria arcabuzes, morteiros, 
 petardos, bombas, granadas, salchichas, carcassas, carretas de pegas, arrimos 
 
 ' State Papers, Vol. I, part ii, p. 1194. 
 2 The Charlotte, 5 Rob., 305. Vide infra, p. 77. 
 
 ' Calvo, " Traitds de I'Amerique Latine," Vol. V, p. 162. See also Hertslet's " Treaties," 
 Vol. II, p. 26. 
 
CONTRABAND 33 
 
 de mosquetes bandoleiras, polvora, mechas, salitre, balas, piques, espadas, 
 capacetes, elmos, couragas, alabardas, azagayas, coldres, boldri^s cavallos 
 e. arreios e geralmente todos os demais generos que possatn tSr sido 
 especificados como contrabando em qualquer Tratado precedente concluido 
 por Portugal, ou pela Gran-Bretanha com outras potencias. Mas 
 generos que nao tenham sido fabricados em f6rma de instrumentos de 
 guerra ou que nao possam vir a s6t-1o, nao devems> ser reputados contra- 
 bando muito menos aquelles que ja estao fabricados. pana outros fins, 
 OS quaes todos devem ser reputados contrabando e poderSo ser levados 
 liyremente pelos vassallos de ambos os soberanoSj mesmo a logares 
 pertencentes a um inimigo d excepglto sdmente d'aquelles logares que 
 estao sitiados bloqueados ou accommettidos por mar ou por terra." 
 
 Article XXVI I.I of a treaty between the same powers made 
 at Rio de Janeiro, 1810, provided,: — 
 
 " Under the name of contraband or prohibited articles shall be com- 
 prehended not only arms [here follows list of weapons and armour],, gun- 
 powder, match, saltpetre, horses and their harness, but gpnerally all other 
 articles that may have been specified as contraband in any former 
 treaties concluded by Great Britain or by Pbrtugal with other Bowers, 
 But goods which have not been wrought into the form of warlike instru- 
 ments, or which cannot become such, shall not be reputed contraband, 
 much less such, as have been already wrought and made up for other 
 purposes, all of which shall be deemed not contraband, and may be freely 
 carried by the subjects of both sovereigns, even to pilaces belonging to an 
 enemy, except only such places as are besieged, blockaded^ or invested 
 by sea or land." 
 
 By Article XXI of a treaty between Denmark and Prussia, 
 made at Copenhagen ia 181 8,1' it is provided : — 
 
 " Sous la denomination de marchandise de contrebande militaire sont 
 comprises seulement Ifes armes 4- feu et autires instruments hostiles avec 
 leurs assortimens comme canons, mousquets, mortiers, petards, bomBes, 
 grenades, affuts, fusils, pistolets, boulets, balles, pierres a feu, meches, 
 poudre, salp^tre, soufTre, cuirasses, piques, epees, ceinturons, pocUes k 
 cartouches, selles et brides, en exceptant toutefois de ces effets ce qui 
 est necessaire pour la defense du vaisseau et de son equipage, ces 
 marchandises ne seront r^put^s contrebande militkiire que dans les 
 cas qu'on les porte dans quelque pays ennemi. Toutes les autres mar- 
 chandises qui ne sont point indiquees dans cet artide^ ne peuvent pas 
 Stre consid^r^s comme contrebande militaire." 
 
 In a treaty between the United States and. the Confederation 
 of Central America in 1825,^ Article XVI provides : — 
 
 "This liberty of navigation and commerce shall extend to all kinds 
 of merchandise, excepting those only which are distinguished by the 
 
 * State Papers, Vol. V^ p. 695. 
 ' Martens, N.R., Vol. VI, p. 826. 
 
34 COMMERCE IN WAR 
 
 name of contraband, and under this name of contraband or prohibited 
 goods shall be comprehended : — 
 
 "(i) Cannon, mortars, howitzers, swivels, blunderbuses, muskets, fuzees, 
 rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds and 
 grenades, bombs, powder, matches, balls, and all other things belonging 
 to the use of these arms. 
 
 "(2) Bucklers, helmets, breastplates, coats of mail, infantry belts, and 
 clothes made up in the form for a military use. 
 
 " (3) Cavalry belts and horses, with their furniture. 
 
 "(4) And generally all kinds of arms and instruments of iron, steel, 
 brass, and copper, or of any other materials manufactured, prepared, and 
 formed expressly to make war by sea or land. 
 
 "Article XVII. All other merchandise and things not comprehended 
 in the articles of contraband explicitly enumerated and classified as 
 above, shall be held and considered as free and subjects of free and 
 lawful commerce so that they may be carried and transported in the 
 freest manner by both the contracting parties even to places belonging 
 to an enemy, excepting those places which are at that time besieged or 
 blockaded ; and to avoid all doubts in this particular, it is declared that 
 those places only are besieged and blockaded which are actually attacked 
 by a belligerent force capable of preventing the entry of neutrals." 
 
 This treaty is remarkable as containing the first express 
 mention of military clothes or uniforms as contraband. 
 
 By a treaty made between France and Brazil at Rio Janeiro' 
 in 1826, Article XXI provides: — 
 
 " S'il arrivoit que I'une des hautes parties contractantes soit en guerre 
 avec quelque puissance, nation ou ^tat, les sujets de I'autre pourront 
 continuer leur commerce et navigation avec ces m^mes 6tats except^ 
 avec les villes ou ports qui seroient bloques ou assieges par terre ou par 
 mer. Mais dans aucun cas ne sera permis le commerce des articles 
 rdput^s contrebande de guerre qui sont les suivans : canons, mortiers, 
 fusils, pistolets, grenades, saucisses, affuts, baudriers, poudre, salp6tre, 
 casques, balles, piques, ep^es, hallebardes, selles, harnois, et autre 
 instrumens quelconques fabriques a I'usage de la guerre." 
 
 France appears from this treaty to have accepted the Russian 
 principle of narrowly limiting the list. 
 
 A treaty made at Rio Janeiro between Prussia and Brazil 
 in 1827" contains (Article VI) precisely the same provisions as 
 to contraband as those contained in the treaty between France 
 and Brazil made the preceding year. ' 
 
 In a treaty made between Great Britain and Brazil at London 
 in 1827,* Article XV provides : — 
 
 " 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 
 
 1 Martens, N.R., Vol. VI, p. 868. = Ibid., Vol. VII, p. 470. 
 
 » Vide supra. < Martens, N.R., Vol. VII, p. 479. 
 
CONTRABAND 35 
 
 arms and implements serving for the purposes of war by land or by 
 sea, such as cannon, muskets, pistols, mortars, petards, carriages for 
 cannon, musket rests, bandoliers, gunpowder, match, saltpetre, ball, 
 pikes, swords, headpieces, cuirasses, halberts, lances, javelins, horse 
 furniture, holsters, belts, and generally all other implements of war; 
 as also timber for shipbuilding, tar or resin, copper in sheets, sails, hemp 
 and cordage, and generally whatsoever may serve directiy to the equip- 
 ment of vessels of war, unwrought iron and fir planks excepted ;= and 
 all the above articles are hereby declared to be just objects of confiscation 
 whenever they are attempted to be carried to an enemy," 
 
 This follows the lines of the treaty of Great Britain of 1806 
 with the U.S.A. 
 
 In a treaty between Denmark and Brazil, made at Rio Janeiro 
 in 1828,^ Article X provides as follows : — 
 
 "S'il arrivoit que I'une des hautes parties contractantes ehtroit en 
 guerre contre quelque puissance, nation ou ^tat, les sujets de I'autre partie 
 pourront continuer leur commerce avec ces etats en exceptant neanmoins 
 les villes et pdrts qui seroient bloqu^s ou assi6g6s par mer ou par terre. 
 Mais le commerce de la contrebande de guerre ne pourra se faire en 
 aucun port quelconque. 
 
 "Sous la d6nomination des marchandises de contrebande de guerre 
 sont compris : les canons, mortiers, fusils, pistolets, grenades, saucisses, 
 voitures, ceinturons, poudres, salpStre, casques, balles, boulets, javelines, 
 epdes, hallebardes, selles et harnais ou autres instrumens quelconques 
 destines a I'usage de la guerre." 
 
 This resembles the Prussian and French treaties of 1826 and 
 1827. 
 
 In a treaty made at Mexico in 1831 between the United States 
 of America and the United States of Mexico,^ Article XVIII is 
 as follows : — 
 
 " This liberty of commerce and navigation shall extend to all kinds 
 of merchandise, excepting those only which are distinguished by the 
 name of contraband, and under this name of contraband or prohibited 
 goods shall be comprehended : first, cannons, mortars, howitzers, swivels, 
 blunderbusses, muskets, fusees, rifles, carbines, pistols, pikes, swords, 
 sabres, lances, spears, halberts and grenades, bombs, powder, matches, 
 balls, and all other things belonging to the use of these arms ; secondly, 
 bucklers, helmets, breastplates, coats of mail, infantry belts and clothes 
 made up in a military form and for a military use ; thirdly, cavalry belts 
 and horses with their furniture ; fourthly, and generally all kinds of arms 
 and instruments of iron, steel, brass, and copper, or of any other material 
 manufactured, prepared, and formed expressly to make war by sea or 
 land. 
 
 "Article XIX. All other merchandise and things not comprehended 
 in the articles of contraband expressly enumerated and classified as 
 
 1 Ibid., Vol. VII, p. 608. 
 « Ibid., Vol. X, p. 323. 
 
36 COMMERCE IN WAR 
 
 above, shall be held and considered as free and subjects, of free and 
 lawful, compierce, so that they may be carried and transported, in the 
 freest manner by both the contracting parties even to places belpnging 
 to an enemy, excepting only those places which are at that time besieged 
 or blockaded ; ajjditp a,void,all doqbt ip.that particular, it ifi. declared that 
 those places only are besieged and blockaded; which are actually besieged 
 or blockaded ^ a. belligerent force capable of preventing the entry of 
 the nQutfal." 
 
 This is exactly on the lines of the treaty with Central, America 
 of 1825. 
 
 In a treaty made between the Hanse Towns and Mexico at 
 London, 1832,^ Article XI provides: — 
 
 "* * * In case that one of the contracting parties should find itself in 
 a state of war, whilst the other remains neutral, it is agreed that all which 
 the belligerent party may haye stipulated with the other powers for the 
 advantage of the neutral' flag shall serve as a rjjii^ between Mexico, and 
 the H^pse Towns. In order that there may be. no misunderstanding 
 as to; what; should be considered contFaband, military articles, it i&aigree4 
 (withqut prejudice, however,, to. t|he general, principle above mentioned) to 
 limit the definition to the following articles : canngns, mortars, guns, 
 pistols, grenades, saucisses, gun carriages, belts, powder, saltpetre, 
 helmetsj ball, pikes, swords, halberds,, ^adi^J^?» harness, and other articles 
 manufac^tured for the use of war." 
 
 This is unlike the United States treai^esi iji; not including 
 uniforms and horses, and in entering into less particularity of 
 detail - The Hfetnse Towns ateo (as- ih'^ their treaty with Guate- 
 mala)^ insert a provision conferring on tha neutral the advantages 
 of tne most favoured' nation — apparently the inverse of the 
 provision ih the Portuguese- British treaty of 1809, conferring 
 a similar privilege on the belligerent. 
 
 Ijii a treaty made; between thp United, Stg.tes of America, and 
 Chilij- made at Santiagoi in 1833,* Anticles, XIV andi XV make, 
 precisely 'the same provisions as to contraband as tiiose contained 
 itt' the treaty- between the United States aiid' Mexico, made in 
 i8'3i.* 
 
 A. treaty between the. United States and^ Venezuela, made 
 at Cfiracas in 1836,* is 9.lso. identical a^ to cQntrabcWid with; the 
 UiSv treaties with Chili and Mexico. 
 
 In a treaty made at Guatemala, 1-847, between the- Hanse 
 Towns and Guatemala,* Article XVII provides : — 
 
 "In case one of the two contracting parties should be at war while the 
 other nemains neutral, it is agreed thatiwhatever the belligerertt party may 
 
 » State Papers, Vol. XXIII, p. 1016. ^ Infra. 
 
 ' State Papers, Vol. XXII, p. 1353; " Vide supra, p. 35. 
 
 6 State Papers, Vol. XXIV, p. 746. • /6ii/., Vol. XL, p. 1363. 
 
CONTRABAND 37 
 
 have /Stipulated or shall stipulate in favour of the neutral flag with other 
 Powers shall also serve as the rule between the republic of Guatemala and 
 the Hanseatic Republics. And in order to avoid any doubt as to what 
 is to be considered as contraband of war, it is agreed (saving the general 
 principle expressed above) to restrict lihe definition thereof to the following 
 articles : — 
 
 "(i) Cannon, mortars, howitzers, patereros, blunderbusses, muskets, 
 firelocks, rifles, carbines, pistols, pikes, sWords, sabres, lances, Spfears, 
 halberds, grenades, shells, gunpowder, matches, balls, and all other things 
 necessary for the use of these arms. 
 
 "(2) Shields, helmets, cuirasses, coats of mail, trappings, a,nd garments 
 made in military fashion and for military use. 
 
 "(3) Belts and horses, together with their arms and harness. 
 
 "(4) And finally all kinds of arms, and instruments of iron, steel, 
 bronze, copper, and any other materials manufactured, prepared, and 
 intended expressly for carrying on war by sea or land." 
 
 In a treaty made between the United States atid Guatemala 
 m 1849/ Article XVI is as follows : — 
 
 " This liberty of navigation and commerce shall extend to all kinds 
 of merchandise excepting Only tliose ^hich are distinguished by the name 
 of contraband, and under the name of contraband or prohibited goods 
 shall be coniprehended : — 
 
 "(i) Cannons, mortars, howitzers, swivels, blunderbusses, muskets, 
 fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, 
 halberds, and grenades, bombs, ipowder, matches, balls, and all other 
 IJbings belonging to the use of these arms. 
 
 "{2) Bucklers, helmets, breastplates, coats of mail, ifffantry belts, ind 
 clothes made up in the form and for a military use. 
 
 " (3) Cavalry belts, and horses with their furniture. 
 
 " (4) And generally all kinds of arms and instruments of iron, steel, 
 teass, and -fcOpper, or iaiiy other ttralteHals manufactured, prdpated, ^a#J 
 formed expressly to make war by land or sea. 
 
 "Article XVII. AH Other merchandise and things not comptehended 
 in the articles of contraband explicitly enumerated and classified as abo^e 
 shall be held and considered as free and subjects of free and lawful 
 commerce, so that they may be carried in the freest manner by both the 
 contracting parties, even to places belonging to an enemy, excepting Only 
 those places whidh are at that time biesieged 'or blockaded, whidi are 
 actually attacked by a belligerent force capable of preventing t!he thWf 
 of the neutfal." 
 
 This is the common form of treaties of the United States 
 '6f America. 
 
 A treaty made at Lima between the United States aftd Petti, 
 in 1852,* contains in Articles XXIII and XXIV the same pro- 
 
 1 Hid., Vol. XXXIX, p. 51. 
 ■•' liiti., Vol. XL, p. 1095. 
 
38 COMMERCE IN WAR 
 
 visions as those contained in the treaty above cited between 
 the United States and Guatemala. 
 
 In 1854 a remarkable joint declaration was issued by France 
 and England, declaring their desire to render the results of the 
 war they were then about to enter upon with Russia as little 
 onerous as possible to neutral Powers, and the policy pursued 
 by France and England in respect of contraband was followed by 
 Russia. 
 
 During the Crimean War contraband was strictly confined by 
 the principal belligerents to arms and munitions of war. The 
 course adopted by Russia in 1854 was pursued by her during her 
 war in 1877^ with Turkey, and her declaration as to what articles 
 should constitute contraband was strictly confined to arms, military 
 and naval equipment and munitions, troops, correspondence and 
 despatches of the enemy. 
 
 By a proclamation of the Senate of Lubeck made in 1854 : — ^ 
 
 " Arms, ordnance, firearms, and munitions of war of every description, 
 gunpowder, musket and cannon balls, rockets and percussion caps and 
 all other articles serving for war purposes, saltpetre, sulphur, and Itead, are 
 declared contraband of war." 
 
 By Article V of an ordinance of Sweden promulgated in 1854,' 
 the following are declared contraband of war : — 
 
 " Cannons, mortars, all kinds of arms, bombs, grenades, balls, flints, 
 linstocks, gunpowder, saltpetre, sulphur, cuirasses, pikes, belts, cartouch 
 boxes, saddles, bridles, and all other manufactures immediately applicable 
 to warlike purposes." 
 
 By an ordinance of the Government of Sweden made in 1855,* 
 lead, whether raw or manufactured, was included among articles 
 of contraband of war. 
 
 By the Declaration of Paris made in 1856 by Great Britain, 
 Austria, France, Prussia, Sardinia, and Turkey,* it was de- 
 clared : — 
 
 (i) "La course est et demeure aboHe. 
 
 (2) " Le pavilion neutre couvre la marchandise ennemie a Texception 
 de la contrebande de guerre. 
 
 (3) "La marchandise neutre a I'exception de contrebande de guerre 
 n'est pas saisissable sous pavilion ennemi. 
 
 (4) " Les blocus pour ^tre obligatoires doivent 6tre effectifs, c'est a dire 
 maintenus par une force suffisante pour interdire reellement I'acc^s du 
 littoral de I'ennemi." 
 
 ' /nfra, p. 43. 
 
 ' State Papers, Vol. XL V,' p. 1271. 
 
 » I6tW., Vol. XLVI, p. 833. 
 
 * /did., Vol. LXVIII, p. 489. 
 
 " Samwer, "Recueil des Traitds," Vol. II, first series^p. 768. 
 
CONTRABAND 39 
 
 A treaty made at Paris between France and Honduras in 
 1856^ (Article XVIII) provides :— 
 
 "Dans le cas oix I'un des deux pays serait en guerre avec quelque 
 autre puissance, les citoyens de I'autre pays pourront continuer leur 
 commerce avec les ^tats belligerants quels qu'ils soient, excepte avec les 
 villes ou ports qui seraient rdellement assi^g^s ou bloqu^s. II est 
 dgalement entendu qu'on n'envisagera comme assieg^es ou bloqudes que 
 les places qui se trouveraient attaqu^es par une force belligerante capable 
 d'empScher les neutres d'entrer. Bien entendu que cette liberty de 
 commerce et de navigation ne s'etend pas aux articles reputes contre- 
 bande de guerre, tels que bouches et armes k feu, armes blanches, pro- 
 jectiles, poudres, salp&tre, objets d'equipements militaires et g^neralement 
 toute espece d'armes et d'instruments de fer, acier, cuivre ou de toute 
 autre matiere expressdment fabriquds pour faire la guerre par terre ou 
 par mer." 
 
 A treaty between France and Nicaragua made at Paris in 
 in 1859 contains identical provisions.^ 
 
 By a proclamation of the Queen of England made in 1 861' on 
 the occasion of the war between the United States and the 
 Confederate States of America, it is declared : — 
 
 " Par les presentes nous enjoignons et commandons a tous nos bien- 
 aimes sujets d'observer une stricte neutrality durant les hostilites pre- 
 cit^es, et de s'abstenir de violer ou enfreindre soit les lois et les statuts 
 du royaume, soit le droit des gens, ou que par 1^ ils en prendraient la 
 responsabilit6 k leurs risques et pdrils," 
 
 The proclamation goes on to forbid the Queen's subjects from 
 carrying to either belligerent : — 
 
 "Officiers, soldats, d^p^ches, armes, munitions, materiel de guerre ou 
 tout autre article considere comme contrebande de guerre par les lois et 
 les usages des nations modernes." 
 
 In the American Civil War the Government of the United 
 States declared the following contraband : — * 
 
 " Gold and silver coin, cheques or bills of exchange for money, articles 
 of food, clothing, and material for the manufacture of clothing, rifle, 
 pistol, musket and cannon balls and shells, gunpowder and all materials 
 used in its manufacture, ammunition and munitions and implements of 
 war of every description, books of military education, saddles, harness, 
 and trappings for flying artillery, field and staff officers and cavalry 
 troops, horses, gun carriages, timber for shipbuilding, all kinds of naval 
 stores, engines, boilers, and machinery for boats, locomotive engines and 
 cars for raihoads, and goods and commodities which might be useful to 
 the enemy in war." 
 
 I De Clercq, Vol. VII, p. 10. 
 
 » Samwer, " Recueil des Trait^s," Vol. Ill, part 2, p. 185. 
 
 ' "Archives Diplomatiques," 1861, Vol. II, p. 375. (Trans.) 
 
 * State Papers, Vol. LI, p. 198. 
 
40 COMMERCE IN WAR 
 
 This is a most sweeping list, including in absolute terms both 
 naval stores and provisions, and mentioning (apparently for the 
 first time) engines, boilers, and machinery for boats, locomotive 
 engines and cars for railways (but not jails or sleepers). The 
 final inclusion of everything which "might be useful," whether 
 specially useful in war or not, is undoubtedly too broad. 
 
 In 1 86 1 Messrs. Slidell and Mason, envoys from the Con- 
 federate States to Great Britain, were proceeding for the purposes 
 of their mission in a British-built steamer, and when on the high 
 seas the steamer was stopped by a war vessel of the United 
 States, and was boarded by an armed party therefrom, who 
 forcibly removed the two envoys. The United States, by a 
 despatch of their Foreign Secretary to the English Governrnent, 
 insisted that these persons were contraband of war ; the British 
 Government, on the other hand, concluded that the distinction 
 of the persons and the despatches they carried were neutral, and 
 they quoted Lord Stowell's observation: "Goods going to a 
 neutral port cannot come under the description of contraband, 
 all goods going there being equally lawful. The rule respecting 
 contraband, as I have always understood it, is that articles must 
 be taken in delicto in the actual prosecution of the voyage to 
 an enemy's port."^ 
 
 The view of Great Britain as to the true doctrine of contraband 
 is contained in a despatch of Earl Russell to Lord Lyons in 1.862." 
 
 " The doctrine of contraband has its whole foundation and origin in the 
 principle which is nowhere more accurately explained than in the following 
 passage of Bynkershoek. After stating in generail terms the duty of im- 
 partial neutrality : ' Et sane id, quod modo dicebam, non tantum ratio 
 docet, sed et usus, inter omnes fere gentes acceptus. Quamvis enim libera 
 sint cum amicorum nostrorum hostibus commercia usu tamen placuit ne 
 alterutrum his rebus juvemus quibus helium contra amicos nostros in- 
 struatur et foveatur. Non licet igitur alterutri advehere ea quibus in bello 
 gerendo opus habet ; ut sunt tormenta, arma, et quorum praecipuus in bello 
 usus, milites. Optimo jure interdictum est ne quid eorum hostibus sub- 
 ministramus ; quia his rebus nos ipsi quodammodo videremur amicis 
 noistris bellum facere ' " (Quaest. Jur. Publ. 1. i. c. 9). 
 
 By the regulations of the Prussian Government, made in 1864,^ 
 but not formally adopted by the German Empire, the following 
 are declared contraband of war : — 
 
 " Cannons, mortars, every kind of arms, bombs, grenades, bullets, caps, 
 slow matches, gunpowder, cuirasses, war equipment, saddles, bridles, and 
 in general all objects which are directly of use in war." 
 
 ' The Tmina, 3 Hob, 167. 
 
 ^ State Papers, Vol. LV, p. 633. 
 
 ' Ibiii., Vol. XCIV, p. 1009. 
 
CONTRABAND 41 
 
 This is a notable return to sober doctrine on the subject, in 
 strong contrast to the United States declaration of 186 1. 
 
 By a proclamation issued in 1864 by the Governor of Canada, 
 the following definition of contraband appears : — 
 
 "Arms, ammunition and gunpowder, and military and naval stores, 
 and any articles which our Governor in Council shall judge capable of 
 being converted into or being made useful in increasing the quantity 
 of military or naval stores." 
 
 By Article XII of a proclamation by Denmark, made at Copen- 
 hagen in 1864/ contraband is defined as follows : — 
 
 " Seront regardes comme contrebande les articles qui suivent, savoir : 
 Canons, mortiersi, espingoles, toutes especes d'armes, bombes, grenades, 
 balles et boulets, capsules, ranches, poudre, sa!lpStre, soufre, cuirasses, 
 objets d'armement et d'equipement militaire, selles et mors et en g6n^ral 
 tous les objets propres a ^tre employes dans la guerre, sauf les provisions 
 des articles sns-mentionnes necessaires a la defense du navire ou de son 
 equipage, dans la supposition toutefois que ces objets soHt destin6s pour 
 un port ennemi." 
 
 In an ordinance of Austria made in 1864^ Article VII dedares 
 contraband as follows : — 
 
 "Sont declares objets de contrebainde les effets ci-aprfes, mais seule- 
 ment quand ils sont k destination de ports ennemis : les canons, obusiers, 
 pierriers, armes de toute espece, bombes, grenades, boulets, m^ches, 
 capsules, poudre, salp^tre, souffre, cuirasses, objets d'equipement, selles 
 et brides, en g^n^ral tous les articles pouvant servir imm6diatement aux 
 usages de la guerre, a I'exception des approvisionnements necessaires 
 k la defense de I'equipage ou du navire et appropri^s k cette fin." 
 
 A treaty made between the United States of America and 
 Hayti in J 864^ contains in Articles XX and XXI the same pro- 
 visions as to contraband as those contained in the treaties between 
 the United States, Guatemala, and Peru above cited. 
 
 By a proclamation of the President of the United States 
 removing restrictions on trade in certain parts of the Republic, 
 except in articles contraband of war, made at Washington, 1865, 
 contraband of war was defined as follows ; — 
 
 " Arms, ammunition, all articles from which ammunition is made, and 
 gray uniforms and clothes." 
 
 By a declaration in 1866 of the Spanish Commander-in-Chief, 
 
 ' "Archives Diplomatiques," 1864, Vol. II, p. 118. 
 " liid, 1864, Vol. II, p. 131. 
 s Jha., 1866, Vol. I, p. S- 
 
42 COMMERCE IN WAR 
 
 Chilian coal was included as contraband of war, whatever might 
 be the port of destination or ships carrying it : — 
 
 "Article III. This declaration, confined as it is to a special case and 
 peculiar to the present war, is not intended to establish any precedent 
 with respect to the general principle that coal should not be considered 
 contraband of war." 
 
 By a decree of the Peruvian Government in 1866, coal and 
 provisions were declared contraband of war if destined for the 
 use of Spanish ships of war. 
 
 In a treaty between the Argentine Republic and Peru made 
 at Buenos Ayres in 1874,^ Article XXI provides : — 
 
 " The following articles shall be considered as contraband of war, the 
 transport of which and the trade in which shall be prohibited in time of 
 war : — 
 
 "(i) Pieces of artillery in all classes and calibres, the carriage and 
 utensils for their employment and projectiles, powder, bombs, torpedoes, 
 greek fire, congreve rockets, and other things destined for artillery and 
 musketry. 
 
 "(2) Shields, helmets, cuirasses, coats of mail, military equipments, 
 and uniforms. 
 
 " (3) Cavalry cartridges, belts, and horses with their harness. 
 
 " (4) Steam engines, fuel and appliances intended for the use of vessels 
 of war, and in general every kind of weapon of iron, steel, copper, 
 bronze, and any other manufactured materials prepared or formed 
 expressly for military or naval hostilities. 
 
 " (5) Victuals destined for hostile troops or fleets." 
 
 Here, not perhaps for the first time, but in the most formal 
 manner, the subjective feature of " intention " is brought in as a 
 factor in the problem of ascertaining whether goods are contra- 
 band or not. Naval stores (other than raw materials) and pro- 
 visions are declared contraband stcb modo. Unlike the British 
 rule, which provided an objective test — destination to a naval 
 port — the rule of the treaty above makes the question of intention 
 the governing criterion : which is clearly of much inferior value 
 as a protection to the neutral. 
 
 The legislative body of the Dominican Republic, by a law 
 passed in 1876,^ declared the following contraband of war : — 
 
 " Guns, rifles, muskets, and cartridges of whatever system, revolvers, 
 shots and caps which are not for fowling pieces." 
 
 By a decree of the Guatemala Government^ during the war 
 
 ' State Papers, Vol. LXIX, p. 701. 
 " Ibid., Vol. LXVIII, p. 663. 
 » Ibid., Vol. LXVII, p. 973. 
 
CONTRABAND 43 
 
 between Guatemala and Salvador the following articles were 
 declared contraband of war: — 
 
 "Arms of every kind, gunpowder and the materials used for its 
 manufacture, munitions of war and materials for their manufacture, and 
 soldiers' clothing." 
 
 By a proclamation made at Windsor in 1877,^ British subjects 
 were enjoined not to carry for the use of the belligerents (Russia 
 and Turkey) — 
 
 "Officers, soldiers, despatches, arms, ammunition, military stores or 
 materials, or any article or articles considered and deemed to be contra- 
 band of war according to the law or modern usage of nations, on the 
 penalty of being liable to hostile capture." 
 
 By a decree of the Government of Russia made in 1877,^ during 
 the war between Russia and Turkey, the following provisions as 
 to contraband were made : — 
 
 " Article VI. Sont reputes contrebande de guerre les objets suivants : — 
 " Les armes portative et d'artillerie, mont^es ou en pieces detachees ; 
 les munitions d'armes a feu telles que projectiles, fusses d'obus, balles, 
 amorces, cartouches, tubes de cartouches, poudre, salpetre, soufre ; le 
 materiel et les munitions de pieces explosibles telles que mines, torpilles, 
 dynamite, pyroniline et autres substances fulminantes ; le materiel de 
 I'artillerie, du genie et du train, tels que affuts, caissons, caisses de 
 cartouches, forges de campagne, cantines, pontons, etc., les objets 
 d'equipement et d'habillement militaire, tels que gibernes, cartouchieres, 
 sacs, cuirasses, outils de sape, tambours, selles et harnais, pieces d'habille- 
 ment militaire, tentes etc., et en general tons les objets des|:in6s aux 
 troupes de terre ou de mer." 
 
 " Ces objets, lorsqu'ils sont trouv6s a bord de navires neutres et destines 
 a un port ennemi peuvent fitre saisis et confisques, sauf la quantity qui 
 est necessaire au navire sur lequel est oper^e la saisie. 
 
 "Article VII. Sont assimil^s k la contrebande de guerre les actes 
 suivants interdits aux neutres : le transport de troupes ennemis celui de 
 d^pSches et de la correspondance de I'ennemi, la fourniture de navires de 
 guerre a Tennemi," 
 
 This is a remarkable document, signalizing a complete change 
 of front on the part of Russia, and forming a new departure 
 in the theory of contraband. Passing by the particularization 
 of modern explosives and weapons, which was scarcely to be 
 deprecated, we notice that it includes generally "tous les objets 
 destines aux troupes." This is really (unless "destines*' means 
 "specially adapted for") to bring in by implication the doctrine 
 of Intention : and to make anything confiscable which the captor 
 
 1 fh-d, Vol. LXVIII, p. 863. 
 
 2 /did, Vol. LXVIII, p. 924. 
 
44 COMMERCE IN WAR 
 
 can make out to be intended for the service of the belligererat 
 forces, without regard to its specially aggressive nature. It is 
 apparent, on even a cursory reading of the old lists, that they 
 never contemplated any such wide scope of the idea of contra- 
 band. Camp-kettles, maps, carts, spades — to give only a few 
 instances — are quite out of the range of what they include. The 
 new doctrine may perhaps be traced to the United States treaties 
 including uniforms. The old lists included coats of mail because 
 they had a fighting value. The United States began to include 
 clothes because they were meant for soldiers. 
 
 Here Russia still refrains from expressly including horses. 
 
 A notification was issued by the British Foreign Office in 
 1877, during the Russo-Turkish war,^ that to ships clearing from 
 ports in the United Kingdom with coals for Port Said on pro- 
 duction of shipping documents proving that the coal was intended 
 for commercial use, certificates of protection against seizure by 
 Russian cruisers would be issued by the Russian Consul-General, 
 
 In a proclamation of the Government of Denmark, made 
 during the Russo-Turkisth war in 1877," in addition to articles 
 declared contraband by the Ordinance of 1803,* Article VII 
 declares that — 
 
 " All such manufactured articles as could be directlif used in warfare " 
 
 shall be contraband. 
 
 By a proclamation of the Khedive of Egyipt made in 1882,* 
 during the rebellion in that country, the importation of .mumitions 
 of war and coal was foAidden on che littoral of the seat of war. 
 
 In 1885, during the course of a war betwfeen France and 
 China, the French Government intimated their intention to treat 
 rice destined for Chinese ports to the north of Canton as con- 
 traband of war. Lord Granville, in a letter* to the French 
 Ambassador of 27 February, 1885, has stated bis views upon 
 that intention : — 
 
 " I regret to have to inform you that H.M.'s Government feel coin- 
 pelled to take exception to the proposed measure, as they cannot admit 
 that, consistently with the law and practice of nations and with the rights 
 of neutrals, provisions in general can he treated as contrabaniS of war. 
 Her Majesty's Govertiment do not contest that under particular Circufti- 
 stances provisions may acquire that character, as, for instance, if they 
 should be consigned direct to the fleet of a belligerent or to a port where 
 such fleet may be lying, and facts should exist raising the presumption that 
 
 1 State Papers, Vol. LXVIII, p. 930. 
 
 2 ma., Vol. Lxvin, p. 614. 
 
 ' Hid., Vol. XLVIII, p. 305, and suira, p. 43. 
 * Ibid., Vol. LXXIV, p. 577. 
 6 Jbid., Vol. LXXVI, p. 437. 
 
CONTRABAND 45 
 
 they were about to be employed in victualling the fleet of the enemy. 
 la such case it is not denied that the belligerent would be entitled to 
 seize the provisions as contraband of war on the ground that they would 
 enable warlike operations to be carried on. 
 
 "But H.M.'s Government cannot admit that if such provision were 
 unsigned to the port of a belligerent (even though, it should be a 
 port of naval equipment) they could; therefore be necessarily regarded 
 as contraband of war. 
 
 " In the view of H.M.'s Government, the test appears to be whether 
 there are circumstances relative to any particular cargo or its destination 
 to displace the presumption that articles of this kind are intended for 
 the ordinary use of life, and to show,, prima facie at all events, that they 
 af e destined for mihtary use." 
 
 In reply to the above dfespatch, the French Ambassador quoted 
 a. statement of the Att.-Gen, (Collier) in the House of Commons 
 to the effect that contraband, mignt be classified as follows : 
 (i) Articles that serve directly for the purposes of war, such as 
 arms and munition. (2) Articles that may serve indirectly for the 
 purposes of war, namely, in prolonging hostilities, such as pro- 
 visions ; and roundly asserted the doctrine that it is for belligerents 
 to dtecide what is and what is not contraband of war. He adds : — 
 
 " L'importance du riz dans I'alimentation des populations et des armdes 
 Chinoises ne permetl^ait pas k mon Gouyernement d'en autoriser le trans- 
 port dans le Nord de la Chine sous peine de se priver d'un des precedes 
 du eoercition les plus puissants qui soient k sa disposition . . . et il a 
 pens^ qu'en I'etat du- drsit des gem sur la mati^re, rien, ne lui interdi- 
 sait d'arriver au double but qu'il poursuit ; mettre le, plus t6t possible 
 I'ennemi dans, rimpossibilite de continuer la lutteet manager autant que 
 ppssible I'interdt des neutres en declarant, que le riz serait traitd par la 
 France comme un article de contrebande de guerre." 
 
 The reply of Lord Granville to this despatch stated that the 
 British Government 
 
 "do not contest the genera! correctness of the view taken by the 
 Government of the Republic to the effect that it is for the Prize 
 Court to decide^ in the first instance, oni the legality' of the seizure, but 
 any such decision^ to be binding^ on neutral Governments must be in 
 accordance with the rules and principles of international law ; but H.M.'s 
 Government feel themselves bound to reserve their rights, by protesting 
 at once against tihe doctrine that it is for the belligerent to decide what 
 is and what is not contraband ofl war regardless oft the well-established 
 rjgrhts of neutrals." 
 
 He goes on to advert to a further contention of the French 
 Government that thig^ rice; was intended to be applied as a 
 tribute or subsidy to the Court of Pekin, and was therefore liable 
 to seizure as contraband, and proceeds :t— - 
 
 " I think it right to observe, in order to prevent any misapprehension, 
 
46 COMMERCE IN WAR 
 
 that the seizure of such shipments under a neutral flag would be incon- 
 sistent with the Declaration of Paris, which provides that the neutral flag 
 covers enemy's goods except contraband of war, and that H.M.'s Govern- 
 ment adhere in all respects to the views expressed in my Note of the 
 27th February last, protesting against rice being treated generally as 
 contraband of war, and that they will not consider themselves bound by 
 the decision of any Prize Court which should uphold a contrary opinion." 
 
 By a decree of the Government of Spain made in 1898^ the 
 following were declared contraband of war : — 
 
 "Cannons, machine guns, mortars, guns, all kinds of arms and fire- 
 arms, bullets, bombs, grenades, fuses, cartridges, matches, powder, sulphur, 
 saltpetre, dynamite, and every kind of explosive, articles of equipment, 
 like uniform, straps, saddles, and artillery and cavalry harness, engines 
 for ships and their accessories, shafts, screws, boilers, and other articles 
 used in the construction, repair; and arming of warships, and, in general, 
 all warlike instruments, utensils, tools, and other articles, and whatever 
 may hereafter be determined to be contraband." 
 
 By the instructions of the Admiralty Council of Russia, issued 
 September, 1900," the following articles are declared contraband 
 of war : — 
 
 "(a) All kinds of arms, small arms, and guns, both put together and 
 in parts. 
 
 "(6) Articles and stores required for shooting with firearms, such as 
 projectiles for guns, fuses for projectiles, bullets, caps, cartridges, cart- 
 ridge cases, powder, nitre, sulphur. 
 
 " (c) Objects or sujbstances used for causing explosions, such as 
 torpecioes and mines, dynamite, pyroxyline, and other explosive com- 
 pounds. 
 
 "(d) Articles belonging to artillery, engineer, and army train, such 
 as gun carriages, mountings, cartridge and ammunition chests or packs, 
 field smithies, field kitchens, instrument carts, pontoons, bridge trestles, 
 train harness, etc. 
 
 " (e) Articles of army equipment and clothing, such as wallets, cart- 
 ridge boxes, haversacks, bandoliers, cuirasses, entrenching tools, drums, 
 cooking kettles, saddles, horses' harness, finished articles of uniform, 
 tents, etc. 
 
 "(/) Sea-going vessels bound for an enemy's port, even under a 
 neutral merchant flag, if from the construction of their hulls, their 
 internal arrangements, and other evidences, it is clear Jttiey are con- 
 structed for warlike purposes, and are going to the enemy's port for sale 
 or delivery to the enemy. 
 
 "(^) In general, all other articles directly intended for war on land 
 or sea, if they are being conveyed on behalf of, or are destined for, the 
 enemy. 
 
 ' State Papers, Vol. XC, p. 159. 
 
 ' See " Regulations in regard to Naval Prizes," issued by the Printing Department of 
 the Russian Ministry of Marine, 1901 ; i6id., Vol. XCIV, 896. 
 
CONTRABAND 47 
 
 " By the expression ' destined for the enemy ' is understood conveying 
 to his fleet, to one of his ports, or even to a neutral port, if the latter 
 is shown by clear and indisputable evidence to be simply an intermediate 
 station on the way to the enemy, the latter being really the ultimate 
 destination. 
 
 "The following acts are considered to be on the same footing as 
 contraband of war, with the same consequences for a neutral vessel or 
 cargo : — 
 
 "(i) The transport of enemy's troops, military detachments, and 
 individual soldiers ; and 
 
 " (2) The conveyance of enemy's despatches, i.e. business correspond- 
 ence between enemy's chiefs and their agents who are on a ship or on 
 territory belonging to or occupied by the enemy." 
 
 By a notification published at Tokio 10 February, 1904,^ the 
 Japanese Government declared the following contraband of war. 
 The list of contraband is divided into two classes, the first class 
 being absolutely contraband ; the second class conditionally con- 
 traband : — 
 
 " First class. Military weapons, ammunition, explosives, and materials, 
 including lead, saltpetre, sulphur, etc., and machinery for making them ; 
 uniforms, naval and military, military accoutrements, armour - plated 
 machinery and materials for construction or equipment of ships of war, 
 and all other goods which, though not coming under this list, are intended 
 solely for use in war. Above-mentioned articles will be regarded as 
 contraband of war when passing through or destined for enemy's use. 
 
 " Second class. Provisions, drinks, horses, harness, fodder, vehicles, 
 coal, timber, coins, gold and silver bullion, and materials for construction 
 of telegraphs, telephones, railways. Above-mentioned articles will be 
 regarded as contraband of war when destined for enemy's army or navy, 
 or in such cases where, being goods arriving at enemy's territory, there 
 is reason to believe they are intended for use of enemy's army or navy." 
 
 The following order as to contraband of war was issued by 
 the Russian Government in February, 1904, for the purpose of 
 the Japanese war : — * 
 
 " The following articles are deemed to be contraband of war :— 
 
 "(l) Small arms of every kind, and guns mounted or in sections, as 
 well as armour plates. 
 
 " (2) Ammunition for firearms, such as projectiles, shell fuses, bullets, 
 priming, cartridges, cartridge cases, powder, saltpetre, sulphur, 
 
 "(3) Explosives and materials for causing explosions, such as 
 torpedoes, dynamite, pyroxyline, various explosive substances, wire 
 conductors, and everything used to explode mines and torpedoes. 
 
 " (4) Artillery, engineering and camp equipment, such as gun carriages, 
 ammunition waggons, boxes or packages of cartridges, field kitchens 
 
 ' "London Gazette," 19 February, 1904. 
 ' Ibid., II March, 1904. 
 
48 COMMERCE IN WAR 
 
 and forgesj instrument waggons, pontoons, bridge trestles, barbed wire, 
 harness, etc. 
 
 "(5) Articles of military equipment and clothing, such as bandoliers, 
 cartridge boxes, knapsacks, straps, cuirasses, entrenching tools, drums, 
 pots and pans, saddles, harness, completed parts of military uniforms, 
 tents, etc. 
 
 " (6) Vessels bound for an enemy's port, even if under a neutral com- 
 mercial flag, if it is apparent from their construction, interior fittings, and 
 other indications, that they have been built for warlike purposes, and are 
 proceeding to an enemy's port in order to be sold or handed over to the 
 enemy. 
 
 "(7) Boilers and every kind of naval machinery^ mounted or un- 
 mounted. 
 
 " (8) Every kind of fuel, such as coal, naphtha, alcohol, and other similar 
 materials. 
 
 "(9) Articles and materials for the installation of telegraphs, tele<- 
 phones, or for the construction of railroads. 
 
 "(lo) Generally, everything intended for warfare by sea or landj as 
 well as rice, provisions, and horses, beasts of burthen and others which 
 may be used for a warlike purpose if they are transported for the account 
 of, or are destined for, the enemy." 
 
 Iji the March) following this order instructions were issued to 
 commanders of warships for the inclusion in articles, contraband 
 of^ 
 
 "All kinds of grain, fish, fish products, beans, bean oil, and oil cakes. 
 To list of remaining articles intended for war are added machinery and 
 parts thereof intended for the manufacture of cannons, small arms, and 
 projectiles."^ 
 
 On the -^ April, 1904, the Russian Government issued an 
 order including raw cotton in the list of articles declared contra- 
 band of war.^ 
 
 It will be observed that there is not even a requirement that 
 the articles susceptible of a possible warlike use should be proved 
 to be intended for the belligerent army or navy. The word's 
 seem simply to require a transport "pour le compte ou a destina- 
 tion de I'ennemi."* They do not appear tO' imply that they must 
 be shipped on account of> or be destined, for, the enemy Govern- 
 ment. But the Supreme Tribunal at St. Petersburg {vide the 
 " Galchas," zn/ra, p; 87) informs us, what we should' not other- 
 wise have suspected, that " ennemt" means the enemy "Govern- 
 ment, contractors, army, navy, fortresses or naval harbours, and 
 not for private individuals." So interpreted, the code supplies 
 rather a good rule, for the ascertainment of the contraband 
 
 ' " London Gazette," 22 March, 1904. (Telegraphic summary.) 
 ^ See " London Gazette," 31 May, 1904. 
 
 = Clunet, " Journ. de Droit Int. Priv^," Vol. XXXI, p. 478. A diflferent version (iiid., 
 Vol. XXXII, p. 479) says, "aux frais ou d I'ordre de I'ennemi." 
 
CONTRABAND 49 
 
 character of prima facie innocent goods — a rule perfectly con- 
 sistent with the old principles of maritime law, which would have 
 condemned goods so consigned as enemy property. In such 
 cases, as the Court correctly remark, the onus of proof lies on 
 the claimant to show the nature of the ownership. 
 
 If such a rule be adopted, it minimizes very much the import- 
 ance of the controversy as to the true test of "occasional" 
 contraband. 
 
 It cannot be doubted, however, that on these principles the 
 Russian Court went a great deal too far in ordering the con- 
 demnation of the cotton on board the "Calchas." The sole 
 suggestion of a governmental interest in the property was derived 
 from the fact that the cotton was going to Kobe, and that there 
 was a military arsenal at Osaka. This was scarcely a case for 
 condemnation, or even of such definite suspicion as to warrant 
 calling on the claimants for further proof. Further proof seems 
 to have been allowed and none tendered. But it should not have 
 been required.^ Other part of the cargo consisted of logs, and 
 was confiscated under the sweeping words "articles and materials 
 for the installation of telegraphs, telephones, or for the con- 
 struction of railroads."^ It is absurd to treat rough logs as 
 being necessarily materials for telegraph or railway plant. Our 
 Admiralty Court never condemned rough timber, even when 
 it was pretty clear that it would be used for shipbuilding. 
 
 The table on pp. 54, 55 sets out the attitude manifested in their 
 treaties by the principal maritime Powers in relation to the con- 
 troversial point as to whether horses, money, ships, naval stores, 
 provisions, and troops were to be regarded as contraband. With 
 regard to horses, though in some few treaties they are not specifi- 
 cally mentioned, the uniform practice of the principal Powers 
 other than Russia — which, however, on the outbreak of hostilities 
 with Japan in 1904 for the first time included them in the list 
 of articles contraband — from the early part of the seventeenth 
 century down to the present time, has been to classify them as 
 contraband. 
 
 We find that during the seventeenth century money or bullion 
 was, in four treaties to which Great Britain was a party, declared 
 contraband, and in two expressly excluded. During the eighteenth 
 century it was never expressly included in any of her treaties, 
 ^and in two, with France, it was expressly excluded. In the nine- 
 teenth century, viz. in a treaty with Sweden, and again in 1861 
 in a treaty with the United States, it was expressly included, and 
 in all other treaties to which she was a party, not mentioned. 
 
 1 See on the case further, p. 87, infra. 
 = Art. IX, supra. 
 
so COMMERCE IN WAR 
 
 France in her treaties has never included bullion or money as 
 contraband ; but in four treaties, three of which were with Great 
 Britain and one with the United States, money was expressly 
 excluded. Of the other Powers, Sweden three times in treaties 
 with Great Britain, Spain once in 1604, and Holland once in 
 1654, expressly included money. In the treaties of other countries 
 we find no mention of money or bullion. 
 
 Subject to the following exceptions, the practice of all nations 
 seems to have been to exclude ships from the category of contra- 
 band within their treaties. The noticeable exceptions were in the 
 seventeenth century in the case of two treaties between Great 
 Britain and Holland, and three treaties between Great Britain 
 and Sweden, In a treaty made in 1803 between Great Britain and 
 Sweden ships are expressly mentioned as being contraband. 
 
 In 1625, Great Britain in a treaty with Holland expressly 
 included naval stores ; but from that date until 1 805 they were 
 never included in her treaties as contraband. However, in the 
 following treaties made by her, viz. that of 1805 with the United 
 States, of 1809 with Portugal, and of 1827 with Brazil, naval 
 stores are expressly included as contraband ; while, on the other 
 hand, in treaties of 1674 with Holland, and 1677 with France, 
 they are expressly excluded. France in only two treaties appears 
 to have expressly included them as contraband, viz. in that of 
 1655 with the Hanseatic League, and in 1742 with Denmark. 
 France has, save on two occasions, viz. in 1655 and 1742, con- 
 sistently excluded naval stores from the category in contraband. 
 The United States of America has, on two occasions at least, 
 included them, viz. in a treaty with Great Britain in 1806, and 
 by proclamation in 1861. Russia, in 1877 and 1904, declared 
 naval stores to be contraband, but her treaties from the eighteenth 
 century onward contain no mention thereof. 
 
 During the first half of the seventeeth century Great Britain, 
 Spain, Sweden, and Holland, by their treaties, expressly included 
 provisions in the category of contraband. From that time 
 onward down to the latter part of the eighteenth century they 
 expressly excluded them, and thenceforward no mention of 
 provisions appears in any of their treaties, save in one with the 
 United States in 1861, where they are expressly included. None 
 other of the maritime Powers ever included provisions as contra- 
 band in their treaties. 
 
 In the treaties of the seventeenth century troops are generally 
 expressly included as of the nature of contraband ; but after that 
 period, save in the solitary case of a treaty between Great 
 Britain and Sweden in 1803, where they are expressly ihcluded, 
 no mention of troops is made. 
 
CONTRABAND 51 
 
 A review of the treaties between the principal maritime Powers 
 demonstrates a general tendency towards the limitation of con- 
 traband to articles essentially intended for military and naval 
 purposes, and establishes that the treaty policy of France and 
 Russia, with occasional aberrations, has been in the direction 
 of confining cpntraband within the narrowest possible limits. 
 Great Britain, on the other hand, has almost uniformly — in con- 
 sequence, doubtless, of her great naval power — shown a marked 
 inclination to widen the ambit of contraband and extend it to 
 articles ancipitis usus ; but it would not be proper to regard the 
 treaties into which she entered as indicating her general policy 
 in relation to contraband: her treaties in no small degree reflected 
 the policy which it was her interest to pursue in relation to the 
 countries with which she from time to time made them. 
 
 It is usual for belligerents on the commencement of war to 
 indicate the goods which they propose to regard as contraband 
 either absolute or conditional. Here again the circumstances 
 of each war constitute, within limitations, the deciding factor 
 as to what the belligerent elects to treat as contraband. In 1861 
 the United States, on the outbreak of war with the Confederate 
 States, specified horses, money, naval stores, provisions, and 
 troops as absolute contraband. On the other hand, Great Britain, 
 during the past hundred years, has avoided committing herself 
 to any full definition as to what things she will regard as contra- 
 band. Nevertheless, in 1904, when Russia at the commence- 
 ment of her war with Japan included coal among articles of 
 absolute contraband, Great Britain vigorously protested, and Lord 
 Lansdowne, the Foreign Secretary, in a letter to the London 
 Chamber of Commerce, thus expressed the views of the British 
 Government as to the attitude of Russia in respect of her classi- 
 fication of contraband, more especially in relation to coal and 
 cotton. Referring to Articles VI and VII of the Russian Order 
 of 28 February, 1904, as to contraband, he observes : — 
 
 " On the 1 8th March the Russian Government published instructions 
 to the commanders of their warships, from which it appeared that 
 additions had been made to paragraph 10 of Article VI, so as to include, 
 under the head of provisions, forage, all kinds of grain, fish, fish products, 
 beans, bean oil, and oil cakes, and to the list of remaining articles for use 
 in war were added machinery and parts thereof intended for the manu- 
 facture of cannons, small arms, and projectiles. A Notice to this effect 
 was published in the 'London Gazette' of the 22nd March, of which 
 a copy is enclosed, 
 
 "On the 9th May following, His Majesty's Chargd d'Affaires at 
 St. Petersburg reported by telegraph that cotton had been added to the 
 list of articles declared to be contraband. As this was the first occasion, 
 so far as Lord Lansdowne was aware, that this article had been so 
 
52 COMMERCE IN WAR 
 
 described, inquiries were at once instituted at St. Petersburgh, as a result 
 of which it transpired that the declaration applied only to raw cotton 
 'suitable for the manufacture of explosives,' and not to cotton yarns 
 or tissues. Notices relating to this Order were duly published in the 
 ' London Gazettes' of the lOth and 31st May last (see copies enclosed). 
 
 " Now, although a very large majority of the articles enumerated in 
 the ten paragraphs of Rule 6 are unquestionably such as would be 
 generally admitted to have an absolutely contraband character, the list 
 included other articles, notably coal, naphtha, alcohol, rice, provisions, 
 horses and beasts of burden, which are susceptible of use for peaceful 
 as well as warlike purposes, and cotton falls under the same category. 
 Inquiries were therefore at once instituted at St. Petersburgh, in order 
 to ascertain whether the order implied that these articles were all regarded 
 as unconditionally contraband. 
 
 "The Russian Government replied that this was the case, and His 
 Majesty's Government thereupon expressed their great surprise and 
 concern at this announcement. They did not contest that, in particular 
 circumstances, provisions might acquire a contraband character, as, for 
 instance, if they should be consigned direct to the army or fleet of a 
 belligerent, or to a port where such fleet might be lying, or if facts should 
 exist which raised the presumption that they were to be employed in 
 victualling the fleet of the enemy. In such cases, it was not denied that 
 the belligerent would be entitled to seize provisions as contraband, on the 
 ground that they would afford material assistance towards the carrying 
 on of warlike operations. It was pointed out that the real test appeared 
 to be whether there were circumstances relating to any particular cargo 
 to show that it was destined for military or naval uses ; but that to treat 
 such articles as unconditionally contraband, was a step which His 
 Majesty's Government regarded as inconsistent with the law and practice 
 of nations. They further stated that they would not consider them- 
 selves bound to recognize as valid any decisions inconsistent with these 
 principles, or otherwise not in conformity with the recognized principles 
 of international law, which might be given by the Russian Prize Courts. 
 It will doubtless be within the recollection of your Chamber that this 
 statement was publicly reiterated both by Lord Lansdowne in the House 
 of Lotds and by the Prime Minister in the House of Commons on 
 nth August last. 
 
 " It is proper, however, to observe that a decision of a Prize Court 
 must be understood to mean, not merely the decision of a Court of First 
 Instance, such as those established at Vladivostock, Libau, and elsewhere, 
 but that of the Supreme Admiralty Council at St. Petersburgh, to which 
 appeal lies from the inferior Courts, just as, in this country, appeal lies 
 from the finding of a Vice-Admiralty Court to the Judicial Committee 
 of the Privy Council, and the usual legal remedies should as a rule be 
 exhausted before diplomatic intervention can properly be invoked. 
 
 " With regard to the question of coal and the other articles of fuel 
 enumerated in paragraph 8 of Rule 6, His Majesty's Government repre- 
 sented that the treatment of this article by Russia as unconditionally 
 contraband was diametrically opposed to the declaration made by the 
 Russian Plenipotentiary at the West African Conference held at Berlin 
 in 1884, who stated that his instructions were peremptory, and that his 
 Government refused categorically to consent to any Treaty, Convention, 
 
CONTRABAND jj 
 
 or Declaration of any kind which would imply the j'^gognition of coal a& 
 contraband of war. His Majesty's Government accordingly urged that, 
 like food-stuffs, coal should only be regarded as contraband when it was 
 clearly intended for use by the military or naval forces of the enemy, 
 and not merely because it was consigned for innocent or commercial 
 purposes to private traders in the enemy country. 
 
 " His Majesty's Ambassador at St. Petersburgh has also urged upon 
 the Russian Government the unfairness of treating raw cotton as un- 
 conditionally contraband. He has pointed out that the quantity of this 
 article which might be utilized for the manufacture of explosives would, 
 be infinitesimal in comparison with the bulk of raw cotton exported froni 
 India and elsewhere to Japan for peaceful purposes, and that to treat 
 harmless cargoes of this latter description as unconditionally contraband 
 would amount to subjecting a branch of innocent commerce, which is 
 specially important in the Far East, to a most unwarrantable inter- 
 ference. 
 
 " The Russian Government have met all these representations, as well 
 as others which His Majesty's Government and that of the United 
 States have thought proper to address to them, in a conciliatory manner, 
 and it is satisfactory that they should have conceded one of the most 
 important principles for which His Majesty's Government have contended, 
 viz. that rice and provisions, mentioned in paragraph lO of Rule 6, as 
 well as articles not enumerated in paragraphs i to g, but which may 
 be put to warlike use, will henceforth be regarded only as conditionally 
 contraband, according to the use to which they are to be applied. The 
 onus of proof in such cases would lie with the captor, but it would 
 obviously be in the interests of the owner to be prepared with evidence 
 sufficient to displace any prima facie case which might be made against 
 them. It is understood that Russian Naval commanders have been 
 recently furnished with supplementary instructions, which His Majest/s 
 Government have every reason to believe will be interpreted in a liberal 
 spirit, and will result in their exercising their belligerents' rights for the 
 future in a less rigorous and vexatious manner." 
 
 In the precise words^ used by Lord Granville in 1885, his 
 successor of 1905 says that " H.M. Government did not contest 
 that, in particular circumstances, provisions might acquire a 
 contraband character, as, for instance, if they should be con- 
 signed direct to the [army or] fleet of a belligerent, or to a port 
 where such fleet may be lying." But whereas the Foreign 
 Secretary of 1885 qualified this, by adding the words "and facts 
 should exist causing the presumption that they were about to 
 be employed in victualling the fleet of the enemy," the Foreign 
 Secretary of 1905 boldly changes "and" into " or^' and thereby 
 admits that it does not matter where the goods are consigned 
 if there is any ground for thinking that they are about to be 
 employed as naval victuals. Lord Granville certainly went on to 
 say that the test of the contraband character of provisions was 
 
 " Supra, p. 44. 
 
54 
 
 COMMERCE IN WAR 
 
 whether there existed circumstances sufficient to rebut, in a 
 particular case, the presumption of innocence. But that he 
 contemplated very extraordinary circumstances indeed, is plain 
 from the fact that he was not prepared to admit that actual 
 destination for a port of naval equipment was, of itself, enough. 
 
 One may ask whether the opinion of the older statesman was 
 not the more satisfactory. 
 
 The following analysis of diplomatic documents may prove 
 convenient : — 
 
 Horses. Money. 
 
 1 179. Lateran Council ... 
 
 1604. Britain, Spain, Burgundy - • X 
 
 1614. Sweden, Holland (alliance) • x 
 
 1625. Britain „ „ . [Bullion?] 
 
 1640. France „ - ■ x 
 
 1642. Britain, Portugal (recognition) • 
 
 1642. Spain, Hanseatic League — — 
 
 1646. France, Holland - x 
 
 1647. Spain, Hanseatic League — — 
 i6so(?) Spain, Holland - x 
 1654. Britain, Sweden - — — 
 1656. „ „ (supplementary) x x 
 1661. „ „ „ X X 
 
 1654. Britain, Holland - • x 
 
 1655. France, Hanseatic League x 
 1655. „ Britain - - x 
 1659. „ Spain ' X 
 
 1661. Portugal, Holland — — 
 
 1662. France, Holland - - x 
 
 1667. Britain, Spain - x 
 
 1668. „ Holland x 
 1670. „ Denmark — — 
 1674. „ Holland - x o 
 
 1677. „ France - - x o 
 
 1678. Holland „ . . x 
 
 1681. France (ordinance) - x 
 
 1682. Britain, Algiers — — 
 1701. Denmark, Holland - - x 
 1713. France, Britain - x o 
 
 Ships. 
 
 Naval 
 Stores. 
 
 (Timber) 
 
 1713, 
 1716. 
 1720. 
 
 1739- 
 1742. 
 1766. 
 1778. 
 1780. 
 1780. 
 1782. 
 
 1785. 
 1786. 
 1787. 
 1800. 
 1 801. 
 1801. 
 1803. 
 
 „ Holland 
 „ Hanse Towns 
 Sweden, Britain 
 France, Holland 
 France, Denmark 
 Britain, Russia 
 France, U.^.A. 
 Russia (ordinance) - 
 Sweden, Russia 
 Portugal, Russia, Holland, 
 
 U.S.A. 
 Denmark, Russia 
 U.S.A., Prussia 
 Britain, France 
 Russia, Two Sicilies 
 
 „ Sweden 
 
 „ Britain 
 Denmark, Britain 
 Britain, Sweden 
 
 X 
 X 
 
 Provi- 
 sions. 
 
 X 
 X 
 X 
 
 [No definition] 
 
 [No full definition] 
 
 [No definition] 
 
 X 
 X 
 X 
 
 X 
 
 [No definition] — — 
 
 X 
 X 
 
 o 
 
 [No definition] 
 O 
 O 
 
 (Timber) 
 
 X 
 
 O 
 
 (and Timber) 
 
 O 
 O 
 O 
 
 O 
 O 
 O 
 
 O 
 O 
 
 O 
 O 
 
 [Q] 
 
 Troops. 
 
 X 
 
 X 
 
 X 
 
 (?) 
 
CONTRABAND 
 
 55 
 
 Horses. Money. Ships. ™^ 
 
 Naval Provi- 
 
 Troops. 
 
 1806. Britain, U.S.A. 
 1809. „ Portugal 
 
 1810. 
 
 1 81 8. Denmark, Prussia 
 
 1825. U.S.A., Central American 
 
 Federation 
 
 1826. France, Brazil 
 
 1827. Prussia „ 
 
 1827. Britain „ 
 
 1828. Denmark „ 
 
 1 83 1. U.S.A., Mexico 
 
 1832. Hanse Towns 
 
 1833. U.S.A., Chili 
 1836. „ Venezuela 
 
 1847. Hanse Towns, Guatemala 
 
 1852. Peru, U.S.A. 
 
 1854. France and Britain (de- 
 claration) 
 
 1854. Lubeck (proclamation) 
 
 1854. Sweden (ordinance) 
 
 1856. France, Honduras 
 
 1859. France, Nicaragua 
 
 1861. Britain (proclamation) 
 
 1861. U.S.A. (declaration) 
 
 1864. Prussia (proclamation) 
 
 1864. [Canada] (proclamation) 
 
 1864. Denmark (proclamation) 
 
 1864. Austria (ordinance) 
 
 1864. U.S.A., Hayti 
 
 1865. U.S.A. (proclamation) 
 
 1866. Spain (declaration) 
 1866. Peru (declaration) 
 1870. France (declaration) 
 1874. Peru, Argentine 
 1876. Dominica (statute) 
 
 1876. Guatemala (decree) - 
 
 1877. Britain (proclamation) 
 1877. Russia (decree) 
 
 1877. Denmark (supplem.) pro- 
 clamation 
 
 1885. France (declaration) 
 
 1895. Russia (regulation) 
 
 1898. Spain (decree) 
 
 X [And all things made contraband by any former 
 treaties of either Power, if in the form of 
 warlike instruments] 
 
 X 
 X 
 
 [No full definition] 
 
 — — [No full definition] — — 
 
 X X • X XX 
 
 — [No full definition] 
 -[ » ,. ] 
 
 [Q] [Q] 
 
 [No full definition] — 
 
 X 
 
 [Q] 
 
 [No full definition] 
 [Q] — 
 
 ■ = Not mentioned. x = Contraband. O = Expressly exempted. 
 
 [q] = Included in a qualified sense (usually depending on the intention to make the articles 
 subserve military ends). 
 
 Turning from the special consideration of treaties and ordin- 
 ances to a general review of the policy pursued by the principal 
 maritime Powers in relation to contraband, we may in the first 
 place observe that the decisions of Admiralty Courts generally 
 reflect the policy in relation to international law which is pursued 
 in the countries to which they belong. 
 
 Thus we find that the decisions of the Court of Admiralty in 
 England have, with rare exceptions, proceeded in the direction 
 
56 COMMERCE IN WAR 
 
 of extending the list of contraband to its widest possible limits. 
 In 1674, at a time when the naval power of England was less 
 formidable, we find some departure from this attitude, and 
 Sir Leoline Jenkins, in refusing to recognize the contraband 
 character of pitch and tar, declared that only " what is directly 
 and immediately subservient to the uses of war ought to be 
 regarded as contraband, except in the case of besieged places." 
 A century later, when the naval power of England had again 
 become formidable, we find pitch, tar, hemp, sails, sailcloth, 
 masts, copper sheathing, anchors, and practically every article 
 of ships' equipment adjudged to fall within the category of 
 absolute contraband ; while grain, flour, biscuits, wine, cheese, 
 money, bullion, and many other articles of ordinary commercial 
 use, were held to be contraband if destined for a naval or military 
 port or a place contiguous thereto, or consigned to the use of the 
 naval or military forces of the belligerent enemy. 
 
 It may be asserted with some confidence that the ratio decidendi 
 observed by the English Court of Admiralty in relation to goods 
 ancipitis usus, and not included, like horses,- in the list of absolute 
 contraband, has been to apply, as a test whether or no they be 
 contraband, what may be the destination of the commodities. If, 
 on the one hand, they are being carried to a naval or military 
 station or, on the other hand, they are in direct transit to the 
 belligerent enemy's forces, then, with little or no regard to the 
 character of the goods, the Court would adjudge them to be 
 contraband. ^ 
 
 The Courts of the United States of America have generally 
 adopted the theory and practice of contraband as recognized 
 in England, and in the comparatively few decisions which they 
 have given upon the law of contraband they have followed the 
 judgments of the English Courts, and the reasoning upon which 
 they were founded. As to provisions, they have laid down 
 in definite terms that provisions, when their destination is to 
 naval ports or the military or naval forces of the enemy, are 
 contraband.^ It must not, however, be overlooked that the 
 United States in 1861' made a very broad declaration of contra- 
 band, including provisions, clothing, money, and "goods and 
 commodities which might be useful to the enemy in war." On 
 the other hand, when reopening trade with the Southern States 
 she limited contraband to arms, ammunition, articles from which 
 ammunition is made, and gray uniforms and cloth.* 
 
 ' The " Jonge Margaretha," i C. Rob. at p. 194. 
 
 ''■ Vide infra, p. 80. 
 
 5 Vide supra, p. 39. 
 
 « Hertslet's "Treaties," Vol. XII, p. 946. 
 
CONTRABAND 57 
 
 The kingdom of Spain has in respect of its legislation and 
 judicial decisions displayed a tendency to limit contraband within 
 the compass of things exclusively applicable to the purposes of 
 war, and they attach a contraband character to provisions only 
 when in course of transit to a blockaded or besieged place. Still, 
 it cannot be doubted that naval stores, horses, marine engines, 
 and other things which possess a special value in war she would 
 treat as contraband wherever possible. 
 
 France, with one or two remarkable aberrations, has consis- 
 tently sought to restrain within the narrowest limits the doctrine 
 of contraband. Reference to the treaties into which she entered 
 during the seventeenth, eighteenth, and nineteenth centuries show 
 that she confined contraband of war to arms, munitions of war, 
 saltpetre, and horses with their harness. She refused to recognize 
 coal as contraband, even though destined for warlike purposes, 
 and the decisions of the Conseil des Prises have rarely conflicted 
 with the general policy of the State to confine contraband to "les 
 objets transport's a I'un des bellig'rants dans le but de faciliter 
 les operations militaires et dont il pourra se servir pour faire la 
 guerre."^ It is true that on rare occasions the law of France has 
 not shrunk from recognizing as contraband articles of less primary 
 warlike use, according to the purposes to which they were to be 
 applied. Calvo^ thus describes this class of contraband : " Con- 
 trebande conventionelle qui est d'noncde par des conventions ou 
 des declarations particulieres, des r'glements speciaux, variables 
 par consequent suivant les circonstances, les besoins, les engage- 
 ments mutuels des parties." 
 
 But France has with great steadiness maintained the policy 
 regarding contraband declared in the Ordonnance de la Marine 
 issued in 1681, by which she confined contraband to "weapons, 
 powder, bullets, and other munitions of war, with horses and their 
 harness." In 1854, when in alliance with England, she issued 
 a notification containing the following list of contraband : — 
 
 " Les bouches et les armes a feu, les armes blanches, les projectiles, 
 la poudre, le salpStre, le soufre, les objets d'dquipement, de campement et 
 de harnachement militaire, ainsi que tous les instruments quelconques 
 fabriques a I'usage de la guerre lorsqu'ils sent destines k I'ennemi." 
 
 In the later wars, including that of 1870,^ with general con- 
 sistency she has followed the precedent of her ordinance of 1681. 
 
 Having stated in general terms the policy of the various 
 nations which have had experience of maritime conflicts, let us 
 
 ' Bluntschli, " Le Droit International R&gle," p. 802. 
 
 ' Vol. V, sec. 2739. 
 
 ' Vide Barboux, " Jurisp. du Conseil des Prises," 1870-71 ; Appendix, Art. VIII 
 
58 COMMERCE IN WAR 
 
 consider their history in more detail. A careful examination of 
 the decisions of the English Court of Admiralty demonstrates 
 that, with occasional interruptions, the policy of the Court has 
 been in the direction of extending the rights of belligerents 
 rather than in that of protecting the rights of neutrals. It has, 
 in common with the general trend of juridical opinion in Europe, 
 accepted the tripartite division of Grotius as a basis ; but its 
 conception of absolute contraband soon ceased to correspond 
 to Grotius' conception of things solely useful in war (if indeed it 
 ever did so), and departed from that conception to a degree that 
 other European States have not attempted to follow, though not 
 even France maintains it in its absolute integrity. 
 
 From the latter part of the eighteenth century the English 
 Court has classed tar, pitch, deals fit for naval purposes, copper 
 sheets for sheathing ships, ships' masts and spars, sailcloth, hemp, 
 and anchors as absolute contraband. These articles, of course, 
 fall properly within the definition of ancipitis usus, but they were 
 also of immediate and special value for the purposes of war. It 
 may be observed that many of these articles have, for the 
 purposes of modern warfare, lost all or the greater part of their 
 value ; thus masts and sailcloth are practically obsolete for naval 
 purposes, and it may be doubted whether any reason exists for 
 retaining them and certain other articles in the list of contraband 
 contained in the manual of instructions issued by the Admiralty 
 to naval officers.^ 
 
 The era of steam and the advance of science have superseded 
 masts, spars, and sailcloth by coal, engines, boilers, and other 
 elements of machinery, and accordingly we find in the instructions 
 issued to naval ofiicers by foreign Powers and in our own 
 manual of Naval Prize Law issued in 1888 by the Admiralty, 
 an exhaustive list of goods, the products of modern invention, 
 which are to be regarded as either absolutely or conditionally 
 contraband. It may be noted that the publication of this manual, 
 which is intended for the instruction of naval officers, has been 
 discontinued from motives of public policy, but it may be 
 assumed that the category of contraband articles has not been 
 materially varied, unless by the inclusion of turbines and other 
 modern machinery. The manual deals as follows with the question 
 of contraband : — 
 
 " In order that goods may be contraband two conditions are neces- 
 sary : (i) The goods must be fit for the purposes of war exclusively, or 
 for purposes of war as well as of peace. (2) They must be destined for 
 the use of the enemy in war. . . . All goods fit for purposes of war only, 
 
 1 Bismarck is credited with the opinion that such goods have ceased to have a 
 contraband character. 
 
CONTRABAND 59 
 
 and certain other goods which, though fit also for the purposes of peace, 
 are in their nature peculiarly serviceable to the enemy in war on board 
 a vessel which has a hostile destination, are absolutely contraband. 
 
 " The list of goods absolutely contraband comprises : — 
 
 " Arms of all kinds, and machinery for manufacturing arms. 
 
 " Ammunition and material for ammunition, including lead, sulphate 
 of potash, muriate of potash (chloride of potassium), chlorate of potash, 
 and nitrate of soda. 
 
 "Gunpowder and its materials — saltpetre and brimstone — also gun- 
 cotton. 
 
 " Military equipments and clothing. 
 
 " Military stores. 
 
 " Naval stores such as masts, spars, rudders, and ship timber, hemp 
 and cordage, sailcloth, pitch and tar ; copper fit for sheathing vessels ; 
 marine engines and the component parts thereof, including screw 
 propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for 
 boilers, boiler plates, and fire bars; marine cement and the materials 
 used in the manufacture thereof, as blue lias and portland cement ; iron 
 in any of the following forms : anchors, rivet iron, angle iron, round bar 
 if from f to i of an inch diameter, rivets, strips of iron, sheet plate iron 
 exceeding J of an inch, and ' low moor ' and bowling plates. 
 
 " Goods conditionally contraband : — 
 
 "All goods fit for purposes of war and peace alike (not hereinbefore 
 specified as absolutely contraband) on board a vessel which has a hostile 
 destination, are conditionally contraband ; that is, they are contraband 
 only in case it may be presumed that they are intended to be used for 
 purposes of war ; this presumption arises when such hostile destination 
 of the vessel is either the enemy's fleet at sea or a hostile port used 
 exclusively or mainly for naval or military equipment. 
 
 " The list of goods conditionally contraband is : — 
 
 " Provisions and liquors fit for the consumption of army or navy. 
 
 " Money. 
 
 "Telegraphic materials such as wire, porous cups, platina, sulphuric 
 acid, and zinc ; materials for the construction of railways, as iron bars, 
 sleepers, etc. 
 
 " Coals. 
 
 " Hay. 
 
 " Horses. 
 
 " Rosin. 
 
 " Tallow. 
 
 " Timber." 
 
 It should be noted that the British Government treat coal as 
 conditionally contraband. It is not easy, in view of the essential 
 part that coal takes in navigation, to appreciate the principle upon 
 which sailcloth, obviously an article ancipitis usus, is classed as 
 absolute, and coal merely as conditional contraband, except on the 
 ground that coal is not only of marine, but of universal and all- 
 important civil, use. For the latter reason the British view as to 
 coal is probably the most convenient and therefore the most accept- 
 able, for the requirements of commerce and manufactures render 
 
6o COMMERCE IN WAR 
 
 coal an article of prime necessity, and some countries are partially 
 or wholly dependent upon its import for the maintenance of their 
 manufacturing industries. During the Franco-German war the 
 action of British merchants in exporting large quantities of coal 
 to France was the subject of a sharp protest by Prince Bismarck/ 
 and it is probable that Germany will, in the event of her being 
 concerned in war with a naval Power, insist upon the character 
 of absolute contraband being assigned to coal. France, on the 
 other hand, has consistently contended that coal should not be 
 regarded as contraband.^ 
 
 The Russian Government in 1884, by its plenipotentiary at 
 the conference held at Berlin respecting the Affairs of Africa/ 
 peremptorily protested against the proposal of Great Britain to 
 include coal as contraband of war. He observed : — 
 
 " Je veux parler de la proposition Anglaise (voir Annexe No. 10 au 
 Rapport) dans laquelle la houille se trouverait rangde parmi les articles 
 devant Stre consid^rds en vertu du droit des gens corarae contrebande de 
 guerre. 
 
 "Sans vouloir en aucune fagon soulever ici un d6bat k ce sujet je dois 
 declarer, pour me conformer a mes instructions, que le Gouvernement 
 Imperial de Russia n'accepterait en aucun cas une telle interpretation. 
 
 "Suf ce point mes instructions sont peremptoires. Le Gouvernement 
 que j'ai I'honneur de representer ici refuserait categoriquement son assenti- 
 ment a I'Article d'un traitd, d'une Convention ou d'un Acte quelconque, 
 qui impliquerait la reconnaisance de la houille ou du charbon comme 
 contrebande de guerre." 
 
 Nothing could have been more precise or more specific than 
 this declaration of Count Rapnist, and yet within ten years from 
 the date thereof the Russian Government, on the outbreak of 
 hostilities with Japan, declares without reservation coal to be 
 contraband. 
 
 The question whether or no coal should be classed as contra- 
 band has not yet been submitted to an English Court. Lord 
 Justice Cockburn extra-judicially observed:* "Coal, too, though 
 in its nature ancipitis usus, yet when intended to contribute to the 
 motive power of a vessel must, I think, as well as machinery, 
 be placed in the same category as masts and sails, which have 
 always been placed among articles of contraband." It has been 
 observed that masts and sails have almost uniformly been held 
 to be absolute contraband, therefore the Lord Chief Justice 
 would seem to indicate that coal should be so regarded. But 
 
 ' State Papers, Vol. LX, p. 895. 
 
 2 The " Moniteur," 29 May, 1859 ; "Journal Officiel," 1870. 
 
 ' State Papers, Vol. LXXV, p. 1235. 
 
 ■* Parliamentary Papers, America, 1873, No. 2, p. 15. 
 
CONTRABAND 6i 
 
 it is highly improbable that a British Court would so hold, or 
 go any further than declaring it contraband when in transit for 
 the naval port or fleet of a belligerent. 
 
 The doctrine of the English Courts with regard to provisions 
 is that they are only contraband when destined for a naval port 
 or in transit to a naval armament. The decision of Sir W. Scott 
 in 1799^ that the destination is the true test to be applied can 
 hardly be doubted to be that which will in the future govern 
 our Courts, although it may receive a somewhat liberal con- 
 struction. The attempts which have from time to time been 
 made by belligerents to extend the application of contraband 
 to provisions destined to supply the requirements of the civil 
 population of a belligerent country has not received, and prob- 
 ably will never receive, judicial sanction. The American Courts 
 have adopted the same view, and in 1814 Story J. thus con- 
 cisely stated the rule which should govern the question as to 
 whether or no they are contraband: "If destined for the ordinary 
 use of life in the enemy's country they are not in general contra- 
 band, but it is otherwise if destined for military use. Hence, 
 if immediately destined for the army or navy of the enemy, or 
 for his ports of naval or military equipment, they are deemed 
 contraband."^ France has, apart from her retaliatory declaration 
 against Great Britain in 1793,^ and her remarkable action in 
 relation to rice during the Franco-Chinese war,* uniformly in- 
 sisted upon the non-contraband character of provisions ; but 
 instances are not wanting to show that she is not prepared to 
 apply this doctrine in practice to the extent of permitting pro- 
 visions to enter freely the naval port or to supply the army of 
 a belligerent enemy. 
 
 During the course of her war with Japan, Russia, by her 
 supreme tribunal, boldly declared cotton in transit for Japan — its 
 destination being to a commercial port, or at any rate a port only 
 incidentally used for naval purposes — to be contraband.* There 
 was no precedent for this action. It is true that during the 
 American Civil War of 1861 the United States Government 
 declared cotton to be contraband, but herein they acted on the 
 basis that it constituted munitions of war in the same sense that 
 coin or bullion has been held to be so when destined for the 
 purpose of carrying on war, the Confederate States having 
 negotiated loans for belligerent purposes on the security of 
 cotton.^ Russia sought to justify her action on the ground that 
 
 ' Vide infra, p. 72. ^ The " Comtnercen," vide infra, p. 80. 
 
 3 Vide supra, p. 28. * Supra, p. 44. 
 
 5 The " Calchas," vide infra, p. 87. 
 
 « Cf. the ground alleged for the French treatment of rice in 1885, i.e. that it was 
 equivalent to tribute in currency. 
 
62 COMMERCE IN WAR 
 
 cotton falls within the same principle that governs saltpetre and 
 sulphur, which have consistently been held contraband because 
 they are ingredients (of less comparative civil usefulness than 
 charcoal) in the manufacture of gunpowder ; if cotton were 
 destined for a naval port it would be extremely difficult to 
 negative the propriety of its classification as contraband, even 
 though the quantity carried were enormously in excess of what 
 could possibly be required for the manufacture of explosives, and 
 for this reason : — the right of the belligerent to interdict the 
 carriage of certain goods to the enemy is founded on the con- 
 sideration that such goods may directly assist the enemy in his 
 hostile operations, and the fact that only a small fraction thereof 
 could be of practical service can in no sense disentitle the 
 belligerent to prevent the access of the whole, which per my et 
 per tout is capable of being used for hostile purposes. 
 
 If the belligerent is thus entitled to confiscate, irrespectively 
 of the importer's intention, it becomes, as Dana remarks, very 
 difficult to justify, conversely, the concession to him of the right 
 to confiscate goods not otherwise confiscable, simply on account 
 of the intention of the importer to make them subservient to 
 belligerent operations. 
 
 It has already been observed that in deciding whether articles 
 ancipitis usus are contraband the Court applies the test what may 
 be the destination of the ship, viz. whether to a naval port or 
 to an enemy's ships of war, or to some harbour or port imme- 
 diately adjacent thereto, and which may therefore be a place 
 of equally convenient supply to the enemy. In one case in 
 1805^ Sir W. Scott held that cheese being carried to Corunna 
 was contraband, because, if Corunna were not itself a naval port, 
 it was in such close proximity to Ferrol, being situate in the 
 same bay, that it might be immediately and in the same convey- 
 ance carried to Ferrol. In a former case, the "Frau Margaretha,"^ 
 he held that inasmuch as the destination of the ship was to a 
 commercial port (Quimper), the fact that it was contiguous to 
 a naval port (Brest) was not sufficient to make the cargo contra- 
 band, since it was separated therefrom by a promontory "so as not 
 to admit of an immediate communication except by land carriage." 
 
 It is very obvious that improved means of transit, and the 
 ambiguous character which science and modern invention has 
 given to commodities formerly solely appropriated to peaceful 
 purposes, has rendered the problem which the law of contraband 
 presents very much more difficult both for the statesman and also 
 for the naval officer. Russia in her war with Japan has boldly 
 
 1 Vide infra, p. 78. " Ibid. 
 
CONTRABAND 63 
 
 attempted to cut the knot by classifying as absolute contraband 
 articles which hitherto have been uniformly, or almost uniformly, 
 treated either as innocuous or only conditionally contraband ; 
 but in so doing she has attempted to extend the power of 
 belligerents over neutral commerce to an almost insupportable 
 degree. On the other hand, it is equally unfair to the belli- 
 gerent that, under cover of destination to a commercial port, 
 but under circumstances which afford a conclusive presump- 
 tion that they will be thence conveyed by land carriage for the 
 use of his enemy in the field, goods ancipitis usus may not be 
 seized ; or again, that goods — e.g. cotton and coal — to which 
 modern science has given a military or naval value, but which 
 to a vastly preponderating extent are used for peaceful purposes, 
 should enjoy immunity from seizure, and thus afford to the enemy 
 the most valuable assistance in his warlike operations. In 
 declaring cotton absolute contraband, Russia has, it may be 
 submitted, unnecessarily interfered with an important branch of 
 neutral commerce. To a country which, like Japan, carries on an 
 extensive manufacture in cotton fabrics, the raw cotton carried 
 to her shores is, less an infinitesimal fraction required for the 
 manufacture of explosives, exclusively used for the arts of peace ; 
 nor can it be supposed that the effective prevention of the access 
 of cargoes of cotton to her shores during the pendency of a war 
 would leave her destitute of the fraction so required. On the 
 other hand, coal, and especially steam coal, is not merely an 
 article of prime necessity for naval purposes, but is required in 
 large quantities, so that to a country which is wholly or mainly 
 dependent upon foreign sources for its coal supply, the inter- 
 ception of that supply is a matter of most serious moment so far 
 as its capacity for carrying on naval operations is concerned. 
 The application of the test of destination may with some plausi- 
 bility be represented as fallacious. The interposition of a hundred 
 miles or so between the commercial port of consignment and the 
 naval base to which the consignee intends to transmit the cargo 
 appears in these days of railroads and steam engines of trifling 
 importance. On the other hand, it must not be forgotten that 
 the modern cruiser has an immense advantage over the average 
 merchantman which was not enjoyed by the ancient sailing-ship. 
 The "Alabama's" career shows this. It is hardly reasonable 
 to expect neutrals to submit to all the disadvantages, and to 
 resign all the benefits of progress. 
 
 Canal traffic is still a serious rival to railway transport. Yet 
 Lord Stowell never attacked the trade of a safe port because 
 it was connected with a dangerous one by canals. And the mere 
 existence of transport facilities must not blind us to the fact 
 
64 COMMERCE IN WAR 
 
 that they are always open to interruption, not to speak of con- 
 gestion, as we know by the experience of the Siberian railway. 
 Accordingly, if the present rule , of destination as the final test 
 be abandoned and that of intention be applied, it is obvious that 
 neutrals will be placed in a worse position ; and, in fact, in the vast 
 majority of cases of seizure of goods ancipitis usus, it would 
 be practically impossible to demonstrate to the satisfaction of 
 a Prize Court that the goods were not intended for hostile pur- 
 poses.^ There has been some tendency both on the part of 
 political and judicial authority to apply the test of intention 
 where that of destination fails in establishing whether goods are 
 or are not contraband ; but so far no serious attempt has been 
 made to tamper with the principle that destination only is the 
 true test to be applied. Recently an interesting question arose 
 between Great Britain and Germany, viz. whether a cargo of 
 absolute contraband proceeding in a neutral ship to a neutral 
 port, but with an ultimate destination to her enemy from that port 
 by land carriage, can be properly seized by a belligerent. 
 
 Germany, in the case of the " Bundesrath,"^ vigorously pro- 
 tested against this doctrine, and insisted that a neutral ship 
 bound to and from a neutral port is not liable to seizure for 
 contraband. The full discussion of such cases is reserved for a 
 later chapter ; but it may here be said that the British Govern- 
 ment derived strong support from the American cases of so-called 
 " continuous voyage, and from the declared opinion of Bluntschli, 
 who observes : " Si les navires ou marchandises ne sont expddi^s 
 ci destination d'un port neutre que pour mieux venir en aide 4 
 I'ennemi il y aura contrebande de guerre et la confiscation sera 
 justifide."^ 
 
 The question of applying some precise and definite test as 
 to the conditions under which articles ancipitis usus may properly 
 be seized by a belligerent still remains a disputed point, and thus 
 a source of grave injury to neutral commerce and peril to inter- 
 national friendship. In default of any better, the ancient rule 
 as to character of port of destination still obtains ; but the 
 supposed inefficiency of this rule to afford adequate protection 
 to belligerents has, as we have pointed out, had two regrettable 
 results — first, in the extension by belligerents of the category 
 of goods absolutely contraband, as in the case of coal and cotton 
 by Russia in her war with Japan ;* and secondly, under the 
 
 1 See the "Zelden Rust," p. 78, infra; the "WiUiam," s Rob., 385 ; and Seymour v. 
 London and Provincial Marine Insurance Co., 41 L.J.C.P., 193. 
 
 2 See the "Peterhoflf," infra, p. 81, and the " Bundesrath," Parliamentary Papers, 
 1900, Africa, No. i. 
 
 3 Bluntschli, " Droit International Codifid," sec. 813. 
 * Vide supra, pp. 60- 1. 
 
CONTRABAND 65 
 
 stress of circumstances, in the violation, as in the case of the 
 " Bundesrath," from time to time of the rule as to destination. 
 
 It is said that this archaic rule as to destination is wholly 
 inadequate to and incompatible with modern conditions. But 
 the scrupulous care with which Scott, in the crisis of Great 
 Britain's fortunes, respected the trade of such ports as Quimper 
 (thirty miles from Brest), Emden, Tonningen, and San Sebastian, 
 may give pause to reforming zeal. What may be the true 
 solution of the vexed question as to when a cargo of goods 
 ancipitis usus are properly liable to seizure it is not easy to 
 divine. A naval officer who stops a vessel laden with goods 
 ancipitis usus has only the destination as evidenced by the ship's 
 papers and the statements of its crew to guide him ; if the vessel 
 be bound for a commercial port, though he may be convinced 
 that in its facilities as a base of military or naval supply the port 
 may satisfy every requirement of the enemy, yet his instructions 
 do not permit him to seize the vessel, because she is not bound 
 for a naval port. The rule is preposterous, unless applied with 
 reasonable latitude, for otherwise most essential aid may be 
 rendered to a belligerent in food, clothing, or materials for the 
 manufacture of articles for military or naval use, and it may well 
 be that the dangerous area of each military port has been some- 
 what increased since Lord Stowell's day. Probably the true 
 solution can alone be found in extending the application of 
 absolute contraband to such articles as, though now regarded as 
 uficipitis usus, have a special and exceptional value either in 
 their crude or treated state for the purposes of war; and as 
 to articles ancipitis usus, other than those made absolute, in afford- 
 ing full security to neutrals in trading therein with belligerents, 
 save in cases of besieged ports or blockaded areas. It is not, 
 indeed, probable that nations whose interests are diverse as to 
 what articles should or should not be treated as absolute contra- 
 band will agree upon an exhaustive list ; but with regard to 
 cotton, coal, engines, railway plant, and machinery^commodities 
 which constitute so large a portion of the world's commerce — 
 it is not unreasonable to suggest that some definite rules might 
 be laid down which, while affording due protection to the 
 belligerent, might preserve neutral commerce from the vexa- 
 tious interference to which it was subjected during the Russo- 
 Japanese war. 
 
 The conveyance to the territory, or the naval or military forces 
 of the enemy, of persons or despatches in or for his service, 
 is of the nature of the transport of contraband, though it partakes 
 also of the nature of active assistance to the belligerent. 
 
 As regards despatches, if they be from an ambassador or 
 
66 COMMERCE IN WAR 
 
 accredited agent of the enemy who is resident in a neutral State 
 ■■ — whether they be addressed to his own Government or other- 
 wise — they are clearly not of the nature of contraband,^ and 
 it would seem that the neutral is only liable in respect of the 
 carriage of despatches at all if he had knowledge, or the circum- 
 stances were such that he might be assumed to have knowledge, 
 that such despatches were associated with the war. The principal 
 test to be applied for the purpose of fixing him with liability, 
 though not necessarily the only test, is the destination of the 
 despatches ; thus, if addressed to a military or naval officer of 
 the enemy or to some person who may be presumed to be the 
 accredited agent of the enemy, it may reasonably be inferred that 
 the master or owner had knowledge ; nor is it necessary to 
 establiish that he was privy to the contents of the despatches. 
 It has been decided that when despatches, addressed to a private 
 person, were given by a private person to the master of a ship, 
 who swore that he was ignorant of their contents, the ship 
 should be released on the ground that there was no knowledge 
 of their character on the part of the master.^ This decision 
 is hardly consistent with those in the " Caroline " and " Oro- 
 zembo,"* when it was laid down that neither force nor fraud upon 
 the part of the enemy will avail as an escape from penalty ; and 
 this on the reasonable and well-nigh conclusive ground that 
 if it be conceded that fraud or compulsion is a good defence, 
 it would be almost impossible to prove the conti'ary. Calvo, 
 indeed, in the spirit of leniency which is characteristic of his 
 treatment of the law of contraband, thus defines the measure 
 of liability on the part of the neutral : " Mais pour que la con- 
 fiscation puisse equitablement etre prononc^e il ne suffit pas que 
 les ddp^ches ennemies soient trouvdes a bord ; il faut encore que 
 leur transport constitue reellement un acte hostile et pour cela : 
 1° que la ddp^che soit relative a la guerre ; 2° que ce navire ait 
 6t6 express^ment affr^td dans ce but."* It is obvious that a 
 strict recognition of the second condition asserted by him as 
 precedent to liability would almost uniformly place despatches 
 beyond the ambit of the law of contraband. 
 
 But when a vessel is in the ordinary way of its trade a carrier 
 of mails, it would be most unreasonable to visit the carrier with 
 penalty because obnoxious despatches were found in her postbags ; 
 wherefore belligerents have usually issued instructions to their 
 naval officers to exercise great consideration towards vessels 
 
 1 See the " Caroline," in/ra, p. 79. 
 
 2 The "Rapid," Edwards, 228. 
 ' 6 C, Rob., 430. 
 
 * Calvo, sec. 2801. 
 
CONTRABAND 
 
 67 
 
 engaged in postal service.^ They are, of course, subject in the 
 same way as other vessels to visit and, indeed, to capture (or, 
 by consent, to seizure of their mail bags), on the reasonable 
 presumption that they contain despatches to the enemy. 
 
 Many mail steamers of foreign countries have a special con- 
 nexion with the national government. Unless the latter accepts 
 full responsibility for them, coupled with entire control, as in the 
 case of navy ships, it is difficult to see that this is any reason 
 for extending to them special treatment. 
 
 Regarding the transport of belligerent persons, it is generally 
 held that they must be of high rank or of considerable number 
 to entail the penalty of capture and condemnation on the vessel. 
 
 We shall now discuss the cases seriatim. 
 
 TABLE OF CASES ON CONTRABAND 
 
 1674. Pitch and tar 
 
 1776. Guns, powder, soldiers . 
 
 1778. Masts, spars, deals 
 
 1778. Hemp, pewter, copper 
 
 sheets 
 
 1778. Deals, guns, iron shot . 
 
 1778. Sailcloth, deals, copper 
 
 sheets 
 
 1779. Iron, tar, pitch, deals 
 1793. Masts 
 
 1798. Balks, fir planks, battens 
 
 1799. Com 
 
 1799. Pitch and tar 
 
 1799. Cheese 
 
 1799. Pitch and tar 
 
 1800. Tallow, sailcloth . 
 
 1801. Cordilla hemp 
 
 1801. Spars, balks, ship-timber 
 
 1 801. Wine 
 
 1802. Hemp 
 
 1802. Pitch and tar 
 
 1804. Masts 
 
 1804. Rosin 
 
 1804. Ships 
 
 1804. Copper sheets 
 
 1805. Cheese 
 
 1805. Biscuit and flour . 
 
 1807. Ship timber . 
 
 1808. Despatches . 
 1808. Despatches . 
 1808. Military persons . 
 I808. Military persons . 
 
 1814. Grain 
 
 1815. Corn . . . . 
 
 1866. Artillery, harness, army 
 
 boots 
 
 1867. Harness, army boots 
 
 Sir Leoline Jenkins' opinion. 
 
 The " Hendric and Alida " 
 The"Vryheid'' 
 
 The " Concordia Affinitatis" 
 The " Sarah & Bernhardus" 
 
 The " Juffrow Anna Gedruth " 
 The "Brita Csecilia" 
 The " Staadt Embden » . 
 The"Endraght" . 
 The"Haabet" 
 The "Jonge Tobias" 
 The "Jonge Margaretha" 
 The "Sarah Christina" . 
 The " Neptunus " 
 The "Gute Gesellschaft 
 
 Michael" 
 The "Twende Brodre." . 
 The "Edward" 
 The "Apollo" 
 The " Twee Juffrowen " . 
 The " Charlotte " 
 " Nostra Signorade Begona" 
 The "Brutus" . 
 The "Charlotte" 
 The "Zelden Rust" . 
 The "Ranger" . 
 " L'Etoile de Bonaparte" . 
 The"Atalanta» 
 The "Caroline" 
 The"Orozembo" . 
 The "Friendship" . 
 The " Commercen " . 
 Maisonnaire V. Keating . 2 
 
 The " Peterhoff " 
 Hobbs V. Henning 
 
 Wynn's "Life of Sir L. 
 Jenkins," Vol. II, p. 75 1. 
 I Marriott's Rep. 96. 
 I Marriott's Rep. 188. 
 
 I Marriott's Rep. 169. 
 I Marriott's Rep. 175. 
 
 I Marriott's Rep. 221. 
 I Marriott's Rep. 234. 
 I C. Rob. 26. 
 
 1 C. Rob. 21. 
 
 2 C. Rob. 174. 
 I C. Rob. 329. 
 I C. Rob. 188. 
 I C. Rob. 237. 
 
 3 C. Rob. 108. 
 
 4 C. Rob. 94. 
 4 C. Rob. 33. 
 4 C. Rob. 68. 
 4 C. Rob. 158. 
 
 4 C. Rob. 242. 
 
 5 C. Rob. 305. 
 5 C. Rob. 97. 
 5 C. Rob. Appendix. 
 
 5 C. Rob. 275. 
 
 6 C. Rob. 93. 
 6 C. Rob. 125. 
 I Pistoye et Duverdy, 409. 
 6 C. Rob. 440. 
 6 C. Rob. 461. 
 6 C. Rob. 430. 
 6 C. Rob. 420. 
 I Wheaton, 382. 
 Gallison's Rep.(U.S.)32S. 
 
 5WaUace'sRep.(U.S.)28. 
 17 C.B.N.S. 791. 
 
 " Revue de Droit International," XI, p. 582. 
 
68 COMMERCE IN WAR 
 
 TABLE OF CASES ON CONTRABAND — continued. 
 
 i87S- 
 
 Money, plate, bullion . 
 
 United States v. Diekelman 
 
 2 Otto's Rep. (S.CU.S.). 
 
 520. 
 176 U.S. Rep. 568. 
 
 I9CX3. 
 
 Provisions . 
 
 The "Benito Estenger" . 
 
 1903. 
 
 Horses 
 
 The "Juno" . 
 
 38 Ct. CI. (U.S.) 465. 
 
 1903- 
 
 Tar ... 
 
 The "Bird" . 
 
 38 Ct. CI. (U.S.) 228. 
 
 1904. 
 
 Coal 
 
 The''Allanton" 
 
 
 1905. 
 
 Cotton, logs, flour, ma- 
 
 
 
 
 chinery . 
 
 The"Calchas" 
 
 
 Pitch and \^ iSj/^ a cargo of pitch and tar was laden on board ship by 
 a British merchant for conveyance to Rouen, and was captured by 
 a Spanish war vessel. The question whether or no pitch and tar 
 were contraband wasj on a petition from the merchant, submitted 
 by the Crown for Sir Leoline Jenkins' opinion, who, after de- 
 claring that there was nothing in the treaty of 1667 between 
 England and Spain to render these commodities contraband, 
 proceeds : — 
 
 " These goods therefore .... 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 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."^ 
 
 M^ts, The " Vryheid"^ was a Dutch (neutral) ship bound from Riga 
 deals! to Rochfort laden with masts suitable for ships of war, spars and 
 deals, which, by instruction of the French Consul at Elsinore, she 
 was to deliver at Rochfort. The Dutch master claimed the cargo 
 as privileged under the treaty of 1674 between England and 
 Holland. Article IV thereof was as follows : — 
 
 " Masts, planks, boards and beams of any kind of wood, and all other 
 materials requisite for building or repairing ships, shall be wholly reputed 
 free goods, so that the same may be freely transported and carried by 
 the subjects of the States to places under the obedience of the enemies 
 of his said Majesty, except only to places besieged, blocked up, or 
 invested." 
 
 The Court, in giving judgment, observed : — 
 
 " By the general law and usage of nations (treaties and extraordinairy 
 stipulations out of the question) there are two sorts of things confiscable : 
 First, all those generally which belong to an enemy found on board the 
 ships of a friend ; secondly, those which belong to a friend, but which 
 will aid the enemy to maintain war. These latter are contraband, so 
 that one of the ideas inseparably annexed to contraband, and to the 
 exception of contraband, is that the goods excepted or not excepted 
 
 1 Wynne's " Life of Sir Leoline Jenkins," Vol. II, p. 751. 
 
 2 Marriott's Rep., 74. 
 
CONTRABAND 69 
 
 belong to a friend ; from which it is clear that the goods of the Dutch 
 subject specially or generally enumerated in Article III (which set forth 
 a list of goods to be considered contraband) are contraband ; and that 
 masts, etc., etc., and all other materials requisite for building and re- 
 pairing ships excepted in Article IV, do mean such masts, etc., which 
 do also belong to a friend, and are going in the ordinary course of 
 trade as ordinary merchandise and for mercantile purposes. This must 
 be the natural sense of the stipulation. For to admit a right of being 
 the privileged carriers of the enemy to the royal docks would work such 
 an adoption of a hostile character, would defeat every idea of alliance 
 and confederacy of the contracting parties, and transfer the federal union 
 over to the other belligerent. 
 
 " The great argument is that all subsisting treaties of commerce and 
 alliance, offensive and defensive, are to be taken as one contract, uno 
 contextu, and the spirit of the federal union is to interpret the letter so 
 that no one treaty or article of the treaty is to be taken substantive or 
 standing alone and single from the rest. 
 
 " The secret article of Westminster, 1673-4, is as strong as possible. 
 The words are — 
 
 " ' Neither of the said parties shall give nor consent that any of their 
 subjects or inhabitants shall give any aid, favour, or counsel, directly 
 or indirectly, by land or sea or on the fresh waters, nor shall furnish, nor 
 consent that the subjects and inhabitants of their dominions and countries 
 shall furnish, any ships, soldiers, mariners, provisions, money, instruments 
 of war, gunpowder, or any other things necessary for making war to 
 the enemies of the other party of any rank or condition whatsoever.' 
 
 " It is very clear that ships may be furnished by piecemeal as com- 
 pletely as if they sailed out of the Texel with all their furniture. If one 
 Dutch ship carries masts, another anchors, another cordage, another sails, 
 another a ship's frame ... a whole fleet may go by detail from Holland 
 for the King of France's service." 
 
 The reasoning of the judgment, limiting the clear words of the 
 treaty of 1674 to a mere transference of naval stores from the 
 category of absolute to that of conditional contraband, is not 
 particularly strong, and lends some colour to the general complaint 
 of continental authors against the English Prize Courts. But 
 Holland had been equally unfortunate in a treaty made with 
 France in 1646. She expected she had secured the recognition 
 of the principle " Free ships, free goods " : but found that the 
 French interpretation of the treaty was merely that it abolished 
 the rule that the neutral carrier and neutral goods were confiscable 
 as well as the hostile goods on board his ship.^ Marriott, how- 
 ever, is of no great authority as a judge. His decisions were such, 
 says Story, as no other person would ever follow. 
 
 This particular interpretation of the Dutch treaty of 1674 was 
 abandoned by the King's advocate in the case of the " Apollo,"'' 
 
 " Vattel, III. c. 7, sec. 115, note. 
 "^ 4 C. Rob., 158, 159. 
 
;o COMMERCE IN WAR 
 
 Guns, During the war of American Independence a Dutch ship, the 
 MidUrs! " H endric and Alida, "^ was captured by an E nglish cruiser when with 
 a cargo of powder and guns, and with foreign officers on board, 
 on the ground that she was carrying the said powder munitions to 
 the rebels in America. The King's advocate asked the Court to 
 decree that so much of the cargo as was harmless should be re- 
 stored, the powder, guns, and military stores should be sold to His 
 Majesty on a valuation, and to decree expenses in favour of the 
 captor. The Court in ordering the restoration of the ship and 
 cargo, founded their decision on the ground that there was no 
 proof that the powder and munitions of war were going for the 
 use of the rebels ; the Court, however, awarded costs in favour 
 of the captors. Sir George Hay observing — 
 
 "That the condition of the ships being armed, and having officers 
 going to the Provincial Army (the Rebels) is a great point against the 
 claimants for costs, and must have struck Lord Mulgrave [the British 
 naval officer]. If it was clear that she was going to New England, 
 touching at St. Eustatia, that would never do. All ships trading thither 
 are confiscable." 
 
 The case therefore seems to have been one of continuous 
 voyage. The vessel was en route for St. Eustatia, and an ulti- 
 mate intention that the ammunition should reach the rebels was 
 held to be insufficient ; in spite of Dr. Marriott's appeal to the 
 Court to "justify Lord Mulgrave." 
 Deals, The "Sarah and Bernhardus"^ was a Danish (neutral) ship laden 
 uon'shot ^^^^ deals, guns, and iron shot, bound from Christiania to Havre 
 de Grace, and was captured by a British privateer. The Court' 
 gave judgment as follows : — 
 
 " As the stores were clearly Danish property and destined for a market 
 either French [France was then at war with England] or English, and as 
 hostilities were not notified, and the concealment, if any (for it was not 
 fully proved), was necessary to preserve the cannon and balls from con- 
 fiscation in France on account of Portsmouth being named [as the place 
 at which cannon and balls were to be sold], it showed no mala fides in the 
 Danish [exporter]." 
 
 The Court restored the ship, and ordered such of the deals as 
 should be fit for the navy, and ordnance stores, to be sold for His 
 Majesty's use. 
 
 The fact that hostilities had not been notified does not seem 
 very important, in view of the further fact that precautions had 
 been taken to preserve the munitions from confiscation in France, 
 which could only have been in the exercise of a belligerent right. 
 
 ' I Marriott, 96 {circa 1776). 2 Ibid., 174. 
 
 ^ Sir Jas. Marriott. 
 
CONTRABAND 71 
 
 And the ship-master swore positively that he was to sell the 
 cannon and balls at Havre, if he could. The case is decidedly 
 one of " a lenient administration of justice." The judge intimated 
 that ordnance would be confiscated in future. 
 
 The "Concordia Affinitatis,"^ a Swedish neutral ship, laden Hemp, 
 with hemp, pewter, copper, staves, hogsheads, and small casks on ^0"^'' 
 voyage to France (then at war with England), was captured by a hogs- ' 
 British cruiser. The Court restored ship and cargo, except the ^^*'^^" 
 hemp and such copper sheets as should appear fit for sheathing 
 ships, which it ordered to be sold for His Majesty's use at a fair 
 valuation by merchants, the proceeds of sale to go to the true 
 owners of the goods. This also is an instance of pre-emption of 
 absolute contraband. 
 
 In the " Jufifrow Anna Gedruth"^ the Court directed sailcloth, Saiicioti 
 deals, and copper sheets to be sold for His Majesty's use. copper 
 
 But in the case of the " Brita Csecilia,"^ a Swedish ship from sheets. 
 Elsinore to Brest and Nantz, the cargo of iron, tar, pitch and pitch, 
 deals for the account of French merchants was condemned : •^*^'^- 
 freight and all reasonable charges being allowed the carrier. 
 
 In the " Staadt Embden* it was held that masts are contraband Masts. 
 of war. Sir W. Scott, in his judgment, observes : — 
 
 " Most clearly the masts are liable to be so considered [contraband] in 
 the judgment of the most zealous advocates of neutral commerce. As to 
 the relaxation in favour of the export of native produce " [the masts were 
 made of timber from Russia, from which country the vessel was proceeding 
 when seized], " said to have been sanctioned by a determination upon 
 Prussian hemp in the case of the ' Jonge Pieter,' I am by no means dis- 
 posed to consider that case as laying down any such universal principle. 
 
 " There have been many cases in which native articles going to the 
 enemy's ports on the account of inhabitants of the country which pro- 
 duced them have been treated as contraband. In the famous case of the 
 ' Med Good's Hielp,' a cargo of pitch and tar going on Swedish account 
 from Stockholm to Port Louis was condemned; that condemnation was 
 afterwards confirmed by a solemn judgment of the Lords of Appeal, 
 and the MS. note which I have of that case expressly states it to have 
 been condemned on the ground of contraband." 
 
 It will be remembered that in the case in which Sir W. 
 Scott is asserted by Wheaton to have departed from the rule of 
 requiring captors to show a destination to a military or naval port, 
 or to an army or fleet direct, in the case of conditional contra- 
 band, the cargo consisted of manufactured spars. In declaring 
 the character of the port of destination to be immaterial, as he 
 undoubtedly did in that case, he was plainly dealing only with the 
 
 ' Marriott, 169. ^ Ibid., 221. 
 
 3 Ibid., 234. * I C. Rob., 26 
 
72 COMMERCE IN WAR 
 
 case of goods which, like spars and masts, are absolute contraband. 
 (The " Charlotte," 5 C. Rob. 305.) 
 
 Another illustration of the statement that the decisions of the 
 Courts have generally followed the public policy of the country 
 is afforded by the following case, which is also that in which 
 Sir W. Scott laid down the character of the port as the govern- 
 ing, if not the only, test of conditional contraband, viz. that of 
 the " Jonge Margaretha,"^ sailing from Amsterdam to Brest with 
 a cargo of cheese, and seized as concerned in a contraband trade 
 of provisions to a port of naval equipment. 
 
 In giving judgment in this case, Sir W. Scott says : — 
 
 " I shall confine myself to the single question of law : " Is this a legal 
 transaction in a neutral, being the transaction of a Papenberg ship carrying 
 Dutch cheeses from Amsterdam to Brest, ... or, as it may be otherwise 
 described, the transaction of a neutral carrying a cargo of provisions 
 not the product and manufacture of his own country, but of the enemy's 
 ally in the war — of provisions which are a capital ship's store — and to 
 the great port of naval equipment of the enemy ? ' 
 
 ". . . . Among the causes of exception," he proceeds, "which tend 
 to prevent provisions from being treated as contraband, one is that they 
 are of the growth of the country which exports them. In the present 
 case they are the product of another country, and that a hostile country. 
 
 "Another circumstance to which some indulgence by the practice 
 of nations is shoWn is when the articles are in their native and unmanu- 
 factured state. Thus, iron is treated with indulgence, though anchors 
 and other instruments fabricated out of it are directly contraband. 
 Hemp is more favourably considered than cordage, and wheat is not 
 considered so noxious a commodity as any of the final preparations of it 
 for human use. In the present case the article falls under this unfavour- 
 able consideration, being a manufacture prepared for immediate use. 
 
 " But the most important distinction is whether the articles were 
 intended for the ordinary uses of life, or even for mercantile ships' use, 
 or whether they were going with a highly probable destination to military 
 use? Of the matter of fact on which the distinction is to be applied, 
 the nature and quality of the port to which the articles were going is not 
 an irrational test. If the port is a general commercial port, it shall 
 be understood that the articles were going for civil use, although occa- 
 sionally a frigate or other ships of war may be constructed in that port. 
 On the contrary, if the great predominant character of a port be that 
 of a port of naval military equipment, it shall be intended that the 
 articles were going for military use, although merchant ships resort to 
 the same place ; and although it is possible that the articles might have 
 been applied to civil cpnsumption — for it being impossible to ascertain 
 the final application of an article ancipitis usus — it is not an injurious 
 rule which deduces both ways the final use from the immediate destina- 
 tion, and the presumption of a hostile use founded on its destination 
 to a military fort is very much inflamed if at the time when the articles 
 were going a considerable armament was notoriously preparing to which 
 
 ' I C. Rob., 188. 
 
CONTRABAND 73 
 
 a supply of these articles would be eminently useful. ... I think 
 myself warranted to pronounce these cheeses to be contraband." 
 
 Whether the rule laid down here as determining " both ways " 
 the innocent or noxious character of goods which are prima facie 
 innocent, has been abrogated by the facility with which, in modern 
 times, goods can be transported from a commercial port to a 
 military one. by rail, may be seriously questioned. Sir W. Scott 
 was disposed in the " Zelden Rust"^ to treat Corunna on the 
 footing of a military port on account of its extreme proximity to 
 Ferrol. But it will not do to build too much on the analogy of 
 so extreme a case ; in fact, the same judge, on the previous day, 
 refused to regard Quimper as identified with Brest.^ A great 
 responsibility and a great opportunity will be before the Privy 
 Council of this country, if she should ever be a party to a naval 
 war, in deciding on a consistent line of action in this and similar 
 instances of difficulty. {Vide supra, pp. 62-65.) 
 
 In the " Sarah Christina"^ Sir W. Scott observes : " Pitch and Pitch 
 tar are now become generally contraband in a maritime war, *° 
 and they have been condemned as such by the highest authority 
 in this country." 
 
 In the "Endraght,"* on a voyage from Narva to Dort with a Balks, 
 cargo of balks, fir planks, battens, and firewood, Sir W. Scott bluen"!'^' 
 says : — 
 
 " It is asserted to be ' a cargo of ship timber going to an enemy's port 
 of naval equipment,' and under this description to come under the 
 character of contraband. This I consider to be the correct law of nations, 
 notwithstanding some relaxations which may occasionally have been 
 allowed." 
 
 In the " Neptunus,"^ a cargo partly of tallow, partly of sailcloth, Taiiow, 
 en route to Amsterdam, was held as to tallow not contraband, ^*"^° 
 the judgment running as follows : — 
 
 " I am not disposed to consider it in that light " [of contraband] " on 
 a destination to such a port as Amsterdam. Amsterdam is a great 
 mercantile port, as well as a port of naval equipment ; if it had been taken 
 going to Brest, I should have little doubt about it." 
 
 As to sailcloth being contraband, the judgment being — 
 
 " That is universally contraband, even on a destination to ports of 
 mere mercantile naval equipment. Amsterdam is a port both of great 
 mercantile and military equipment." 
 
 In the " Gute Gesellschaft Michael,"® it being proved that a Cordiiia 
 
 hemp. 
 
 1 6 C. Rob., 93. 2 The " Frau Margaretha," 6 C. Rob., 92. 
 
 3 I C. Rob., 237. * I C. Rob., 21. ^5 3 C. Rob., 108. 
 
 « 4 C. Rob., 94. 
 
74 COMMERCE IN WAR 
 
 coarse kind of hemp, denominated torse or cordilla hemp, was 
 not fit for making rope or cordage, the cargo taken on a voyage 
 from Lubeck to Bordeaux was ordered to be restored on payment 
 of captor's costs. In a subsequent case, the " Jonge Hermanus," 
 laden with a cargo of torse,^ the Court held that the captors were 
 justified in examining the cargo owing to the similarity between 
 torse and hemp, and captor's expenses were allowed. 
 
 In the "Apollo,"^ it was held by Sir W. Scott that hemp 
 may be protected from confiscation by being proved to be the 
 property and produce of the exporting country. A distinction is 
 thus taken (as in the " Jonge Margaretha ") which is much dwelt 
 upon by text-writers, but which appears to be little regarded at 
 the present day. The relaxation was introduced in favour of 
 neutral navigation, and as counsel state in the "Apollo," it was 
 thought to be limited accordingly to the export by neutrals of 
 their own produce in their own ships. This construction was 
 negatived in the "Jonge Pieter,"^ decided in 1783 on appeal; 
 which decision was followed in the " Apollo." The operation of 
 the relaxation was not to remove the articles out of the category 
 of contraband altogether. Hemp, it must be remembered, was 
 absolute contraband ; and the cargo of the " Apollo " (Russian 
 hemp in a Prussian ship) was in course of transit to Amsterdam, 
 which, although the principal Dutch port of naval equipment, 
 cannot be said to have had the predominant character of a naval 
 port. If the hemp had been going to Brest, it is unlikely that it 
 would have been released. The case really appears to amount 
 to this : that the military or civil character of the port must be 
 the first inquiry ; but that when the result of the inquiry is 
 ambiguous, a further examination may be made regarding the 
 quality and origin of the cargo. This is a reasonable rule, as 
 there are many ports as to which it cannot be positively asserted 
 that they are obviously and overwhelmingly military or civil ; and it 
 is submitted that it is the rule most consistent with the authorities. 
 Hemp. In this case it appears that a quantity of hemp, being the 
 produce of Russia and the property of a Russian merchant, was 
 taken on a Prussian ship on a voyage from Libau to Amsterdam. 
 It was held that, although the cargo was not on board a Russian 
 ship, yet as it was the property of a Russian merchant and the 
 produce of Russia, it was not contraband of war.* Sir W. Scott 
 says : — 
 
 " The question then being abstracted from the treaty is, whether hemp, 
 being the produce and property of the country, but put on board the 
 vessel of any other than the exporting country, is liable to confiscation ? 
 
 1 4 C. Rob., 95. 2 J(,ia_^ ij;g. 
 
 3 Ibid., at p. 162. ■* Ibid. 
 
CONTRABAND 75 
 
 Reference has been made to the case of the "Jonge Pieter," in which 
 it was decided that this circumstance did not render it liable to be 
 considered as contraband. In that case hemp, being Prussian property, 
 was put on board a Dutch ship and sent to Bordeaux. It did not appear 
 of what country the hemp was, but it was strongly argued that by the 
 old rule contraband affected the ship as well as the cargo ; that the 
 relaxation that had taken place was introduced in favour of the ship, 
 and as a concession to the navigation of neutral countries when employed 
 in the exportation of their own produce or manufactures ; that cases 
 which did not fall within the reach of this principle were still subject 
 to condemnation under the old law, and on this point three cases were 
 relied on : the ' Sanctissimo Sacramento,'^ the ' Goede Vreede,'' and the 
 'Juffrow Wobetha.'s 
 
 " On the part of the claimants it was contended that the relaxation 
 was not so restricted as was asserted on the other side ; that the old rule 
 was departed from, and by the modern rule neutral merchants were 
 at liberty to export the produce of their own country on their own 
 account ; that this being allowed, there was no reason why it might not 
 be in other ships as well as those of their own country, it being equally 
 in the course of their ordinary commerce to do so. Of the cases cited, 
 it was said that the first was a cargo of Bolognese produce sold to a 
 merchant of Genoa ; it was therefore Bologna hemp going on Genoa 
 account, and liable on that ground to confiscation. The second was a 
 cargo of wheat sent by a Swede, who is by treaty disabled from carrying 
 wheat. A vehicle, therefore, was used which it was unlawful to use, and 
 the total disability of the ship to carry such a cargo put the cargo into 
 an unlawful state. The third was a cargo of timber from Dantzic, which 
 could hardly be, and was proved not to be, the produce of the territory 
 of Dantzic, but of the neighbouring kingdom of Poland.* These are 
 cases in which the unfavourable determination proceeded upon grounds 
 that have nothing in common with the present case. But the case of the 
 ' Jonge Pieter ' was exactly parallel, being the case of a cargo of hemp 
 on board a foreign ship. On that occasion the Court thought there 
 ought to have been stronger proof that it was Prussian produce, but 
 decreed the cargo to be restored. That case went up to the Lords, 
 where the sentence of the Court of Admiralty was confirmed. It is 
 therefore a direct precedent binding on this Court, and in conformity 
 to that authority I shall direct this cargo to be restored." 
 
 In the "Twee Juffrowen"* where a cargo of pitch and tar, K' 
 taken on a Prussian ship, was proceeding from Emden to Dieppe, 
 it was held that, not being the produce of the exporting country, it 
 was contraband, and the onus probandi was on the claimant. 
 In the course of his judgment, Sir W. Scott observed : — 
 
 " I take it to be the established doctrine of this Court that pitch and 
 
 1 3 February, 1781. ^6 March, 1780. 
 
 ' 8 August, 1781. Lords, 18 July, 1782. 
 
 * In the Court of Admiralty this cargo was condemned as contraband. On appeal, 
 that sentence was reversed, on the ground that, though Dantzic was a free city, yet, 
 being within the immediate protection of Poland, she was entitled to export a commodity 
 at one of its own markets. ^ 4 C. Rob., 243. 
 
7^ COMMERCE IN WAR 
 
 tar are universally contraband, unless protected by treaty, or unless it is 
 shown that they are the produce of the country from which they are 
 exported, in which latter case they are considered on the more modern 
 and lenient application of the rule as subject to pre-emption^ only. In 
 certain instances, where they constitute the great staple commodity of 
 the exporting country, as of Sweden, the presumption may be allowed in 
 favour of the claimant without absolute proof; but in respect to East 
 Friesland, or any part of Prussia, the same presumption does not arise." 
 
 It is thus seen that the relaxation in favour of native produce 
 (especially when unmanufactured) operated to reduce such pro- 
 duce from the category of absolute to that of "occasional" 
 contraband. In the case of goods which would otherwise have 
 been "occasional" contraband, it cannot have had much effect, 
 since the danger of allowing naval stores and provisions to go 
 to a port of naval equipment is too patent to allow the belligerent 
 to be influenced by such considerations; The only case where 
 it would come into play would be that mentioned on page 74 supra, 
 viz. where the character of the port is indeterminate. 
 
 If the goods are "absolute" contraband, but home-grown, and 
 the port indeterminate, the decision must probably turn on the 
 immediate usefulness of the goods for war. Hemp was un- 
 conditionally released in the "Apollo" by Sir W. Scott; but 
 would he have released saltpetre ? 
 Wines. In the " Edward,"^ a cargo of wines was found by the Court 
 to be in course of carriage from Bordeaux to a French naval 
 port, and was held to be contraband. Sir W. Scott observes : — 
 
 " Though wines are not an article generally contraband per se, yet 
 in conjunction with all the circumstances of this voyage they are un- 
 questionably to be considered naval stores. It was a voyage to Brest 
 where there was notoriously a large armament lying very much in want 
 of articles of this kind — articles of an indispensable nature. If such 
 articles had gone with an avowed destination to such a place, and at 
 such a conjuncture, the rule of pre-emption would have been a rule of 
 excessive and undue indulgence to apply to such a case." 
 
 This was a case of wines in a Prussian ship (and obviously 
 not the produce of Prussia). But it must be noted that there 
 was the further element in the case, of a simulated destination to 
 Emden, which involved the confiscation of the vessel. (See the 
 " Evert. ")^ 
 Rosin. In "Nostra Signora de Begona"* it was held that a cargo of 
 rosin going from St. Sebastian to Nantes was not contraband. 
 Sir W. Scott in his judgment says : — 
 
 " Are there any cases in which this article is held to be contraband on 
 
 ' It is curious that the hemp in the "Apollo" {supra) was not treated as subject to 
 pre-emption. ^ 4 C. Rob., 68. ^ /^^-^^ ^j^ * 5 C. Rob., 97. 
 
CONTRABAND ^^ 
 
 a destination to a port merely mercantile? If it had been going to a 
 military port of the enemy I should have had no hesitation, as there are 
 many cases in which, under such circumstances, it has been deemed contra- 
 band. Going to a mercantile port it is not, I think, so decidedly of a 
 warlike nature as to be excluded from the favourable consideration that 
 are applied to other articles ancipitis usus. I shall therefore decree 
 restitution." 
 
 Why rosin was treated so much more favourably than pitch and 
 tar is worth consideration, and might furnish a key to the decision 
 of questions as to the proper mode of regarding such articles as 
 boilers, cotton, and the like. The captors say, in argument, that 
 " it was an article much used as an ingredient in various military 
 preparations." There can be little doubt that at the present day 
 an article of such a nature going to a hostile port would incur 
 grave risks. It may well be questioned whether modern views of 
 contraband can be correct which go further than even a judge 
 so leniently disposed towards belligerents as Sir W. Scott felt 
 justified in doing. At the same time, Scott's test of the character 
 of the port of destination may have become obsolete ; and in that 
 case it urgently requires to be replaced by a fresh one, equally 
 independent of the floating suspicions of belligerents, and suffi- 
 ciently definite to be provable by precise evidence. 
 
 In the "Brutus"^ it was held that ships built for purposes of Ships. 
 war and not for peace, and going to be sold by a neutral to the 
 enemy, are contraband of war. 
 
 From the cases of the " Fanny," the " Neptune," and the 
 "Raven,"* it appears that in a case of any ambiguity as to the 
 character of the vessels, the neutral was given the benefit of the 
 doubt. The "Brutus" was pierced and fitted for ten giins, with 
 netting stanchions for hammocks, and nettings fixed fore and aft. 
 
 The " Charlotte,"* was a vessel bound from Riga to Nantes. Masts. 
 In giving judgment of condemnation, Sir W. Scott observes : — 
 
 " What has been said on the other side is, I think, true; that the nature 
 of the port is not material since masts, if they are to be considered 
 as contraband, which they will be unless protected by treaty, are so 
 without reference to the nature of the port, and equally whether bound 
 to a mercantile port or to a port of naval military equipment. The 
 consequences of the supply may be nearly the same in either case. If 
 sent to a mercantile port, they may be there applied to immediate use 
 in the equipment of privateers, or they may be conveyed from Nantes 
 to Brest, and there become subservient to every purpose to which they 
 could have been applied if going directly to a port of military equip- 
 ment." 
 
 That is, manufactured masts and spars are absolute contra- 
 
 1 5 C. Rob., 331, and Appendix. ^ Ibid., Appendix. 
 
 3 Ibid., 305. * Supra, p. 32 
 
78 COMMERCE IN WAR 
 
 Coppei In the "Charlotte,"' on the construction of Article I of the 
 sheets, treaty of 1803 between Sweden and England, it was held by 
 Sir W. Scott that copper sheets, certified to be fit for the sheathing 
 of ships, are contraband. He, however, expressly declined to 
 say that all copper in sheets was within the terms of the treaty, as 
 " immediately serving for the equipment of ships of war." 
 Cheese. In the " Zelden Rust "^ it was held that cheese going to a place 
 of naval equipment and fit for naval use is contraband. On the 
 question of destination. Sir W. Scott observes : — 
 
 " Corunna is, I -believe, itself a place of naval equipment in some degree, 
 and if not so exclusively, and in its prominent character, yet from its 
 vicinity to Ferrol it is almost identical with that port. These ports are 
 situated in the same bay, and if the supply is permitted to be imported 
 into the same bay, it would, I conceive, be impossible to prevent it from 
 going on immediately and in the same conveyance to Ferrol. There is 
 in this respect a material difference between the present case and the case 
 which happened yesterday of similar articles going to Quimper. That 
 port, though in the vicinity of Brest, is situate on the opposite side of a 
 projecting headland or promontory, so as not to admit of an immediate 
 communication except by land carriage." 
 
 In the case referred to by the judge (the " Frau Margaretha ")* 
 the cargo was cheese, en route to Quimper from Amsterdam. 
 It is an instructive decision, because it touches directly the 
 principle as to how far modern improved methods of land com- 
 munication have destroyed the value of the nature of the port of 
 destination as a test of contraband. Clearly, if Scott went far 
 enough in encouraging belligerents — ^and some think he went 
 too far — facility of land carriage can be of no importance as a 
 reason for abandoning his test, in the face of the case of the 
 " Frau Margaretha." And to leave the matter without a test at 
 all, \s practically to put all articles which could by any possibility 
 be of use in war in the category of absolute contraband. 
 Biscuit The " Ranger."* This was the case of an American ship with 
 flour. ^ cargo of biscuit and flour in transit from Bordeaux to Cadiz. 
 Sir W. Scott held, inter alia, that, as the cargo consisted of sea 
 stores carried to a place of naval equipment, it was confiscable as 
 contraband. 
 Ship In 1807 the Conseil des Prises of France, in the case of 
 timber. " I'Etoile de Bonaparte," held that ship timber was not contra- 
 band of war, unless it was exclusively applicable to the con- 
 struction of ships of war.' The Council thus declared the law in 
 relation to ship timber : — 
 
 "Attendu que le moyen deduit de la quality des bois composant la 
 
 1 S C. Rob., 275 2 6 C. Rob., 93. 3 m^^^ gj. * 6 C. Rob., 125. 
 
 ^ Pistoye et Duverdy, Vol. I, p. 409 ; see also "La Minerve,'' ibid., p. 410. 
 
CONTRABAND ;9 
 
 majeure partie de la caraison et sur lequel les capteurs ont le plus 
 insist^, ne peut ^tre accueilli si I'on consid^re que loin qu'il soit ddmontr^ 
 que ces bois appartiennent exclusivement a la construction des batiments 
 de guerre, comme I'ont pens6 les experts qui ont opdre hors de la 
 presence des parties int^ressees le contraire semble resulter, tant de la 
 teneur du proc^s-verbal de visite qu'ils ont irreguli^rement dressd, que 
 la dimension des planches et de leur nombre compart avec la capacite 
 du navire." 
 
 In the " Atalanta,"^ the ship, being on voyage from Batavia Des- 
 to Bremen, touched at the Isle of France, then a colony of France, p*"^*^^'* 
 and took on board despatches from the Governor of the Colony 
 to the Minister of Marine in Paris. The vessel was captured, 
 and it was held by the Court that the carrying of despatches 
 between a colony and its mother country which is a belligerent 
 is an act injurious to the other belligerent, and a case of active 
 "interposition in the war" for the benefit of the enemy, and that 
 under certain aggravated circumstances the ship and cargo should 
 be confiscated. 
 
 In the "Caroline,"* despatches on board a neutral ship, but Des- 
 going from the ambassador of the enemy's State resident in a ^^'"^ ^^' 
 neutral State to the departments of Government in France, were 
 held not liable to seizure. In the course of his judgment, Sir W. 
 Scott makes the following observation : — 
 
 " It has been asked, What are despatches ? To which I think this answer 
 may safely be returned : that they are all official communications of 
 official persons on the public affairs of the Government. . . . This is 
 not a case of despatches coming from any part of the enemy's territory, 
 where commerce and communications of every kiijd the other belligerent 
 has a right to interrupt. They are despatches from persons who are 
 in a peculiar manner the favourite objects of the protection of the law 
 of nations — ambassadors resident in a neutral country for the purpose 
 of preserving the relations of amity between that State and his own 
 Government. 
 
 "On these grounds a very material distinction arises with respect to 
 the right of furnishing the conveyance. The former cases* were cases 
 of neutral ships carrying the enemy's despatches from his colonies to the 
 mother country. In all such cases you have a right to conclude that 
 the effect of these despatches is hostile to yourself, because they must 
 relate to the security of the enemy's possessions and to the maintenance 
 of a communication between them. You have a right to destroy these 
 possessions and that communication ; and it is a legal act of hostility 
 so to do. But the neutral country has a right to preserve its relations 
 with the enemy, and you are not at liberty to conclude that any commu- 
 nication between them can paftake in any degree of the nature of 
 hostility against you. The enemy may have his hostile projects to 
 be attempted with the neutral State, but your reliance is on the integrity 
 
 1 6 C. Rob., 440. * 6 C. Rob., 461. 
 
 ^ Vide supra. 
 
8o COMMERCE IN WAR 
 
 of that neutral State that it will not favour nor participate in such 
 designs, but as far as its own councils and actions are concerned will 
 oppose them. ... I have before said that persons discharging the functions 
 of ambassadors are in a peculiar manner objects of the protection and 
 favour of the law of nations. The limits that are assigned to the 
 operations of war against them by Vattel and other writers upon those 
 subjects are that you may exercise your right of war against them 
 wherever the character of hostility exists. You may stop the ambassador 
 of the enemy on his passage ; but when he has arrived and has taken 
 upon himself the functions of his office, and has been admitted in his 
 representative character, he becomes a sort of middleman, entitled to 
 peculiar privileges, as set apart for the protection of the relations of 
 amity and peace, in maintaining which all nations are in some degree 
 interested." 
 
 There is a tendency to treat the carriage of despatches rather as 
 a participation in the enemy's service than as the carriage of 
 contraband. The fact that confiscation of the ship is an incident 
 of such carriage may have been one cause of this ; but the reason 
 usually assigned for this confiscation is rather that, otherwise, there 
 would be no profit to the captors of such a seizure, the despatches 
 possessing no marketable value. It is conceived that the carriage 
 of despatches knowingly, but for hire in the general ' way of 
 business, is no participation in the hostile service. 
 Grain. The " Commercen," ^ a Swedish vessel, was captured on a 
 voyage from Limerick in Ireland to Bilboa with a cargo of grain. 
 Story J., giving the judgment of the Circuit Court of the United 
 States in affirmation of the condemnation of the cargo by the 
 District Court, says : — 
 
 " By the modern law of nations provisions are not in general deemed 
 contraband, but they niay become so when the property of a neutral on 
 account of the particular situation of the war or on account of their 
 destination. If destined for the ordinary use of life in the enemy's 
 country they are not in general contraband, but it is otherwise if destined 
 for military use. Hence, if destined for the army or navy of the 
 enemy, or for his ports of naval or military equipment, they are deemed 
 contraband. 
 
 " Another exception from being treated as contraband is when the 
 provisions are the growth of the neutral exporting country. But if they 
 be the growth of the enemy's country, and more especially if the 
 property of his subjects and destined for the enemy's use, there does not 
 seem any good reason for the exemption ; for, as Sir W. Scott observes, in 
 such case the party has not only gone out of his way for the supply of 
 the enemy, but he has assisted him by taking off his surplus commodities, 
 
 " But it is argued that the doctrine of contraband cannot apply to the 
 present case because the destination was to a neutral country. And it is 
 certainly true that goods destined for the use of a neutral country can 
 never be deemed contraband, whatever may be their character or however 
 
 1 I Wheat. 382. 
 
CONTRABAND 8i 
 
 well adapted to warlike purposes. But if such goods are destined for the 
 direct and avowed use of the enemy's army or navy, we should be glad to 
 see an authority which countenances this exemption from forfeiture when 
 the property of a neutral." 
 
 This case was not one of contraband, but of enemy's property 
 in course of transit to a country, neutral indeed, but harbouring 
 the enemy's forces ; and the provisions of which it consisted were 
 admittedly going for the use of the latter. Marshall C. J., Living- 
 ston and Johnson JJ. dissented from the decision, on the ground 
 that there was nothing improper in the Swedes' helping the 
 enemies of the U.S«A. in their Spanish campaign against France. 
 
 In the case of Maisonnaire v. Keating,^ the vessel, captured Com. 
 by a French privateer, was carrying a cargo of corn from 
 Wilmington (U.S.) to Lisbon for the use of the allied British and 
 Portuguese armies. Great Britain being then at war with the 
 United States. Story J., in his judgment, observes : — 
 
 "Admitting that provisions are not in general contraband of war, 
 it is clear that they become so when destined to a port of naval equip- 
 ment of an enemy, and a fortiori when destined for the supply of his 
 army." 
 
 The question raised in the " Commercen " of course did not 
 here arise. The capture by a French ship of British goods 
 destined for the use of the Portuguese armies, consigned to 
 Lisbon and travelling under a British licence, was as clearly a 
 good capture as anything of the kind could be. ^ 
 
 The " Peterhoff,"^ a case before the Supreme Court of the Army 
 United States, was an appeal from a decree of the District artuieVy,' 
 Court of New York condemning a British ship for attempt to harness, 
 break blockade during the war between the United and Con- b^ts, 
 federate States. The Chief Justice (Chase), in the course of his «g"ia- 
 judgment, discussed what constitutes contraband as follows : — blankets. 
 
 "The classification of goods as contraband or not contraband has 
 much perplexed text-writers and jurists. A strictly accurate and satis- 
 factory classification is perhaps impracticable ; but that which is best 
 supported by American and English decisions may be said to divide 
 all merchandise into three classes. Of these classes the first consists 
 of articles manufactured and primarily and ordinarily used for military 
 purposes in time of war ; the second, of articles which may be and are 
 used for purposes of war or peace, according to. circumstances ; and the 
 third, of articles exclusively used for peaceful purposes. Merchandise 
 of the first class destined to a belligerent country or places occupied 
 by the army or navy of a belligerent is always contraband ; merchandise 
 of the second class is contraband only when actually destined to the 
 
 J 2 Gall., 325. 
 
 2 See the "Julia" {ibid.. Vol. I, p. 594, S.C. 8 Cranch, 181) as to the effect of a 
 belligerent licence. ' S Wallace, 28. 
 
 G 
 
82 COMMERCE IN WAR 
 
 military or naval use of a belligerent ; while merchandise of the third 
 class is not contraband at all, though liable to seizure and condemnation 
 for violation of blockade or siege. 
 
 " A considerable portion of the cargo of the ' Peterhoff ' was of the 
 third class, and need not be further referred to. A large portion, perhaps, 
 was of the second class, but is not proved, as we think, to have been 
 actually destined to belligerent use, and cannot therefore be treated as 
 contraband. Another portion was, in our judgment, of the first class, 
 or if of the second, destined directly to the rebel military service. This 
 portion of the cargo consisted of the cases of artillery harness and of 
 articles described in the invoices as ' men's army bluchers,' ' artillery 
 boots,' and ' Government regulation grey blankets.' These goods come 
 fairly under the description of goods priinariiy and ordinarily used for 
 military purposes in time of war. They make part of the necessary 
 equipment of an army." , 
 
 In Hobbs V. Henning,^ the Court of Common Pleas held 
 that contraband goods belonging to a neutral cannot lawfully 
 be seized unless they are in course of transit to an enemy's 
 port ; the fact that it was intended to the knowledge of the 
 ship's master to convey them from that port to an enemy's port 
 is immaterial. It should be observed that the Court in this case 
 strictly adhered to the rule of " destination," and ignored or dis- 
 regarded the element of " intention." 
 Money, In United States v. Dickelman,^ the Supreme Court of the 
 bJauon. United States held that money, silver plate, and bullion when 
 destined for hostile use, or for the purchase of hostile sup- 
 plies, are contraband of war. Chief Justice Waite, in delivering 
 judgment, made the following observations : — 
 
 " What is contraband depends upon circumstances. Money and bullion 
 do not necessarily partake of that character ; but when destined for 
 hostile use, or to procure hostile isupplies, they do." 
 
 visions. 
 
 Pro- The "Benito Esteriger"' was a case of a vessel captured 
 
 by a man-of-war of the United States while carrying provisions 
 to Manzanillo, a town of Cuba, then in a state of blockade by 
 the United States. Fuller C. J., on appeal from a District Court 
 of the United States, after quoting Mr. Jiistice Story's decision 
 in the " Commercen,"^ and that of Sir William. Scott in the 
 "Jonge Margaretha,"* observes : — 
 
 " But while alluding to this subject by way of illustration, we do not 
 feel called upon to consider under what particular circumstances, generally 
 speaking, provisions may be held contraband of war. It is enough that, 
 in dealing with a vessel adjudicated to have been an enemy's vessel, 
 
 1 17 C.B.N.S., 791- * 92 U.S. Rep., 520. 
 
 3 176 U.S. Rep., 568. * Wheaton's Reports, Vol. I, p. 382. 
 
 <■ I C. Rob., 189. 
 
CONTRABAND 83 
 
 the fact of trade with the enemy, especially in supplies necessary for the 
 enemy's forces, is of well-nigh decisive importance." 
 
 In the " Juno"^ it was held that in a doubtful case a small Horses, 
 unsubstantial part of the cargo, like five horses, will not be 
 presumed, in the absence of other proof, to have been intended 
 for military use. 
 
 This is clearly right ; but, taken by itself, it suggests that 
 the Court might have held circumstances of suspicion sufficient 
 which would by no means have satisfied Lord Stowell.^ How- 
 ever, the Court seems to have adopted a fairly rigid rule, enun- 
 ciated as follows : " When a belligerent port was neither in a 
 state of siege nor blockaded, nor, so far as I know, garrisoned, 
 horses on board a neutral bound to that port will be deemed 
 to have been intended for the purposes of peace," In fact, the 
 peaceful character of the port is asserted to create a conclusive 
 argument and not a mere presumption. 
 
 In the "Bird"* it was somewhat broadly held that, in 1779, Tar. 
 materials for the building, equipment, and armament of ships were 
 contraband, and that tar was such an article. The rule was also 
 applied according to which the vessel and other innocent goods 
 are confiscable, if belonging to the same owner as the contraband. 
 
 The " AUanton" was a British vessel captured 3 June, 1904, Coai. 
 in the Japanese sea by a Russian cruiser. She was laden 
 with a cargo of 6,500 tons of Japanese coal. According to the 
 ship's papers, it appeared that in May, 1904, she delivered at 
 Saseho a full cargo of coal from Cardiff. On discharging this 
 cargo she proceeded to Muroran, where she embarked another 
 full cargo of Japanese coal, destined, according to the documents, 
 for Singapore. There was also on board the vessel a young 
 Japanese, alleged to be on his way to America. 
 
 Having considered the case, the Prize Court of Vladivostock 
 found that the "AUanton " was justly condemned according to the 
 provisions laid down in sections 2, 3, 15-17 of the Russian Code 
 of Maritime Prizes on the following grounds : — 
 
 {a) Irregularities in the official company's book. 
 
 (b) Unquestionable evidence of the steamer havjng pre- 
 viously conveyed a full cargo constituting contraband 
 to a naval port in Japan with the knowledge and con- 
 currence of the owner. 
 
 {c) The chartering of the steamer for her second voyage by 
 a Japanese trading company, and the discovery on 
 
 1 38 Ct. Cl. (U.S.), 465. 1903- 
 
 2 Cf. the " Frau Margaretha," supra, p. 78. 
 
 3 38 Ct. Cl. (U.S.), 228. 1903. 
 
84 COMMERCE IN WAR 
 
 board of a full cargo of coal constituting contraband, 
 if the real destination of the steamer was not Singapore, 
 but an enemy's port, or even the enemy's fleet. 
 
 The Prize Court of Vladivostock thereupon adjudged that the 
 steamer "AUanton" and the whole of her cargo were lawful 
 prize. 
 
 The Supreme Court at St. Petersburg — Professor Martens 
 being a member thereof — gave judgment as follows : — 
 
 " As it has been fully proved that the steamer ' Allanton,' which was 
 detained by the Pacific cruisers, belonged to a British subject domiciled in 
 England, and was sailing under the British mercantile flag, and con- 
 sequently was a vessel of neutral nationality, the vessel and likewise her 
 cargo would have been liable to confiscation only in such case if she had 
 been caught in the act of conveying contraband to the enemy or to the 
 enemy's port. Although the cargo of the steamer ' Allanton ' consisted of 
 coal, which was included in the list of contraband Imperially confirmed on 
 the 14th February, 1904, there was nothing to prove in this case that the 
 cargo was intended for conveyance to the enemy or to the enemy's port. 
 On the contrary, all the documents presented proved the opposite. From 
 these documents, the genuineness and authenticity of which cannot be 
 doubted, it is evident that the steamer ' Allanton,' on her arrival at the 
 Japanese port of Muroran, was chartered to convey to Singapore a cargo 
 of coal purchased by the English firm of Paterson, Simons, and Co. in 
 Singapore from the Japanese Coal Company Hokkaido-Tanko-Tetsudo- 
 Kaisha. The contract for the supply of 55,000 tons of coal by the 
 Japanese Company to the firm of Paterson, Simons, and Co. in Singapore 
 was concluded in December 1903, i.e. before the declaration of war 
 and the commencement of hostilities against Russia by Japan. The 
 charter-party and the bill of lading for the said cargo were forwarded to 
 Paterson, Simons, and Co., of Singapore, in due course. The corre- 
 spondence between the firm of Paterson, Simons, and Co. and their 
 representatives in Japan, Dodwell and Co., and between the latter and 
 the Hokkaido-Tanko Company, also the correspondence between the 
 shipowner Rea and the captain of the ' Allanton,' Motyer, fully confirms 
 the actual destination of the coal carried by the steamer to be the port of 
 Singapore; This is also confirmed by the freight contracts for future 
 contemplated voyages of the steamer ' Allanton,' which was to have sailed 
 from Singapore with a cargo to Calcutta, from thence to Kurrachee, and 
 finally to European ports. 
 
 " The fact of the steamer ' Allanton ' having embarked a cargo at an 
 enemy's port and from a Japanese Company cannot serve as sufficient 
 grounds for confiscation, inasmuch as, if the Japanese Company be 
 considered the owners of the cargo previous to its delivery to the holders 
 of the bill of lading, it would yet not be liable to confiscation in virtue of 
 Article II of the Maritime Prize Regulations, which provides that a 
 neutral flag covers an enemy's cargo provided that it is not contraband, 
 whereas coal could be recognized as contraband only in such case if it 
 were being conveyed to the enemy or to an enemy's port, which was not 
 so in the present case. The circumstance which, in the first instance, led 
 to the surmise that the cargo of the steamer ' Allanton ' was destined for 
 
CONTRABAND 85 
 
 delivery to the enemy, or to an enemy's port, are removed by virtue of the 
 documents submitted at the trial of the case in the Supreme Prize Court, 
 and have no definite effect. 
 
 " The delivery by the ' Allanton ' on her first voyage of a cargo of 
 Cardiff coal to the Japanese port of Saseho cannot serve as sufficient 
 ground for the confiscation of the cargo subsequently shipped from 
 Muroran to Singapore, as, in virtue of Article XI of the Prize Regulations, 
 vessels of neutral nationality are liable to confiscation only in the event 
 of their being caught in the act of conveying contraband to the enemy or 
 to an enemy's port, and by no means if they had on a previous occasion 
 carried contraband to the enemy. 
 
 " The route which was taken by the steamer ' Allanton ' from Muroran 
 has been accepted as the shortest, as also the statement of Captain Motyer 
 to the effect that, in carrying coal not as contraband, but to a neutral 
 port, he had no cause to fear detention of the vessel. Although, according 
 to the decision of the Chief Hydrographic Department, the majority of 
 vessels prefer the ocean route, owing to frequent fogs which occur in the 
 Japanese Sea making it dangerous for navigation, but as it would appear 
 from this decision that some vessels nevertheless take the route across the 
 Japanese Sea, the route taken by the captain of the 'Allanton' cannot 
 serve as evidence against him. The discovery on board the vessel of the 
 Japanese Tateki Miahara, if there had been any cause for suspicion in 
 the beginning, in view of his possessing no documents establishing his 
 identity, this suspicion is now removed, as on further investigation of the 
 case it was not proved that he had acted as agent for the enemy's Govern- 
 ment, or had been entrusted with the delivery of the cargo of coal. The 
 omission of entries in the official log-book from the 15th May, 1904, 
 although an infringement of the Regulations for keeping log-books, is yet 
 insufficient for disqualifying the evidence brought forward in regard to 
 the steamer having been directed to Singapore, more especially as the 
 entries in the other ship's log were properly made. 
 
 " Admitting, on the foregoing grounds, that the steamer ' Allanton ' 
 and her cargo were not liable to confiscation, the Supreme Prize Court, 
 guided by Article XXX of the Prize Regulations Imperially confirmed, 
 then considered the question as to whether there were sufficient grounds 
 for the detention of the steamer ' Allanton ' and her cargo, and whether 
 the established conditions and rules were observed on such detention. 
 The Supreme Court found that there were in every respect sufficient 
 grounds for suspicion that her cargo was destined for the enemy or for 
 the enemy's port. This suspicion was based on the following : — 
 
 "(i) That the vessel did not stop on the first request of the cruiser 
 'Rossia,' but only after two blank shots had been fired. Although 
 Captain Motyer denied this, and referred to witnesses whom he requested 
 to be examined, the Court considered the Protocol drawn up on this 
 subject in the established form, and confirmed by the sworn depositions 
 of the Commander of the cruiser ' Rossia,' to be thoroughly trustworthy, 
 
 "(2) That the official log-book was not kept in the proper form. If 
 the irregularity, as shown above, cannot serve as sufficient grounds for the 
 confiscation of the vessel, it still gave rise to suspicion on her detention. 
 
 "(3) That the cargo was received by the vessel at an enemy's port, 
 and that she had a Japanese on board who could not establish his 
 identity. 
 
86 COMMERCE IN WAR 
 
 "(4) That the steamer adopted a course seldom chosen by ship 
 captains, and passed close to the enemy's ports and the enemy's fleet. 
 
 "(5) That previous to this the steamer delivered contraband to an 
 enemy's port. 
 
 " All these circumstances, although subsequently proved at the trial 
 of the case at the Supreme Prize Court in favour of the shipowner, made 
 the vessel, on her meeting with the Russian squadron, a suspicious case, 
 and gave the Admiral in command of the squadron the right of detaining 
 her, in accordance with Article XVI of the Prize Regulations, and 
 Articles XXXVI and XXXVII of the ' Instructions for the Order of 
 Stoppage, Inspection, and Detention of Vessels and cargo.' The 
 detention of the steamer ' Allanton ' and her cargo was carried out 
 with the observance of the conditions and rules established in Articles 
 XV-XXVI of the Prize Regulations and of the Instructions confirmed 
 by the Admiralty Council on the 20th September, 1900. Wherefore the 
 detention of the steamer 'Allanton' and her cargo must be admitted 
 to have been carried out on sufficient grounds, and with the observance 
 of the established conditions and rules. 
 
 " On all these grounds the Supreme Prize Court decided : — 
 
 "(i) To recognize the steamer 'Allanton' and her cargo as not 
 subject to confiscation, and to return the steamer and the cargo to their 
 owners ; 
 
 "(2) To recognize that the steamer 'Allanton' and her cargo had 
 been detained on sufficient grounds and with the observance of estab- 
 lished rules ; and 
 
 " (3) That the decision of the Prize Court of the port of Vladivostock 
 shall be annulled as regards the confiscation of the said steamer and 
 cargo. 
 
 " The original bears the necessary signatures. 
 
 " Correct. 
 
 " Acting Secretary, 
 "(Signed) R. SOURIN." 
 
 The judgment of the Vladivostock Court vv^as annulled on 
 the ground that, although coal was contraband according to the 
 declaration of the Russian Government, yet it was only contra- 
 band when being conveyed to the enemy or the enemy's port, 
 and all the documents in the case proved the contrary. Further 
 that, although the cargo seized was embarked at an enemy's 
 port and by a Japanese subject, yet, being under a neutral flag 
 and not contraband, it was protected ; and finally, that although 
 on her previous voyage she had carried contraband to Japan, 
 such fact did not affect her subsequent voyage to Singapore, 
 which was lawful. 
 
 The decision of the Court that the steamer had been detained 
 on sufficient ground is open to severe criticism. The fact that 
 the cargo was received at an enemy's port is wholly immaterial, 
 as trade by neutrals with a belligerent in goods other than 
 
CONTRABAND 87 
 
 contraband, and in the absence of blockade, is absolutely legiti- 
 mate ; nor would the presence of a subject of the belligerent 
 State other than an envoy or military or naval person constitute 
 a proper ground for detention of the ship. Neither is the fact 
 that the vessel was going a somewhat unusual course, if that be 
 conceded, an adequate reason for detention ; a neutral ship ought 
 not tp be molested because she is in strange seas ; she is free to 
 go where she likes, unless there be from the ship's papers or from 
 admissions of her crew, adequate proof that her destination was 
 illegal, or unless her course be inconsistent with any but the same 
 conclusion. The fifth ground alleged as justification for detention, 
 namely, that "previous to this the steamer delivered contraband 
 to an enemy's port," is wholly unsupported by precedent or 
 authority, and if it were to receive general acceptation would 
 place neutral shipping at the mercy of the speculations or 
 suspicions of a naval officer. 
 
 The only plausible reason for justification of the vessel's seizure 
 and detention may perhaps be found in the alleged irregularity 
 in the vessel's log. Lord Stowell, indeed, insisted upon the high 
 importance that ought to be attached to regularity in a ship's 
 books or other papers, and anything approaching the character 
 of fraud in these matters has always entailed very serious conse- 
 quences. It may certainly be doubted whether in the case of 
 the " AUanton " there was such irregularity in the log-book as to 
 warrant the detention of the ship ; but however that may be 
 in fact, there can be little question that irregularity in a ship's 
 papers does constitute a legitimate ground for detention. 
 
 The " Calchas " ^ was a British steamer, and at the time 
 of her capture near the bay of T6ki6 was proceeding on a 
 voyage to Liverpool via Yokohama, Kobe, Shanghai, and 
 Hong-Kong, and her cargo consisted of flour, cotton, wooden 
 logs, machinery, and various other goods consigned partly to 
 neutral and party to Japanese ports. Besides these goods, 122 
 mailbags were found on board addressed to Japan and Corea. 
 
 By a decision of the 31st August, 1904, the Vladivostock Prize 
 Court adjudged : — 
 
 "(i) That the goods destined for ports in Japan, and con- 
 sisting of 13,300 bags of flour, 36 bales of cotton, 
 and 97 wooden logs, be confiscated as lawful prizes. 
 
 "(2) That the goods consigned to neutral ports be regarded 
 as not liable to confiscation, and be immediately 
 released and restored. 
 
 * See "Times," 11 October, 1904. The judgment above given in the case of the 
 " AUanton " is from an official translation. 
 
88 COMMERCE IN WAR 
 
 " (3) That the steamer ' Calchas,' captured in the act of 
 carrying contraband for the enemy, comprising less 
 than half the total cargo on board at the time of 
 capture, and mails for the Japanese Government 
 having no direct influence on the prosecution of 
 warlike operations, be likewise released." 
 
 On 2 May, 1905, the Supreme Prize Court, on which Professor 
 Martens sat, sitting at St. Petersburg, gave judgment as 
 follows : — 
 
 " Having^ heard at the present sitting the verbal explanations of 
 Advocates Scheftel and Berlin and the conclusions of the Acting Pro- 
 curator, the Supreme Prize Court found that the decision of the Vladivos- 
 tock Prize Court in this case was appealed against only in respect of the 
 confiscation of 13,300 bags of flour, 97 logs, and 36 bales of cotton. The 
 protest of the Procurator of the Vladivostock Prize Court and the 
 complaint of the Commander of the separate detachment of cruisers of 
 the Pacific squadron referred to the release of the steamer 'Calchas' and to 
 the postponement of the execution of the judgment delivered by the lower 
 Court in respect of the parts of machinery found on board the ' Calchas.' 
 The question respecting the ultimate destination of the parts of machinery 
 with regard to which the Vladivostock Prize Court passed no judgment is 
 not subject to consideration by the Supreme Prize Court. But the decision 
 of that Court releasing the steamer ' Calchas ' is protested against by the 
 Procurator of the Vladivostock Prize Court and the Commander of the 
 separate detachment of cruisers of the Pacific squadron. 
 
 " In accordance with Article VII of the Rules of the 14th February, 
 1904, ' the following acts, forbidden to neutrals, are assimilated to contra- 
 band of war : the transport of the enem3^s troops, of the enemy's 
 despatches and correspondence, the supply of warships and transports to 
 the enemy. . . . Neutral vessels captured in the act of carrying contra- 
 band of this nature may, according to circumstances, be seized, and even 
 confiscated.' There can be no doubt that a neutral, having undertaken 
 to transport the enemy's troops, despatches, and correspondence, to a 
 certain extent enters the service of the enemy's country and openly 
 meddles in warlike operations. The motives for so meddling may be 
 attributed either to pecuniary advantages, political sympathy, or force of 
 circumstances. The right, however, of confiscation by a belligerent is 
 incontestable with regard to a neutral vessel which has thus come under 
 the flag of the enemy. But this right of confiscation by a belligerent in 
 respect of a neutral subject or vessel exists only when the circumstances 
 of the case prove that there can be no doubt of the culpability of the 
 neutral, i.e. when it can be established that the neutral was actually 
 engaged in the transport of the enemy's troops, despatches, and corre- 
 spondence. It would be necessary to prove that the neutral had under- 
 taken to transport such troops or despatches and correspondence to the 
 enemy's country or enemy's Government ; it would be necessary to ascertain 
 positively the intention of a neutral to render services to a belligerent 
 in the prosecution of warlike operations on land and sea. According to 
 these views, a neutral vessel engaged by an agent of a belligerent Power 
 for the special purpose of carrying despatches addressed to military, naval. 
 
CONTRABAND 89 
 
 and diplomatic authorities may legally be arrested and condemned if the 
 fact of the engagement be proved. But the carriage of ordinary corre- 
 spondence from neutral ports would, in accordance with the Reglement 
 of the Universal Postal Union, alone be insufficient ground for regarding 
 a neutral culpable of rendering assistance to one of the belligerents to the 
 injury of the other. 
 
 " It is in this sense that the literal and inward meaning of Article VII 
 of the Rules of the 14th February, 1904, must be understood. This 
 legislation could have no intention of abolishing the acknowledged 
 privileged rights of mail-steamers, or of annulling the Regulations 
 established by the Universal Postal Union for the benefit of all nations. 
 These Regulations remain operative without interruption during war-time, 
 and, so far as it is practically possible, even between the belligerents. Thanks 
 to the Universal Postal Union, The Hague Peace Conference of 1899 was 
 able to adopt a Resolution greatly alleviating the condition of prisoners 
 of war by providing for the transmission by post and by railway, free of 
 charge, various parcels and correspondence addressed to them. During 
 the course of the present war, Russian and Japanese inquiry offices for 
 prisoners of war have maintained, with the approval of the Governments 
 of both belligerent Powers, direct and constant communications with one 
 another by post and telegraph. 
 
 " In view of the foregoing, no blame can be attached to the captain of 
 the 'Calchas' for having received at Tacoma 122 mail-bags for delivery 
 at neutral, Japanese, and Corean ports on the route. He could not know 
 the contents of these sealed bags, nor could he be held responsible for the 
 contents of the correspondence contained in them given to him by the 
 postal authorities of the United States. 
 
 " On the other hand, the Vladivostock Prize Court had legal right to 
 acquaint itself with the contents of these bags, and to seize the corre- 
 spondence addressed to the Japanese Government or Japanese Govern- 
 ment institutions and officials. The Prize Court acted accordingly, and 
 retained only fifteen packets addressed to the Japanese Government in 
 T6ki6. All the remaining correspondence was forwarded to the Staff 
 of the Commander of the fleet, and proper steps were then taken for the 
 transmission of the correspondence to its destination. 
 
 "On perusal of the packets in question with Government corre- 
 spondence, it appeared that only two contained reports from the Japanese 
 Minister in Washington and Japanese Consular Agents abroad which 
 were of a political nature. One contained a report from the Japanese 
 Minister, Takahira, to the Minister for Foreign Affairs in T6ki6, enclosing 
 two Secret Papers, Nos. 30 and 31 ; the other was a report from the 
 Japanese Consul-General in San Francisco. Other despatches referred to 
 domestic affairs, cash accounts, and the general management of Japanese 
 Diplomatic and Consular offices in America and Europe. Although these 
 reports were certainly of political interest, they contained, however, no 
 information likely to influence the progress of the operations of our army 
 and fleet. 
 
 " In view of these circumstances, there are no grounds upon which 
 Article VII of the Rules of the 14th February, 1904, could be applied 
 to the steamer ' Calchas ' or for regarding her captain culpable of carrying 
 to the enemy so-called 'analogous' contraband of war, i.e. the enemy's 
 despatches and correspondence. The steamer ' Calchas ' is not liable to 
 
90 COMMERCE IN WAR 
 
 confiscation for carrying correspondence to the enemy, and the guarantee 
 lodged by the owners and supported by the Bank of England for the sum 
 of 674,830 roubles for the preliminary release of the steamer on bail in 
 November, 1904, must be regarded as cancelled. 
 
 " But, on the other hand, there can be no doubt that, on discovering 
 a considerable number of bags with mails on board the steamer ' CalchaS ' 
 addressed to the enemy's port, the Russian cruiser ' Gromoboi ' was legally 
 justified in arresting the steamer and suspecting the neutral character of 
 her cargo. In this respect the Commander of the cruiser ' Gromoboi ' was 
 not only justified, in virtue of Article VII of the Rules of the 14th Feb- 
 ruary, 1904, and of the Laws relating to prizes (Article XIII) and the 
 Instructions (Article XXXVI), but he was compelled under those 
 Regulations to give orders for the conveyance of the steamer ' Calchas ' 
 to Vladivostock to be handed over to the local Prize Court. 
 
 " Finally, taking into consideration that the arrested steamer was 
 discovered with an enormous cargo which might, according to circum- 
 stances, either be regarded as absolute or conditional contraband of war, 
 her detention and conveyance to Vladivostock was perfectly justified in 
 accordance with facts and indisputable rights of belligerent ships. 
 
 " On the strength of these views, the Supreme Prize Court recognizes 
 that there were sufficient legal grounds for the arrest of the steamer 
 ' Calchas ' and for her conveyance to Vladivostock as ordered by the Com- 
 mander of the separate detachment of cruisers of the Pacific Squadron. 
 The arrest and her conveyance to Vladivostock were carried out with 
 the observance of all the principles of Russian and international law. 
 
 " Reverting now to the examination of the other parts of the cargo 
 regarded by the Vladivostock Prize Court to be contraband of war and 
 against which appeals have been made, the Supreme Prize Court firstly 
 considered the case of the 13,300 bags of flour which was regarded 
 contraband of war liable to confiscation. In its decision in the case 
 of the ' Arabia,' of the 20th November, 1904, the Supreme Prize Court 
 had occasion to explain, in interpreting Article VII, section 10, of the 
 Rules of the 14th February, 1904, the necessity of making a distinction 
 between unconditional (absolute) and conditional (relative) contraband 
 of war. In view of this interpretation, the articles enumerated in 
 section 10 of the said Article of the Rules are deemed to be contraband 
 of war only if transported on the account of, or destined for, the enemy, 
 i.e. when transported to the enemy's Government, contractors, army, 
 navy, fortresses, or naval harbours, and not for private individuals, 
 subjects of the enemy's country, and more especially neutral Govern- 
 ments or private individuals. In every concrete case it must be deter- 
 mined from all the circumstances available to what extent the arrested 
 objects can be assimilated with those constituting contraband of war 
 or with those which, on special evidence produced to the Court, leave 
 not the slightest doubt that they belong to private individuals not acting 
 on behalf of, or for account of, the enemy. In all such cases, according 
 to the practice of Prize Courts existing for many centuries, the onus 
 of proof would undoubtedly lie with the individual seeking recognition 
 of the irregular detention and release of the vessels and cargoes arrested 
 on suspicion. 
 
 " In applying these principles to the parcel of flour consisting of 
 13,300 bags confiscated by the decision of the Vladivostock Prize Court, 
 
CONTRABAND 91 
 
 the Supreme Prize Court find, from the documentary proof produced 
 by the parties, that this flour, ordered by a neutral firm in Japan, was not 
 destined for the Japanese Government, army, navy, or fortresses, but 
 consigned to the English firms of Findlay, Richardson, and Co., Gill 
 and Co., and Samuel, Samuel, and Co., and is consequently not liable 
 to confiscation. In view of this, the Supreme Prize Court, guided by 
 Article VI, section 10, of the Rules of the 14th February, 1904, and 
 Articles XII and XIII of the Laws relating to prizes, decided to reverse 
 in this respect the judgment of the Vladivostock Prize Court, and conse- 
 quently countermand the confiscation of the 13,300 bags of flour above 
 referred to as a lawful prize. 
 
 " From the foregoing views, the Supreme Prize Court, on the contrary, 
 recognizes the 36 bales of cotton and the 97 logs as lawful prizes liable to 
 confiscation in accordance with the decision of the Vladivostock Prize 
 Court. 
 
 "In virtue of the Imperial Order of the i8th April, 1904, cotton was 
 added to the list of objects declared contraband of war, apparently in 
 view of the possibility of utilizing it for the manufacture, by chemical 
 process, of pyroxyline and other explosive substancesi 
 
 " It would appear from the details of this case that the parcel of cotton 
 in question was consigned to two Japanese firms in Kobe — Nagai Wata 
 Kaisha, and the Japanese Cotton Trading Company. It is also known 
 that in Osaka, near Kobe, the manufacture of cotton for various purposes 
 has developed enormously, and that a large military arsenal exists. 
 
 " In virtue of Article VI, section 3, of the Rules of 14th February, 
 1904, are liable to confiscation as contraband of war ' articles or materials 
 for causing explosions, such as torpedoes, dynamite, pyroxyline.' Finally, 
 no positive proof has been submitted to the Supreme Prize Court by the 
 representatives of the above-mentioned firms in support of the absolutely 
 innocent character of the parcel of cotton consigned to Kobe. 
 
 " In view of these considerations, the Supreme Prize Court decided to 
 support the decision of the Valdivostock Prize Court, in accordance with 
 which the above-mentioned 36 bales of cotton were recognized as lawful 
 prizes and liable to confiscation. Finally, with regard to the 97 logs, the 
 Supreme Prize Court finds that in virtue of Article VI, section 9, of the 
 Rules of the 14th February, 1904, materials of all kinds suitable for the 
 installation of telegraphs, telephones, and for the construction of railroads 
 are deemed to be contraband of war and liable to confiscation. The logs 
 found on board the steamer ' Calchas ' can be utilized for warlike require- 
 ments, and are therefore liable to confiscation. 
 
 " On the strength of all the foregoing views, the Supreme Prize Court 
 decided (i) to leave the protest of the Procurator of the Vladivostock 
 Prize Court and the complaint of the Commander of the separate detach- 
 ment of cruisers of the Pacific squadron without consideration ; (2) to 
 reverse, in respect of the appeals of the representatives of the owners of 
 the cargoes, the decision of the Vladivostock Prize Court in so far as it 
 concerned the confiscation of 13,300 bags of flour, and to restore the flour 
 to the owners. The other questions referred to in the appeals to remain 
 without consideration ; (3) to recognize that the steamer ' Calchas ' was 
 detained on sufficient grounds and with the observance of all formalities. 
 
 " R. JURSHU, 
 
 "Acting Secretary." 
 
CHAPTER II 
 
 BLOCKADE 
 
 BLOCKADE is a proceeding of a naval character, having for 
 its object the interdiction by force of all intercourse by sea 
 between the blockaded littoral, its ports, havens, estuaries, and 
 rivers, and the rest of the world. A siege differs from a blockade 
 in that a siege necessarily involves the notion of attack and 
 ultimate capture by means of siege works or assault. 
 
 A pacific blockade is a demonstration of a belligerent character 
 short of actual hostilities against an offending State, whereby its 
 commerce is suspended, but in accordance with the precedents 
 generally established by modern usage and the views of most 
 jurists, should not extend to interference with the commerce of 
 neutrals proceeding to or from the offending State. 
 
 The purpose of blockade is, primarily, by depriving the in- 
 habitants of the hostile State of all commercial intercourse by sea 
 with the rest of the world, and thus subjecting it to privation, to 
 coerce it to seek peace on terms acceptable to the other bel- 
 ligerent. 
 
 The serious injury inflicted upon neutral States through being 
 thus shut off from commerce with a State upon which they are on 
 terms of amity, has from early times constrained them to insist 
 upon certain rules and observances as conditional to their 
 recognition of a blockade as being effective and binding upon 
 their subjects. As in the case of contraband, so in that of 
 blockade : its claim for recognition by neutral States is founded 
 upon the principle that when sovereign States are at war they 
 are entitled to choose the means and methods of war they may 
 employ against each other, and that no neutral nation has a right 
 so to act as to render such means or methods ineffective. There 
 are, indeed, some publicists who insist that blockades are entitled 
 to special favour, inasmuch as they constitute an effective means 
 of carrying on war without effusion of blood. Cauchy felicitously 
 describes them as " un moyen de forcer I'ennemi a se rendre sans 
 le d^truire,"^ and certainly the progress of international law has 
 
 ' Cauchy, Vol. II, p. 196. 
 
BLOCKADE 93 
 
 not been in the direction of unduly limiting the rights of belliger- 
 ents to impose blockades upon their enemies' ports or territory. 
 
 Much controversy has taken place concerning the origin of this 
 undoubted right of belligerents to prevent neutrals carrying 
 on trade with ports or places which are blockaded. Some jurists 
 contend that blockade is founded on the right of conquest, others 
 upon necessity. Hautefeuille^ thus expounds the theory of con- 
 quest as the basis of blockade : — 
 
 " Pour arriver a ce r^sultat, il faut necessairement s'emparer des villes, 
 des forteresses, des ports, et le plus souvent il faut battre les murailles 
 avec le canon et enlever la place de vive force, ou reduire ses d^fenseurs 
 par la famine, c'est k dire faire le siege ou le blocus. Le droit du belliger- 
 ant k employer ces moyens est parfait et absolu ; c'est un droit essentiel 
 de la guerre." 
 
 He goes on to observe that when a belligerent besieges or 
 invests a town or fortress, he occupies with his troops the circum- 
 jacent territory, the possession and occupation of which affords 
 him the same rights against others and the same jurisdiction as if 
 the territory were part of his own country : — 
 
 " Si nous faisons," he continues (p. 3), " I'application de ces principes au 
 blocus maritime, nous voyons que, du moment qu'un belligdrant a bloqu6 
 un port de son adversaire, il a fait la conquete de cette partie du domaine 
 ennemi que nous avons appele mer territoriale, qu'il a le droit de donner 
 k cette conquete les lois qu'il trouve les plus propres a favoriser ses 
 projets. . . . Pour le belligdrant ce droit est aussi complet que celui 
 en vertu duquel il peut defendre aux etrangers de faire le commerce en 
 general ou certain commerce special dans ses anciens l&tats. II peut done 
 non seulement promulguer la prohibition, mais encore decr^ter la peine 
 applicable a ceux qui voudraient enfreindre cette loi, parce que le lieu 
 dans lequel se passe le fait est soumis a sa juridiction. Le droit de blocus 
 a done sa source dans la loi primitive ou divine ; mais comme on le sait, 
 son origine est complfetement differente de celle de la premiere restriction 
 a la liberty du commerce neutre. La contrebande de guerre derive d'un 
 effet d'un devoir naturel des peuples neutres; le blocus decoule d'un droit 
 du bellig^rant." 
 
 This doctrine of conquest is undoubtedly open to objection, for 
 the control of territorial waters is properly based upon the control 
 of the territory to which these waters are appurtenant, and inas- 
 much as a blockade necessarily involves the fact that the territory 
 is not in the occupation of the belligerent who maintains the 
 blockade, this essential characteristic of sovereignty over territorial 
 waters is absent. Nor can Hautefeuille's picture of substituted 
 sovereignty explain the belligerent's undoubted right to interfere 
 with neutral shipping far beyond the limits of territorial waters. 
 
 1 Hautefeuille, "Des Droits et Devoirs des Nations Neutres," Vol. Ill, p. i. 
 
94 COMMERCE IN WAR 
 
 A more correct view of the principle upon which the right of 
 blockade exists may be found in the view that the attempt to 
 reduce an enemy to subjection by cutting off his commercial 
 relations with the rest of the world is a proper and legitimate 
 form of warfare, and that consequently there is a duty imposed 
 upon every neutral State not to render that form of warfare in- 
 effective or impossible. 
 
 Gessner thus deals with this theory, affirming that blockade is 
 founded upon necessity, and that without it maritime wars would 
 be rendered impossible : — 
 
 " Le droit de blocus ne pouvant, comme le fait tr^s bien remarquer 
 Hautefeuille, se deduire des devoirs des neutres, nous sommes forces, 
 malgr6 I'opposition ardente de cet auteur, d'en cheircher la cause dans la 
 ndcessit6. II nous suffit que cette n^cessit^ ne soit pas seulement pre- 
 tendue; surtout qu'elle ne soit pas prdtendue par une seule nation, comme 
 cela a 6t6 le cas pour beaucoup de mesures prises k I'egard des neutres 
 pendant les guerres maritimes. La ndcessit^ d'interdire aux neutres le 
 commerce avec les ports bloques, si Ton ne veut pas faire perdre toute son 
 efficacit6 au blocus, au moyen le plus important d'arriver par la guerre 
 maritime a des resultats et d'accdlerer le retablissement de la paix, cette 
 necessity a toujours 6te reconnue par toutes les puissances et cette 
 necessity n'a fait naJtre d'aucun c6t6 des reclamations de quelque im- 
 portance. La necessity d'accorder aux belligerants un pareil droit est 
 done suffisamment constat^e ; ce fait et la sanction historique qu'il a regue 
 suffisent pour donner au droit de blocus une base soHde. Toutes les autres 
 theories sont depourvues de fondement ; le point de vue que nous venons 
 d'exposer et qui a ete celui de plusieurs anciens auteurs, de Grotius, de 
 Bynhershoek, de Vattel et aussi parmi les modernes de Cauchy, est le 
 seul ddfendable." ^ 
 
 Whatever indeed may be the theory of blockade, whether it be 
 founded on the somewhat fanciful notions of "conquest" or 
 "occupation" of territorial waters, or may be ranged under the 
 stern law of necessity, it has long become a well-understood part 
 of the law of nations, and is regarded by mankind as a necessary 
 incident of maritime war. Grotius, thus deals with the right of a 
 belligerent to prevent the access of a neutral ship carrying 
 supplies to a blockaded port or besieged town : — 
 
 '' Nam si tueri me non possum nisi quae mittuntur intercipiam, neces- 
 sitas, ut alibi exposuimus, jusdabit sed sub onere restitutionis, nisi causa 
 alia accedat. Quod si juris mei executionem rerum subvectio impedierit, 
 idque scire potuerit qui advexit, utsi oppidura obsessum tenebam, si portus 
 clauses, et jam deditio aut pax expectabatur, tenebitur ille mihi de damno 
 culpa dato, ut qui debitorem carceri exemit, aut fugam ejus in meam 
 fraudem instruxit : et ad damni dati modum res quoque ejus capi et 
 dominium earum debiti consequendi causa quseri poterit."^ 
 
 > Gessner, p. i68. 
 
 " Grotius, "De Jure Belli et Pads," lib. Ill, chap, i, sec. v, 3. 
 
BLOCKADE 95 
 
 Bynhershoek^ deals at length and with some care with the 
 duties of neutrals and rights of belligerents in the case of sieges 
 and blockades : — 
 
 " Ex ratione communi et gentium usu urbibus obsessis nihil quicquam 
 licet advehere . . . Sola obsidio in causa est, cur nihil obsessis subvehere 
 liceat, sive contrabandum sit, sive non sit, nam obsessi non tantum vi 
 coguntur ad deditionem, sed et fame, et alia aliarum rerum penuria. 
 Si quid eorum, quibus indigent, tibi adferre liceret, ego forte cogerer 
 obsidionem solvere, et sic facto tuo mihi noceres, quod iniquum est. 
 Quia autem sciri nequit, quibus rebus obsessi indigeant, quibus abundent, 
 omnis subvectio vetita est, alioquin altercationum nullus omnino esset 
 modus vel finis. Hactenus Grotii sententiae accedo, sed vellem ne ibidem 
 addidisset tunc demum id verum esse ' si jam deditio aut pax expecta- 
 batur ' et mox, eum, qui sic tamen subvexit, ' teneri de damno culpa dato,' 
 vel ' si damnum nondum dederit, sed dare voluerit, jus esse rerum re- 
 tentione eum cogere, ut de futuro caveat obsidibus, pignoribus aut alio 
 modo.' Vellem, inquam ne hsec addidisset Grotius, nam nee rationi 
 conveniunt nee pactis gentium, quae mihi succurrerunt. Quae ratio me 
 arbitrum constituit de futura deditione aut pace ? Et si neutra exspect- 
 etur, jam licebit obsessis quaelibit advehere ? imo nunquam licet, durante 
 obsidione, et amici non est causam amici perdere vel quoquo modo 
 deteriorem facere. . . ." 
 
 " Quod in urbibus vere obsessis obtinet, et ad castra, quasi obsessa, idonea 
 ratione translatum est, pertinet quoque ad portus hostiles, qui navibus 
 cincti pro obsessis habentur. lUustre in hanc rem est decretum ordinum 
 generalium 26 Jan. 1630 factum ad consultatiorem admiralitatis Amster- 
 dammensis, ex ejusdem et aliarum admiralitatum consilio, quin et 
 ut probabile est, ex consilio privatorum quod exstat Consil. Holl. T. V. 
 Consil. 161." 
 
 VatteP declares with considerable precision the rules of inter- 
 national law with regard to blockades and sieges : — 
 
 "All commerce with a besieged town is absolutely prohibited. If I 
 lay siege to a place, or even simply blockade it (ou seulement bloqu^e), I 
 have a right to hinder any one from entering, and to treat as an enemy 
 whoever attempts to enter the place, or carry anything to the besieged 
 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. 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.^ In the long and bloody war carried on 
 by the united provinces against Spain for the recovery of their liberties, 
 they would not suffer the English to carry foods to Dunkirk, before which 
 the Dutch fleet lay." 
 
 The attitude which is now authoritatively assumed by all States 
 is that no blockade will be treated as binding on neutral Powers, 
 
 1 "Quaest. Juris Publici," lib. I, chap, xi, p. 212. 
 
 2 "Droit des Gens," lib. Ill, sec. 117. 
 
 3 Plutarch in "Demetrius." 
 
96 COMMERCE IN WAR 
 
 unless the same be effectively maintained. Kliiber accurately 
 states the modern conception of an effective blockade : — 
 
 " On appelle lieu bloqui que ce soit un port, une place forte, une ville, un 
 camp, une c6te, etc., celui ofi en vertu des dispositions de la puissance qui 
 I'attaque avec des troupes, ou avec des vaisseaux station6s et suffisamment 
 proches. Ton ne peut entrer d'aucun mani^re sans le consentement de 
 cette puissance, ou dans lequel on ne peut p6n6trer qu'en courant un 
 danger Evident. Un lieu pareil dans les limites ou s'etend le blocus, 
 par exemple, un port du c6t6 de la mer, doit fitre regard^ par les 
 neutres comme 6tant au pouvoir de la puissance belligerante qui le 
 tient bloqu6. Cette puissance est done en droit d'exclure a volont6 les 
 6tats neutres et leur sujets de tout commerce, soit navigation, soit 
 commerce proprement dit, avec ce mSme lieu." ^ 
 
 Bluntschli," while pointing out the impracticability of laying 
 down any rule as to the number of ships, batteries, or guns 
 necessary to render a blockade effective, suggests that each case 
 must be determined by its own particular facts and circumstances, 
 and observes 
 
 " II faut que I'ennemi possede sur les lieux des forces suffisantes pour 
 pouvoir intercepter le commerce r^gulier des navires marchands." 
 
 It is obvious that neutral States would not recognize the right of 
 a belligerent State to deprive them of their commercial relations 
 with its enemy merely by the pronouncement of an interdiction of 
 commerce. Later on we shall show that such pretensions have been 
 raised, but they have uniformly been strenuously resisted by neutral 
 States, and have now, apparently, been definitely abandoned. The 
 modern conception of a neutral's responsibility in relation to 
 blockade is well stated by Dupuis.' After pointing out that 
 belligerents recognize as a condition precedent to their right to 
 interfere with neutral commerce, that they should mount guard 
 over the hostile coast, and effectually bar the approach thereto, 
 he observes : — 
 
 " On ne leur demandait plus qu'une chose entier^ment conforme aux 
 devoirs de la neutralite : respecter les operations de guerre, s'abstenir de 
 franchir des lignes d' investissement, dviter d'entrer en conflit avec la force 
 arm^e qui pressait I'ennemi, ^viter en un mot de faire acte d'hostilit^ contre 
 les auteurs du blocus au profit de I'ennemi bloqu6. Les neutres n'avaient 
 qu'^ s'incliner devant la force effective." 
 
 There is undoubtedly among European jurists a prevalent view 
 that to entitle a belligerent to enforce the penalties of violating 
 a blockade against neutrals, the blockade must be of so strict a 
 
 ' " Droit des Gens,'' sec. 297. 
 
 2 Bluntschli, " Droit Internationel," sec. 829. 
 
 ' "Droit de la Guerre Maritime," p. 181. 
 
BLOCKADE 97 
 
 character as to render access to the blockaded area impossible, or at 
 least of such a character as to expose vessels attempting to pass 
 to the effective fire of guns placed in position. Ortolan,' in the 
 case of the blockade of a harbour, insists that all its approaches 
 should be so guarded by permanent naval forces that no ship 
 seeking access should be able to do so without the blockading force 
 seeing and being able to turn her back. Ortolan, indeed, purports 
 to base this proposition upon the opinion of Kliiber, but this jurist 
 also speaks of a '■'danger Evident." Moreover, it may be observed, 
 that if M. Ortolan's definition of an effective and therefore legal 
 blockade were to obtain, blockades over an extensive littoral would 
 never reach that standard of effectiveness, and would not there- 
 fore be legally possible. Probably, for all practical purposes, we 
 may properly accept the following definition of MM. Pistoye and 
 Duverdy : — * 
 
 " Nous poserons en principe que, pour qu'il y ait blocus, il faut que la 
 place soit investie par des forces suffisantes pour en rendre I'entr^e 
 p^rilleuse aux navires qui voudraient s'y introduire. Ainsi tout blocus 
 doit 6tre reel et effectif." 
 
 It would be unprofitable to discuss at length the somewhat 
 conflicting views of European jurists as to what constitutes a 
 blockade properly recognizable by neutral States. It can scarcely 
 be doubted that the views of Great Britain and America, as 
 expressed in the declarations of their statesmen and the judg- 
 ments of their Courts, as to the conditions essential to an effective 
 blockade, are those which would generally govern the action of 
 belligerents, namely, that the blockade must be maintained by a 
 force sufficient to render ingress to and egress from the place 
 blockaded a matter of appreciable danger to the vessel attempt- 
 ing it. 
 
 Whether or no a blockade is effective is a matter of fact to be 
 decided according to the circumstances and conditions pertaining 
 to the case in question; and by "effective" it is not meant that the 
 investment or blockade should be unbroken by any circumstance 
 or event, such as a storm which might disperse the cruisers, or the 
 pursuit of a hostile ship, which might cause the blockading vessels 
 to be temporarily absent from their stations, so that a ship might 
 find opportunity with impunity to enter the interdicted area. 
 
 1 "Diplomatic de la Mer," Vol. II, p. 328: "Cette definition de Kluber, ecrivain de 
 r^cole positive, est le resumd des principeS avouds par tous les publicistes et sanctionnds 
 par les traitds. II en rdsulte qije le blocus maritime d'un lieu quelconque n'est effectif qu' 
 autant que Tinvestissement de celieu est complet et rdel du c6td de la mer ; qu'autant 
 que toutes les passes ou avenues qui y conduisient sont tellement gardees par dCs forces 
 navales permanentes que tout bitiment qui chercherait k s'y introduire ne puisse le faire 
 sans gtre aper^u et sans en ^re ddtoarnd." . : i 
 
 2 "Traits des Prises Maritimes," Vol. I, p. 365. 
 
 H 
 
98 COMMERCE IN WAR 
 
 Bluntschli thus criticizes with great judgment and moderation 
 the extreme view of what constitutes an effective bockade : — 
 
 " II faut se mettre en garde centre deux extremes. Les uns admettent 
 que pour que le blocus soit r^el et effectif, il faut que les forces ennemies 
 soient suffisantes pour intercepter d'une fagon absolue le commerce avec 
 la place bloqu6e, et declarent le blocus non effectif, si un seul navire 
 parvient a forcer le blocus sans 6tre remarqu6 et capture : c'est demander 
 I'impossible. L'autre opinion extreme va trop loin dans le sens inverse et 
 declare le blocus effectif lorsqu'un croiseur a r^ussi a empScher quelques 
 navires de passer." 
 
 Calvo thus states the modern practice as to what may be 
 regarded as an effective blockade : — 
 
 " Dans la pratique, les nations maritimes paraissent avoir adopts un 
 terme moyen. La capture accidentelle d'un navire neutre par un croiseur 
 ne sufifit pas pour rendre un blocus effectif, il faut qu'il y ait Evidence, 
 r^alite d'un danger k essayer de forcer les croisi^res. Par contre, le blocus 
 ne cesse pas d'etre effectif parce que exceptionellement, un ou deux 
 navires sont parvenus a eluder la vigilance des forces bloquantes et k en 
 franchir la ligne sans encombre. " ^ 
 
 In 1798, Sir. W. Scott laid down in the case of the " Betsy'"* that 
 the blockade must be such as to constitute a danger to vessels 
 attempting to enter the interdicted port, and in this judgment, 
 without giving full recognition to the declaration of the armed 
 neutrality of 1780 that the cruisers must necessarily be stationary, 
 he indicated that in the view of the Court of Admiralty the 
 blockading ships be so near together as to render it dangerous 
 for a vessel to attempt exit or entrance. 
 
 In 1799, however, the doctrine of a real or sensible danger to 
 a ship attempting to enter or leave the place blockaded was 
 seriously impaired by a judgment of the same judge in the case 
 of the " Neptunus." In this judgment he laid down in substance 
 that a general notification of the establishment of a blockade 
 releases the belligerent from the necessity of that vigilant and 
 strict maintenance which would be necessary in the case of no 
 such general notification having taken place. It is true that 
 Sir W. Scott guards himself from laying down that the blockade 
 may be deliberately interrupted or discontinued, and yet remain 
 de jure a good blockade until notification of discontinuance ; but 
 he undoubtedly applies a less severe test of effective maintenance 
 to the case of a blockade accompanied by public notification than 
 to that where such notification should be absent. 
 
 This judgment touched a question which has been the constant 
 
 1 § 2843. Cf. Geipel v. Smith, L.R. 7 Q.B. 410, per Cockburn. 
 ^ Vide infra, p. 199. 
 
BLOCKADE 99 
 
 subject of sharp controversy between British and continental 
 jurists, viz. whether a general notification of blockade by the 
 public authorities of a belligerent State is sufficient to satisfy 
 the reasonable demands of neutrals, or whether a special notifi- 
 cation should be made to vessels seeking to enter the forbidden 
 area. 
 
 In 1800, Russia and Sweden embodied in a treaty the sub- 
 stance of the former declaration of the Armed Neutrality made 
 in 1780, but with slightly more particularity and precision. They 
 declared that the state of blockade, to be effective, must be such 
 that "entrance is evidently dangerous on account of the sufficient 
 proximity to each other of the blockading vessels." 
 
 In 1807 we find Great Britain yielding to the remonstrances 
 of the United States as to illegal captures during the blockade 
 by her of Martinique and Guadeloupe,^ and it is interesting 
 to note that Great Britain, in yielding to the American demands, 
 gives diplomatic sanction to the principle, that blockade can 
 alone be regarded as effective if it be sufficiently strict to render 
 the access of vessels to the interdicted ports a matter of im- 
 minent danger. 
 
 The extravagant pretensions of France in i8o6 to place the 
 whole of the British territories in a state of blockade, succeeded 
 by a counter declaration by Great Britain placing French territory 
 in a similar situation, is outside the serious consideration of the law 
 of blockade, for it is evident that the main condition precedent of 
 a lawful blockade was absent, in that no effective blockade de 
 facto could possibly have been maintained in either case. 
 
 On the occasions of the blockade of the Black Sea littoral in 
 1855 and the Chinese coast in 1857, by Great Britain, she em- 
 bodied in her notifications of these blockades a statement that 
 they would be maintained by a "competent force," and it may be 
 doubted whether the distinction drawn by Sir W. Scott between 
 a blockade in fact only and a blockade in fact accompanied by 
 notification any longer exists so far as to impose in the latter 
 case less vigilance upon the part of the blockading force. ^ 
 
 Two modern instances are afforded of Great Britain's dis- 
 position to insist upon the effective maintenance of a blockade as 
 an essential condition of its validity. In 1884 France published a 
 notification of the blockade of Formosa, and Great Britain lodged 
 a protest through her Ambassador at Paris on the ground that 
 the blockade was ineffective; again, in 1888, the British Govern- 
 ment intimated to the Government of Hayti that her blockade 
 of certain ports within her own territories, occupied by insurgents, 
 
 1 Vide infra, p. 124. 
 
 2 The " Franciska," vide infra, p. 226. 
 
lOO COMMERCE IN WAR 
 
 could no longer be respected, on account of the absence of a 
 sufficient force. 
 
 One of the most remarkable blockades in history was that of 
 the Confederate States seaboard during the American Civil War 
 of 1861. The coast line over which the blockade extended was 
 over 3000 miles in length, but its recognition by the neutral 
 Powers was made without much demur, for though in its inception 
 it hardly amounted to more than a paper or Cabinet blockade, 
 there was adequate assurance that the naval resources of the 
 United States would render it effective — as, in fact, they ulti- 
 mately did. 
 
 During the Russo-Japanese war, 1904-5, some question arose as 
 to whether Japan adhered to the rules embodied in the Declaration 
 of Paris which require inter alia that a blockade should be 
 effective,' but it would seem from a statement made by Baron 
 Suyematsu, who may be supposed to have written with the 
 authority of his Govei'nment, that Japan adhered to those rules in 
 their entirety.* 
 
 As a condition precedent to the validity of a blockade ac- 
 cording to the general consensus of opinion of jurists and the 
 practice of nations, there must be a notification thereof published 
 by the belligerent Power establishing the blockade.^ 
 
 The purpose of notification is obvious, namely, that merchants 
 should have timely warning of the existence of a blockade, and 
 may thus abstain from sending vessels laden with merchandise on 
 a fruitless errand, or, may be, to suffer the penalty of confiscation 
 by the Prize Court of the belligerent. 
 
 While there is this general agreement as to the necessity of a 
 notification to render a blockade valid and legitimate against 
 neutrals, there is a remarkable divergence of opinion as to whether 
 this public notification is also sufficient to justify captures of 
 vessels seeking entrance to or exit from the blockaded area. 
 
 Great Britain has generally, though by no means uniformly, 
 treated a diplomatic notification as sufficient advertisement of a 
 blockade to fix with knowledge and render liable to penal 
 consequences all neutrals seeking access to interdicted places. 
 France and some other States have, on the other hand, followed 
 the practice of causing their naval commanders to give notice to 
 every ship that may be directing its course to the blockaded place. 
 
 Before the era of the telegraph and other facile agencies for 
 communicating information, there can be little doubt but that a 
 general notification was often a most inadequate protection for 
 
 1 Vide infra, p. i6o. ^ Vide "The Times," i6 March, 1905. 
 
 3 As to the authority competent to make notification, vide p. 116 infra. And as 
 to blockades " by notoriety,' vide pp. 209, 226 infra. 
 
BLOCKADE loi 
 
 neutral traders, even in those cases where the blockading Power 
 permitted a period of grace before the blockade became operative 
 against neutrals ; the ship whose voyage would extend into weeks 
 and even months would, as a rule, receive her first notice of a 
 blockade from the guns of a belligerent cruiser as she sought 
 entrance to the forbidden port ; under such circumstances it was 
 only in accord with the dictates of justice and common sense that 
 the vessel innocently approaching the blockaded port should not 
 be treated as a blockade breaker, but should be visited by a naval 
 officer of the investing cruisers, and having been notified, by 
 formal entry on her papers, of the existence of a blockade, should 
 be permitted to withdraw from the interdicted area. 
 
 At the present day, however, the cases must indeed be few 
 when knowledge of a blockade of which diplomatic notification 
 has been given does not reach the owners and masters of 
 merchant vessels almost contemporaneously with the original 
 publication of the notifications, and it may therefore be doubted 
 whether any such hardship can, save in very rare instances, be 
 occasioned to neutrals by the absence of special notification. 
 
 The practice adopted by France, Russia, Sweden, Spain, and 
 Italy, and approved by European jurists, is that the neutral vessel 
 is entitled to sail to the blockaded port and there to receive notice 
 of the existence of a blockade. Calvo thus states what he con- 
 ceives to be the rights of neutrals and the duties of belligerents 
 on this question : — 
 
 " Le navire pacifique venant done verifier s'il y a blocus ; le bellig6rant 
 doit lui faire connaitre le veritable etat des choses. Cette notification 
 toute particuli^re, personelle, doit 6tre faite par un des officers des 
 batiments de guerre charges de maintenir riiivestissement a chaque navire 
 neutre qui se presente pour entrer dans le port bloqud. Nous ne pensons 
 pas que ce soit aller trop loin que de regarder la notification sp^ciale 
 comme une formality essentielle du blocus si non obligatoire mSme pour 
 le belligerant bloquant." * 
 
 Conformably to this doctrine, in the instructions given to her 
 naval officers, in the decrees and treaties she has made, and in the 
 judgments of her courts, France has invariably followed the rule 
 of special notification. The clause in her treaties providing for 
 this usually runs as follows : — 
 
 " Dans aucun cas, un bitiment de commerce appartenaht a des citoyens 
 de I'un des deux pays qui sera expedi^ pour un port bloque par I'autre 
 Etat ne pourra Stre saisi, capture ou condamne, si prf^alablement il ne lui 
 a 6t6 fait une notification ou signification de I'existence ou de la continua- 
 tion d'un blocus par les forces bloquantes ou par quelque bitiment faisant 
 parte de I'escadre ou de la division du blocus ; et pour qu'on ne puisse 
 
 > Calvo, Vol. V, sec. 2846. 
 
102 COMMERCE IN WAR 
 
 all^guer une ignorance du blocus, et que le navire qui aura regu cette 
 intimation soit dans le cas d'etre captur6, s'il vient ensuite a se representer 
 devant le port bloque pendant le temps que durera le blocus, le com- 
 mandant qui fera notification devra apposer son visa sur les papiers du 
 navire visit6, ou sera faite la signification de I'existence du blocus, et le 
 capitaine du navire visits lui donnera un requ de cette signification con- 
 tenant les declarations exig^es par le visa." * 
 
 As already indicated, the practice of Great Britain and the 
 views of her jurists appear to regard a general notification as 
 sufficient, and as raising the presumption that the neutral trader 
 approaching the blockaded place had knowledge of the fact. 
 Her practice has been generally uniform, as a brief historical 
 retrospect will demonstrate. 
 
 By a treaty made by her with Holland in 1689,^ it was provided 
 that when ships had left their port of departure before the public 
 notification of a blockade, they should be visited by a naval officer 
 of the blockading squadron, and notification duly made and in- 
 scribed on the ship's papers. From this treaty we may draw the 
 inference that Great Britain and Holland, so far back as the seven- 
 teenth century, were disposed to regard a public notification as 
 presumably binding upon neutrals. 
 
 After the lapse of a cfentury — viz. in 1799 — the English Court of 
 Admiralty for the first time laid down in tolerably clear language 
 what should be the nature and quality of a notification of 
 blockade sufficient to bind neutrals, viz. that it must, be a "public 
 notification from the Government of a belligerent country," and 
 that after such notification the blockade woiilA />rtma facte be 
 presumed to continue until its public repeal.^ This decision wopld 
 appear to cast upon the neutral trader the onus of satisfying the 
 Court that he had no knowledge of the blockade, and no adequate 
 Opportunity for acquiring knowledge. Calvo thus comments upon 
 this judgment: — 
 
 " Le but de cette doctrine, qui est entree dans la pratique anglaise, se 
 reduit a Stabler une presumptio juris et dejure relativement a la connais- 
 sance du blocus. Et ce qui prouve qui cette presomption doit l^galement 
 exister pour la continuation du blocus c'est que ces Cours d'amiraut^ 
 britanniques n'admettent pas que I'avertissement special fait aux 
 capitaines neutres soit necessaire pour legitimer la capture des navires : a 
 leurs yeux, il suffit que le batiment ait pour destination r^elle ou pre- 
 sumee le port bloqu6, elles n'exceptent dei cette r^gle arbitraire que les 
 navires expddids non du pays dont ils portent le pavilion, mais d'une 
 contr6e assez eloignee pour qu'on puisse pr6sumer que la nouvelle de 
 I'interdiction du commerce n'y est pas parvenue. 
 
 " Nous croyons avoir refute victorieusement et sans r6plique cette triste 
 
 > Cf. Pistoye et Duverdy, " Prises Maritimes," Vol. I, p. 370. 
 2 Vide infra, p. 121. ' The "Betsy," ibid., p. 192. 
 
BLOCKADE 103 
 
 doctrine, lorsque nous avons fait ressortir la distinction qui existe entre 
 les trois modes de notification que I'usage a sanctionnes : le premier 
 ayant un caractere purement local [i.e. notification to the authorities of the 
 blockaded area], le second general [i.e. diplomatic], et le troisi^me special 
 [i.e. to the masters of neutral ships by naval officers of blockading vessels]. 
 Nous avons demontr6 que les deux premiers ne sauraient en aucun cas 
 supplier le dernier, et nous sommes d'avis que confondre deux choses 
 d'une port6e si manifestement differente, ce serait fermer les yeux sur les 
 abus r^voltants des pretentions anglaises et repousser de gait6 de cceur un 
 des Elements juridiques essentiels du blocus." ^ 
 
 In the same year that the British Court of Admiralty made 
 the pronouncement that has excited the profound indignation of 
 Calvo and so many continental jurists, the British Government 
 publicly notified the blockade of the United Provinces, and 
 declared that after such notification vessels attempting to pass into 
 or from the blockaded area would be captured as lawful prize ; 
 but in 1807, in deference to remonstrance from the United States 
 on the occasion of the blockade by her of Guadeloupe and 
 Martinique, she issued instructions that special notification should 
 be given to neutral vessels by her naval officers. 
 
 The doctrine of the British Court of Admiralty that a public 
 notification is sufficient to render neutral vessels amenable to 
 capture and condemnation as prize if making for a blockaded place 
 is founded upon a well-recognized and intelligible principle that 
 notice to a foreign State carries with it notice to all the subjects of 
 that State ; but on the other hand, if there be reasonable ground 
 for believing that the notification of the blockade could not in 
 the natural course have reached the neutral trader, the Court 
 would not condemn the vessel as prize if it were proceeding to 
 some port near the blockaded area, but not within it, for the 
 purpose of making inquiries, and this rule, as explained by Sir 
 W, Scott in the " Betsy,"'' is really founded upon conditions of 
 communication and transit which are not applicable to the present 
 day. It may therefore be taken that only in very rare instances at 
 the present day would the Court display indulgence to a ship 
 captured for sailing to a blockaded place, and certainly not on the 
 ground that the State to whom the notification had been given 
 had failed to notify its subjects.' 
 
 There are, however, quite distinct from the question of notifica- 
 tion, circumstances under which a neutral vessel would be under 
 no penalty for attempting to enter a blockaded port — that is to say, 
 lack of provisions, sickness, or stress of weather; but in 1805, in 
 
 1 Calvo, Vol. V, sec. 2847. 
 
 * Vide infra, p. 192. 
 
 3 The " Spes " and " Irene," vide infra, p. 204. 
 
104 COMMERCE IN WAR 
 
 the case of the " Fortuna,"^ Sir W. Scott insisted that to consti- 
 tute an excuse for seeking to enter a blockaded port there must 
 be "an imperative and overruling necessity." 
 
 The policy of the United States with regard to notification is 
 not very intelligible ; their jurists generally adopt the views of 
 British authors, but their treatises and declarations have more 
 usually been in sympathy with the policy of France and conti- 
 nental States. Wheaton makes the following ambiguous observa- 
 tions : — ^ 
 
 " As a proclamation or general public notification is not of itself 
 sufficient to constitute a legal blockade, so neither can a knowledge of 
 such a blockade be imputed to the party merely in consequence of such a 
 proclamation or notification. Not only must an actual blockade exist, 
 but a knowledge of it must be brought home to the party in order to 
 show that it has been violated. As on the one hand a declaration of 
 blockade that is not supported by the fact cannot be deemed legally to 
 exist, so on the other hand the fact duly notified to the party on the spot 
 is of itself sufficient to affect him with a knowledge of it ; for the public 
 notifications between Governments can be meant only for the information 
 of individuals ; but if the individual is personally informed, that purpose 
 is still better obtained than by a public declaration. Where the vessel 
 sails from a country lying sufficiently near to the blockaded port to have 
 constant information of the state of the blockade, whether it is continued or 
 relaxed, no special notice is necessary ; for the public declaration in this 
 case implies notice to the party after sufficient time has elapsed to receive 
 the declaration at the port whence the vessel sails. But when the country 
 lies at such a distance that the inhabitants cannot have this constant 
 information, they may lawfully send their vessels conjecturally upon the 
 expectation of finding the blockade broken up, after it has existed for a 
 considerable time. In this case the party has a right to make a fair 
 inquiry whether the blockade be determined or not, and consequently 
 cannot be involved in the penalties affixed to a violation of it, unless 
 upon such inquiry he receives notice of the existence of the blockade." 
 
 The view of Wheaton appears to be that while a special notifica- 
 tion is desirable and adequate, it is not absolutely essential, as a 
 condition precedent to the capture and condemnation of a neutral 
 ship if there was a public notification, and the State to which the 
 ship belonged might have communicated such notification to its 
 subjects, and she was, before making to the blockaded place, in a 
 locality which such communication might have reached. This is 
 in effect the British doctrine, though expressed with less force and 
 clearness than by British jurists. 
 
 On the other hand, we find by her treaties and public declarations 
 that the United States has given general countenance to the 
 practice of special notification. In a treaty made in 1794 with 
 
 ' Vide infra, p. 203. 
 
 " Wheaton's "Inter. Law," § 514. 
 
BLOCKADE 105 
 
 Great Britain, she appears to recognize that ignorance of a blockade 
 on the part of an owner or master will entitle the neutral ship to 
 special notification, and thus negatives the doctrine of constructive 
 knowledge based on a public notification/ Again, in 186 1, on the 
 blockade of the coast of the Southern States, Mr. Seward notified 
 to foreign Governments that special notification would in all 
 cases be given, but this rule was certainly not observed by her 
 cruisers throughout the war — see, for example, " The Peterhoff," 
 5 Wall., 28, at p. 32. In 1898 President McKinley limited 
 special notification to the case of those ships attempting to enter 
 or leave a blockaded port "without notice or knowledge" of the 
 blockade, and the Courts of the United States clearly recognize 
 that special notice is not necessary in the case of actual knowledge. 
 
 The practice of the principal maritime nations with regard to 
 notification may be summarized as follows : Great Britain, and 
 perhaps Germany and Denmark,^ regard a general notification as 
 sufficient, treating it as constructive notice to all subjects of the 
 State which has received such notification. The United States 
 require actual knowledge on the part of the neutral, it being 
 immaterial whether such knowledge were acquired by general or 
 special notification. France and the other European nations 
 regard special notification as an absolute condition precedent to 
 capture and condemnation.^ 
 
 The practice of the United States seems fair and reasonable to 
 neutrals, and also to afford sufficient protection to belligerents ; in 
 the case of a ship sailing from a port in a country where notification 
 had been received before the vessel sailed, a strong presumption 
 would necessarily arise that the master or owner of the ship had 
 knowledge, and the presumption would only be rebutted by very 
 conclusive evidence to the contrary ; but where absence of know- 
 ledge is clearly established, the Court would not allow the vessel 
 to be condemned under the doctrine of constructive notice implied 
 in the fact of diplomatic notification. There is a danger, however, 
 inherent in the nature of Prize Courts, that their members will 
 infer knowledge to be proved on evidence which would not be 
 regarded as conclusive by persons free from those national pre- 
 possessions of which judges, however impartial, cannot be expected 
 to divest themselves. From this the French practice protects 
 merchants — possibly at too great cost to the belligerent. 
 
 Pacific blockade* applied as a form of coercion against inferior 
 
 ' State Papers, Vol. I, p. 784. 2 gee Prussian Prize Regulations. 
 
 ^ As to Spain, see State Papers, Vol. LVI, p. 755. Letter from Commodore Blake 
 to Commander Hervey, 28 Sept., 1865. 
 
 * On the subject of pacific blockade, see the "Annuaire de I'Institut de Droit Inter- 
 national," 1887, pp. 275-300; the "Law Magazine and Review," August, 1897; and the 
 " Revue de Droit International," 1897, p. 474, and ibid., 1898, p. 606 ; and the authorities 
 cited in the last-named article. 
 
io6 COMMERCE IN WAR 
 
 Powers, is not intended by the blockading Power to be regarded 
 as involving a state of war between the State suffering and the 
 State inflicting the blockade. Blockade in its only legitimate 
 sense involves the existence of actual hostilities, and is a right of 
 belligerents only. From an international standpoint, a so-called 
 pacific blockade, though unknown to the great masters of inter- 
 national law, has of late years been tolerated because it affords 
 the effective means of maintaining general peace when menaced 
 by the provocative policy of some inferior Power. Jurists have for 
 the most part protested that international recognition should not 
 be accorded to a blockade instituted as a means of pacific coercion. 
 This protestation would be amply justified were the nation impos- 
 ing the "blockade" to seek to interdict the egress or ingress 
 of foreign commerce from or to the places blockaded, for it would 
 be intolerable that neutral Powers should be called upon to submit 
 to restraints upon their commerce for any cause less than the 
 exigencies of a formal belligerent; and therefore there appears 
 to be now a general consensus of opinion that pacific blockade 
 should not extend its application further than the interdiction of 
 ingress and egress to the blockaded country of vessels belonging 
 thereto, and that in no case should neutral commerce be molested. 
 The first recorded example of a pacific blockade was that 
 afforded by the blockade of the Greek littoral, then a part of the 
 Ottoman Empire, by the united squadrons of England, France, 
 and Russia. This action was one of the consequences of a treaty 
 made the same year between these three Powers, by which they 
 undertook to intervene between the Greek nation and the Govern- 
 ment of Turkey. This blockade was declared to be obligatory 
 upon the vessels of neutral Powers, and yet during the whole 
 period of the blockade, and even after the battle of Navarino, the 
 allied Powers were continually representing to Turkey that 
 the ties of friendship between them and the Divan were not 
 affected. The true conception of the situation was, however, 
 correctly described by the Turkish Secretary of State, when 
 he observed in answer to these protestations : — 
 
 " Ce que vous assurez ne pas porter atteinte k l'amiti6 est, suivant nous, 
 une infraction k cette m^me amitid. . . . Les moyens dont vous parlez 
 offrent une incompatibilite si remarquable, qu'on peut dire que le feu et le 
 coton, ou I'eau et le feu ne sont pas moins opposes." ^ 
 
 A distinguished French jurist thus expresses his concurrence in 
 those words of the Turkish Effendi : — 
 
 " Je n'avais pas a examiner la question dans ses rapports entre les nations 
 ' Report of Dragomans, 9 3ept., 1827. State Papers, Vol. XVII, p. 257. 
 
BLOCKADE 107 
 
 attaquantes et attaquees, je n'ose dire belligerantes, puisqu'elles pretend- 
 ent 6tre dans un ^tat de paix parfait. Consid^ree sous ce point de vue, 
 je dois declarer que je partage plut6t I'avis du reis effendi que celui des 
 diplomates chretiens, et que je ne puis concilier I'idee de paix et d'amitie 
 avec celle de blocus." ^ 
 
 It seems impossible to maintain that the imposition of a 
 blockade by one State upon another is not a form of waging war, 
 and therefore inconsistent with the existence of pacific relations 
 between the two States ; it is an assertion of domination over the 
 ports or littoral blockaded, and that assertion is vindicated by- 
 force against the vessels of the blockaded State which attempt to 
 defy it. In truth, a pacific blockade is an easy and inexpensive 
 method of waging war upon a feeble State ; it inflicts, indeed, 
 much of the inconvenience and injury of war upon the block- 
 aded at a minimum of cost or disadvantage to the blockading 
 State. Its justification, if any, is to be found in this : that it is a 
 means of securing a given object without the effusion of blood, or 
 even, as in the struggle of 1827 between Turkey and Greece, of 
 bringing to a swift conclusion a cruel and merciless war of ex- 
 termination — though it may be doubted whether in most if not all 
 instances the objects sought by pacific blockade might not as 
 effectually and, in ultimate result, with as little violation to the 
 dictates of humanity, be compassed by actual war.* 
 
 In 1831 the Government of Louis Philippe, on account of certain 
 minor outrages committed upon French subjects, instituted a 
 strict blockade of the Tagus and captured a large number of 
 Portuguese ships of war and merchantmen. The blockade 
 resulted in the concession of all the French demands for repa- 
 ration. 
 
 To show how this proceeding was regarded in England, we have 
 recourse to the pages of Hansard. It was complicated with a 
 claim which Louis Philippe was then making to demolish certain 
 Belgian fortresses at his own hand. His public assertion that 
 the tricolour floated under the walls of Lisbon, and that the 
 Portuguese fleet was at his mercy, coupled with the observation 
 that the Belgian fortresses " erected to threaten France " would 
 be demolished, excited (even through the smoke of the Reform 
 contest) a lively emotion in Great Britain. How little " pacific " 
 character attached to the French proceedings in the Tagus is 
 clear from Lord Palmerston's statement^ that the forts had 
 actually resisted, though slightly. On the day following that 
 
 1 Hautefeuille, Vol. Ill, 1 79 (Tit. ix. c. 4). 
 
 2 De Clercq, Vol. IV, p. iij- 
 
 ' Hans. (3rd Sen), V. p. 275. Cf. the Siamese proceedings of France in 1893, 
 infra, p. 180. 
 
io8 COMMERCE IN WAR 
 
 statement, Lord Aberdeen warmly attacked Earl Grey for his 
 acquiescence in seeing " our most ancient ally thus at the mercy 
 of the navy of France," and sarcastically added that "it might 
 perhaps be matter of congratulation to the noble Earl and his 
 friends that a French fleet should ride in triumph on the Tagus." 
 The Duke of Wellington took up the attack, and remarked that 
 "when he read that passage of the speech of the King of France, 
 in which he triumphantly boasted that the Portuguese , ships of 
 war were then in his power, and that the tricoloured flag floated 
 under the walls of Lisbon, he felt his cheek tinge with shame, as 
 an English subject, that our most ancient and intimate ally should 
 be so treated with our permission," And Earl Grey made the 
 vitally significant admission that blockade, however "pacific," is 
 war, by referring to the "■hostile relations between France and 
 Portugal," and to the French as having "triumphantly taken 
 possession of the Tagus." 
 
 On July 27,^ Sir R. Peel quoted with disfavour the French 
 King's address ; " To obtain reparation, demanded in vain, our 
 ships of war have appeared before the Tagus. I have just 
 received the news that they have forced the entrance. The 
 satisfaction, hitherto refused, has been offered to us [and, he 
 might have added, we are taking advantage of the opportunity to 
 do a stroke of business in the way of a commercial convention]. 
 The Portuguese men-of-war are in our power, and the tricoloured 
 flag flies under the walls of Lisbop." " By that passage," said 
 Peel, "the French King announced to his subjects that the fleet 
 of Portugal, the most ancient and the most faithful of the allies 
 of England, had fallen into the power of its enemies^and that the 
 tricoloured flag floated victorious in her capital. That passage 
 announced that there was war between France and Portugal. It 
 announced that the victorious fleet of France had forced the 
 defences of the Tagus, and that the capital of Portugal was at 
 the mercy of the conqueror." 
 
 On September 5,^ Lord Aberdeen details the circumstances at 
 greater length than they are elsewhere to be found set out, and 
 he is at pains to argue that there was no such war as would 
 suffice to legalize the taking of the Portuguese ships as legitimate 
 prizes. He does not even contemplate the possibility of their 
 being captured without war ; and, indeed, it has been reserved for 
 our own time to regard with equanimity any such illogical notion. 
 Earl Grey was content to treat the operations as a war.' " The 
 noble Earl (Aberdeen) admitted that ships of war would be 
 
 1 Hans. (3rd Ser.), V, p. 398. 
 ^ Ibid., VI, p. 1 103. 
 ■'' Ibid., p. mo. 
 
BLOCKADE 109 
 
 legitimate prize if the war had been legitimate. He (Lord Grey) 
 was not aware that we had any right to investigate the original 
 cause of war. Whether the war was just or unjust, the question 
 of prize must be regulated by the usual law of nations," So the 
 Duke of Wellington — " Even when the French Admiral was 
 before Lisbon, it was not too late. War did not commence until 
 the 8th of July, ..." The Duke added the following observa- 
 tions, which are most important from the point of view of those 
 to whom this case of the Tagus is cited as an authority for the 
 establishment of blockades in time of peace : — 
 
 " He had never heard of anything which had filled his mind with more 
 indigpiation than the conduct of the French Admiral. On the 8th of July 
 ... he informed the Portuguese Government that, if they did not adopt 
 the articles, war would exist de facto. On the nth of July, the French 
 Admiral wrote word that the French, always generous, added nothing to 
 those terms, except compensation to those who had suffered by hostilities — 
 when, in fact, the only persons who had suffered were two sailors who had 
 been hurt by the explosion of a ship. On the 12th the terms were agreed 
 to, and on that day the demand was made for the surrender of the 
 Portuguese fleet. . . . The Portuguese shipping were not the first to fire 
 on the French fleet, but the French fleet fired on the shipping. The 
 Portuguese then fired on the French fleet, after having been fired on, and 
 then struck their colours and hoisted the French." 
 
 Certainly a curious commentary on the pacific character of the 
 proceedings ! The danger of allowing a semblance of legality to 
 arly such half-way house between peace and war can hardly be 
 exaggerated. 
 
 In the above case the King's Advocate appears to have given 
 an opinion that the captures were legal ; but it is uncertain 
 whether this was on the ground that he considered the French 
 measures to amount to war. According to Lord Palmerston,^ the 
 ships were kept by France. " All the Portuguese ships of vvar 
 struck to the French, in consequence of the engagement which 
 took place when the French fleet entered the Tagus. That 
 portion of the fleet which took part in the action was considered 
 prize of war and retained as such. One line of battleship, which 
 was dismasted and took no part in the action, was given up." 
 
 Prior to the appearance of the French fleet their consul quitted 
 Lisbon.* 
 
 The "Annual Register" says of this year (1831), that Pans 
 continued to be the scene of ever-renewed disturbances under 
 the vacillating ministry of M. Lafitte. The popular party in- 
 sisted on democratic change, and their foreign policy went 
 
 I Ibid., p. 99. 
 
 ii "An. Reg.," 1831, p. 444- 
 
no COMMERCE IN WAR 
 
 further, demanding that the country should embroil itself with 
 every foreign country where there existed disaffection. It was an 
 insult to " new France " to stand by the Bourbon treaties. And 
 Portugal was ruled by Miguel. A critical election was in progress 
 at the very time when the French entered the Tagus. 
 
 At the close of 1832, in order to overcome the resistance of the 
 Low Countries to their separation from Belgium, as provided by 
 the treaty of November, 1831, Great Britain and France, without 
 breaking off diplomatic relations with the Hague, established de 
 facto a blockade of the Scheldt, so that finally Holland acquiesced 
 in the suggested international arrangements, and the independence 
 and neutrality of Belgium were assured.^ But the capture of 
 Antwerp powerfully contributed to this result ; nor can it be said 
 that when French and Dutch were fighting there perfect peace 
 prevailed ; nor so long as France retained Dutch troops as 
 prisoners of war. 
 
 In 1836, France, while protesting that she maintained diplo- 
 matic relations, declared a blockade of the ports of Mexico ; the 
 Mexican Government treated this declaration and the consequent 
 blockade as a casus belli, and formally declared war. 
 
 From March, 1838, to October, 1840, France maintained a 
 pacific blockade of the ports of the Argentine Republic.'' The 
 intervention of France was entirely in relation to the internal 
 affairs of the Argentine, and at the present time such intervention 
 would possibly be regarded by the United States as a distinct 
 violation of the Monroe doctrine; the pressure thus put upon the 
 republic was only partially successful, and France was constrained 
 to recognize the dictator Rosas, whom she had denounced as 
 having outraged the laws of humanity.^ 
 
 In 1845, at the instigation of Brazil, France again interfered, in 
 the internal affairs of the Argentine and Uruguay, and in conjunc- 
 tion with England made certain demands upon the Government 
 of the dictator Rosas, on the refusal of which the two Powers 
 instituted a blpckade nominally of a pacific character, but in 1849 
 Great Britain concluded a treaty renewing her ffiendly relations 
 
 1 De Clercq, Vol. IV, p. 146. Austria, Prussia, and Russia refused to join in the 
 measure ; it comprised an embargo on Dutch ships, and the Dutch imposed a like 
 embargo on the ships of Great Britain and France. No formal declaration of blockade 
 appears to have been made ; the only document in the British State Papers is one "pro- 
 hibiting [British] trade with the Netherlands and laying an embargo upon Netherlands 
 vessels in British ports/' which incidentally enjoins H.M.'s ships to bring in all merchant 
 vessels flying the Dutch flag (State Papers, Vol. XIX, p. 1420). There seems to be no 
 record of any prizes being brought in. If any were, the case was probably treated as 
 one of embargo, and the ship and cargo simply sequestrated pro tern. 
 
 2 Against this blockade the Hanse towns formally protested ("Ann. de I'lnst. de Droit 
 Int.," 1887, p. 292). 
 
 3 De Clercq, Vol. IV, p. 591. 
 
BLOCKADE in 
 
 with the Argentine, without having secured any one of the objects 
 for which she appeared to have intervened/ 
 
 In August, 1850, France followed the example of England, 
 and by a treaty of friendship brought to an end her fruitless but 
 costly intervention in the internal affairs of the South American 
 Republics.^ 
 
 In 1850, England had recourse to a pacific blockade of the 
 Greek littoral in order to secure reparation for an alleged 
 indignity offered to a boat's crew of H.M.'s ship " Fantome," 
 and for certain grievances suffered by British subjects resident in 
 Greece. The blockade was at first confined to the prevention of 
 egress against Greek Government vessels leaving the Piraeus ; 
 — as the Greek Government remained obdurate the blockade 
 was extended to other parts of Greece ; but care was taken that 
 the blockade should be applicable only to Greek vessels which 
 were not laden with cargoes the property of foreigners. Ulti- 
 mately, after Greek commerce had sustained considerable loss, the 
 Government of Athens acceded in substance to the demands of 
 the British Government.' 
 
 In 1858, Peru instituted a blockade of Ecuador, intended to be 
 pacific,* and in 1861, England imposed a pacific blockade upon 
 Rio de Janeiro in order to obtain indemnity for the pillage of a 
 British ship wrecked upon the coast of the Brazilian province of 
 Rio Grande do Sul. Five ships were captured, and diplomatic 
 relations between the two countries were severed for years ; but 
 the proceeding was not strictly a blockade, being limited to the 
 seizure of these ships by way of reprisals. 
 
 In 1 86 1, the Government of Piedmont established a pacific 
 blockade of Gaeta during the rebelMon against the King of the 
 Two Sicilies, with the ostensible object of reducing the town, then 
 besieged by insurrectionary forces. It should be noted that the 
 Government of Piedmont insisted upon the continuance of its 
 amicable relations with the Two Sicilies during the progress of 
 the blockade. 
 
 In 1885, France instituted the blockade of Formosa, on the 
 
 ' PalmerstoH, writing to the British Ambassador in Paris (see his life by Bailing, III, 
 p. 327) says : " The real truth is, though we had better keep the fact to ourselves, that the 
 French and English blockade of La Plata has been from first to last illegal. Peel and 
 Aberdeen have always declared that we are not at war with Rosas ; but blockade is a 
 belligerent right, and unless you are at war with a State, you have no right to prevent 
 ships of other States from communicating with the ports of that State. ... I think it 
 important, therefore, in order to legalize retrospectively the operations of the blockade, 
 to close the matter by a formal convention of peace between the two Powers and Rosas." 
 (Cited, Hall, " Int. Law," ed. V, p. 371.) See State Papers, Vol. XXXVII, p. 7- Britain 
 and France agreed to salute the Argentine flag, and to restore qaptured vessels of war ; 
 captured merchantmen were to be reciprocally restored. 
 
 •^ Samwer, " Recueil," Vol. II, p. 51. ' State Papers, Vol. XXXIX, p. 216. 
 
 * Infra, p. i6i. State Papers, Vol. XLIX, p. 13:0. 
 
112 COMMERCE IN WAR 
 
 ground of the violation of the treaty of Tien-Tsin, and the failure 
 to pay indemnities demanded on account of certain outrages. 
 The French Ambassador announced the blockade to the English 
 Government in these terms : — 
 
 " Je suis charg^ par mon gouvernement de porter k la connaisance de 
 votre Seigneurie que les ports et rades du nord et de la cote ouest de I'lle 
 de Formose seront mis en fitat de blocus effectif a parter du 23 Octobre 
 prochain. Un d61ai de trois jours sera donn6 aux navires amis pour 
 achever leurs chargements et quitter les lieux bloques." ^ 
 
 It will be observed that this communication differs in no 
 material sense from a notification of blockade by a belligerent, 
 and in that sense it was accepted by the English Government ; 
 but the French Ambassador hastened to reply that there was no 
 war between France and China, and that the interdiction of com- 
 merce with the coast of China and Formosa was of the nature of 
 a pacific blockade. Lord Granville thereupon promptly repudiated 
 the right of a nation at peace to establish a blockade against any 
 vessels other than those belonging to the country whose ports were 
 blockaded, and insisted that a state of actual warfare did at that 
 time exist between France and China. Considerable correspon- 
 dence passed between the French and English ministers, and the 
 attitude of Eiigland with respect to pacific blockades was very 
 clearly Stated by Lord Granville in a despatch to the French 
 Ambassador of 26 November, 1884 : — 
 
 " Her Majesty's Government consider that a state of war exists 
 between France and China de facto and de jure. They have instructed 
 the Governor of Hong-Kong to enforce the Foreign Enlistment Act 
 (which is only operative during the existence of hostilities between 
 foreign States with which Her Majesty is at peace), and the French Admiral 
 has given his assurance that he will scrupulously observe its provisions. 
 Bombardments and other hostilities have taken place, and the French 
 Government have proclaimed to neutral Powers the effective blockade of 
 the ports of Formosa, and have warned H.M.'s Government that British 
 ships attempting to enter those ports to which they have the right of 
 access by treaty will be captured. 
 
 " H.M.'s Government cannot admit any such novel doctrine as that 
 British ships are liable to capture for entering certain treaty ports in China 
 in time of peace. But they maintain that a state of war exists, and 
 therefore they do not deny the right of the French Government to establish 
 an effective blockade of the ports in question according to the laws of war 
 and to capture neutral vessels attempting to force it." 
 
 In a former despatch of 1 1 November, Lord Granville 
 observed : — 
 
 " Moreover, the contention of the French Government that a ' pacific 
 blockade ' confers on the blockading Power the right to capture and con- 
 
 1 State Papers, Vol. LXXVI, p. 423. 
 
BLOCKADE 113 
 
 demn the ships of third nations for breach of such a blockade, is opposed 
 to the opinions of the most eminent statesmen and jurists of France and 
 to the decisions of its tribunals, and it is in conflict with well-established 
 principles of international law." 
 
 This controversy between England and France was termin- 
 ated by the raising of the blockade and the conclusion of a treaty 
 of peace between the latter country and China.^ 
 
 In 1886, the Greek nation, excited by the revolution at Philippo- 
 polis, menaced Turkey with war. The Great Powers, alarmed at 
 the prospect of a war the limits of which it was impossible to 
 foretell, issued the following declaration : — 
 
 " En vue de I'absence de tout motif legitime de guerre de la part de la 
 Grfece contre la Turquie, et du prejudice qu'une pareille guerre porteraient 
 aux interSts pacifiques, et notamment au commerce d'autres, aucune 
 attaque navale de la Gr4ce contre la sublime Porte ne saurait €tre admise." 
 
 This declaration proving ineffective, the Powers determined 
 upon a pacific blockade, which was rigidly enforced in its opera- 
 tions to vessels under the Greek flag (sous pavilion Grec). 
 
 In 1897, in consequence of an armed insurrection in Crete 
 against Turkish rule, and in order to prevent Greece from render- 
 ing aid to the insurgents, the allied Powers — England, France, 
 Germany, Russia, Austria and Italy — instituted a pacific blockade 
 of the Island of Crete against vessels under the Greek flag. 
 
 In 1902, England, acting in union with Germany, instituted a 
 blockade of the coast of Venezuela in consequence of the failure 
 of the Venezuelan Government to afford reparation for various 
 improper interferences with British and German property. The 
 blockade extended from 20 December until 15 February 
 following. 
 
 In this blockade the British and German Governments reverted 
 to the old practice, which had been vehemently repudiated by 
 Lord Granville, of rendering the blockade applicable to vessels 
 other than those flying the flag of the blockaded country, but 
 extended to their shipping the protection of "special "notification. 
 The instructions given by the Admiralty to the officer in command 
 of the blockading squadron were as follows : — 
 
 " Admiralty, i i December, 1902. 
 
 " You are to issue the following [omitting unimportant parts] notifica- 
 tion : — 
 
 " You are hereby notified that a blockade of the ports of La Guayra, 
 Carenero, Guanta, Cumana, Carupanio is declared, and will be effectively 
 maintained from and after day of December subject to the following 
 
 > Ibid., Vol. LXXVI, p. 428. Ibid., p. 1020. 
 
114 COMMERCE IN WAR 
 
 days of grace : For vessels sailing before the date of their notification 
 from West Indian ports and from ports on the east coast of the continent 
 of America, lo days for steamers and 20 days for sailing vessels ; 
 from all other ports, 20 days for steamers and 40 days for sailing vessels ; 
 for vessels lying in ports now declared to be blockaded, 1 5 days. Vessels 
 which attempt to violate the blockade will render themselves liable to all 
 measures authorized by the law of nations and the respective treaties 
 between His Majesty and the different neutral Powers. 
 
 "(i) Every merchant vessel sailing under other than the Venezuelan 
 flag which may be found by one of the blockading ships in the immediate 
 neighbourhood of a blockaded port, is to receive a special notification in 
 accordance with the following procedure : 
 
 "(2) An officer of the blockading ship is to be sent on board the 
 merchant vessel. He is to notify to the master of the merchant vessel 
 the existence and extent of the blockade, and is to inform him that he 
 cannot be permitted to communicate with the blockaded port, and that 
 any attempt to do so in defiance of such warning will render his vessel 
 liable to seizure and detention for trial in a Prize Court, with probable 
 ultimate confiscation of ship and cargo. 
 
 "(3) The boarding officer will then enter in the log-book of the 
 merchant vessel and on the document which fixes her nationality the 
 name of H.M.'s ship by whom the notification in his person has been 
 made, together with a statement of the terms of the notification and 
 the date and place at which the visit was made, and to these entries 
 he will affix his signature. 
 
 "(4) Any such vessel which may appear to have an intention of 
 breaking the blockade is to be ordered to quit the neighbourhood under 
 pain of seizure. 
 
 "(S) Every merchant vessel sailing under other than the Venezuelan 
 flag which in defiance of the above notification attempts to communicate 
 with any of the blockaded ports, is to be seized and thereupon conveyed 
 to Port of Spain, Trinidad, where she is to be handed over to the Prize 
 Court. 
 
 " (6) Merchant vessels which, on being boarded — 
 
 (a) Produce obviously false papers ; 
 
 (b) Refuse or fail to produce the necessary documents to prove 
 their nationality, identity, and destination — 
 
 are to be considered as attempting to break the blockade, and are to 
 be ordered to quit the neighbourhood under pain of seizure and ultimate 
 confiscation. 
 
 " (7) Merchant vessels sailing under the Venezuelan flag, or merchant 
 vessels sailing under other than the Venezuelan flag which may be proved 
 to be in the service of the Venezuelan Government, are to be seized and 
 treated as prize of war. 
 
 " (8) The exceptions to the above instructions are as follows : — 
 
 (i) Ships which are bona fide in distress are to be permitted, 
 as need shall arise, to enter or leave a blockaded port. 
 
 (2) The blockade does not affect foreigners — ^that is to say, 
 persons of other than Venezuelan nationality who wish to leave 
 
BLOCKADE 115 
 
 the country. Ships under other than the Venezuelan flag which 
 have such persons on board and possess certificates from their 
 consuls, together with papers in proper form, will, after giving 
 previous notice to the blockading ships, be allowed to pass. 
 But such ships may have no cargo on board beyond the baggage 
 of bona fide travellers. 
 
 (3) Every consideration is to be given, compatible with the 
 exigencies of the blockade, to British and German nationals and 
 the subjects of neutral States."^ 
 
 When one considers the terms of this circular, it is not easy to 
 comprehend the use of the word pacific in relation to the blockade 
 of the ports of Venezuela : and it is impossible without absurdity 
 so to describe it, when it is remembered that in the course of the 
 operations Venezuelan batteries fired on German and British 
 ships, that one or two smart actions were fought, and that several 
 Venezuelan men-of-war were sunk and captured. How could 
 navies carrying out such operations, claim all the privileges of 
 peaceful intercourse with " neutrals " } A country is not at liberty 
 to escape the inconveniences of war merely by asserting the 
 peaceful character of its violence. It is also remarkable that the 
 English Government, in defiance of the attitude strenuously 
 maintained by Lord Granville in 1885, extended the operation 
 of the blockade to vessels other than those flying the flag of 
 Venezuela ; no remonstrances were apparently made by foreign 
 Governments, but the blockade was brief, having been raised two 
 months after its declaration. 
 
 Whatever may be the value of the objections of theorists to the 
 admission of the doctrine of a pacific blockade into the principles 
 of international law — and the objections are indeed weighty and 
 numerous — the arguments in favour of this species of blockade, 
 derived alike from considerations of humanity and convenience, 
 present much attraction for politicians. It is, no doubt, as 
 M, Guizot observed when speaking upon the pacific blockade 
 of Buenos Ayres in 1841,^ an incomplete form of warfare ; but 
 (while devoid of risk to the blockader, and raising no delicate 
 constitutional problems or spectres of war) it possesses many of the 
 characteristics and incidents of war. It involves the employment of 
 force against those resisting the interdiction, it is a violation of the 
 territorial integrity of th,e State against which it is employed, and 
 it is an act of hostility on the part of the blockader which is only 
 prevented from resulting in obvious war on account of the impotence 
 of the blockaded. Moreover, it is in violation of the well-established 
 
 1 Accounts and Papers, Vol. LXXXVII, (1903): Venezuela. See also "London 
 Gazette," 19 December, 1902. 
 
 2 Vide " Moniteur," 9 February, 1841. 
 
ij6 COMMERCE IN WAR 
 
 principle that the exigencies of a belligerent are the sole justifica- 
 tion for a third Power interfering with the commercial relations of 
 friendly States. It may be that this last objection is the strongest, 
 and undoubtedly the better course to pursue would be to confine 
 the blockade to vessels carrying the flag of the blockaded State. In 
 some measure the coercive value of the blockade might be abated, 
 but there can be little doubt that in most cases the interference 
 with the native mercantile marine would operate as a sufficiently 
 effective form of coercion. If one consider the comparatively few 
 instances of pacific blockade, none going further back than the year 
 1827, it is necessary to admit that while occasionally a pacific 
 blockade was but the prelude to war, it has once or twice been an 
 effective instrument for maintaining peace ;^ but when one regards 
 the fact that the essential characteristic of a pacific blockade is that 
 from a diplomatic standpoint there is no rupture of peaceful rela- 
 tions between the Powers concerned, it seems highly desirable that 
 upon its cessation there should, as far as possible, be restitutio 
 in integrum to the blockaded State, and that any vessels seized 
 should be restored. The " Institut de Droit International " ap- 
 pears to have formed a just conception of the conditions which 
 should properly pertain to blockades of this character if they are 
 to be admitted as legitimate, and in the year 1887 it made the 
 following pronouncement : — ^ 
 
 " L'dtablissement d'un blocus en dehors de I'^tat de guerre ne doit 6tre 
 consid^re comme permis par le droit des gens que sous les conditions 
 suivantes : — 
 
 "(i) Les navires de pavilion Stranger peuvent entrer librement malgre 
 le blocus. 
 
 " (2) Le blocus pacifique doit ^tre d^clar6 et notifie ofHciellement et 
 maintenu par une force suffisante. 
 
 "(3) Les navires de la puissance bloquee qui ne respectent pas un 
 pareil blocus peuvent fetre sequestres. Le blocus ayant cesse ils doivent 
 Stre restitues avec leurs cargaisons h. leurs propri^taires mais sans de- 
 dommagement a aucun titre." 
 
 The establishment of a blockade can only be the act of a 
 sovereign State, by its central authority or by some subordinate 
 authority to whom the execution of that act may expressly or by 
 implication be delegated. Such delegated authority by implication 
 would exist in the case of the commander of naval forces, being 
 far removed from the seat of government, but neutral Powers 
 might, it is opined, justly refuse to recognize a blockade established 
 
 * Though the high authority of De Martens is against this view — " II n'a jamais 
 emp6chd la guerre," he declared at Heidelberg in 1887 ("Annuaire de I'lnstitut de 
 Droit International," 1887, p. 296). 
 
 2 "Annuaire de I'lnstitut," 1887-8, p. 300. 
 
BLOCKADE 117 
 
 by a naval officer who was under no such disability. The British 
 Court of Admiralty in the "Rolla"* decided that no special 
 mandate from the central government was necessary to justify a 
 commander in instituting a blockade, but in deciding whether 
 or no he had such authority, the Court must be guided by the 
 character of his office and the general nature of the duties con- 
 fided to him, or the special circumstances under which he acted. 
 
 Nor can the rank or status of the officer establishing the block- 
 ade be regarded as a final test. An inferior officer, under stress of 
 an emergency and without means of ready recourse to the central 
 authority or his superiors, is entitled to exercise the full powers of 
 the State, and he is clearly only responsible for the excess of his 
 authority to the Governmeint of the State he serves, from whom 
 alone aggrieved third parties are entitled to seek redress. 
 
 At the same time, it must be borne in mind that if any naval 
 officer acts outside the limits of his authority he does so at his 
 peril, and the Court will not uphold his action ; thus, if a blockade 
 be established over a certain area, a naval commander has no right 
 on his own motion to extend that area; for, as Sir W. Scott said : 
 " A declaration of blockade is a high act of sovereignty, and a 
 commander of a king's ship is not to extend it."* The same 
 judge in a subsequent case laid down that a blockade, being the 
 exercise by a belligerent of a severe right against neutrals, must 
 not be aggravated or extended by construction.^ 
 
 A blockade ceases by — (i) the intentional act of the belligerent 
 imposing the blockade ; (2) allowing the blockade to become 
 ineffective ; (3) force majeure ; (4) some improper conduct, such 
 as partiality to particular nations, or acts misleading to neutrals, 
 in the course of carrying out the blockade. 
 
 In the first case, the duty of a belligerent State is to give a 
 notification of the discontinuance, equally formal and public with 
 that which she issued of the establishment, of the blockade, for it 
 is only reasonable that the belligerent should take care that the 
 inconvenience and loss accruing to neutrals through the cessation 
 of their commerce with ports to which they had been accustomed 
 to trade should not last for any longer period than the necessities 
 of war might require ; in truth, there is no difference in the opinion 
 of jurists, nor in the practice of nations, that public notification 
 thereof should succeed the intentional discontinuance of blockade. 
 
 A question of a very different character arises when the belli- 
 gerent so conducts himself that the blockade no longer de facto 
 
 1 Rob., Vol. VI, p. 364 ; vide infra, p. 210 ; the " Henrick and Maria," ibid.. Vol. I, 
 p. 148 ; the " Adula,''^United States Reports, Vol. 176, p. 361. 
 " The "Henrick and Maria," ut supra; vide infra, p. 189. 
 3 The " Juflfrow Maria," vide infra, p. 197 ; the " Haabet," vide infra, p. 264. 
 
ii8 COMMERCE IN WAR 
 
 exists. This state of things may arise from various causes : it may 
 be that some vessels of the blockading force may, in order to 
 perform some other duty, temporarily detach themselves there- 
 from, and thus render the blockade no longer in fact existent ; or, 
 on the other hand, the cause may be of a character over which 
 the belligerent has little or no control : sickness, tempest, lack of 
 provisions may necessitate if not the withdrawal of the whole 
 blockading force, at least such portion thereof as to render the 
 remainder incapable of sufficiently effective action against vessels 
 which may seek to enter or leave the interdicted ports. In the 
 former case it would not be unreasonable to apply the severe rule 
 of the stricter school of jurists, which declares that so soon as a 
 blockade ceases de facto it also ceases de jure. Hautefeuille thus 
 states this extreme view : — 
 
 " Mais, par cela mdme que le blocus est une conquSte at une occupation 
 permanente, un fait matdriel en un mot, il cesse des que ce fait n'existe 
 plus, d^s que les bitiments de guerre charges de I'occupation s'dloignent 
 par quelque cause que ce soit, volontaire ou involontaire, les vents, une 
 tempSte, les maladies, le manque de vivres, les forces de la nation attaqu^e 
 a pris fin, la conquSte n'existe plus, il n'y a plus de blocus, la mer territoriale 
 est retourn^e a son premier souverain, qui seul peut d^sormais y exercer 
 sa juridiction." 
 
 The English doctrine appears to be as follows : If the cause — 
 other than duress by the enemy or naval exigencies elsewhere — be 
 practically unavoidable which results in a cessation of a blockade, 
 and if that cessation be only of a very temporary character, the 
 blockade does not de jure cease, so as to necessitate a new 
 blockade, or to render vessels which enter or leave the interdicted 
 area non-amenable, if captured before their voyage be complete, 
 to the penalties for violation of blockade ; but, on the other hand, 
 if the naval commander intentionally and of his own free will, 
 under whatever exigencies of the service of his own State, for 
 however short a period (except perhaps for chasing), suffers the 
 blockade to be inoperative, then the blockade de jure ceases. 
 Such, indeed, was the view of Sir W. Scott, as expressed in the 
 " Jufifrow Maria Schroeder."^ 
 
 The third case, that of force majeure, explains itself. The 
 fourth requires a word or two. A blockade which does not 
 correspond with that laid down in the official notification is bad 
 ab initio, ^xA bad in all its parts, even those which are effective.^ 
 And if during the course of a blockade it is partially abandoned, 
 it cannot be doubted that in the absence of immediate notifi- 
 
 1 3 Rob., 155. Vide infra, p. 197. 
 
 2 Unless, perhaps, it may be possible to support them on the ground of notoriety. 
 See the " Franciska," infra. 
 
BLOCKADE 119 
 
 cation to neutrals, they will be entitled to consider the whole 
 blockade as at an end. Similarly, any steps tending to confuse 
 neutrals as to the true aspect of affairs must on principle in- 
 validate the blockade. Its relaxation in favour of a particular 
 nation may be regarded as an instance of this. The admitted 
 fatal effect of such an indulgence may also be attributed to an 
 assumed duty of belligerents to be impartial towards the neutrals 
 who are so greatly affected by their warlike measures, and who 
 are obliged to preserve impartiality towards themselves.^ But no 
 such rule of impartiality towards neutrals appears to be recog- 
 nized in other matters. 
 
 We now turn to the examination of particular cases. 
 
 In the year 1223,^ we find an instance of an interdiction by 
 King Henry III being placed upon his subjects from conveying 
 provisions, or any other commodities, to the territories of 
 Llewellyn, Prince of Wales. This cannot be regarded as of the 
 nature of a blockade, but rather as the interdiction of commercial 
 intercourse between the subjects of Henry III and those of the 
 Prince of Wales ; and of the same character appears to be a 
 further proclamation of Henry III in 1245^ against commerce 
 with the Welsh. On the other hand, in the reign of Edward II, 
 during the war between England and Scotland, we find an 
 instance of French vessels trafficking with the Scots, apparently 
 not in contraband, being seized by the King's ships, and only 
 restored to their owners as a matter of grace and courtesy to the 
 French King.* The documents here referred to are as follows : — 
 
 " De gravando Principem Wallice. Rex vice comiti Devoniae salutem. 
 Praecipimus tibi firmiter injugentes, quod per omnes portus maris ballivae 
 tuae districte prohiberi facias quod nullus, sicut se et sua diligit, victualia 
 aliqua, sive res alias venales ducat in terram Leulini sive in terram Walen- 
 sium sibi adhoerentium. Sed omnes cum victualibus et rebus aliis venalibus, 
 secure veniant in Suwalliam ad exercitum nostrum in terram, videlicet, 
 Nostram de Kaermerdin, et de Kaerdigan et in terram Comitis W. 
 Marescalli. — Teste apud Wigorn., 11 Die Julii, A.D. 1223." 
 
 " De Commercio cum Wallensibus interdict©. Mandatum est Johanni 
 de Grey Justiciario Cestriae, quod, per totam ballivam suam, cum quanta 
 fieri poterit festinatione, in singulis Burgis et bonis Villis et Hundredis 
 publice clamari et firmiter observari faciat, quod nullus de ballivi suS, 
 sicut corpus suum diligit, aliquod genus victualium, ferrum, vel acerum, 
 vel pannum vel quamcunque aliam mercem vendat, mittat vel ducat vel 
 pro posse suo duci vendi vel mitti permittat ad opus Walensium inimi- 
 corum regis. 
 
 "Et si aliquem intercipere possit qui victualia vel aliquas merces 
 quascunque eis vendere, vel mittere attemptaverit contra hanc prohibi- 
 
 1 The "Franciska," Northcote v. Douglas. 10 Moo. P.C.C. 37. Spinks, 135. 
 
 2 Rymer's " Foedera," Vol. I, p. 260. 
 
 3 Ibid., p. 440. * Ibid., Vol. Ill, p. 880. 
 
120 COMMERCE IN WAR 
 
 tionem regis ; omnia ilia, merces et victualia in manum regis capiat et ad 
 opus regis salvo custodiat tanquam ea quae regi incurruntur. 
 
 " Corpus autem ipsius vendentis, vel mittentis incontinenti capiat et in 
 prisona regis salvo custodiat donee id regi significaverit et aliud a rege 
 habuerit mandatum. — Teste Rege apud Wigorn., X November, 1 245." 
 
 " Ad regem Francise super navibus captis durante Treuga cum Scotis. 
 Magnifico principi domino Philippo dei gratii Franciae et Navarrae Regi 
 illustri fratri suo carissimo Edwardus &c. salutem et prosperos ad vota 
 successus. Litteras vestras, pro magistro Johanne Donnys et Clemente 
 Odonis de Diepa mercatoribus vestris, nobis directas recepimus ; conti- 
 nentes quod iidem, Johannes et Clemens, unam navem oneratam pluribus 
 merchandisis ad regnum Scotorum vendendis ; et pro aliis mercaturis 
 emendis in eodem, Treugis inter nos ex uni parte et Scotis ex altera 
 durantibus destin^ssent. 
 
 " Quae quidem navis in eodem regno evacuata et postmodum ibidem aliis 
 mercaturis onerata, dum de partibus illis ad regnum nostrum reduceretur, 
 quendam portum nostrum de Ravenseroade infra dictum regnum nostrum 
 per tempestatis infortunium ut dicitur applicuit ; 
 
 " Quae quidem navis, mercaturae, nee non et homines in eidem navi 
 existentes e^ de causi solummodo quod de praedicto regno Scotiae vene- 
 bant arestati fuerant et adhuc sub aresto detinentur. Super quo nos 
 rogistis quatinus mercatores praedictos, cum navi et mercaturis antedictis 
 dearestari facere et ipsos indempnes observare vellemus. 
 
 " Super quo sciant vestra excellentia reverenda, quod in dictis treugis 
 interdicta est communio subditorum nostrorum et illorum de Scotii 
 durantibus dictis treugis. 
 
 "Set licet prcefatos, Johannem et Clementem tanquam dictis inimicis 
 nostris adhcerentes punire possemus, ut deceret, ad requisitionem tamen 
 vestram, dictos Johannem et Clementem una cum navi bonis et merchan- 
 disis suis ista vice, dearestari et eis bona sua mandavimus liberari. 
 
 " Vestram serenitatem attentius deprecantes quatenus subditis vestris, 
 ne cum dictis inimicis nostris communicent velitis si placet facere inhiberi. 
 
 " Dat : apud Walyngfordiam, 4 Mail, 1321." 
 
 In 1630, the States General of the United Provinces issued an 
 ordinance relating to the blockade of the ports of Flanders.^ The 
 first article of the ordinance published in the language of the 
 Low Countries provides for the confiscation of neutral vessels 
 with their cargoes which might be found coming out of, entering 
 into, or sailing near — so that an intention to enter might be 
 inferred — the blockaded ports ; the second article recites the fact 
 that the United Provinces maintain a continual blockade of those 
 ports in order to prevent carriage of goods to and commerce with 
 the enemy ; and further, the ordinance affirms knowledge on the 
 part of other nations that the ports were blockaded, and asserts 
 that such blockade was in accordance with ancient custom : 
 "havenen met Oorlog schepen continuelyk beset honden, om de 
 commercie met den vegand aldaar te beletten, 't welk van onds in 
 
 I Aitzema (Lieuwe Van), "Historie," Vol. X, p. 177. See also "Consil. Hell," 
 Vol. Ill, Amsterd., pp. 54-7. 
 
BLOCKADE 121 
 
 gebruyk is geweest, op't exempel van alle die oot gelyk regt in 
 godanige gevallen gebruyken." 
 
 Robinson gives the French text in full : — ^ 
 
 " Les Etats Generaux des provinces unies aiant reveu et pes6 les positions 
 des cas ci a c6t^ ont apr^s une meure deliberation pr^alable et sur I'avis 
 des respectifs Colleges d Tamirautd trouv^ bon et entendu k regard du 
 premier point que les vaisseaux neutres qu'on trouvera, qu'ils sortent des 
 ports ennemis de Flandres, ou qu'ils en sont si pres qu'il est indubitable 
 qu'ils y veulent entrer, que ces vaisseaux avec leurs marchandises doivent 
 etre confisquez pas sentence des susdits respectifs colleges et cela a cause 
 que Leurs Hautes Puissances tiennent continuellement les dits ports bloquez 
 pas leurs vaisseaux de guerre a la charge excessive de I'dtat, afin d'empecher 
 le transport et le commerce avec I'ennemi, et parce que ces ports et ces 
 places sont reputez 6tre assiegez, ce qui a 6t6 de tout tems un ancien usage, 
 selon I'exemple de tous les Rois, princes puissances, et autres republiques 
 qui se sont servis du m^me droit dans de semblables occasions. 
 
 " 2. A regard du second point, Leurs Hautes Puissances declarent, que les 
 vaisseaux et marchandises neutres seront aussi confisquez, quand il constera 
 par les lettres de cargaison, connoissemens, ou autres documens, qu'ils ont 
 6t6 chargez dans les ports de Flandres, ou qu'ils sont destinez d'y aller, 
 quand m6me on ne les auroit rencontrez que bien loin encore de 1^, de 
 sorte qu'ils pourroient encore changer de route et d'intention. Ceci etant 
 fond6 sur ce qu'ils ont deja tent^ quelque chose d'illicite, et mis en ceuvre, 
 quoi qu'ils ne I'ayent pas achev6, ni port6 au dernier point de perfection, 
 k moins que les maltres et les proprietaires de tels vaisseaux ne fissent 
 voir duement qu'ils avoient ddsist6 de leur propre mouvement de leur 
 entreprise et voyage destind, et cela avant qu'aucun vaisseau de I'^tat les 
 eut vu ou poursuivi et que ceux-ci trouvassent la chose sans fraude : ce 
 qu'on pourra juger en examinant la nature de I'affaire pas des conjectures, 
 les circonstances et I'occasion. 
 
 " 3. A regard du troisieme point Leurs Hautes Puissances declarent, que 
 les vaisseaux revenant des ports de Flandres (sans y avoir ete jettez par 
 une extreme necessite) et quoique rencontrez loi de-la dans le canal ou 
 dans le Mer du Nord, pas les vaisseaux de I'^tat, quand m€me ils 
 n'auroient pas et^ vfls ni poursuivis pas ceux ci en sortant del^, seront 
 aussi confisquez k cause que tels navires sont censez avoir ^te pris sur le 
 fait tant qu'ils, n'ont point acheve ce voyage, et qu'ils ne se sont point 
 sauvez dans quelque port libre, ou apartenant k un prince neutre. Mais 
 ayant et6 comme il a ^t^ dit dans un port libre, et etant pris par les 
 vaisseaux de guerre de I'Etat dans un autre voyage, ces vaisseaux et 
 marchandises ne seront point confisquez; a moins qu'ils n'ayent ete en 
 sortant des ports de Flandres suivis par les vaisseaux de guerre, et pour- 
 suivis jusques dans un autre port que le leur, ou celui de leur destination, 
 et qu'en sortant de nouveau de 1^, ils ayent et6 pris en pleine mer." 
 
 In 1689, by a treaty'' made between Great Britain and Holland, 
 an arrogant claim was asserted to prohibit all commerce between 
 France and other nations, and in effect the treaty declared 
 
 1 Robinson's " Collectanea Maritima," p. 158. 
 
 2 Dumont, Vol. VII, part ii, p. 238. 
 
122 COMMERCE IN WAR 
 
 a general blockade of the French coasts. Clause I ran as 
 follows : — 
 
 " II est conclu et arreste entre Sadite Majeste de la Grande Bretagne et 
 les dits seigneurs Estats Generaux qu'il ne sera pas permis aux sujets 
 dudit roi ni desdits Estats avec leurs propres vaisseaux ni avec les vais- 
 seaux d'aucun autre royaume, pais ou Estat de trafiquer ni de faire aucun 
 Commerce avec les sujets du roi T. C. en mani^re quelconque, ni ne 
 pourront emmener dans les ports au pais dudit Seigneur roi ou desdits 
 Seigneurs Estats, ni dans aucun autre pais, les marchandises et denrees 
 des pais et terres de I'obeissance du roi T. C. ni amener aux dits pais et 
 terres aucunes marchandises ou denrees quelconques sur peine de con- 
 fiscation desdites marchandises et denrees et des vaisseaux qui y seront 
 employes, 
 
 "II. Et comme plusieurs rois, princes et Estats de la chretientd sont 
 desja en guerre contre le roi T. C. et qu'ils ont desja defendu, ou defendront 
 dans peu, tout commerce avec la France, il est convenu entre sadite Majeste 
 de la Grande Bretagne, et les dits Seigneurs Estats Generaux, que si pendant 
 cette guerre les sujets d'aucun autre roi, prince ou Estat entreprendront de 
 trafiques, ou de faire aucun commerce avec les sujets du roi T. C. ou si leurs 
 vaisseaux et batiments seront rencontres, faisant voile vers les ports, havres, 
 ou rades de I'obeissance du dit roi T. C. sous un soupgon apparent de 
 vouloir trafiquer avec les sujets dudit roi comme cy-dessus et si les vaisseaux 
 appartenants aux sujets d'aucun autre roi prince ou Estat, seront trouves 
 en quelque endroit que ce soit, charges des marchandises ou denrdes 
 pour la France, ou pour les sujets du roi T. C, ils seront pris et saisis 
 par les capitaines des vaisseaux de guerre, armateurs ou autres sujets du 
 dit Seigneur roi de la Grande Bretagne et des dits Seigneurs Estats et 
 seront reputes de bonne prise par les juges competans." 
 
 The third article of this treaty is interesting, because it provides 
 for notification of the blockade being given by the naval officers 
 of the blockading ships to all ships sailing from neutral countries 
 before publication by their respective sovereigns of a notification 
 of the blockade. The article is as follows : — 
 
 " II est conclu et arreste que le dit Seigneur roi de la Grande Bretagne 
 et les dits seigneurs notifieront au plustost ce traits et accord a tous les 
 rois, princes et Estats de I'Europe, qui ne sont pas en guerre contre la 
 France, et que les dits rois, princes et Estats soient au mSme tems inform6s 
 que si leurs vaisseaux ou batiments de leurs sujets sortis en mer avant 
 cette notification, seront trouves faisant voile vers les ports, havres ou rades 
 de I'obeissance du roi T. C. ils seront obliges par les vaisseaux du dit 
 seigneur roi de la Grande Bretagne et des dits seigneurs Estats de re- 
 brousser chemin incessamment, et que si les vaisseaux ou batiments des 
 dits rois, princes ou Estats ou de leurs sujets seront rencontres faisant 
 voile desdits ports charges des marchandises ou denrees de France, les dits 
 vaisseaux et batiments seront obliges de s'en retourner aux dits ports et d'y 
 laisser les dites marchandises et denrees a peine de confiscation, et qu'en cas 
 que les vaisseaux ou batiments desdits rois, princes et Estats ou de leurs 
 sujets sortis en mer apres la dite notification, seront trouves faisant voile 
 vers les ports, havres, ou rades de I'obeissance du roi T. C. ou des ports 
 
BLOCKADE 123 
 
 dudit roi ils seront saisis et confisquds avec leurs marchandises et denrdes 
 comme de bonne prise, et quant aux princes et allies, qui sont desja en 
 guerre contre la France, il est aussi arrest6 et convenu que notification leur 
 sera donn^e au plustost de ce que dessus et qu'ils soyent en mfime tems 
 pri^s de vouloir, concourir a des moyens si necessaires k I'interest commun 
 et de donner et faire executer des ordres qui tendent k la m6me fin." 
 
 In 171 1, Sweden, when at war with Russia, published a 
 declaration^ prohibiting all commercial intercourse with the ports 
 of the Baltic, then in the possession of Russia. The title of the 
 declaration was : — 
 
 "De claudendis atque obsidendis omnibus illis portibus maris Baltici 
 quos Czarus Muscoviae durante hoc bello occupatos adhuc obtinet." 
 
 The first authoritative declaration of what constitutes an effec- 
 tive blockade is to be found at the time of the armed neutrality 
 of 1780, when Article IV of the declaration by Russia set forth as 
 follows what constitutes an effective blockade of a port : — 
 
 " Que pour determiner ce qui caracterise un port bloqu6, on n'accorde 
 cette denomination qu'a celui, oil il y a, par la disposition de la puissance 
 qui I'attaque, avec des vaisseaux arr^t^s et sufifissamment proches, un 
 danger Evident d'entrer."^ 
 
 Spain, in acceding to this declaration, refers to Article IV in 
 her reply, and points out that the blockade of Gibraltar is effective 
 so as to constitute a real danger to vessels attempting to enter 
 that port. 
 
 "Au moyen de la quantity considerable des vaisseaux arrgt^s qui 
 ferment le blocks."* 
 
 Great Britain, in her reply, did^ not controvert the principle of 
 blockade enunciated in Article IV, but contented herself with 
 observing that she acts conformably to the law of nations and the 
 tenor of her treaty engagements. 
 
 France, Sweden, and Denmark assented ; the King of Den- 
 mark and Norway declaring — 
 
 "Qu'on regarde comme un port bloqu6 celui dans lequel aucun bSti- 
 ment ne peut entrer sans un danger Evident a cause des vaisseaux de 
 guerre stationn^s pour en former de pres le blocus efifectif." ® 
 
 In 1799, Great Britain made notification to the neutral Powers 
 
 > Lamberti, Vol. VI. 
 
 2 Martens, "Causes Cdl^bres," second edition, Vol. Ill, p. 266 ; "Recueil," Vol. Ill, 
 p. 158. 
 
 3 /did, "Recueil," p. 165 ; "Causes Cdfebres," p. 272. 
 
 * "Annual Register," 1780; Vol. XXIII, State Papers, p. 349- 
 
 « De Martens, " Recueil,'' /oc. cit., p. 179 ; " Causes Cdl^bres," loc cit., p. 278. 
 
124 COMMERCE IN WAR 
 
 of a blockade by her of the ports of the United Provinces in these 
 terms : — 
 
 "The necessary measures having been taken by His Majesty's com- 
 mands for the blockade of the ports of the United Provinces, that the 
 said ports are declared to be in a state of blockade, and all vessels 
 which may attempt to enter any of them after this notice will be dealt 
 with according to the principles of the law of nations, and to the stipula- 
 tions of such treaties subsisting between His Majesty and foreign Powers 
 as may contain provisions applicable to the cases of towns, places, or ports 
 in a state of blockade." ^ 
 
 In 1800, Russia and Sweden entered into a treaty* in which was 
 embodied Article IV of the declaration of 1780, with the further 
 provision that the officer in command of the blockading vessels 
 should give notification of the existing blockade to those in charge 
 of the neutral vessel, without which there should be no contraven- 
 tion of the blockade. The question of special notification is dealt 
 with elsewhere ; ^ it is sufficient to note here that England has 
 never recognized the necessity of such notification as a condition 
 precedent to contravention. 
 
 Article III, clause 3, of this treaty is as follows : — 
 
 " Que pour determiner ce qui caracterise un port en ^tat de blocus on 
 ne doit comprendre sous cette denomination que celui dont I'entr^e est 
 evidemment dangereuse, par suite des dispositions de la puissance qui 
 I'attaque avec des vaisseaux destines k cette operation, et a une proximit6 
 suffisante, et que tout batiment qui entre dans un port blocqu6 ne pent 
 6tre regard^ que comme contrevenant a la pr6sente convention, ains'i 
 que celui qui ayant 6t6 pr6alablement informd de I'^tat du port par le 
 commandant du blocus, cherche ei y pen^trer par violence ou par super- 
 ch6rie." 
 
 In the convention with Great Britain of 17 June, 1801, Russia 
 abandoned the pretension set up in 1780 (supra) and 1800, and 
 acceded to by the Powers which joined the several armed neu- 
 tralities, that the blockading vessels should be anchored {arrHds). 
 It was now considered sufficient that they should be anchored 
 or (not andJ) sufficiently near to interdict access. * 
 
 In 1807 a correspondence* took place between England and 
 the United States in relation to certain wrongs alleged to have 
 been sustained by American citzens, by irregular and illegal 
 captures and condemnations of their vessels during the blockade 
 of Martinique and Guadeloupe, contrary to the tenor of a letter 
 
 1 State Papers, Vol. XVI, p. 1137 ; " London Gazette," 26 March, 1799. 
 
 2 Martens, "Recueil des Traitds," Vol. VII, p. 518. 
 ' See p. 100. 
 
 ■i Walker, "Science of International Law," p. 517. 
 ' State Papers, Vol. I, part ii, p. 1206. 
 
BLOCKADE 125 
 
 from the British to the American authorities written in 1804 
 and which ran as follows : — 
 
 " Having communicated to the Lords of the Admiralty, Lord 
 Hawkesbury's letter of the 23rd ultimo, inclosing the copy of a despatch 
 from Mr. Thornton, His Majesty's charge d'affaires in America, on the 
 subject of the blockade of the islands of Martinique and Guadeloupe, 
 together with the report of the Advocate-General thereon, I have their 
 lordships' commands to acquaint you, for his lordship's information, that 
 they have sent orders to Commodore Hood not to consider any blockade 
 of those islands as existing unless in respect of particular ports which 
 may be actually invested, and then not to capture vessels bound to such 
 ports unless they shall have been previously warned not to enter them ; 
 and they have also sent the necessary directions on the subject to the 
 judges of the Vice-Admiralty Courts in America and the West 
 Indies." 
 
 By the decree of Berlin,^ Napoleon declared the British terri- 
 tories to be in a state of blockade, and forbade all commerce and 
 even correspondence with Great Britain. He declared that every 
 vessel and cargo which had entered or was found proceeding to 
 a British port, or which under any circumstances had been visited 
 by a British ship of war, should be a lawful prize : he declared 
 all British goods and produce wherever found and however ac- 
 quired, whether coming from the mother-country or from her 
 colonies, subject to confiscation, and that the flag of all neutral 
 ships that should be found offending against these decrees shall be 
 declared to be denationalized. 
 
 In 1807, Great Britain retaliated by an Order in Council, 
 declaring that no neutral vessel should proceed to France or 
 to any of the countries from which, in obedience to the dictates of 
 France, British commerce was excluded, without first touching at 
 a port in Great Britain or her dependencies ; at the same time 
 she intimated her readiness to repeal the Orders in Council, 
 whenever France should rescind her decrees and return to the 
 accustomed principles of maritime warfare.* 
 
 In 1809, the operation of the above Order in Council was 
 limited to a blockade of France and of the countries subjected to 
 her immediate dominion.^ 
 
 The post -Napoleonic blockades commence with a Spanish 
 blockade of the island of Margarita, instituted by the Captain- 
 General of Caracas on 29 January, 18 16.* The proclamation is 
 a curious one : — 
 
 " Don Salvador de Moxo etc., makes known : — That, in consequence 
 of the dispositions taken by H. E. don Pablo Morillo, General in Chief 
 
 > Ibid., Vol. VIII, p. 466. ^ Ibid., p. 469- 
 
 8 Ibid., p. 491. * ■^*''^-. Vol. II, p. 1 1 12 (trans.). 
 
126 COMMERCE IN WAR 
 
 of the Expeditionary Army, and Governor and Captain General, for the 
 blockade of the island of Margarita, in order to reduce to their obedience 
 the rebels who, after having been treated with the greatest indulgence and 
 benignity, have dared to rise in arms against the King, it is decreed : — 
 That every Spanish vessel detected by another of the same nation in 
 affording assistance to the insurgents, by carrying men, arms, ammu- 
 nition, or naval stores, or supplies of any other kind to them, shall be 
 confiscated and forfeited ; that the master and the other principal officers 
 on board shall be hung up at the yard-arms ; and that, of the sailors and 
 crew, I out of 5, if they are not found to be as culpable as the rest, shall 
 be so put to death ; otherwise all shall undergo the same fate. A similar 
 punishment shall be applied to any Foreign vessels and their crews ; for, 
 as the Spanish nation is in full peace with all other nations, it is not to be 
 expected that they can be permitted to afford assistance to its traitors, 
 which they would not themselves permit under the like circumstances ; 
 and all those who offend in this manner must be considered as Pirates 
 and Public Assassins ; excepting those who may be on board of vessels, 
 furnished with registers of navigation, with respect to which some limita- 
 tion must take place. . . . 
 
 " Let this be published . . . giving official intimation thereof to the 
 chiefs of the Foreign colonies of Trinidad, Jamaica, Curagoa, S. Thomas, 
 S. Bartholomew, and to any other Persons as may be thought proper." 
 
 It appears that Carthagena had also been blockaded (30 June. 
 1815),^ and on 2 March, 1816, the Spanish Minister accredited 
 to the United States intimated^ that the coast of the Viceroyalty 
 of Santa-F6^ was blockaded from Santa Martha to the River 
 Atrato inclusive ; and that orders had been given (subject to 
 the ports of S. Martha and Portobello being left open to com- 
 merce) — 
 
 " That if any vessel be met with further south than the mouths of the 
 Magdalena or further north than the parallel of Cape TibUron on the 
 Mosquito shore, and between the meridians of these points, she would 
 be declared a good prize, whatever documents or destination she might 
 have." 
 
 This was to interdict access to a triangular area of sea of some 
 3000 square miles extent. The proclamation is confused and 
 illogical, because a vessel could' not get to the small enclave 
 south of Tiburon without passing through, the interdicted area, 
 and Portobello lies well outside it. The Secretary of State 
 (Monroe) at once repudiated the pretension ; though he does 
 not appear to have known of the ferocious threat to kill the 
 officers and crews of blockade-runners! 
 
 " I have to state* that this proclamation of Gen. Morillo is evidently 
 repugnant to the law of nations, for several reasons, particularly the 
 
 1 State Papers, Vol. II, p. 1114 ; Vol. IV, p. 479. ^ /^^^^ p ^^g 
 
 3 Now the Republic of Colombia. 
 
 * Monroe to Onis, 20 March 1816, Hid. 
 
BLOCKADE 127 
 
 following — that it declares a coast of several hundred miles to be in a 
 state of blockade, and because it authorizes the seizure of neutral vessels 
 at an unjustifiable distance from the coast. No maxim of the law of 
 nations is better established than that a blockade shall be confined to 
 particular ports, and that an adequate force shall be stationed at each to 
 support it. The force should be stationary, and not a cruising squadron, 
 and placed so near the entrance to the harbour or mouth of the river as 
 to make it evidently dangerous for a vessel to enter. I have to add that 
 a vessel entering the port ought not to be seized, except in returning to 
 it after being warned off by the blockading squadron stationed near it." 
 
 Monroe thus substantially lays it down — (i) that a long coast 
 line should not be blockaded ; (2) that an area of sea cannot be 
 interdicted ; (3) that the blockading force should be stationary 
 and not a cruising squadron ; (4) that individual notification by 
 the blockading ships is necessary. In 1862, it will be seen, his 
 successor greatly modified these positions, except the second, 
 which it has been reserved for a later day to infringe. 
 
 The Minister, De Onis, in reply, ^ relies on the fact that 
 Carthagena is the only port of entry on the blockaded coast, 
 and that the small force of one ship of the line, two frigates, and 
 several small vessels is adequate to blockade it. He quotes old 
 ordinances regulating the trade of the Spanish Indies, according 
 to which vessels " found near, or evidently shaping a course 
 towards them, were liable to confiscation." Any vessel, he says, 
 found near that coast, or standing towards it — 
 
 "can have no other object than to carry on smuggling, or stir up a 
 civil war in the King's dominions : in either case, the laws of nations 
 recommend the seizure of vessels so employed." 
 
 So at least he may have imagined ; but the Viceroy of Santa- Fd, 
 who expressly disclaimed any knowledge of the law of nations, 
 was perhaps wiser. The United States Minister at Madrid^ 
 repeated Monroe's view of the law, and observed — 
 
 " It is vain ... to hope that the United States will ever consent to 
 blockades upon the principles of General Morillo ; they will acknowledge 
 none to be valid which are not strictly conformable to the well-known 
 principles of public law ; principles most clearly defined and quite in- 
 disputable, to which the United States have always adhered in their own 
 practice, and to the infringement of which, in any form, in any degree, or 
 under whatever pretext, they have always opposed themselves." 
 
 The Spaniards referred him to the Courts of Admiralty, and 
 it is not known whether any redress was ever obtained for the 
 seizure of four vessels captured and confiscated. The blockade 
 was raised on 2 September, 1817.^ 
 
 1 State Papers, Vol. IV, p. 481 (25 March, 18 16). 
 
 ' Ibid., p. 483 (Erving to Cevallos, 26 Sept., 1816). ' Ibid., p. 485. 
 
128 COMMERCE IN WAR 
 
 In 1817 Portugal blockaded Pernambuco* from 2 April to 
 6 July. 
 
 "Rio Janeiro, k 2 Avril, 18 17. 
 " Le soussignd. . . . annonce au charg^ d'affaires de . . . qu'il part au- 
 jourd'hui une division compos6e de 4 bitimens de guerre, qui vont croiser 
 4 la hauteur du gouvernement de Pernambouc, et bloquer etroitement tous 
 les ports du susdit gouvernement militaire, afin de contribuer 4 r^primer 
 le Rebellion qui a eclatd dans la ville de Recife le 6 du mois passe . . . 
 
 " El Conde da Barca." 
 
 In the same year the filibuster MacGregor, purporting to act 
 with the authority of New Granada and Venezuela, issued 
 the following notice, dated 21 August, 1817, blockading the 
 Floridas : — * 
 
 " Gregor MacGregor, . . . General-in-Chief of the Army destined to 
 emancipate the Provinces of both Floridas, serving under the Commission 
 of the Supreme Governments of Mexico and S. America, etc. 
 
 " It being requisite, by the state of the hostile operations undertaken 
 by me against the possessions of the King of Spain . . . and having at 
 my disposal the maritime forces indispensable for carrying into effect a 
 formal blockade : — be it known to all to whom these presents shall come, 
 that, from and after 15 Sept. next ensuing, all ports, rivers, bays, and 
 inlets of the Coasts of both Floridas, from the S. part of this [Amelia] 
 island to the River Perdido, are to be considered in a state of strict and 
 rigorous blockade . . ." 
 
 Individual warning was promised. Eventually the United 
 States evicted General MacGregor from his head - quarters 
 (Amelia Island), and the blockade came to an end.' 
 
 Peru still remaining Spanish, its coast was blockaded by Chili 
 in 1819.* 
 
 Both the naval commander, Cochrane, and the civil dictator, 
 O'Higgins, issued proclamations ; the latter being the more 
 correct. The Admiral's ran : — 
 
 " I March, 1819. Being authorized and commanded by the supreme 
 Government of Chili strictly to blockade the ports, bays, harbours, and 
 the whole coast of the kingdom of Peru, I hereby declare as follows, viz.: — 
 
 "(i) That the port of Callao, and all the other ports, bays, and 
 harbours, as well as the line of coast from the port of Guayaquil to 
 Atacama in Peru, are in a state of formal blockade. 
 
 " (2) All vessels are strictly prohibited from carrying on any commerce, 
 or holding any communication, with the ports and places within the before- 
 mentioned line of blockade. 
 
 " (3) No ships or vessels belonging to friendly or neutral Powers, now 
 
 » State Papers, Vol. IV, p. 980 (trans.). 
 2 Ibid., p. 817. 
 
 ^ Ibid., Vol. V, p. 490, et passim. 
 * Ibid., Vol. VI, p. U09. 
 
BLOCKADE 129 
 
 in the Bay of Callao, or in any of the ports or anchorages comprehended 
 within the blockade aforesaid, shall be permitted to sail therefrom after 
 the lapse of eight days from the date hereof.^ 
 
 " (4) No neutral flag shall, in any case, be suffered to cover or neutralize 
 the property of Spaniards, or of the inhabitants of the countries subject 
 to the King of Spain. 
 
 "(S) Any neutral vessel navigating under false or double papers, or 
 which shall not have the necessary documents to prove the ownership of 
 the property, shall suffer the penalties applicable to the goods and 
 merchandise of the enemy. 
 
 " (6) Neutral vessels which shall have on board military officers, masters, 
 supercargoes, or merchants of the countries subject to the King of Spain, 
 shall be sent to Valparaiso, there to be judged according to the Law of 
 Nations." 
 
 Clause 6, threatening to bring vessels in for trial which had on 
 board Spanish merchants, evidently goes too far. And Clause 4, 
 which travels out of the scope of the proclamation in order to 
 contradict the doctrine "Free ships, free goods," was not re- 
 peated by the civil dictator. The latter's proclamation ran^ 
 (after recitals) — 
 
 "(i) From I March last, all the ports and anchorages in the Pacific 
 Ocean, situated between 21° 48' and 2° 12' S. lat. — that is to say, the line 
 of coast from Iquique to Guayaquil inclusive — shall be considered, as they 
 effectively are, blockaded by the squadron of Chili ... subject to the 
 following regulations : — 
 
 "(2) Every neutral vessel, of whatever nation, coming from Europe, 
 the U.S.A., or from any European establishment on the continent or 
 islands of America, which shall attempt to enter any of the ports com- 
 prehended in this decree of blockade, within seven months from the 
 same date, shall be notified of the existence of the said blockade by 
 the Commander-in-Chief of the Chilian squadron ; and, after this formal 
 notification, shall not be permitted to enter the blockaded ports, nor carry 
 on any commerce or intercourse with them. 
 
 "(3) [Substitutes periods of five, six, twelve and three months for 
 vessels coming from Brazil, Africa, Asia, and La Plata respectively.] 
 
 "(4) Every neutral vessel, on board of which shall be found warlike 
 stores or enemies' property, or officers, masters, supercargoes, or merchants, 
 belonging to the countries under the dominion of the King of Spain, 
 shall be sent to Valparaiso, there to be judged according to the Law of 
 Nations. 
 
 "(5) As sufficient time has been given, in the 2nd and 3rd Articles of 
 this decree, to all neutral and friendly vessels, under whatever flag they 
 may arrive, to avoid the ports thus blockaded, any such vessel which shall 
 be found before any of the blockaded ports, after the expiratipn of the 
 periods respectively appointed, shall be sent to Valparaiso, there to be 
 judged according to the Law of Nations. 
 
 1 
 
 Except in ballast (?). 
 ' State Papers, Vol. VI, p. mo (20 April, 1819). 
 
 K 
 
130 COMMERCE IN WAR 
 
 " (6) Every neutral vessel, which shall be found navigating with double 
 or false papers, and which does not possess the necessary documents to 
 establish the ownership of the property, shall suffer the penalties applic- 
 able to the goods and merchandise of the enemy." 
 
 As the Spanish-American struggle progressed, the portion of 
 Colombia still retained by Spain was, in its turn, blockaded 
 {6 July, 1820).^ At about the same time (28 January, 1820) 
 domestic troubles impelled Spain to blockade the mouth of the 
 River Santi Petri." This forms the port of S. Fernando, which 
 lies at the neck of the peninsula on which Cadiz stands. Both 
 these blockades were proclaimed in very succinct terms. No 
 special delays were afforded, nor was anything said as to notification. 
 
 In this year Turkey blockaded part of its own Grecian coast. ^ 
 The Government of the Ionian Islands issued a careful explanation 
 of the duties of foreigners in these circumstances. The blockade 
 extended all along the coast, from Missolonghi to Avlona, i,e. for 
 about 150 miles north-west of the Gulf of Corinth. It is stated 
 that Parga and Prevesa were "strictly" blockaded ; Missolonghi, 
 up to S. Maura and Gumenizza and Avlona, entirely open ; and 
 Sagiades, Buccintro, and the other ports in their vicinity, open 
 only for export of provisions and cattle. This sounds corifusing : 
 for how could it be determined what the status was of parts of the 
 coast not expressly mentioned? The relaxation, permitting the 
 export of provisions, also seems irregular, for it could not but 
 lead to misapprehensions by neutrals. Neutrals might lose the 
 benefit of a cessation of the blockade, for they would probably 
 conclude that the vessels which came through had provisions only 
 on board ; or they might be deceived into thinking the blockade 
 raised on observing these privileged vessels come through. Ships 
 were only allowed to stay in the ports last mentioned for thirty- 
 six hours, and might not carry passengers. 
 
 In 1 82 1 this blockade was superseded by a more regular one, 
 notified by the Turkish admiral to the Ionian Commissioner.* It 
 extended to the whole of the Morea, except Naupacto, Patras, 
 Navarino, Modon, Coron, and Monembassia. The Ionian Senate 
 expressly enjoined its observance on its subjects — an uncommon 
 step ; and the Commissioner (Sir Thos. Maitland), in language of 
 unusual character for an official proclamation, severely reflected 
 on the pa,rtisans of Greek independence. 
 
 The progress of the war of liberation in S. America led to the 
 organization of an independent government in Peru, which pro- 
 ceeded to blockade the Peruvian ports still in Spanish hands.^ 
 
 1 State Papers, Vol. VII, p. 979. 2 Ibid. 
 
 3 Ibid., p. 895. " Ibid., Vol. VIII, p. 1282. 
 
 ' Ibid., Vol. IX, p. 804. 
 
BLOCKADE 131 
 
 " Article I. The ports and creeks comprehended between the parallels 
 of 15° and 22° 30' S., from the Port of Caballas or Nasca to that of 
 Cobija, both included, shall be considered to be in a state of rigorous 
 blockade, so soon as the Peruvian ships of war intended to render it 
 effective, and which are nearly ready to sail, shall arrive on that coast. 
 
 " Article II. This declaration will be considered as sufficiently notified 
 to all friendly or neutral Powers at the periods specified in the following 
 article, after which no traffic can be carried on with the before-mentioned 
 ports, except under the responsibilities which the Law of Nations imposes 
 in the event of any infraction thereof. 
 
 "Article III. [Fixes various periods, ranging from two to twelve 
 months, but fixes no date to reckon them from.] 
 
 "Article IV. From the day on which the destined force shall render 
 the blockade effective, no ship belonging to friendly or neutral nations 
 can enter the before-mentioned ports ; and the commanding officer of 
 the blockade will notify its existence to those who may arrive before 
 then, according to the verification thereof on the back of the licence of 
 the ship, in order that, should it afterwards attempt to enter a blockaded 
 port, it may be sent to Callao, and judged accordingly. 
 
 "Article V. Every ship which shall arrive at the said blockaded 
 ports, after the expiration of the terms [above-mentioned], and which 
 shall have on board articles contraband of war, such as arms, ammunition, 
 warlike stores, provisions, naval stores, and other supplies which might 
 contribute to the defence of the enemy and the continuance of the war, 
 shall be sent to the port of Callao, to be judged according to the Law 
 of Nations. 
 
 " Article VI. Vessels arriving at the said ports without the necessary 
 documents, or with simulated ones, are subject to the foregoing article. 
 . . . Lima, 15 Oct., 182 1." 
 
 It seems, therefore, that access for some purposes was to be 
 allowed, Article V only specifying contraband and other suspicious 
 cargoes as interdicted, and Article VI extending the penalty to 
 the use of false papers. Otherwise Article V is regrettably am- 
 biguous, and Article VI is entirely unnecessary. 
 
 On 25 March, 1822, revolted Greece blockaded certain Turkish 
 ports by a declaration notified to foreign consuls. The blockade 
 comprised — ^ 
 
 " Tous les parages qui sont encore au pouvoir de I'ennemi, dans I'Epire, 
 dans le Peloponese, dans File de Negrepont, en Thessalie, depuis Epidaure 
 (Dulcino) jusqu'a Salonique, m^me y compris les lies de la Mer Eg^e, 
 celles des Sporades qui sont entre leurs mains, et Candle." 
 
 Special notification was promised — 
 
 "jusqu'a ce que le gouvernment soit informe que la prdsente publication 
 est parvenue a qui de droit." 
 
 The admirals of Britain, France, and Russia, on 24 October, 
 
 ' /did., Vol. IX, p. 798- 
 
132 COMMERCE IN WAR 
 
 1827, intimated to the Greek Legislature that its blockades must 
 be limited to the coast from Volo to Lepanto (including Salamina, 
 Egina, Hydra, and Spezia).^ 
 
 Much correspondence passed between the United States naval 
 authorities and the Governor of Porto Rico, in 1822, on the 
 subject of General Morillo's blockade.^ A Spanish vessel em- 
 ployed in its maintenance fired by mistake into a United States 
 cruiser, and was sunk by her. The British, Dutch, and United 
 States authorities further entered formal protests against the 
 validity^ of this blockade, the Dutch protest being especially well 
 stated. 
 
 Brazil blockaded the last stronghold of the Portuguese, Bahia, 
 in 1823 (29 March). 
 
 " The entry of all vessels whatever, national or foreign, men-of-war or 
 merchant vessels, is henceforth prohibited, for so long as the Portuguese 
 troops shall continue there." * 
 
 France, in the same year, blockaded Cadiz, Barcelona, Santona, 
 and S. Sebastian. She seems to have thought any notification 
 whatever a trivial formality, according to Chateaubriand's circular 
 to foreign ministers.^ 
 
 "Paris, 2^Juillet, 1823. 
 
 " Monsieur, le gouvernement Fran§ais, fidele aux principes de gener- 
 osity qu'il a manifest^e, en ne ddlivrant pas de lettres de marque et en 
 laissant passer librement tous les bitiments de commerce, avait cru qu'il 
 n'avait pas besoin de signifier le blocus effectif des ports d'Espagne devant 
 lesquels il a 6tabli des croisieres. II avait pense que les droits de la 
 guerre et des nations etaient assez connus, et que la conduite loyale de la 
 France serait assez appr^ci^e, pour qu'on ne cherchit pas a forcer les 
 blocus qu'il a formes, et a ravitailler les places assi^g^es par les forces de 
 terre et de mer de S. M. Tres-Chretienne. L'exp^rjence a d^montre au 
 gouvernement frangais qu'il s'^tait trompe ; tous les jours, des batimens 
 sous different pavilions, essayent d'introduire des vivres et des munitions 
 dans les ports de Cadix, de Barcelone, de Santona et de San Sebastian. 
 Plusieurs de ces baiintens, surtout a Cadix, ont etd arretes par les vaisseaux 
 du roi. Leurs cargaisons ont ete mises a depots Le gouvernement de 
 S. M., desirant qu'a I'avenir, les sujets des puissances neutres ne s'ex- 
 posent plus a ces inconveniens, en dirigeant des expeditions commerciales 
 sur les ports bloqu^s, se voit force de declarer le blocus effectif des ports 
 de Cadix, Barcelone, Santona et S. S^bastien. . , ." 
 
 This blockade was extended to Ferrol and Coruna, 26 July, 
 1823, and was raised 7 October (as to Ferrol, 3 August).^ 
 
 » State Papers, Vol. XIV, p. 1226. 
 2 Ibid., Vol. IX, p. 977 etseq. 
 ' Ibid., Vol. X, p. 939 et seq. 
 
 * Ibid., p. 947. 5 Ibid., p. 936. 
 
 * Italics ours. ^ Ibid., p. 937. 
 
BLOCKADE 133 
 
 Mexico blockaded the castle of Ulloa, the last foothold of 
 Spain in continental America, on 8 October, 1823.^ 
 
 Algiers was blockaded by Great Britain on 13 April, 1824, and 
 the blockade was signified to the ministers of foreign Powers 
 in London.^ 
 
 The Greek Government blockaded the castles of Patras and 
 Lepanto in 1824 (14 October).^ 
 
 "Article I. II est d^fendu a toute espece de bitiment, quelque pavilion 
 qu'il porte, d'entrer dans les chateaux de Patras et de Ldpante. 
 
 "Article II. Apr^s la promulgation de la presente proclamation, le 
 commandant de la division navale Grecque, ou tout Capitaine de 
 vaisseau sous ses ordres, sera tenu de defendre, pour la premiere fois, a 
 tout Mtiment qui se dirige vers les places bloqu^es, et dont il est prouv6 
 que la cargaison n'est point une propriete Turque, d'entrer dans lesdites 
 places: il lui delivrira un certificat par ecrit, qu'il a 6t6 somm^ de rebrousser 
 chemin ; mais il devra arr^ter et traduire devant le tribunal competent, 
 ceux des b4timens qui se trouveraient la apres un terme tellement 
 posterieur a la promulgation de la presente proclamation, que Ton doive 
 prdsumer qu'ils ont eu connaissance du blocus. 
 
 " Article III. Tous les bitimens, portant pavilion neutre, qui se trou- 
 vent dans les deux dites places bloqudes, peuvent en sortir Hbrement dans 
 le delai de 3 semaines, a compter du jour de I'apparition de la division 
 navale grecque devant ces places, mais sans emporter des propri^tes 
 turques ..." 
 
 Brazil declared a blockade of Buenos Ayres and the Banda 
 Oriental (now Uruguay) in 1825. Fourteen days were allowed 
 for exit, after which exit was allowed of ships in ballast, "provided 
 they have not any suspicious Persons on board." The declaration 
 was issued by the naval commander. Admiral Lobo,* on 21 De- 
 cember, but notice was communicated to the ministers at Rio a 
 fortnight previously.* Against the manner in which the blockade 
 was conducted, the United States minister at Buenos Ayres 
 protested.* One frigate, one corvette, and three brigs were 
 supposed to blockade a coast extending for twenty degrees of 
 latitude, and the minister instanced six vessels which (in about 
 eight weeks) had entered the blockaded port of Buenos Ayres. 
 Captain Elliott (U.S. "Cyane") enforced the view of his Govern- 
 ment in even stronger language, and insisted on his right to 
 take his vessel to Buenos Ayres : — 
 
 " The United States will not acknowledge a blockade as valid against its 
 civil marine, unless confined to particular ports, each one having stationed 
 
 " State Papers, Vol. X, p. 1027. 
 
 2 Ibid., Vol. XI, p. 185. 
 
 •■> Ibid., Vol. XII, p. 903. 
 
 * /&V., Vol. XIII, p. 783. 
 
 " Ibid., p. 1029. 
 
 " Ibid., p. 823, Forbes to Lobo, 13 February, 1826. 
 
134 COMMERCE IN WAR 
 
 before it a force sufficiently great to prevent the entry of all vessels 
 carrying materials to succour the besieged ; and no vessel shall be seized 
 in attempting to enter the port so blockaded, till she has been previously 
 warned off, and the fact endorsed on her register." ^ 
 
 To this Admiral Lobo replied that — 
 
 " In order to blockade a port, it is not necessary that we should always 
 be in sight of it ; it is sufficient to cruise in that place which forms the 
 entrance to it ; for example, the undersigned can blockade Buenos Ayres, 
 being east of the Ortis and Chico Banks. . . ," ^ 
 
 The French Admiral, Rosamel, had a similar correspondence 
 with Admiral Lobo's successor.' Mr. Raguet (United States 
 minister at Rio) took up the same position as Captain Elliott and 
 the minister at Buenos Ayres,* and, with regard to the exclusion 
 of warships, maintained that — 
 
 " Had any serious intention existed at any time on the part of the 
 Brazilian ministry to attempt a measure so clearly at variance with the 
 established laws of nations, ... I should not have failed to resist the 
 doctrine as wholly inadmissible by the United States, and at the same 
 time to have given notice that any attempt to impede the entry into a 
 blockaded port of an American ship of war, would be resisted by force." "^ 
 
 He addressed a long essay on the subject of blockade to the 
 Brazilian Government, which does not touch on the alleged rights 
 of warships, and is characterized by great lucidity and correctness 
 as an exposition of the ancient United States doctrine.* The 
 blockade was restricted to La Plata, 28 April, 1826.'^ It seems 
 always to have been regarded as valid as against Buenos Ayres, 
 though the discrepancy between the proclamation and the fact 
 might fairly have invalidated it in toto. 
 
 Regarding the alleged right of vessels of war to break blockade, 
 Baron do Rio da Prata, the then Brazilian Admiral, in a letter of 
 10 November, 1827,* repudiated any such doctrine, and explained 
 the permission accorded to a British public vessel to touch at 
 Buenos Ayres, as due to the fact that she was on a mission of 
 mediation. The United States Commodore retorted* that— 
 
 " Blockades have never been deemed to extend to public ships. Great 
 Britain, almost perpetually at war, and numerically superior at sea to 
 any other nation, never for a moment pretended that neutral ships of 
 
 1 State Papers, Vol. XIII, p. 824, Elliott to Lobo, 3 April, 1826. 
 
 2 Ibid., p. 827, Lobo to Elliott, 6 April, 1826. 
 2 Ibid., p. 832 et seq. 
 
 * /&V., Vol. XIV, p. ti67. 
 
 5 Ibid., p. 1 169, Raguet to Elliott, 18 March, 1826. 
 
 ° Ibid., Raguet to St. Amaro, 13 December, 1825. 
 
 7 Ibid, ■p. 1 1 87. 
 
 8 /W^., Vol. XV, p. 1 1 18. 
 
 ' Ibid., p. 1 120. 
 
BLOCKADE 135 
 
 war could be affected by blockades. ... In 18 11, in the U.S. ship the 
 ' Hornet,' I myself went into Cherbourg, then blockaded by a British 
 squadron." 
 
 In a subsequent letter he added — ^ 
 
 " The usage of nations is not to apply a blockade to ships of war ; and 
 this usage is conformable to reason, since the legitimate and only object 
 of a blockade is to exclude supplies ; and your Excellency well knows 
 that a ship of war never carries supplies of any kind, except for her own 
 use. I beg leave to state . . . that in 181 1, while in command of the U.S. 
 sloop-of-war ' Ontario,' I entered the port of Valparaiso, then blockaded 
 by a Spanish squadron. The Spanish Commodore notified to me the 
 blockade, and requested I would acknowledge the notification of it, which 
 I accordingly did in writing. 
 
 "In 18 19 the U.S. frigate 'Macedonian' entered the port of Callao, 
 then blockaded by the Chili squadron commanded by Lord Cochrane, 
 who boarded the ' Macedonian ' as she went in. 
 
 "In 1802, I was a junior officer in the American squadron then 
 blockading the port of Tripoli. A Danish frigate came off the port, 
 which our squadron boarded and permitted to enter. . . ." 
 
 The Brazilians having begun to take bonds from neutral vessels, 
 that they would not violate the blockade of Buenos Ayres, Henry 
 Clay wrote to the United States charg6 d'affaires as follows ; — 
 
 " That measure can find no justification whatever in the usage or law 
 of nations. ... A blockade must execute itself. The presence of the 
 force which constitutes it is the means of its enforcement. The belligerent 
 has no right to resort to any subsidiary means. Such a resort is a tacit 
 admission of the incompetency of the blockading force to sustain the 
 blockade, and consequently confesses its illegality." ^ 
 
 Voluminous further correspondence passing between the authori- 
 ties of Brazil and the United States on the subject of this blockade, 
 is set out in the British State Papers, Vol. XVI, pp. 1099- 1 160. 
 It seems that, at one time, Brazil asserted the position — 
 
 "that the blockade existed as soon as adequate notice of it was given 
 to all nations, and that a sufficient space of time was allowed for all to 
 be informed of it. Neutral vessels, therefore, cannot be allowed to 
 attempt a violation of the blockade upon the pretence of being ignorant 
 whether it existed or not."^ 
 
 But it also seems that some relaxation, similar to that allowed 
 to United States ships in the Napoleonic wars, conceding a liberty 
 of inquiry, was eventually allowed.* 
 
 " The custom adopted by this navy towards neutral vessels, in the act 
 of violating a blockade, being founded on mere favour, is very far from 
 
 1 State Papers, Vol. XV, p. 1123. 
 
 2 Ibid., p. 1 135, Clay to Tudor, i April, 1828. 
 ^ Inhambupe to Raguet, 10 December, 1826. 
 
 < State Papers, Vol. XVI, pp. 1141-3, and cf. ibid., XIV, p. 1187. 
 
136 COMMERCE IN WAR 
 
 being a maritime right : so that it may be withdrawn, since, in such a 
 case, being a favour, its duration depends on the will of H.M. the 
 Emperor of Brazil, who grants it." 
 
 The differences of opinion, perhaps partly due to difficulties of 
 language, produced much friction — the United States officers 
 contending for the absolute necessity of individual warning, the 
 Brazilians considering that all that was intended was the conces- 
 sion of liberty to neutral vessels to approach the neighbouring 
 unblockaded ports, or to report themselves to the blockading 
 squadron for the purpose of candid inquiry. 
 
 It may perhaps be added here, that the United States naval 
 commander wrote, with reference to relaxations in the blockade 
 which had been made in favour of Brazilians : — ' 
 
 "H.I.M. is too just and too enlightened to expect that, while he permits 
 to his own subjects trade with his enemies, he may deny it to neutrals. 
 It would be extraordinary indeed if a belligerent is to be exempt from all 
 the evils of his own blockade, while all its evils are to be enforced against 
 neutrals, thereby placing the neutral in a worse condition than the 
 belligerent. These relaxation^ must also render the blockade entirely 
 null and illegal." 
 
 France obtained an indemnity for the seizure of three ships by 
 Brazil, and by a Franco- Brazilian treaty of 21 August, 1828, 
 formal provision was made for individual notification by the 
 blockading forces of either Power.^ 
 
 The West Coast of Africa, from Camelay to C. Mount, 
 was blockaded from 4 March, 1826, to 13 January, 1827,^ by 
 proclamation of the Governor to the Gold Coast. It recites with 
 much detail the circumstances which called forth its appearance ; 
 with an incidental disquisition on the evils of the slave-trade, 
 and another on the duties of government, otherwise it does not 
 differ much from more modern documents. 
 
 France blockaded Algiers on 2 July, 1827,* and the blockade 
 was still in force on 13 September, 1828.^ On 9 February, 1830, 
 it extended to Bona, Bugia, Algiers, and Oran.® 
 
 In 1828 the King of Portugal blockaded Oporto (22 May to 
 13 July).'' Two ships of war, "according to the maritime laws," 
 were employed. Due notifications to foreign Powers were made 
 at Lisbon. Funchal, in Madeira, was also blockaded, the notifi- 
 cation (issued by the Portuguese Board of Trade, 26 July) stating 
 that ships had been despatched for the purpose. This blockade 
 
 ' State Papers, Vol. XVII, p. 1139 (13 December, 1827). 
 
 2 Ibid., Vol. XV, pp. 1240, 1242. 5 Ibid., Vol. LXIII, p. 1 163. 
 
 * IHd., Vol. XIV, p. 863. 5 iiiia,^ Vol. XVI, p. 1253. 
 
 <■ Ibid., Vol. XVII, p. 1261. 7 Ibid., Vol. XV, p. 1091 et seq. 
 
BLOCKADE 137 
 
 was raised by the capture of Madeira, intimation of which was 
 made to the foreign ministers in Lisbon on 1 2 September, 
 
 Later in the same year a curious situation arose, when Russia 
 declared war against Turkey and desired to blockade Constanti- 
 nople. As the Emperor of Russia had publicly declared an 
 intention to waive his belligerent rights in the Mediterranean 
 (where he was acting in concert with France and Britain), Lord 
 Aberdeen issued a circular declaring that commercial enterprises 
 undertaken on the faith of this promise could not be affected by 
 the blockade,^ and subsequently stated^ that vessels which cleared 
 from British ports before i October, or from Mediterranean ports 
 before 30 October, would not be obstructed. The blockade itself 
 was commenced on the ^^ October, and notified by the Russian 
 Admiral to the neutral naval commanders. 
 
 " L'Empereur . . . m'a ordonn6, de mettre et de declarer en etat de 
 blocus les Dardanelles et Constantinople, et d'empScher I'arriv^e quel- 
 conque des vivres et autres articles g^neralement connus sous la denomi- 
 nation de contrebande de guerre, a bord des batimens turcs ou de pavilions 
 neutres. . . . S. M. autorise son escadre. 
 
 "(i) A permettre I'entr^e des Dardanelles et de Constantinople a tous 
 les bStimens neutres qui se soumettront a la visite, et qui n'auront a leur 
 bord ni contrebande de guerre ni aucun autre objet qui servirait a 
 approvisionner la capitale de I'empire Ottoman. 
 
 "(2) A permettre la sortie, sans etre molestds, de tous les batimens 
 provenant de Constantinople et allant en Europe. ... 
 
 " (3) A ne faire usage de la force qu'a le derniere extremite contre les 
 bStimens neutres qui voudraient se soustraire a la visite, ou bien qui 
 tenteraient violer de blocus." 
 
 On 19 December, Russia further declared a blockade of the 
 Bosphorus.^ 
 
 " Le commerce est informe que I'Amiral Greig, Commandant de notre 
 Flotte dans la mer Noire, vient de recevoir I'ordre de declarer le Bosphore 
 en 6tat de blocus, et de ne laisser sortir de ce d6troit ou y entrer, que les 
 vaisseaux qui le passeraient pour se rendre dans un des ports russes de la 
 mer Noire, ou qui, expddids d'un de ces ports, et n'etant par consequent 
 charges ni de ble, ni de contrebande de guerre, auraient ce m6me ddtroit 
 a traverser. 
 
 " Les articles design^s sous le nom de contrebande de guerre sont les 
 suivants — les armes, projectiles, poudre, salpetre,souffre, ceinturons.gibernes, 
 selles et brides. . . ." 
 
 This curious attempt at a semi-blockade is worth attention. 
 Russia apparently desired to stop the trade of Turkey without 
 interfering with her own. With regard to the blockade of the 
 Dardanelles, Lord Aberdeen wrote to the British Ambassador in 
 
 > State Papers, Vol. XV, p. 1 107. ^ /Sid., p. 1 109. 
 3 /&■</., Vol. XVI, p. 1250. 
 
138 COMMERCE IN WAR 
 
 Russia, "endeavouring to recall His Imperial Majesty to a sense 
 of his engagements," and suggested that exemption should be 
 accorded to British ships which had cleared for Constantinople on 
 the faith of the declarations of the Emperor and his allies.^ But 
 the subsequent unnotified extension of the limits of the blockade 
 by Rear-Admiral Ricord was received with further energetic 
 protests, and was immediately withdrawn.^ 
 
 Tangier was blockaded by Britain in 1828 (24 November to 
 22 January, 1829),* notification being published by the Governor 
 of Gibraltar, and by British representatives abroad. 
 
 Peru blockaded the Pacific ports of Colombia, 9 September, 
 1828.* 
 
 "(i) The Ports and Creeks between the parallels of 3° 6' S. and 9° N., 
 i.e. from Tumbes (exclusive) to the port of Panamd, are declared in a 
 state of rigorous blockade." 
 
 The remaining articles are virtually identical with articles 2 to 6 
 of the Peruvian blockade of 1821,^ with the addition of — 
 
 " (7) The Commanders of the ships of war intended to maintain the 
 blockade shall direct all vessels which they may find anchored in the 
 ports comprised within the before-mentioned latitudes, to depart from 
 there within the number of hours which they may prescribe to them with 
 reference to the circumstances of the case ; it being understood that, 
 should they exceed the time allowed, or proceed to any other blockaded 
 port, they will be detained and sent to Callao for adjudication." 
 
 On 1 8 March, 1828, the Greek Government had empowered 
 General Church to establish a blockade of the Ambracian Gulf.® 
 
 " En declarant le blocus, il aura soin de defendre la saisie de tout navire 
 ou bateau neutre pendant les premieres deux semaines apres le publication 
 de sa declaration. Pendant cette intervalle, les navires ou bateaux neutres, 
 qui se dirigent avec un cargaison dans le golphe d'Ambracie, seront seule- 
 ment ddtournfe de leur direction et renvoy^s libres." 
 
 At the same time, a blockade of Coron, Modon, and Navarino 
 was established. 
 
 "(i) Une division navale, composee de 8 bricks et goelettes de guerre, 
 et d'un certain nombre de barques cannonieres et d'autres bateaux armes, 
 est destinee a intercepter I'arrivee des vivres, des munitions et de tout 
 autre objet de contrebande de guerre, dans les places de Candle occupies 
 par les turcs; a maintenir le blocus le plus severe devant les places de 
 Coron de Modon et de Navarin ; et a renforcer celui deja existant devant 
 le golfe de Patras et de Lepante. ... 
 
 "(4) [L'amiral Sachtouris] ne permettra pas, . . . I'entree d'aucun 
 
 1 State Papers, Vol. XVII, p. 385. 2 z^^-^,^ p y^^ 
 
 3 Ibid., Vol. XV, p. 1091. 4 Ibid., Vol. XVI, p. 1199. 
 
 5 Supra, p. 131. « State Papers, Vol. XVI, p. 1209. 
 
BLOCKADE 139 
 
 Mtiment, ou de tout autre navire de commerce, sous pavilion neutre, dans 
 les ports et rades susmentionn^s. 
 
 " (S) II arrfetera, . . . tous ceux parmi les batimens, ou autres navires 
 de commerce neutres, qui se dirigeront vers les dits ports et rades, avec 
 une cargaison de provisions, de munitions, ou de tout autre objet de 
 contrebande de guerre, et il les expediera au siege du gouvernement, afin 
 d'etre juge. . . . 
 
 "(6) Sont exceptes les bitimens, ou navires de commerce neutres, 
 diriges vers les places de Candie. Ceux-ci seront seulement detournes de 
 leur direction dans les premieres trois semaines apres la publication du 
 present decret, s'ils viennent des lies loniennes, ou des cotes du royaume 
 de Naples ; et pendant les six semaines . . . s'ils viennent des c6tes de 
 France ou de I'Adriatique ; et ils ne seront saisis et envoyes au siege du 
 gouvernement qu'apres I'expiration de ce terme, s'ils se trouvent charges 
 des provisions, des munitions, ou d'autre contrebande de guerre. . . ." 
 
 Again, on 31 May, 1828, the coasts of Euboea and the Gulf of 
 Volo Mrere placed under blockade/ Like the other proclamations, 
 this only ordered vessels to be turned back, unless carrying pro- 
 visions or contraband of war, to which the present proclamation 
 added, "enemy property." By Article III, no vessel is to be 
 allowed to pass the blockade ; by Article IV, such vessels, if 
 carrying these special cargoes, are to be seized ; by Article V, 
 which is a little ambiguous — 
 
 " Les batimens susmentionnes " [i.e. probably, those with cargoes of 
 contraband, etc.], " portant pavilion neutre, qui seraient rencontres .... 
 dans les dix jours apres cette date, seront d6tourn^s de leur direction, 
 sans dtre raolest^s. S'ils seraient rencontres apres I'expiration de ce 
 terme, ils seront arrStes, et exp^dies au tribunel competent, conform^ment 
 a I'article precedent." 
 
 Article VI ran : — 
 
 " II n'est pas permis a cette division navale d'arr^ter les batimens 
 neutres rencontres de plus de 10 milles de la c6te de la Grece, et au sud 
 de I'Eub^e." 
 
 Similar, though less definite, limitations were put on the other 
 Greek blockades, owing to the pressure of the Allied Powers. 
 
 On 8 May, 1829, the coast of Demetriadi (Zagora) up to Cape 
 Kissamos was declared under blockade.^ In this case a period 
 (twenty days) was allowed for exit. By Article 1 1 1 — 
 
 "Tout batiment ayant pavilion neutre, et se dirigeant vers les c6tes 
 mises par la presente en 6tat de blocus, ne sera pas saisie pour le premiere 
 fois, il ne sera que detourne de sa direction ; mais s'il ose tenter une 
 seconde fois de forcer le blocus, il sera alors arr€te et envoy6 devant le 
 tribunal maritime." 
 
 1 State Papers, Vol. XVI, p. 1212. 
 
 " /did., p. 1213. 
 
140 COMMERCE IN WAR 
 
 It will be seen that the complications of particular treatment of 
 vessels carrying contraband and provisions were not introduced. 
 
 Attica seems already to have been blockaded. 
 
 The blockade of western Greece was extended to Albania on 
 the same day, as far as Mourto. A twenty days' delay was 
 granted for exit, and the proclamation also resembled the last- 
 mentioned in other respects. 
 
 Those two blockades were repudiated by the British and Ionian 
 Governments,* not on the ground of any alleged nonconformity 
 with the rules of blockade, but because Great Britain was engaged 
 in mediation between Greece and Turkey. 
 
 Lord Aberdeen, in the course of a long despatch,^ said : — 
 
 "Great Britain is the Power which, of all others, gives the greatest 
 facility to the execution of blockades by belligerent states. At all events, 
 H.M. was the first to recognize the belligerent rights of the Greek insur- 
 gents, by the acknowledgment of the blockades instituted by their naval 
 forces. The principle which regulates this conduct is simple and obvious. 
 It is conceived that those belligerents who have the power of carrying 
 on a maritime warfare, have also the right to blockade the ports of their 
 enemies. 
 
 " The establishment of a blockade being an act of war by a competent 
 authority, we must either respect such blockade, or treat as pirates those 
 who attempt to enforce it. . . . The peculiar nature, however, of the 
 Greek war, especially in its present state, offers a new case, to which it is 
 necessary to apply the principle with some modification. 
 
 " The Allied Powers assumed to themselves the right of putting an 
 end to the war between Turks and Greeks. . . . The Greeks, having 
 previously accepted the mediation, and called for the interference of the 
 allies, may be presumed to yield obedience to this decision. ... In this 
 case, the assumption and exercise of an authority by the allies to put an 
 end to a state of warfare in the Levant, suspends the belligerent character 
 of the parties, and the rights of H.M. subjects naturally revive." 
 
 In consequence. Lord Aberdeen expressed surprise that the 
 French Government should consider it improper to refuse to 
 recognize the Greek blockades beyond the limits of the Morea 
 and Cyclades : and Captain Spencer, of H.M.S. "Madagascar," 
 intimated at a personal interview to Capo d'Istrias and Admiral 
 Miaoulis, that they must not enforce their proposed blockade.^ 
 
 The interesting question of the effect on a blockade of an 
 interruption such as this on the part of a single Power for the 
 benefit of its own vessels solely, cannot be said to admit of a 
 positive answer. Probably it must be assimilated to a dispersal 
 of the blockading force by tempest ; but there are no outward 
 and visible signs as in that case, to serve as a guide to other 
 
 ' State Papers, Vol. XVI, pp. 1214, 1215. 
 
 - Ibid., Vol. XVII, p. 400, Aberdeen to Stuart de Rothesay, 30 June, 1829. See 
 also ibid., p. 433. ■' Ibid., p. 433-46. 
 
BLOCKADE 141 
 
 parties, unless the interfering vessels actually remain on the spot. 
 It is quite possible, therefore, that such an occurrence amounts to 
 a forced raising of the blockade ; for which the blockading State 
 must settle with the intrusive Government. 
 
 Holland, on the occasion of the revolt of Belgium, blockaded 
 Antwerp, Ghent, and West Flanders, 7 November to 25 Novem- 
 ber, 1830. 
 
 " Article I. The coast of the kingdom of the Netherlands belonging 
 to the province of West Flanders, together with the ports thereof, as well 
 as the ports of Antwerp and Ghent, are hereby declared to be in a state 
 of blockade. 
 
 "Article II. Ships bound to [those] ports shall be warned off, but 
 permitted ip enter any port of the Northern Netherlands or to proceed 
 elsewhere. With regard to the vessels which, after being apprised of the 
 blockade, shall notwithstanding endeavour to enter any Southern Nether- 
 lands port, they shall be dealt with according to the law of nations. . . ." ^ 
 
 On 24 April, 1831, the Turkish Government intimated a 
 blockade of the ports of the province of Scutari in Albania.^ It 
 seems also* to have declared (under municipal law) that — 
 
 " I'acces de ce littoral serait interdit a tous les batimens etrangers soit 
 de guerre, soit marchands, soit charges, soit simplement sur lest jusqu'a ce 
 que la blocus puisse €tre revoque." 
 
 The limits were from Durazzo to the Turkish frontier on the 
 Gulf of Venice. 
 
 In 1832 (6 April) Donna Maria's forces blockaded Madeira. 
 Admiral Sartorius, the Queen's naval commander, notified the 
 fact to the consuls on the spot.* Subsequently* they blockaded 
 Lisbon and Setuval (19 July, 1832), the notification being posted 
 up at Oporto by the Duke of Braganza, acting as Regent. On 
 3 August it was notified in London that the Madeira blockade 
 had been discontinued, and that the Tag^s and St. Ubes were 
 now blockaded.® 
 
 In reply. King Miguel blockaded Oporto®^(i2 September). 
 
 On 29 June, 1833, the Queen declared a blockade of the whole 
 coast of Portugal "subject to the intrusive Government,"^ reciting 
 that her forces were sufficient, and expressly exempting both "the 
 ships of war of friendly nations, and packets." 
 
 It seems that even Lisbon was not yet effectively blockaded, 
 for the Chevalier de Lima intimated to the British Government 
 (15 July, 1833) that orders had been given for the immediate 
 establishment of such a blockade.^ 
 
 » State Papers, Vol. XVII, pp. 1282-3. « /6ici., Vol. XVIII, p. 441. 
 
 3 liM., Vol. XIX, p. 1435- * ^bid., p. 1425. 
 
 5 Ibid., p. 1426. " Ibid. 
 
 7 Ibid., Vol. XX, p. 1365. ' Ibid. 
 
142 COMMERCE IN WAR 
 
 On 7 April, 1834, Peru blockaded some of her own ports. 
 Reciting that the capital of Arequipa was in insurgent hands, the 
 proclamation decreed (not imitating the minute proclamations of 
 1821 and 1828)—' 
 
 " Article I. That all the ports, roads, bays, and creeks situated between 
 Atico and Ilo are declared to be in a state of blockade. 
 
 "Article II. That, so long as circumstances do not allow the repeal 
 of the present decree, all introduction into the interior of goods or 
 merchandise of what kind soever, as well as the entrance into the said 
 port, roads, etc., of any vessel, whether belonging to this republic or to 
 any other nation, are absolutely and strictly forbidden." 
 
 On 6 May this was extended to the port of Islay, in a somewhat 
 more detailed way, allowing a short period for egress and providing 
 for individual notification. 
 
 These decrees were repealed 28 May, 1834.^ 
 
 Spain blockaded her northern ports, from C. Finisterre to the 
 mouth of the Bidassoa, in 1834, issuing a proclamation which at 
 first took this form : — 
 
 " Every vessel that shall be found laden with arms, warlike stores, 
 ammunition, or other articles contraband of war, provided that such 
 vessel shall approach the said coast within six miles, manifesting, by that 
 act alone, her intention and design to disembark the above-mentioned 
 articles, shall be considered to be suspected of the above hostile intention, 
 and shall be detained, and the arms and warlike stores which she carries 
 shall be embargoed until a further decision shall be adopted, according to 
 the importance and the circumstances of the case." ^ 
 
 In so far as the decree authorized the capture of contraband of 
 war, it was not necessary ; in so far as it purported to infer an 
 improper destination from the fact of the ships being within six 
 miles of the shore, it was clearly illegal. The attention of the 
 Spanish Government seems to have been drawn to this circum- 
 stance, and it issued an additional decree (without prejudice to 
 that of 21 August), simply declaring a blockade of the coast in 
 question, and adding — ,j 
 
 " My First Secretary of State shall communicate this royal decree to 
 the Diplomatic and Consular agents of my august daughter, to the end 
 that, in consequence of his having given it the requisite publicity, no 
 one may have to plead ignorance." 
 
 This clearly excluded the necessity for individual notification. 
 In the course of the blockade much inconvenience was caused 
 to legitimate Spanish trade, and a relaxation was granted on 
 
 ' Supra, p. 138. 
 
 2 State Papers, Vol. XXIII, pp. 786-8. 
 
 ' Ibid., p. 903 (21 August). 
 
BLOCKADE 143 
 
 1 1 December to all Spanish vessels bound to Coruna, Gijon, 
 Santander, and Bilbao, but on condition that they carried no 
 contraband of war ; and declarations were to be made before the 
 Spanish Consuls at the port of export verifying this, and security 
 was at the same time to be given. These declarations were to be 
 transmitted to the Spanish authorities at the four ports, from 
 which it appears that these ports were actually in the hands of 
 the legitimate Government.* Of course, any blockade of them 
 was therefore altogether impossible and unlawful. As the pur- 
 ported relaxation applied only to Spanish vessels, other nations 
 claimed a similar "concession," which was granted in the case of 
 Britain on 11 February, 1835.^ On 17 February foreign vessels 
 were exempted from giving security.^ But it is clear that the 
 blockade was altogether invalid, because parts of the coast pro- 
 claimed as blockaded were incapable of being blockaded (being 
 in the blockaders' hands). At any rate, it was invalid as to the 
 four ports in Government hands, and the conditions annexed to 
 the supposed licence to trade with them were altogether improper 
 (except so far as they could be municipally enforced). Spain 
 forgot with difificulty her ancient sweeping pretensions to interdict 
 commerce with her territories by action far out on the high seas. 
 Samos was blockaded by Turkey, 31 March to 9 September, 
 
 Tripoli blockaded its own coast (except Tripoli, Bengazi, and 
 Derna) on 9 August, 1835. 
 
 "Esseit Mustapha Nejib, by the Grace of God Pasha Vizier of the 
 Sublime Ottoman Porte ... to Hanmer Warrington, H.B.M. Consul- 
 General at Tripoli. 
 
 " Sir. . . . You will have the goodness to inform those of your country- 
 men, and all others whom it may concern, that henceforth all coasting 
 traffic is expressly forbidden, and that no commercial intercourse will be 
 allowed at any other places than the ports of Tripoli, Bengazi, or Derna ; 
 and consequently, that from i September, 1835, all vessels, boats, craft, 
 etc., which may be found in the prohibited places, will be seized, it being 
 declared that the whole of this coast is, from this moment, to be regarded 
 as in a state of blockade, exempting only the three ports above men- 
 tioned. . . ."* , 
 
 Withdrawal of this measure was announced in London on 
 16 December. 
 
 On 14 July, 1835, the Porte blockaded the ports of the coast of 
 Albania. 
 
 " The Sublime Porte . . . has detached a sufficient number of ships of 
 war of the Imperial Navy, which have proceeded to blockade Bovana, 
 Durazzo, Lesche, Morton, and Cevania. . . . 
 
 ' State Papers, Vol. XXIII, p. 906. " Hid., p. 907. 
 
 3 Hid. ^ Ibid., p. 74i- I^^d., p. 740. 
 
144 COMMERCE IN WAR 
 
 "A suitable period has been fixed of thirty-one days. . . (from 17 July, 
 183s), beyond which no merchant ship or other vessel shall be permitted 
 to resort to the ports above mentioned ; and in order to prevent all com- 
 plaints which might arise from vessels [in ballast ?] repairing to the places 
 in question, no vessel, with or without cargo, and of whatever nature the 
 cargo may be, will be permitted to touch at those parts of the coast 
 of Albania before mentioned, after the expiration of the period above 
 stated. . . . 
 
 " It being necessary to notify this blockade which we are about to 
 establish to the representatives of all friendly Powers residing at Con- 
 stantinople, in order that they may make it known to the merchants and 
 subjects of their respective nations with the least possible delay, and that 
 the necessary orders may be issued that no merchant vessel or ship of war 
 be permitted to repair to the ports of which the blockade has been decreed, 
 we therefore, for that purpose, make known the same by the present note 
 to H.E. the Ambassador of Great Britain, 
 
 "14 July, 1835." 1 
 
 We have quoted this declaration (which was evidently carefully- 
 drawn) at some length, because (i) it includes vessels of war; 
 (2) it expressly interdicts access to vessels without cargo. 
 
 But the cause cdlebre of 1835 ^^s the French blockade of 
 Portendic, in Senegal, which attracted great attention at the 
 time, and for years exercised the diplomatists of France and 
 Britain. The British merchants alleged that it was a sham 
 measure, designed to drive them out of the gum trade preserved 
 to them on the Senegal coast by treaty.^ The French justification 
 of it was a "little war" with the tribes of the coast : the British 
 replied that the coast was perfectly safe, and that the tribes the 
 French were fighting were inland natives. The French inter- 
 fered with British vessels carrying on the gum trade in 1834 (on 
 the ground that anchorage constituted a " permanent settlement^), 
 but the Minister of Marine (Admiral Rigny) assured Lord Gran- 
 ville at Paris early in that year that there was no intention of 
 instituting a blockade.* Nevertheless, on 17 January, 1835, the 
 Governor of Senegal issued a long proclamation,^ reciting the 
 reservation to Britain of liberty to trade in gum with Portendic, 
 when she ceded Senegal to France in 1783, but alleging — 
 
 "que . . . le question commerciale s'efface devant la question politique, 
 de laquelle ressort un droit superieilr a toutes les concessions faites par les 
 traites de paix, le droit de blocus . . ." 
 
 and that the trading right was, during hostilities with the Portendic 
 tribes, suspended ; and he thereby declared — 
 
 "(i) L'espace de la c6te de Barbarie a partir de la riviere St. Jean 
 
 ' State Papers, Vol. XX 11 1, p. 741. 
 
 2 Ibid., pp. 551, 565. 3 ii,ici_^ p. 565. 
 
 * Ibid., p. 544. 5 Ibid., p. 558. 
 
BLOCKADE 14S 
 
 jusques et y compris le baie de Portendic, est mis en dtat de blocus, a 
 compter du 15 Fdvrier prochain, jusqu'^ notifications contraires, ce qui 
 aura lieu dans les 2 mois qui suivront la ratification du traits de paix a 
 intervenir. . . . 
 
 " (2) Pendant la durde du blocus, nul bitiment Stranger ni frangais ne 
 pourra trafiquer, vendre ni acheter k Portendic ; et sera considere comme 
 ayant manqu6 au droit des nations tout navire sous quelque pavilion que 
 ce soit, qui, apres les publications et notifications des prdsentes, serait 
 reconnu avoir fait ou tente de faire des operations de commerce, ou jet6 
 sur la c6te des armes, munitions ou objets quelconques pouvant profiter 
 aux ennemis du Senegal. . . . 
 
 "Fait a St. Louis, le 17 Janvier, 1835. (Sd.) N. PujOL." 
 
 This is interesting, as showing that individual notification was 
 not thought necessary in this case by France. But its main 
 interest Hes in the situation created by the blockade of a territory 
 in which a third power has treaty rights. The occurrence em- 
 phasizes the difficulties which arise from such reservations. On 
 the whole, the French Governor's contention appears to be 
 justified, that the reservation cannot hinder the exercise of war 
 rights ; at any rate, so long as it is purely contractual, and confers 
 nothing like a "real" right which the third party can forcibly 
 exercise for himself in peace time with or without the leave of the 
 territorial Power. 
 
 In reply,^ the Lieutenant-Governor of Bathurst took the point 
 that the reservation was an absolute one ; and the better point, 
 that — 
 
 "the line of coast which your Excellency proposes to place in a state 
 of blockade is not the territory of the tribe of Trarza Moors." 
 
 Dr. Dodson, k.a., was consulted by the Earl of Aberdeen on 
 these delicate matters. In the course of his reply, dated Doctors' 
 Commons, 23 March, 1835, he said : — 
 
 " I am of opinion that the French authorities have no right to prohibit 
 British trade within those limits, under the pretence of a blockade, more 
 especially as . . . the Trarzas, one of the Barbarian tribes, are the only 
 enemies of the French, and that no hostilities exist with the other native 
 tribes inhabiting or frequenting that portion of Africa. Under these cir- 
 cumstances it appears to me that the blockade which has been proclaimed 
 amounts to a deviation from the rules of international law, and is incon- 
 sistent with the rights of Great Britain under the treaty of 1783. I must 
 take leave to add that the part of the proclamation which declares that 
 the blockade shall continue in force until two months after the ratification 
 of a treaty of peace is unquestionably contrary to the law of nations." ^ 
 
 Lord Palmerston put the British view crudely and vigorously 
 
 1 State Papers, Vol. XXIII, p. 559- " ^^^'^•^ P- S^3- 
 
146 COMMERCE IN WAR 
 
 in a despatch dated 19 May, 1835,^ when he wrote, quoting the 
 treaty of 1 783 : — 
 
 " It appears, therefore, that the right of the French to Senegal, and the 
 right of the English to a free trade in gum with the places named, are 
 coeval and coequal with each other, and are both derived from one and 
 the same treaty ; that the one right cannot be denied without at the same 
 time invalidating the other ; and that Great Britain is bound to acknowledge 
 the right of France to the Colony of Senegal, so long as France respects 
 the rights of British subjects to carry on the gum trade within the limits 
 specified in the treaty; but that if France infringes the engagements 
 contained in Article XI, Great Britain is no longer bound to respect those 
 contained in Article IX. . . ." 
 
 This contention ig plausible, but essentially unsound. Great 
 Britain did not promise to respect the French ownership of 
 Senegal ; she transferred it. Whether France merely promised to 
 permit the English gum trade, or created some kind of " real " 
 right to its continuance, may be a question. But it is, in no view 
 of the matter, a question of setting off one promise against another. 
 
 Lord Palmerston also insisted that the French could not 
 blockade their own port. Distinguishing between belligerent 
 blockades and municipal closing of ports to trade, he says : — 
 
 "Portendic was ceded to France in 1783, and H.M. Government are 
 not aware that it has since been wrested from France by conquest. . . . 
 If the French Government, for its own convenience, has thought fit to 
 abandon the fort and to leave the bay unoccupied, it cannot, by such an 
 arrangement, defeat the rights secured to British subjects by the treaty." 
 
 The French Foreign Minister agreed to rescind the provision 
 by which the blockade might endure after the conclusion of peace. ^ 
 The Minister of Marine compared the blockade to the British 
 blockade of Sierra Leone in 1826, which (he says) Canning justi- 
 fied on the ground of the existence of hostilities with the coast 
 natives.^ Lord Palmerston had proposed that the blockade should 
 be restricted to a municipal measure, directed against the import 
 of arms and munitions of war. Admiral Duperr6, as a practical 
 man, considered — 
 
 "que rien ne serait plus propre 4 amener des differends et mdme des 
 collisions graves." * 
 
 He remarks, with much force, that the commercial rights secured 
 to Britain in 1783, if absolutely paramount, would make it im- 
 possible to conduct operations of war or to effect a forcible sup- 
 pression of insurrection in the territory altogether. 
 
 On 17 July instructions were sent to the Governor of Senegal 
 
 > State Papers, Vol. XXIII, p. 563. 
 
 2 Ibid., p. 569, Granville to Palmerston, 5 June, 1835. Vide also p. 573. 
 
 ' Ibid., p. 571, Duperrd to de Broglie, 27 May, 1835. * Ibid., p. 572. 
 
BLOCKADE 147 
 
 to discontinue the blockade, and to rely on the right of stopping 
 contraband,^ and it was raised on 14 August.^ A joint commission 
 sat in Paris to settle these questions, but it arrived at no satisfactory 
 result.^ 
 
 Brazil blockaded the ports of the province of Para in 1835, 
 and notified the fact to the foreign ministers at Rio de Janeiro.* 
 Special notification by the blockading force was promised. 
 
 Venezuela blockaded the fortress of Puerto- Caballo on 10 De- 
 cember, 1835, six days being allowed for exit, and vessels of war 
 being exempted by favour. Exceptionally, for a South American 
 blockade, individual notification was dispensed with, periods from 
 fifteen (Cura9oa) to thirty (Europe) days being allowed — 
 
 " to give time for the receipt and knowledge of this decree by all persons 
 whom it may concern. 
 
 " During the existence of this blockade, the blockading force will pre- 
 vent the entrance of all vessels ; and if any vessels bring articles of 
 contraband [at any time ?], or attempt to enter after the notification of 
 the blockade, or in any way infringe it by coming to the port after the 
 time prescribed . . . they will be detained and judged according to the law 
 and to international law." ^ 
 
 Texas blockaded Matamoras as from the date of the proclama- 
 tion (21 July, 1836), comprising in the blockade the mouth of the 
 Rio Grande and the Brazos Santiago, and also the inlets, passes, 
 and estuaries east of it — 
 " that now and hereafter may be in the possession of Mexico." 
 
 Periods of from five to forty-five days were allowed, after which 
 the decree was to " take effect," whatever was precisely meant by 
 that. 
 
 In 1837 Mexico blockaded all the ports, harbours, and road- 
 steads on the coast of Texas, from long. 94° 50' to 101° 10' W.® 
 
 On I June, 1838, Count M0I6 addressed a letter to Earl Granville, 
 intimating a French blockade of Mexican ports (as from 16 April, 
 in the case of Vera Cruz), and stating that mail ships of Great 
 Britain would be unaffected by it. This exemption was stated to 
 be motived by the Postal Convention of 14 June, 1833, Article XII I 
 of which authorized the continuance of postal relations between 
 the two countries even in time of war.'' The French Minister in 
 Mexico issued regulations providing for — 
 (i) Special notification. 
 
 (2) Allowance of fifteen days for exit with or without cargo. 
 
 (3) Vera Cruz and Tampico to be open for mails. 
 
 (4) All ports to be open for Mexican fishing-boats. 
 
 » State Papers, Vol. XXIII, p. 585. ^ /^/^.^ p. 587. 
 
 3 Ibid., Vol. XXIII, p. 543 ; XXVII, p. 1228 ; XXX, p. 581. 
 
 * IMd., Vol. XXIV, p. 540. 6 jbid., p. 977. 
 
 • Jbid., Vol. XXV, p. 597. '' Ibid., Vol. XXVI, pp. 725, 1099. 
 
148 COMMERCE IN WAR 
 
 On 20 June, 1838, Count M0I6 sent another letter to Lord 
 Granville, intimating a blockade of Argentina, 
 
 "Le Commandant des forces navales frangaises dans la raer du Sud, 
 conformement aux instructions dventuelles qu'il avait regues, a ddclard, le 
 28"® Mars dernier, en ^tat de blocus le port de Buenos Ayres et tout le 
 littoral appartenant k la r^publique Argentine. Ce blocus, imm^diatement 
 notifie par lui aux Agens des puissances dtrang^res k Buenos Ayres, est 
 devenu effectif d^s le m^me jour, 28"^ Mars. . . ." 
 
 Mail packets were here again exempted. Vessels had up to 
 10 May for exit, i.e. about six weeks. ^ The blockade was 
 formally notified to the Argentine Foreign Minister by the French 
 Admiral.^ The Argentine Government responded that a naval 
 officer committed a grave irregularity in involving his Government 
 in proceedings which amounted to war.* 
 
 "Jusqu'^ present la France n'a pas d6clar^ la guerre k la republique 
 argentine. Les hostilites que votre excellence lui impose de fait sans aucune 
 sommation pr6alable, sont contraires non seulement aux regies de la 
 justice, mais ellqs ddcelent aussi une conduite peu digne d'une nation 
 magnanime et genereuse. . . ." 
 
 Neutral ministers were also warned, and told — 
 
 "qu'il sera pris contre les bitimens qui chercheraient k entrer dans les 
 ports bloqu^s, apr^s avoir regu la signification du blocus par I'un des 
 bitimens de guerre frangais, les mesures de rigueur autorises pas les lois 
 des nations." * 
 
 Correspondence still went on between the Admiral and the 
 Argentine Government. The French Consul, in a letter of 
 27 September, 1838, which can hardly be described as less than 
 insulting, presented an ultimatum to the Dictator Rosas, threaten- 
 ing a speedy French conquest of the Republic.^ The Argentines 
 proposed arbitration ; it was refused,® and France captured an 
 Argentine island.'' Clearly, if this was not war, it was very like it. 
 
 Peru-Bolivia blockaded Valparaiso from 18 August, 1838, by 
 decree of 17 February.^ Chili retorted with a blockade, decreed 
 2 April, to commence from the i8th, of Callao, Chorillos, and 
 Ancon. 
 
 In 1839 Captain Smith, H.M.S, "Volage," gave notice, in 
 consequence of apprehended danger to British subjects, of his 
 intention to blockade Canton.' Egress was promised to vessels 
 actually in the port, or arriving within six days (which latter were 
 
 J State Papers, Vol. XXVI, pp. 727, 728. 2 Ibid., p. 959. 
 
 ' Ibid., p. 961. < Ibid., p. 972. 
 
 ' Ibid., p. 1020. 6 Ibid, p. 1023. 
 
 ^ Ibid., p. 1024. 8 jiiid p_ 1054. 
 9 Ibid., Vol. XXIX., p. 1069 (n Sept). 
 
BLOCKADE 149 
 
 presumably to be permitted to enter). Five days later, notice 
 was given that the blockade would not be established. Its in- 
 artistic form raises doubts as to the propriety of entrusting 
 subordinate naval officers with power to establish blockades. 
 
 Admiral Bremer, however, blockaded Canton on 22 June, 
 184Q, as from the 2 8th,^ and this was shortly notified in London 
 on 17 November. 
 
 Carthagena (Colombia) was blockaded in 1841. Two procla- 
 mations were issued, varying slightly, by the Governor of the 
 State of Manzanares and the Commander-in-Chief. The latter 
 (dated 14 July) established certain delays (ranging from twenty 
 to eighty days) "to enter the port without molestation with what- 
 ever merchandise they bring ; and further, foreign vessels will be 
 allowed to enter the port, after the expiration of the above term, 
 after being registered by the chiefs of the blockading squadron, 
 not finding on board provisions or elements of war which would 
 tend to retard the surrender of the city ; but, if the reverse, such 
 vessels will be compelled to retire from the port ; but should they 
 persist in forcing an entrance, they will be sunk by the blockading 
 squadron." ^ 
 
 Spain again found it necessary to blockade the coast "from 
 Castro- UrdialeS to Fuenterrabia exclusive of those two ports and 
 those of Guetaria, S. Sebastian, and Pcisages " of Cantabria on 
 17 October, 1841. On this occasion a proclamation was issued 
 enjoining individual notification.' 
 
 "4. Every neutral vessel which may be met with within the assigned 
 limits carrying ammunition or materials of war is hereby declared a lawful 
 prize. 
 
 "5. Should such neutral vessel be met with beyond the limits, the 
 declaration of blockade of the said coast will be noted down in the 
 muster-roll, log-book, or register of the cargo, and on the said vessel being 
 found afterwards, and with such note, within the limits, she will be a law- 
 ful prize, although her cargo may contain no materials of war. 
 
 " 6. The coast . . . having been declared to be in a state of blockade, it is 
 a consequence thereof that fishing within its limits should be prohibited, 
 the fishing-boats and nets seized, and the fishermen detained. . . . 
 
 " 9. All vessels will be captured which may be found under the circum- 
 stances pointed out in the Privateers' Regulations of 1801, and within the 
 limits generally assigned by all nations according to the principles of 
 maritime law, viz. a distance of three miles ; this distance is to be under- 
 stood as commencing from the line drawn from point to point of the creeks, 
 gulfs, and bays of the said coast, ... it must, however, be borne in mind 
 that the situation of the blockaded coast is such that only the vessels 
 
 1 State Papers, Vol. XXXIV, p. 1260. 
 
 2 Ibid., Vol. XXX, p. 514. 
 
 3 Ibid., p. 1375. 
 
ISO COMMERCE IN WAR 
 
 going into its harbours must navigate close to it, and that the act of any 
 other vessel doing so, which is bound for another destination, must be 
 considered as suspicious, unless caused by extraordinary circumstances." 
 
 This proclamation should be read in connexion with that of 
 1 8 14, on which it throws some light. It would almost seem 
 as if the protests against the exercise of municipal authority 
 on the high seas in the earlier case had led Spain, in the later one, 
 to go to the opposite extreme and to limit the operations of a 
 regular blockade to territorial waters. 
 
 The usual explanatory decree was issued on 19 October, allowing 
 exit and reiterating the necessity of individual warning in very 
 categorical language.^ 
 
 Barcelona was blockaded on 26 November, 1842,^ the adjacent 
 coast from the river Besos to the Llobregat (inclusive) being com- 
 prehended in the limits of the measure. Similar regoilations 
 were issued. Alicante and Carthagena were blockaded on 
 5 February, 1844.* 
 
 In 1842 Texas again affected to blockade (26 March) — 
 
 " all the ports of the Republic of Mexico on the eastern coast, from 
 Tabasco in the State of Tabasco to Matamoras in the State of Tamaulipas, 
 including those ports and comprising the mouth of the Rio Grande del 
 Norte, and the Brazos Santiago, and all the inlets, estuaries, and passes on 
 the said eastern coast of Mexico." * 
 
 Delays of five to forty-five days were given before the blockade 
 should take effect, but individual notice was not promised. The 
 blockade was declared null by the British Government, information 
 being received from the Minister in Mexico stating that by 10 and 
 16 June, 1842, no vessels had appeared before Tampico and Vera 
 Cruz respectively ; and, indeed, that no Texan vessels had been 
 sighted off the coast down to the middle of July.® It seems, 
 therefore, that a blockade announced to commence on a given 
 date may validly be postponed, at any rate by the British theory, 
 but that it must not be postponed too long. 
 
 In 1842 (17 June) the British Admiral in North America 
 blockaded S. Juan de Nicaragua by a proclamation, almost 
 unique in British practice, as establishing a system of individual 
 notification.® 
 
 " I hereby declare the port of S. Juan de Nicaragua, situated at the 
 mouth of the river of the same name, to be blockaded, and that all 
 commercial intercourse with the said port shall be prevented and cease .... 
 
 " I hereby give public notice of the same to all whom it may concern ; 
 
 ' State Papers, Vol. XXX, p. 1377. 2 Jbid., Vol. XXXI, p. 1060. 
 
 3 Ibid., Vol. XXXIII, p. 8i7> * Jbid., Vol. XXXIV, p. 1261. 
 
 6 Ibid., p. 1262. 6 Ibid., p. 1263. Cf. p. 156 infra. 
 ' Italics ours. 
 
BLOCKADE 151 
 
 and that all ships and vessels, under whatever flag they may be, will be 
 turnedaway and prevented from entering the said port . . . and if, after 
 any ship or vessel has been warned not to enter the said port, then and in 
 that case, any such ship or vessel that may attempt to break the blockade 
 will be seized and be dealt with according to the rules established for the 
 breach of a de facto blockade." 
 
 The blockade was intimated on 8 December, 1843, by the 
 Admiral to have been raised ; ^ but it was again in existence 
 between 30 March, 1844, and 2 October, 1844. 
 
 On 24 November, 1842, the British Minister in Mexico was 
 informed^ that the Mexican Government intended to blockade 
 Sisal and Campeche and such parts of the coast of Yucatan as 
 were in revolt (except Laguna de Terminos). What the precise 
 effect of an ambulatory expression of a future intention is may be 
 questioned. It creates a situation much on a par with that which 
 occurs when a blockade notified to commence on a fixed day does 
 not then actually take effect. 
 
 Internal disorders in Peru led to a blockade of Arica (17 June, 
 1843), 3-"^ ^ further blockade of Iquique, the latter by one vessel 
 (4 July, confirmed by the supreme Government 18 July).^ The 
 latter blockade was raised by formal notice, and the blockade of 
 Arica reimposed (both having been interrupted) on 1 2 September. 
 That of Iquique was reimposed i December. But there seem 
 to have been further de facto suspensions, followed by complaints 
 by neutrals; and on 29 February, 1844, both blockades were 
 reimposed. All the proclamations are in the most succinct 
 terms. 
 
 Mogador, in Morocco, was blockaded by France in 1844.* 
 The French Commander notified it to the captain of H.M.S. 
 " Warspite," and the fact was published in London in due course. 
 
 In 1845 occurred the British-French blockades of Argentina, 
 in which were included the coasts of Uruguay occupied by 
 Argentine troops, A blockade of Buceo was instituted on 
 I August, up to the 1 2th being allowed for exit, by the Admirals 
 Inglefield and de Lain6.® It was notified on 31 October in 
 London ; and at the same time it was intimated, with less precision, 
 that all the other ports of Uruguay occupied by the Argentine 
 troops had been blockaded. This can scarcely be defended. A 
 belligerent cannot throw on neutrals the onus of finding out the 
 political situation in foreign countries. 
 
 A somewhat rhetorical dispatch® to the Argentine Government, 
 signed by the British and French Ministers, incidentally informs 
 
 1 State Papers, Vol. XXXIV., p. 1264. " Ibid., p. 1263. 
 
 » Ibid., Vol. XXXIII, p. 809 et seq. * Ibid., Vol. XXXIV, p. 1265. 
 
 6 Ibid., p. 1265. « Ibid, p. 1271. 
 
IS2 COMMERCE IN WAR 
 
 us that the allies had gone so far as to seize the Argentine fleet. 
 It wound up by intimating a blockade of Buenos Ayres within 
 forty-eight hours of the delivery of a declaration to that effect, 
 
 fmade on 23 September).^ Fifteen days were allowed for exit 
 extendible). 
 
 On 19 August, 1846, the United States naval commander 
 declared — 
 
 "all the ports, harbours, bays, outlets [sic], and inlets on the west coast 
 of Mexico, south of S. Diego, to be in a state of vigorous blockade, which 
 will be made absolute except against armed vessels of neutral nations. 
 All neutral merchant vessels," it proceeded, "... will be allowed twenty 
 days to leave." ^ 
 
 In 1846, therefore, the United States still adhered to the 
 principle of admitting warships. 
 
 The naval commanders on the east coast had, on 20 May, in- 
 timated by letters to the commander of H.M.S. " Rose,"^ and to 
 the British Consul at Tampico, blockades respectively of Vera 
 Cruz and of Tampico. Vessels then in port were given until 
 5 June for exit, and the blockade was (like the French one)* not 
 enforced as against non-commercial mail packets and fishing 
 vessels. 
 
 On 15 April, 1846, the Captain-General of Galicia announced 
 a blockade of the Galician coast, limited, in the way which we 
 have given reasons for considering illegitimate, to dangerous 
 cargoes. But — 
 
 "Article II. The blockade of the coast in general is to be understood 
 as more strictly circumscribed to the port of Vigo and its river, and the 
 entry of any vessels whatsoever into these places is severely prohibited. . . . 
 
 "Article III. The English steamers shall touch only at this port of 
 Corunna for the purpose for which they are established by their Govern- 
 ment. . . . Merchant and coasting vessels will be allowed to put into any 
 other ports of the coast, taking previous information, if possible, that they 
 are not occupied by insurgents," ^ 
 
 Of course, no such duty of inquiry can be thrown on neutrals. 
 They are entitled to definite information from the belligerent 
 what ports are blockaded or in hostile hands. And the partial 
 interdiction of access to Corunna, from which port the proclama- 
 tion was actually dated, is another instance of the confusion in the 
 Spanish mind of the right of blockade with the right of municipal 
 regulation of navigation. 
 
 Portugal blockaded the Douro in the same year (20 October), 
 
 > State Papers, Vol. XXXIV, p. 1272. 2 /^^-^^ p_ 113^ 
 
 ' Cf. the Mogador blockade, supra, p. 151. * Supra, p. 147. 
 6 State Papers, Vol. XXXV, p. 860. 
 
BLOCKADE 153 
 
 notification being made in London on 16 November.* The 
 blockade was raised on i July, 1847.^ 
 
 "Positive instructions had been given ... to allow British ships of war 
 to enter the port unmolested, and not to prevent the delivery and receipt 
 there of the mails conveying the correspondence, or the landing of 
 passengers, or even the departure of British subjects who may wish to 
 embark on the packets." 
 
 In 1848, Denmark blockaded the North German ports by 
 Royal proclamation.^ 
 
 " COPEN HAGUE, le 29 Avril, 1848. 
 
 "Nous, Frederic VII, par le grace de Dieu Roi de Danemark etc. 
 savoir faisons : — Par suite des hostilites survenues entre nous et entre 
 leurs Majest^s les rois de Prusse et de Hanovre, leurs Alt. RR. les G. Dues 
 d'Oldenbourg et de Mecklenbourg, et les villes libres ansdatiques de 
 Lubeck, Hambourg et BrSme, nous nous sommes vu dans la n^cessitd de 
 declarer en ^tat de blocus les ports, le littoral et les embouchures des 
 fleuves de ces 6tats ainsi que ceux des ports de nos propres ^tats qui sont 
 occupds par les troupes de ces souverains et de ces villes libres. Nous 
 avons ordonn^ a nos vaisseaux de guerre de mettre a execution le dite 
 mesure et de ne permettre ni a nos propres navires ni a ceux des 
 puissances alliees amies et neutres d'entrer dans les ports et les endroits 
 bloques par nos vaisseaux de guerre. 
 
 « (Sd.) Frederic R." 
 
 On 7 March, 1849, the Danish Minister of State notified to the 
 diplomatic body a blockade as from the 27th, of all the ports of 
 Schleswig and Holstein (except Als and Aeroe Islands and places 
 actually under the royal government). The indefiniteness of 
 the previous proclamation made some such specification necessary, 
 as it is hardly enough to say, "we will blockade all blockadeable 
 ports." 
 
 Indeed, the royal proclamation never seems to have been 
 closely carried out. It purported to affect all the enemy's ports ; 
 yet on 3 April, 1849, we find the Danish Foreign Minister in- 
 timating a blockade of the German ports of Cammin, Swine- 
 munde, Wolgast, Greifswalde, Stralsund and Rostock (to com- 
 mence on the 5th), Pillau and Danzig (to commence on the 
 1 2th), and the Elbe, Weser, and Jahde (to commence the same 
 day).* 
 
 The blockade of the above towns was raised on or before 
 5 August ; that of the Elbe, Weser, and Jahde on the i ith ; that 
 of the west coast of Holstein and the coast of Schleswig on the 
 nth.* That of East Holstein was raised later in the month." 
 
 Turkey blockaded Samos in 1849, notifying in Constantinople, 
 
 1 State Papers, Vol. XXXV, p. 862. ^ Ibid., P- iiS3- 
 
 3 Ibid., Vol. XL, p. 1298. * Ibid, Vol. XXXVII, p. 282. 
 
 6 Ibid, p. 284. » Ibid, pp. 284, 286. 
 
IS4 COMMERCE IN WAR 
 
 on 14 October, that the blockade would begin to operate in fourteen 
 days.^ 
 
 Venezuela chose the coast of Coro for its 1849 blockade. A 
 careful proclamation, contrasting strongly with the summary 
 notices issued by Austria, Denmark, and Turkey, was issued.^ 
 
 (i) The coast of Coro, from the river Yaracny to the river 
 Oribono, to be in a state of blockade : this to be enforced by four 
 armed vessels, subsequently augmented in number. 
 
 (2) Friendly and neutral ships to have free access to the port of 
 Vela de Coro. 
 
 (3) Delays of from eight to sixty days, according to destination ; 
 during which time the blockading squadron simply warns ships and 
 marks their papers. "Only in the event of attempting after this 
 notification to enter . . . shall the vessel be liable to detention 
 and condemnation." ^ 
 
 On 22 March, 1849, the Neapolitan Government intimated in 
 Naples its intention to blockade the port and gulf of Palermo 
 from I April, Simultaneously it set a watch on the Sicilian coasts, 
 to prevent the importation of arms and ammunition.* The 
 blockade was raised in June, and was notified by letter from the 
 Neapolitan to the French commander at Palermo.* 
 
 The Austrian Foreign Minister intimated at Vienna on 
 31 March, 1849, a blockade of Venice, to commence on 4 April ; 
 and on 7 June, it intimated that Ancona had been blockaded. 
 No periods of delay were expressly fixed in any of these 
 blockades of 1849.^ Ancona was in the Papal States, with which 
 Austria was really, if not ostensibly, at war. The notification to 
 Great Britain here ran : — 
 
 " Vienna, 7 /««<?, 1849. 
 
 "The undersigned, etc., has the honour to inform Mr. Magenis, etc., 
 that the port of Ancona has been placed under effective blockade by the 
 vessels of war of H.I. and R.A. Majesty, and that, considering the hostile 
 operations directed against this town from the land, this blockade must be 
 looked upon as a regular siege. As this blockade has only for its object 
 to contribute towards the re-establishment of the legitimate authority 
 within the territories of the Church, it follows that it will be raised as soon 
 as that object shall have been attained." 
 
 The blockade of Venice was raised on 27 August, 1849.'^ 
 On 19 March, 1849, it was notified in London that Sir 
 C. Hotham, commodore on the We;st African station, had an- 
 nounced that war had been declared against the Gallinas and an 
 effective blockade established from Solyman Point to Cazee.^ 
 
 1 State Papers, Vol. XXXVII, p. 287. 2 /^^-^.^ p. 284. 
 
 3 Ibid., p. 284. Presumably after the lapse of time no notice would be necessary 
 
 « Ibid., p. 281. * Ibid., p. 283. « Ibid., p. 282-3. 
 
 1 Ibid., p. 286. * Ibid., p. 552. 
 
BLOCKADE 155 
 
 In 1850, Denmark closed the navigation of the Eider,^ reopen- 
 ing it on 30 January, 185 1. 
 
 " Mr. de Reedtz to Sir Henry Wynn, 3 Oct., 1850. 
 " M. Le Chevalier, — With reference to the official note which I had the 
 honour to address to you on the 21st inst., I have to inform you that owing 
 to information which I have received, the commander-in-chief of the 
 Danish forces has been obliged to make use of the authority given to 
 him to prohibit the navigation of the Eider. In order to afford, as far 
 as possible, every facility to the navigation of friendly and neutral 
 Powers, the Government of the King, my august master, has in the 
 meantime hastened to allow neutral merchant ships, coming from the 
 Baltic, to leave that river until the loth October inclusive. . . . 
 
 "(Sd.) Reedtz." 2 
 
 A French blockade of the West African Coast from the River 
 Grand Bassam to the River Assin^e was instituted on 24 November, 
 1849. It was relaxed by the French commodore, and the re- 
 laxation notified to the British naval officer.* 
 
 Turkey again blockaded Samos in 1851. Notification of the 
 intention to institute the blockade in twenty days was given in 
 Constantinople on 18 January, and on 23 April the blockade was 
 raised.* In the same year the British navial forces blockaded the 
 coast of Salvador ; for how long is uncertain.® 
 
 A blockade of Montenegro was established in 1852 by Turkey. 
 In announcing its removal, the Ottoman Porte sent a memo- 
 randum to the Foreign Missions as follows, on 10 April, 1853 : — 
 
 "Votre Excellence sait que pour r^primer la r^volte des habitans de 
 Montenegro, qui fait partie de I'empire Ottoman, r^volte qui a ^clat^ 
 dernierement, le blocus avait ^t^ 6tabli sur les c6tes d'Antivari. Comme 
 ... la tranquillity k et6 rdtablie k Montenegro Sa Hautesse a ordonnd 
 la lev^e du blocus, ce qui a et^ porte k la connaissance des autoritds de la 
 S. Porte li-bas ...."« 
 
 In the same year (1853) the Argentine Confederation instituted 
 from April to June a blockade of Buenos Ayres. This measure 
 was communicated by the Argentine commodore to the British 
 Admiral on the station :^ Buenos Ayres being stated to be in the 
 power of the insurgents. 
 
 France communicated through the embassy in London notice 
 of a blockade from 20 September, 1852, of the coast from the left 
 bank of the Grande Lahou to the right bank of the Assin^e 
 (West Coast of Africa),^ 
 
 In 1852 also occurred a blockade of "all ports and places 
 
 1 State Papers, Vol. XXXVIII, p. 598. ^ /^-^.^ Vol. XL, p. 857. 
 
 3 Ibid., Vol. XXXVIII, p. 598. * liid., Vol. XL, pp. 857-8. 
 
 6 Ibid., p. 858. « Ibid., Vol. XLII, p. 237. 
 
 1 Ibid., pp. 238, 239. ' Ibid., p. 240. 
 
IS6 COMMERCE IN WAR 
 
 in the Bight of Benin (except Badagry) from long, i" to 
 4° 30 E. of Greenwich," which was established on 1 January, and 
 raised on 11 February (Whydah, 15 June). These measures 
 were taken by naval officers (on the instructions of the Govern- 
 ment), and duly notified on 12 January and 17 April by the 
 Foreign Office.^ The causes which led to the blockade are 
 detailed in a letter from Commander Bruce (6 December, 185 1). 
 The gallant Commander did not know the exact limits of the 
 coast subject to the authority of the chiefs of Dahomey and 
 Lagos, whom he proposed to coerce ; but, hearing that the slave 
 trade existed between the limits above-mentioned, he blockaded 
 the whole." Vessels of war were not interfered with ; a special 
 notification was to be given to all ships, and the remarkable in- 
 structions were given to the fleet that vessels were not to be 
 searched which belonged to a nation that had not conceded that 
 right to Great Britain.^ What, under such circumstances, was 
 the use of declaring a blockade it is hard to see. 
 
 A blockade of the Russian ports in the Black Sea was 
 instituted by Admiral Lyons on i February, 1855. But the fact 
 was not communicated to the Government until 1 1 February, and 
 was not notified in the "Gazette" until 3 March. It extended 
 to — 
 
 "the mouth of the River Dniester, the ports of Akerman, Ovidiopol, 
 Odessa, all the ports situated between Ochakov Point and Kinburn Point, 
 including the ports of Nicolaev and Kherson, the rivers Boug and 
 Dnieper : also the ports between Kinburn Point and Cape Tarkan, includ- 
 ing the ports in the Gulf of Perekop, the port of Sevastopol, the ports 
 comprised between Cape Aia and the Straits of Kertch, including those 
 of Yalta, Aloushta, Soudak, Kaffa or Theodosia." 
 
 This somewhat confusing list was complicated by a statement 
 that — 
 
 "the port of Kertch, the Straits of Kertch, the entrance to and all the 
 ports in the Sea of Azov, including especially [sic] the ports of Berdianok, 
 Taganrog and Arabat : the River Don, and also the ports of Anape and 
 Sonjak were strictly blockaded by a competent force of the allied fleets 
 of France and England." 
 
 It further was declared — 
 
 "that the ports of Eupatoria, Straltzka, Kamiesh, Kazatch and Balak- 
 lava were, and are, and will remain, open and free from all blockade until 
 further notice."* 
 
 A blockade of the Danube, instituted on i June, 1854, was 
 raised on 18 February, 1855.^ 
 
 * State Papers, XLI, pp. 662-4. ^ /did., p. 229. 
 
 3 /did., p. 230. 4 Hid., XLV, p. 583. 
 
 5 Hid., XLIV, p. 894, and XLV, p. 584. 
 
BLOCKADE 15; 
 
 On 27 April, 1855, the "Gazette" notified a Baltic blockade as 
 follows : — 
 
 "Foreign Office, 27 April, 1855. 
 " It is hereby notified that H.M.'s Government has received information 
 from Captain Watson, R.N., commanding a squadron of H.M.'s ships in 
 the Baltic, dated ' H.M.S. " Imperieuse," off Libau, 19 April, 1855,' to the 
 effect that on and from the 17th April, 1855, and in the name of H.M. and 
 of Her Ally, H.M. Napoleon HI, Emperor of the French, the Russian 
 port of Libau, on the coast of Courland, was placed in a state of strict 
 blockade by a competent force of H.M.'s ships and vessels ; and that on 
 and from the 19th April, 1855, all Russian ports, roads, havens, and creeks, 
 from lat. 55° 54' N., long. 21° 5' E. to the Filsand Lighthouse in lat. 
 58° 25' N., long. 21° 50' E. (including especially the ports of Sackenbaun, 
 Windau, and the entrance to the Gulf of Riga) were also placed in a state 
 of strict blockade by a competent force. . . ." ^ 
 
 The Baltic and Finnish blockade was extended 12 July, 1855, 
 by a joint proclamation notified in London 27 July. It ran : — 
 
 "It is hereby notified, in the name of H.B.M. Queen Victoria, and H.I.M. 
 Napoleon III, Emperor of the French, that on the 12th July inst, all 
 Russian ports, roads, havens and creeks in the Gulf of Bothnia, from Tornea 
 in lat. 65° 46' N. long. 24° 7' E. to Nystad in lat. 60° 46' N. long. 21° 20' E., 
 Including especially the ports of Uleaborg, Brahestad, Gamla Carleby, 
 Nyi Carleby, Wasa, Christinestad, Biorneborg and Raumo, were placed 
 in a state of strict blockade by a competent force of the allied fleets. 
 And it is hereby further notified, with reference to the blockade of the 
 coast of Finland between Nystad and Hango Head, and of the islands 
 and islets fronting the said coast, established on the 15th ult, that on 
 the 14th July inst., all other Russian islands facing the coast of Finland, 
 and all Russian islands in the Gulf of Bothnia, including especially the 
 Aland Islands, were placed in a state of strict blockade by a competent 
 force, etc. . . ." ^ 
 
 A similar blockade had been in existence from 28 May, 1852, 
 to 21 October, 1854.^ 
 
 In May, 1855, the Gulf of Finland was blockaded by Admiral 
 Dundas, and notification made as follows : — 
 
 " It is hereby notified that on the 28th April last, the entrance to the Gulf 
 of Finland from Hango Head, in lat. 59° 46' N., long, 22° 58' E. to the 
 Dagerort Lighthouse, in lat. 58° 55' N., long. 22° 12' E. — and that all 
 Russian ports, roads, havens and creeks from the Dagerort to the Filsand 
 Lighthouse, in lat. $8° 25' N., long 21° 25' E., were placed in a state of strict 
 blockade by a competent force of H.M, ships. . . . Given on board H.M.S. 
 'Duke of Wellington,' etc, this 3 May, 1855.* (Sd.) R. S. Dundas." 
 
 A further notification was made (28 May, 1855) that on the 
 preceding day all the ports, creeks, and inlets in the Gulf of 
 
 1 State Papers, Vol. XLV, p. 585. ^ jua,^ p. jgg. 
 
 » Ibid., XLIV, pp. 894, 899. * Ibid., XLV, p. 585. 
 
IS8 COMMERCE IN WAR 
 
 Finland (including especially the port of Cronstadt) were strictly 
 blockaded by a competent force. ^ 
 
 The blockade was again extended (15 June) to — 
 
 "all Russian ports, roads, havens, and creeks on the coast of Finland 
 from Nystad in lat. 60° 46' N., long. 21° 20' E. to Hango Head in lat. 
 59° 46' N., long. 22° 55' E., including especially the port of Abo, and in- 
 cluding likewise all the islands and islets fronting the south coast, and all 
 channels and passages leading amongst the south islands towards the 
 south coast [specifying several in particular]." ^ 
 
 The previous blockade of the Gulf of Finland in 1854 had 
 been established by Sir C. Napier in a document which shows a 
 tendency towards the practice adopted by France in 1870 and 
 1896 to enclose areas of sea within the limits of blockade. After 
 enumerating the ports in the Gulf from Helsingfors to Cape 
 Lubovki, it proceeds : — 
 
 " From Cape Lubovki the line of blockade crosses to Tolboukin Light, 
 immediately off Cronstadt, then across southward to off the town of 
 Borki in lat. 59° 57 N., long. 29° 28' E." 
 
 And again : — 
 
 " From Borki to Karevalda Island, thence to Dolgoi Ness, and from 
 Dolgoi Ness to Kolgenpia Point, which includes Bight of Koporia, from 
 thence to Kourgoulo Point, which includes Louga Bay, then the River 
 Narva and the whole coast of Esthonia, etc." ' 
 
 This method, as will have been seen, was not repeated in 
 1855. Nor was it applied in 1854 to the case of the other Baltic 
 ports.* The manner in which the Baltic blockade was carried 
 out in 1854, appears from a letter of Captain A. Cooper Key.* 
 Two ships (sometimes one) watched the three mile deep-water 
 channel at the entrance to the Gulf of Riga, and two others 
 patrolled the coast between Windan and Memel. 154 vessels 
 " on the slightest reasonable doubt " of want of knowledge were 
 warned off between 20 April and 14 June. The officer adds that 
 only four vessels were detained for attempting to enter the block- 
 aded ports, two of which had cargoes of coal. 
 
 The White Sea ports proclamation ran (1855) : — 
 
 " It is hereby notified that on and after the nth June, 1855, all the 
 Russian ports, roads, havens, and creeks in the White Sea from Port 
 Orlofka in lat. 67° n' 30" N., long. 41° 22' 12" E., to Cape Kanoushin in 
 lat. 67° 11' 33" N., long. 43° 48' 42" E., including especially the ports of 
 Archangel and Onega, are placed in a state of strict blockade, etc. 
 Dated. . . 11 June, 1855. «(sd.) Thomas Bailue."8 
 
 1 State Papers, XLIV, p. s86. ^ 76id., Vol. XLV, p. 587. 
 
 3 Jiia., Vol. XLIV, p. 895. 4 Hid., p. 896. 
 
 6 Hid., p. 898. 6 Hid., Vol. XLV, p. 588. 
 
BLOCKADE 159 
 
 This blockade was raised on 9 October, by Captain Baillie 
 (notified in London 29 November, 1855).^ On 8 April, 1856, it 
 was notified that orders had been given for the raising of all 
 the Russian blockades.^ A similar blockade to the last took place 
 in 1854.8 
 
 During the Russian war, certain States forbade, under more 
 or less definite penalties, blockade -running and contraband 
 dealing. 
 
 Hamburg* threatened with fine and imprisonment those who 
 exported from that city — 
 
 "whether under Hamburg or foreign colours, or by land [to a belli- 
 gerent], ammunition, guns, gunpowder, saltpetre, sulphur, balls, caps, all 
 kinds of arms, and generally speaking all objects which may be used in 
 warfare." 
 
 The Senate also declared that the captains of ships under 
 Hamburg colours were not permitted to break blockades — but it 
 specified no penalty. Stringent declarations as to the security to 
 be given that articles such as are above mentioned will reach 
 their due neutral destination, were exacted by a proclamation of 
 22 May, 1854.* 
 
 Lubeck® prohibited the export of contraband "for the belli- 
 gerent Powers or their subjects," under penalty of confiscation and 
 further animadversion. Contraband is clumsily defined as — 
 
 "arms, ordnance, firearms, and munitions of war of every description, 
 but particularly gunpowder, musket and cannon balls, rockets, percussion- 
 caps, and all other articles serving for war purposes, as also saltpetre, 
 sulphur, and lead." 
 
 The Senate of the same city ordered that no master of a Lubeck 
 vessel should break a blockade, or, after having being informed 
 thereof, endeavour clandestinely to evade it.^ 
 
 Bremen prohibited the export of contraband — 
 
 "and particularly of munitions of war, gunpowder, musket and cannon 
 balls, percussion-caps, sulphur and saltpetre, ordnance, and arms of every 
 description, and generally of all articles immediately serving for purposes 
 of war " — 
 
 to the territory of any of the belligerent Powers (it does not men- 
 tion their fleet or army) by land or water, and whether under 
 Bremen or foreign flag. Confiscation, fine, and imprisonment were 
 threatened. But Bremen did not think it necessary to prohibit 
 blockade-running. ^ 
 
 1 state Papers, Vol. XLV, p. 590. 2 Ibid., Vol. XLVI, p. 542. 
 
 3 Ibid., Vol. XLIV, p. 898. * Ibid., Vol. XLV, p. 1269. 
 
 6 md., p. 1270. « Ibid, p. 1 27 1. 
 
 "> Ibid, p. 1272. « Ibid, p. 1273. 
 
i6o COMMERCE IN WAR 
 
 The Emperor of Hayti (i8 November, 1854)' forbade ships 
 under the Haytian flag to carry contraband or to run blockades, 
 but the proclamation contained no definite penalties for its 
 infringement. 
 
 George V of Hanover proclaimed a law under which contra- 
 band trading was penalised by confiscation, 500 dols. fine, or six 
 months' imprisonment. The same penalty was imposed on the 
 carriage of troops, despatches, or couriers for the belligerents. 
 The mention of " couriers " is interesting in view of the Mason 
 and Slidell case. It applied to Hanoverian ships, and to export 
 under any flag from Hanoverian territory. Such export might be 
 stopped manu militari.^ 
 
 The Chinese operations of 1857-8 produced a blockade by the 
 allied forces of Canton (raised 10 February, 1858). It was 
 notified thus in England in the "Gazette," 13 October, 1857.* 
 
 "Foreign Office, 13 October, 1857. 
 " It is hereby notified that the Rt. Hon, the Earl of Clarendon, H.M.'s 
 Principal Secretary of State for foreign affairs, has received from the Lords 
 Commissioners of the Admiralty a despatch from Rear- Admiral Sir Michael 
 Seymour, K.C.B., concerning H.M's. naval forces in China, dated from on 
 board H.M.S. the ' Calcutta ' Aug. 8, 1857, stating that he had on that day 
 established a blockade of the port and river of Canton by a competent 
 force under his command. And it is hereby further notified that all the 
 measures authorized by the laws of nations and treaties will be adopted and 
 executed with respect to all vessels which may attempt to violate the said 
 blockade."* 
 
 In 1856 what constituted a legal blockade was set forth in the 
 Declaration of Paris signed by the plenipotentiaries of England, 
 Austria, France, Prussia, Russia, Sardinia, and Turkey, the 
 fourth article of which was as follows : — 
 
 "Les blocus pour Stre obligatoires doivent etre effectifs, c'est k dire, 
 maintenus par une force suffisante pour interdire reelement I'acces du 
 littoral de Tennemi."^ 
 
 France and Spain in conjunction blocked certain ports in 
 Cochin-China in 1858. A proclamation, as under, was signed, 
 I September, by the French Admiral, and notified in the " Moni- 
 teur," and to the diplomatic body in Paris, on 7 December. 
 
 "I the undersigned, commanding in chief the French and Spanish 
 forces charged with obtaining from the Emperor of Cochin-China the 
 redress for grievances which is due to the Governments of France and 
 Spain, and in virtue of the powers which belong to me as commander 
 
 1 State Papers, Vol. XLV, p. 1274. 2 /6ia,p. 1275. 
 
 3 Hid., Vol. XLVIII, p. 960. « /did., Vol. XLVII, p. 560. 
 
 ^ Samwer, "Rccueil," Vol. II, first series, p. 768. 
 
BLOCKADE i6i 
 
 in chief, declare: Commencing from the ist of September 1858, the bay 
 and river of Touranne and the port of Chamcallao are held in a state of 
 effective blockade by the naval and military forces placed under my 
 command. Proceedings will be taken against every vessel which shall 
 attempt to violate the blockade, in conformity with international law, and 
 with the treaties in force with neutral Powers. 
 
 "(Signed) C. Rigault de Genouilly."^ 
 
 Peru declared a "pacific" blockade in October 1858.^ President 
 Castilla, reciting the offences of Ecuador and the refusal of satisfac- 
 tion by the latter Power, culminating in the breaking off of com- 
 munication with the Peruvian Minister, and remarking on the 
 want of success which had attended Peru's own lenity and pacific 
 policy, declared that as it was repugnant to the fraternal sentiments 
 of the Peruvian Government to afflict the Ecuadorians with the 
 calamities of a war, it was proper to employ coercive measures 
 which would do no immediate injury to the Ecuadorian people. 
 The decree was as follows : — 
 
 "(i) All the ports, bays, creeks, and landing-places of Ecuador situated 
 within the line of coast comprised between 1° 50' N. lat. and 3° 30' S. lat, 
 and the islands included therein, shall be blockaded by a sufficient force of 
 the Peruvian navy.* From the time that the blockade is made effective, 
 the commanders of the blockading ships will adopt all the measures 
 authorized by international law against all who may attempt to violate it. 
 
 " (2) The blockade of the said ports, bays, creeks, and landing-places 
 shall remain in force, before employing other* hostile measures, for such 
 time as, according to the judgment of the Government of Peru, may be 
 sufficient to estimate the effect of this coercive measure in regard to the 
 Ecuadorian Government. 
 
 " (3) The blockade shall be notified to friendly Powers in the regular 
 way ... 26 Oct. 1858." 
 
 A war between Spain and Morocco led to a blockade in 1859 
 of the ports of the latter by the former Power. It was instituted 
 on 28 October, 1859, and raised on 25 March, i860. Notification 
 was made in the official gazette, and communicated to the diplo- 
 matic body at Madrid.^ 
 
 In the same year {1859) France blockaded Venice. The block- 
 ade was notified in the " Moniteur Officiel " of 2 June, and notifi- 
 cation was sent to the foreign representatives the same day. 
 
 " II est notifi^ par les prdsentes que son excellence le Ministre de la 
 Marine a dt6 inform^ par le Contre-Amiral Jurien de la Gravier^, com- 
 mandant les forces navales frangaises dans I'Adriatique, que le 18 Mai, 
 
 1 State Papers, XLVIII, p. 961. 2 Ibid., XLIX, p. 1320. 
 
 ^ Peru then filled the place on the Pacific seaboard in respect of naval force which is 
 now occupied by Chili. 
 
 * Italics ours. The pacific character of the blockade may be clearly estimated from 
 this unlucky word. ^ State Papers, L, p. 634 ; XLIX, p. 933, 
 
 M 
 
i62 COMMERCE IN WAR 
 
 1859, et k partir du dit jour, il a 6t6 dtabli par les forces navales plac^es 
 sous son commandement un blocus effectif du port de Venise et de ses 
 issues. II est en outre notifi^ par les presents que toutes les mesures 
 autoris^es par le droit des gens et les traitds respectifs existant entre 
 S.M. I'Empereur et les differentes puissances neutres seront adoptees et 
 ex^cutdes par rapport k tous les navires qui tentaient de violer le dit 
 blocus."! 
 
 Ancona having been blockaded in 1860,^ Gaeta was blockaded 
 by Sardinia in 1861. The Sardinian Minister in London on 4 Feb- 
 ruary wrote to Lord John Russell notifying that it had been 
 blockaded from 20 January. The blockade ended on 13 February 
 with the capitulation of the fortress. The citadel (but not the 
 town) of Messina was blockaded on 5 March.' 
 
 Turkey blockaded the Albanian coast. Dilever Bey, the naval 
 commander, established the blockade on 13 April, 1861, and it was 
 notified in London by the Ottoman Ambassador on the 1 8th.* 
 
 In 1 86 1* declarations of blockade of the Confederate ports were 
 declared by the President of the United States. The first measure 
 taken was to declare the Southern harbours to be closed to com- 
 merce ; but Great Britain energetically protested against its being 
 assumed that such an act carried any right to exercise the powers 
 of a belligerent blockade. 
 
 " It is impossible," wrote Lord J. Russell,® " for Her Majesty's Govern- 
 ment to admit that the President or Congress of the United States can at 
 one and the same time exercise the belligerent rights of blockade and the 
 municipal right of closing the ports of the South. . . . An assumed right 
 to close any ports in the hands of insurgents would imply a right to stop 
 vessels on the high seas without instituting an eifective blockade. This 
 would be a manifest evasion of the necessity of blockade in order to close 
 an enemy's port. Neutral vessels would be excluded where no force exists 
 in the neighbourhood of the port sufficient to carry that exclusion into 
 effect. Maritime nations would not submit to this excess under pretence 
 of the rights of sovereignty. . . , Her Majesty's Government would con- 
 sider a decree closing the ports of the South actually in the possession of 
 the insurgent or Confederate States as null and void, and they would not 
 submit to measures taken on the high seas in pursuance of such decree." 
 
 Further, when an Act of Congress authorized the President to 
 take the necessary steps for closing ports and to forfeit ships which 
 should approach them,'' Lord John observed that* the exercise of 
 such powers would be considered as a violation of the unquestion- 
 able rights of neutral nations. Mr. Seward gave Lord Lyons to 
 understand (12 August, 1861) that the question was dropped for 
 
 1 State Papers, XLIX, p. 932. 2 /^^^^ l, p. 634. 
 
 3 Hid., LI, pp. 527-9. * I6td., p. 529. 
 
 6 md, Vol. LII, pp. 185-269. 
 
 6 Russell to Lyons, 19 July, i86i ; State Papers, LI, p. 205. 
 ' I6td., p. 213. 8 /i,ia_^ p. 218. 
 
BLOCKADE 163 
 
 the moment, but "influential persons were anxious to moot it 
 again." The French Minister in Washington took up the same 
 position as Lord Lyons. ^ The proclamation, when it appeared, 
 declared all commercial intercourse between the Confederacy and 
 the citizens of "other States and other parts of the United States" 
 unlawful, and goods and merchandise coming therefrom to other 
 parts of the United States, or proceeding thereto (without restric- 
 tion as to the port of export), forfeitable.^ The British Foreign 
 Secretary did not think this needed international notice, presum- 
 ably thinking that it was not meant to be enforced on the high 
 seas.* The United States blockade of the Southern States and 
 all their ports was then proclaimed by the President and com- 
 municated to the diplomatic body at Washington. Two proclama- 
 tions were issued, one on 19 April, affecting all the far southern 
 maritime States (including Alabama), and the other on the 28th as 
 to Virginia and North Carolina.* These were regarded by Great 
 Britain as proclamations of intention only, requiring to be supple- 
 mented by the fact. 
 
 Lord Lyons "referred Mr. Seward to the notifications of block- 
 ades made by Great Britain during the late war with Russia, and 
 pointed out to him the care and precision with which every par- 
 ticular was stated in them." He asked whether it was intended to 
 issue similar notices for each Southern port as soon as the actual 
 blockade of it should commence. Mr. Seward, however, was 
 sensible of the advantages of adherence to ancient precedent and 
 a less elaborate exposition of intention. It was determined, he 
 said,* to notify vessels individually and endorse their papers. 
 
 Armed vessels were allowed to enter and leave the blockaded 
 ports,* and fifteen days were allowed by the Admiralty for neutral 
 vessels to leave. ^ 
 
 The actual blockade was not coincident with the Presidential 
 proclamation. For instance, the blockade of Charleston was 
 enforced by the United States ship of war " Niagara " on 1 1 May, 
 1 86 1, and Mr. Seward admitted that that blockade did not begin 
 until then.* The "Niagara" left on 15 May, and although Mr. 
 Seward declared that she was relieved in a day or two, the British 
 Consul at Charleston believed that it was a fortnight before the 
 " Minnesota " arrived for that purpose.' So, at Savannah the 
 blockading steamer left three days after arrival, and for a foirt' 
 night after had not been seen or heard of, leaving the entrance 
 entirely unobstructed,'" 
 
 10 
 
 1 State Papers, Vol. LI, p. 332. 2 md.^ p. 234. 
 
 3 Ibid., p. 238. * Ibid., LV, p. 658. 
 
 6 Ibid., p. 659 ; Lyons to Russell, 2 May, 1861. ° Ibid., p. 664. 
 
 ^ Ibid., pp. 666-8. ^ Ibid., p. 673 ; Seward to Lyons, 27 May, 1861. 
 
 8 Ibid., p. 680. " Ibid., pp. 674 et seq., 685. 
 
i64 COMMERCE IN WAR 
 
 On July 25 the Consul at Charleston wrote that generally only 
 one vessel had been stationed off that port, and that at the 
 moment of writing there had been none there during over twenty- 
 four hours. He gave it as his opinion that the blockade was only 
 effective against large vessels, and that the coasting trade went on 
 as usual,^ fifty-one vessels having arrived. 
 
 Mr. Bunch, however (the Consul in question), makes some 
 statements which cast a little doubt on the inferences drawn by 
 him. In one letter^ he directs attention to the fact that a priva- 
 teer entered port in the very face of the blockading ships. But 
 surely this is evidence that the blockading ships were there. On 
 the other hand, the Consul at Wilmington, while noting the con- 
 tinued presence of two vessels, does not think (writing in August)* 
 that they are particularly effective in interrupting trade. But 
 Lord Russell did not think that the mere fact that they were 
 frequently evaded made the number of ships inadequate, so long 
 as they constituted an evident danger.* Commander Ross ex- 
 amined the Gulf ports on behalf of the British Admiral, and did 
 not think the arrangements adequate.* 
 
 On 5 February, 1863, Mr. Seward wrote that: "... opinions 
 may be entertained by merchants interested in the trade of the 
 port of Galveston in Texas that the blockade of that port . . . 
 may in consequence of recent events in that quarter have been 
 interrupted," and accordingly he reiterates the resumption of the 
 blockade.® 
 
 During the course of the blockade of the Confederate States 
 some interesting correspondence passed between the Confederate 
 and British Governments as to what, according to the rules of 
 international law, constitutes an effective blockade, and Lord 
 Russell thus stated in a despatch of 10 February, 1863, to Mr. 
 Mason, the views of his Government thereon : — '^ 
 
 " It appears to Her Majesty's Government to be sufficiently clear that 
 the Declaration of Paris could not be intended to mean that a port must 
 be so blockaded as really to prevent access in all winds and independently 
 of whether the communication might be carried on in a dark night or by 
 means of small low steamers or coasting craft creeping along the shore ; in 
 short, that it was necessary that communication with a port under blockade 
 should be utterly and absolutely impossible under any circumstances. 
 
 " In further illustration of this remark, I may say there is no doubt that 
 a blockade would be in legal existence, although a sudden storm or change 
 of wind occasionally blew off the blockading squadron. This is a change 
 to which in the nature of things every blockade is liable. Such an acci- 
 dent does not suspend, much less break a blockade. Whereas, on the 
 
 1 State PaperSj Vol. LV, p. 690. 2 Ibid., p. 697. 
 
 ' Ibid., p. 699. * Ibid., p. 703 ; Russell to Lyons, 15 February, 1862. 
 
 6 Ibid., p. 703. « Ibid., Vol. LIII, p. 349 ; Seward to Lyons. 
 
 7 Ibid., Vol. LV, p. 737- 
 
BLOCKADE 165 
 
 contrary, the driving off a blockading force by a superior force does break 
 a blockade, which must be renewed de novo in the usual form to be binding 
 upon neutrals. 
 
 " The Declaration of Paris was, in truth, directed against what were 
 once termed ' paper blockades ' — that is, blockades not sustained by any 
 actual force, or sustained by a notoriously inadequate naval force, such as 
 the occasional appearance of a man-of-war in the offing. 
 
 ******* 
 
 " It is proper to add that the same view of the meaning and effect of 
 the article of the Declaration of Paris on the subject of blockades which is 
 above explained was taken by the representative of the United States at 
 the Court of St. James (Mr. Dallas) during the communications which 
 passed between the two Governments some years before the present war, 
 with a view to the accession of the United States to that declaration." 
 
 The Greek Government instituted a blockade of part of its terri- 
 tory (in insurrection) in 1862. It was notified by the Greek 
 Chargd d' Affaires to the British Foreign Office on 9 March. The 
 proclamation ran (in translation) : — 
 
 "Admiralty, Atk^^s, February iaI'2'6, 1862. 
 
 " It is notified by these presents that, on and from the i3/2Sth of this 
 present month of February all the coasts of the Gulf of Argolis from the 
 roadstead of Astros (not included) to the Bay of Vourlia (included) have 
 been placed in a state of strict blockade by a sufficient force of the Royal 
 Navy. It is further notified that all measures authorized by the law of 
 nations and the several treaties between His Majesty the King of Greece 
 and the different friendly Powers, will be adopted and carried into execu- 
 tion in regard to all ships which shall attempt to violate the said blockade. 
 
 "(Signed) D. BOTZARIS," etc. 
 
 The blockade was raised by a proclamation, notified in London 
 in a sirrtilar way on 6 May : — 
 
 "Admiralty, Athens, April 10/22, 1862. 
 " It is notified by these presents that the blockade placed in virtue of 
 our notification of the 14/26 February, 1862, on the coasts of the Gulf 
 of Argolis, between the roadstead of Astros (not included) and the Bay of 
 Vourlia (included) has been raised from the io/2i2nd of this month. 
 
 " (Signed) A. A. M i AOULis," etc.^ 
 
 In the same way, Sicily was blockaded by Italy, owing to insur- 
 rection. The diplomatic notification (23 August, 1862) seems to 
 have enclosed no proclamation specifying the date at which the 
 blockade commenced. It merely stated that Sicily and the adjacent 
 islands had been declared blockaded. On i September word was 
 received that the blockade had been raised.^ 
 
 1 State Papers, Vol. LII, p. 486. 
 
 2 Jbid., p. 488. 
 
i66 COMMERCE IN WAR 
 
 Venezuela this year declared a blockade of the ports and coasts 
 of Maracaybo. The proclamation^ is interesting : — 
 
 " I. The ports and coasts of Maracaybo are to be closed ; ue. all the 
 line which runs from Cape San Roman, in the peninsula of Paraguana, to 
 Point Espada, in the Goajira peninsula. 
 
 " 2. The said ports and coasts are also declared in a state of blockade. 
 
 " 3. The blockade will be effective sixty days after date with regard to 
 vessels arriving from Europe; thirty days for those despatched from 
 Demerara and the other West India islands, excepting the vessels from 
 St. ThomaSj St. Croix, Curazoa and its dependencies, for which the time 
 will be eight days. 
 
 " 4. If before the expiration of such terms a vessel shall arrive, whatever 
 be its nationality, to the ports and places blockaded, the blockading forces 
 will notify the existence of the blockade, noting in its log-book the day 
 and place or the latitude in which such vessel was met, and also the notifi- 
 cation made. In case the vessel should persist in the pretension to enter, 
 notwithstanding the notification, it will be subject to detention and con- 
 fiscation. 
 
 " 5. All communication with the places to which the blockade is 
 extended being prohibited, the force in charge thereof will only allow the 
 sailing of such foreign vessels as have entered before the blockade was 
 established. 
 
 " 6. The commanders of the blockading force will proceed against the 
 vessels which they detain in consequence of violation of the blockade in 
 the manner provided by the Order on Privateering of 30 March, 1822 . . ."^ 
 
 The French blockaded Tampico and D'Alverado in May, 1862. 
 This was effected by Admiral Jurien on the spot, and was notified 
 diplomatically.^ Mazatlan, on the West Coast of Mexico, was 
 blockaded by the frigate " Bayonnaise " on 28 May, and this does 
 not seem to have been notified diplomatically at all.* 
 
 A remarkable feature of the blockade of Tampico was that it 
 was relaxed in favour of vessels carrying neither contraband nor 
 passengers.' 
 
 France again blockaded Mexican ports in 1863. The notifica- 
 tion appears to have been simply handed by the Admiral to the 
 Consuls at Vera Cruz : — ® 
 
 " Nous, etc. vu r^tat de guerre existant entre la France et le gouverne- 
 ment de Juarez . . . d^clarons qu'a partir du 6 Sept. courant, les ports et 
 leurs issues, les rivieres, havres, rades, criques, etc. des c6tes du Mexique 
 qui ne sont point occupds par nos troupes, et qui reconnaissent encore le 
 pouvoir de Juarez, depuis la lagune k 10 lieues au S. de Metamoras, 
 jusqu'a et y compris Camp^che, entre 25° 22' N., 90° 54' W., et 19° 52' N., 
 92° so' W. (m. de Paris), seront tenus en etat de blocus effectif, par les 
 forces navales placdes sous notre commandement, et que les batiments 
 
 1 State Papers, Vol. LII, p. 489. 2 liid., Vol. XII, p. 647. 
 
 3 Ih'd., Vol. LII, p. 487. * I6id., p. 488. 
 
 6 /did., p. 491. " /did.. Vol. LII I, p. 350. 
 
BLOCKADE 167 
 
 amis ou neutres auront un ddlai de 25 jours pour achever leur chargement 
 et quitter les lieux bloqu^s. 
 
 " (Les points k excepter du blocus sont Tampico, Vera Cruz, Alvarado, 
 Goatzacoalcos, Tabasco et Carmen). 
 
 " II sera proc^d6 centre tout bitiment qui tenterait de violer le dit 
 blocus conform6ment aux lois internationales et aux traitds en vigueur 
 avec les Puissances neutres. 
 
 "A bord la frdgate mixte la ' Bellone' etc. le 5 Sept. 1863. 
 
 "(Signed) A. BOSSE." 
 
 1 864 is an annus mirabilis for blockades : — 
 
 Brazil blockaded the Uruguayan ports of Paysandu and Sal to. 
 A note, dated 26 Oct., 1864, from Admiral Tamandare to H.B.M.'s 
 representative at Montevideo conveyed the intelligence : — 
 
 " I find myself in the case of notifying to your Excellency, that I am 
 going to order the blockade of the ports of the Oriental Republic of the 
 Uruguay — Salto and Paysandu. This blockade will be rigorously ob- 
 served as long as there exist the motives which determined the Brazilian 
 Government to take the attitude in which it finds itself from the denial of 
 justice to its claims, and in consequence the naval forces under my orders 
 will not permit that any vessel shall enter these ports, notifying to those 
 that may present themselves the existence and efficacy of the blockade, 
 and those that may attempt to violate it being subject to what the 
 principles of the law of nations establish. 
 
 " To those that are at present in the said ports, free exit will be allowed 
 up till the 15th of next November. „ ^ ., 
 
 " (Signed) Baron de Tamandare, Vice- Admiral, etc."^ 
 
 In the Austro- Danish war of 1864, in the course of which 
 occurred various interesting passages, such as the shelter of an 
 Austrian squadron in Heligoland waters after an encounter with 
 the Danes, the latter Power blockaded the east coast of Schles- 
 wig-Holstein, except so far as under Danish authority. The 
 notification to Great Britain was addressed by the minister in 
 London to Earl Russell, and also by the Danish Admiralty to 
 the British Minister at Copenhagen. These documents ran : — 
 
 " 26 February, 1864. 
 "My Lord, — I am directed by my government to inform your 
 Excellency that according to an official notice, issued on the i8th inst. 
 by the Danish Ministry of Marine, all ports and inlets on the East Coast 
 of the Duchies of Schleswig and Holstein will be blockaded from the 
 25th of this month, with the exception of Neustadt, the Islands of Als 
 and Aeroe, and such other places as are actually under the authority 
 of H.M. the King. The blockade will successively be raised for every 
 place that comes again into the power of the Royal Government, and 
 public notice thereof be given. " I have, etc., 
 
 "(Signed) TORBEN BiLLE." 
 
 1 State Papers, Vol. LIV, p. 544. 
 
i68 COMMERCE IN WAR 
 
 "COPENHAGUE, le 20 Farter, 1864. 
 " Monsieur, — J'ai I'honneur de porter a votre connaissance qu'^ partir 
 du 25 de ce mois tous les ports, et toutes les embouchures de la cote 
 orientale des duch^s de Schleswig et de Holstein se trouveront en 6tat 
 de blocus, h. I'exception de Neustadt [&c.]. En vous transmettant sous ce 
 pli quelques exemplaires de la publication par laquelle le Minist^re de 
 Marine notifie le blocus, je me permets d'avoir recours k votre bien- 
 veillante entremise en vous priant de vouloir bien en donner avis aux 
 agents Consulaires de votre gouvernement r^sidant dans les places bloqu^es, 
 en leur notifiant en mSme temps que tous les batiments neutres qui au 
 commencement du blocus se trouvent dans un port bloqu^e, jouiront 
 jusqu'au i Avril de la faculty d'en sortir, soit avec cargaison soit en lest. Si, 
 par suite de circonstances particuli^res, le delai fix? pour la libre sortie 
 n'est pas trouvd suffisant dans un cas donn6, 1'officier charg6 du blocus est 
 autorisde a se concerter avec I'Agent Consulaire sur un terme plus ample 
 lorsque celui-ci s'addressera k cet effet au sus-dit chef. Agr^ez, &c. 
 
 "(Signed) G. QUAADE.''^ 
 
 On 8 March, 1864, the Danish Foreign Office again wrote to 
 the British Minister informing him that from the 15th, the ports 
 of Cammin, Swinemiinde, Wolgast, Greifswalde, Stralsund, and 
 Barth would be blockaded. Two months later, these blockades 
 were raised. Pillau and Danzig, which on 19 April were block- 
 aded also,^ were declared unblockaded at the same time,® in 
 compliance with an armistice. On 23 May, Count Bille informed 
 Lord Russell that it was intended to re-establish the blockade of 
 12 June, unless a prior accommodation was arrived at. No such 
 accommodation supervening, the Danish Admiralty notified* that 
 preparations were being made for the blockade of Pillau, Danzig, 
 Colberg, Cammin, Swinemiinde, Wolgast, Griefswalde, Stralsund, 
 and Barth, and the east coast of Schleswig-Holstein. These 
 blockades were actually reimposed on the 27th and 26th, 
 and the fact notified by the Danish Government to the diplomatic 
 body ;* and by the naval commanders to the Consuls at the 
 blockaded ports.* Ships were allowed to leave up to 16 July: 
 but the blockade was finally raised on the 20th. 
 
 The Danish Regulations contemplate individual warning to a 
 vessel as a normal measure (paragraph 3) ; but it is not necessary 
 if on account of lapse of time or otherwise it may be inferred that 
 she knew of the blockade.^ 
 
 France extended the blockade of Mexico : including Acapulco 
 and Manzanilla on the west coast (29 February, 1864) and the 
 rivers Goatzocoalcos and Tabasco on the extreme south-east (17 
 
 1 State Papers, Vol. LI V, p. 534 et seg, 2 j^^j^ p 846. 
 
 s Ibid., p. 540. * Ibid., p. 541. 
 
 B Ibid., p. 848. 6 Ibid., 849. 
 
 ' See Danish Prize Regulations, State Papers, Vol. LIV, p. 545. 
 
BLOCKADE 169 
 
 March).^ In the prior case the extension seems, at any rate in 
 the first instance, to have been simply notified by a letter from the 
 French Admiral to other naval commanders in the Pacific, and in 
 the latter by a naval proclamation in Mexico. Maximilian being 
 seated on the throne, the blockade was raised by his imperial 
 decree on 29 July.^ 
 
 Spain blockaded all the coasts of the Spanish portion of San 
 Domingo, then in insurrection, by a proclamation of the Governor, 
 dated from San Domingo, one of the blockaded places — a palp- 
 able absurdity, and a sort of anticipation of what took place in 
 Crete thirty years later. ^ The proclamation ran : — 
 
 "S. Domingo, 5 October, 1863. 
 
 " Don Felipe Ribero y Lemoyne, etc. : Various provinces of the Spanish 
 part of this island having declared themselves in rebellion against Her 
 Catholic Majesty . . . and in the necessity of adopting the corresponding 
 measures to prevent the revolutionists from receiving assistance by the 
 coasts — using the powers, etc., I order and command — 
 
 "Art. I. All the coasts of the island* and its littoral waters are 
 declared under blockade by the naval forces of Her Majesty, and in con- 
 sequence every vessel may be required to show their papers and documents 
 and be scrupulously examined. Those that come laden with people, what- 
 ever may be their destination or the place whence they come, are at once 
 suspicious ; but if their papers and manifest do not confirm the suspicion, 
 they shall only be obliged to go away ; in the opposite case, where there 
 are marked flaws in the papers, in the case of bringing cargoes of arms 
 and ammunition or effects which may in any manner contribute to foment 
 the rebellion, they shall be considered as enemies and treated as such 
 according to the ordinances of the Royal Navy." 
 
 The proclamation was superseded by one issued by a new 
 governor on 7 November. 
 
 Reciting that '' some doubts had arisen respecting the execution and 
 understanding of the proclamation," he orders that " the blockade of the 
 coasts of the Spanish part of the island of S. Domingo only extends to 
 the ports, roads, and creeks which are not occupied by the troops of the 
 army, and, in consequence, the ports of Santo Domingo, Samana, and 
 Porto Plata are free . . . "« 
 
 The British Minister was assured that this blockade was main- 
 tained by twenty-three vessels. 
 
 Venezuela in this year (1864) declared a blockade of the mouth 
 of the Orinoco (13 September).® 
 
 » State Papers, Vol. LIV, pp. 538, 539. 
 
 2 Ibid., p. 542. " Ibid., p. 536 ei seq. 
 
 * He presumably means " the Spanish portion of the island." 
 
 6 Ibid., p. 537. Cf. the British Gold Coast Proclamation and revised edition, infra, 
 
 P- 173- 
 
 « Ibid., p. 543- 
 
170 COMMERCE IN WAR 
 
 The example shown by Britain and France in affecting to 
 blockade the Argentine in time of peace was imitated in 1864 by 
 the Brazilian Government.^ Diplomatic relations having been 
 broken off with Uruguay, Brazil carried out her intention of exer- 
 cising reprisals by the much wider measure than can properly be 
 covered by that term of instituting a blockade of Salto and 
 Paysandu. It was announced in a note to the British Ministers 
 at Montevideo and Buenos Ayres from the Brazilian Admiral 
 Tamandare. The former complained of the absence of any date 
 of commencement of the blockade, and of the impropriety of inter- 
 ference with third parties whilst no war existed;^ and Earl Russell 
 declared that mere reprisals could not affect neutrals, and also that 
 no British vessel should be detained which had not had full and 
 due notice of the existence of the blockade — an approximation to 
 the French doctrine of individual notification. He also made the 
 significant assertion that "the right of interfering with the com- 
 merce of a neutral is incident, and incident only, to a state of 
 war."^ This pacific blockade, as is the natural tendency of such 
 measures, immediately ran out into operations of war and the 
 siege of Paysandu, which fell on 2 January, 1865. 
 
 Montevideo itself was blockaded on 2 February, 1865, seven 
 days being allowed for egress.* Peace was declared on the 21st. 
 
 Brazil and Uruguay having come to terms, war immediately 
 broke out between La Plata and Paraguay, and the ports of the latter 
 Power were blockaded^ by a decree of the Argentine President. 
 Brazil, already at war with Paraguay, instituted a like blockade 
 (notified, as before, by the Admiral), allowing twenty days for 
 exit, and including in its limits the province of Matto Grosso as 
 occupied by the enemy.® During the continuance of this blockade 
 the " Doterel " was permitted to proceed to Asuncion to treat 
 with Lopez for the return of British subjects ; but the " Linnet" 
 was not allowed to traverse the line of blockade for the general 
 support of British interests in Paraguay,^ 
 
 The Venezuelan blockade (established 13 September, 1864, by 
 decree notified to foreign legations) of the Orinoco was raised by 
 similar notification on 14 December, 1864.^ 
 
 The Brazilian blockade of Montevideo was raised on the con- 
 clusion of peace, 21 February, 1865.* 
 
 On 24 September, 1865,^° the Spanish Admiral notified the 
 legations in Chili that the ports of that country were considered in 
 a state of blockade. War ensued with Chili and Peru, and in its 
 
 » State Papers, Vol. LXVI, pp. 1201 et seq. 2 /^zV/., p. 1206. 
 
 3 Ibid., p. 1209. « Ibid., p. 1243. 
 
 6 Ibid., p. 1263. 6 Ibid., p. 1265. 
 
 ' Ibid., pp. 1300, 1350. 8 /^jV/., Vol. LV, p. 293. 
 
 » Ibid., p. 295. 10 Ibid., p. 296 ; Vol. LVI, p. 741. 
 
BLOCKADE 171 
 
 course the proclamation was succeeded by others more definite. 
 In the first place, there supervened a blockade of Callao, 
 Valparaiso, and Caldera ; notified by the Spanish Admiral to 
 the representatives of foreign Powers in Peru and Chili. In 
 the case of Callao six days were allowed • for exit, and the 
 blockades were raised by the summer.^ The full instructions 
 to the Spanish naval commanders present considerable interest :* 
 they recognize the principle " Free ships, free goods " and 
 the inviolability of convoy and fishermen, and declare that "a 
 neutral vessel bound to a blockaded port is not obliged to know 
 that such blockade exists until after it has been notified to 
 her and the notification is written in the muster-roll or in 
 some other document which the ship carries ..." Similarly 
 full instructions were issued to the commanders of Chilian 
 privateers.' Spain not being party to the Declaration of Paris, 
 Chili was at liberty to commission such vessels, having no regular 
 navy. 
 
 Details of the manner in which the Valparaiso blockade was 
 carried out are to be found in a report of Commander Blake to 
 the senior officer.* 
 
 In 1868 Venezuela, by presidential decree dated 9 March, 
 blockaded one of its own States. By Article I II of the instrument 
 it is provided : — 
 
 " If any vessel should approach any part of the coast aforesaid, the 
 blockading force will notify to it the existence of the blockade, noting 
 down in the ship's papers the day and the place, or the latitude, when and 
 where it was met with, and also the notification made to it. In case of 
 the vessel persisting in the attempt to enter, notwithstanding the informa- 
 tion, or if it should return again to the said parts of the coast, it will be 
 subject to be captured and detained for judgment accordingly."^ 
 
 The blockade was raised by decree, 22 May.® 
 
 The Franco- Prussian war of 1870 was not without its block- 
 ades. By a declaration of Admiral Fourichon the coast of Prussia 
 and her allies was blockaded in accordance with its terms, as 
 follows (as translated in Earl Granville's " Gazette" notice) : — ^ 
 
 "From the isth of August, 1870, the coast of Prussia and the North 
 German Confederation, extending from the Island of Baltrum to the north 
 of the Eider, with its ports, rivers, havens, roads, and creeks, is kept in a 
 state of effective blockade by the naval forces under our command, and 
 friendly or neutral vessels will be allowed a delay of 10 days to com- 
 plete their lading and to quit the blockaded ports. 
 
 1 State Papers, Vol. LVI, pp. 646, 647. 
 
 2 Ibid., p. 741. 3 Ibid., p. 751. 
 
 « Ibidi, p. 755- ^ Ibid., Vol. LVIII, p. 29. 
 
 « Ibid., p. 30. ' Ibid., Vol. LX, p. 443. 
 
172 COMMERCE IN WAR 
 
 " The geographical limits of the blockade are : the meridian of 5° E. 
 long, of Paris, as far as the parallel of 54° s' of N. lat. ; the parallel as far 
 as the longitude of 5° 45' of Paris; thence the meridian of 5° 45' as far 
 as the parallel of 54° 20' of latitude j and finally, this last parallel to the 
 coast. 
 
 " Every vessel that shall attempt to violate the said blockade shall be 
 proceeded with in conformity with the law of nations and the treaties in 
 force with neutral Powers. — On board the ' Magnanime,' etc., 12 August, 
 1870. "(Signed) FOURICHON."^ 
 
 This is believed to be the first instance (except perhaps that 
 noticed above as attempted in 1854) of an attempt to indicate a 
 mathematical area as " the limits of the blockade." Whether the 
 meaning is that a ship is safe outside them, or that she can be 
 captured if she is found trying to get inside them, seems to be 
 doubtful. In either case the innovation seems to be devoid of 
 point. The date of commencement was subsequently stated to 
 have been in reality 19 August.^ The blockade was raised on 
 22 September, and an official communication to that effect was 
 made by M. Jules Favre.* But Rouen, Dieppe, and Fecamp 
 (occupied by the Germans) were blockaded on 13 December. 
 
 An interesting arbitral decision on the subject of blockade was 
 given by the President of Chili on a question referred by Britain 
 and Argentina in 1870.* It affirmed the principle {inter alia) that 
 a term is not necessarily given to neutral vessels within which 
 they may enter a blockaded port. The enunciation of the prin- 
 ciples governing a blockade is lucid, and of sufficient importance 
 to set out in full. He finds : — 
 
 "(i) That the State which resolves to blockade the port of another with 
 which it is at war has the right to dictate all the measures tending to 
 cause the blockade to be respected by neutrals. 
 
 " (2) That it was neither natural nor just to exact from the Argentine 
 Confederation that it should give reception in its ports to vessels that 
 might have violated the blockade, it being on the contrary natural and 
 just that it should refuse to receive them. 
 
 " (3) That a term is not given to neutral vessels within which they 
 may enter a blockaded port, neither can it be exacted that it be granted 
 to them in order that they may submit themselves to the measures dictated 
 for the purpose of causing an established blockade to be respected. 
 
 " (4) That the nation which in a state of war resolves to close its ports 
 to foreign commerce is the sole judge in determining the conditions under 
 which the entry to them may be permitted, and to decide whether those 
 who claim to enter have complied or not complied with those conditions." 
 
 The entire coast of Acheen was blockaded by proclamation of 
 the Governor-General of the Dutch East Indies on 4 June, 
 
 1873-' 
 
 » State Papers, Vol. LX, p. 443. 2 /j^-^.^ p. 4^4, 
 
 3 Ibid., p. 445. * Ibid., Vol. LXIII, p. 1173. « Ibid., p. 976. 
 
BLOCKADE 173 
 
 France blockaded its own territory (presumably in insurrection) 
 on the Gold Coast, on 24 April, 1872. 
 
 Venezuela blockaded two of its own States by presidential 
 decree in 1871 ;^ the blockading force being stated as " i steamer, 
 2 schooners, and 4 cutters." This was hardly adequate ; nor was 
 any time allowed for departure. The Orinoco mouth was block- 
 aded in the same year,^ and opened on 4 May, 1872.* A fourth 
 State was blockaded in 1874.* This blockade was raised on 
 15 March, 1875.* The State was recited in the Venezuelan decree 
 to be in insurrection, and certain specified periods of delay before 
 the blockade came into operation were conceded to vessels coming 
 from distant ports, within which period a special notification was 
 to be given to such vessels attempting to enter blockaded ports. 
 After lapse of the respective periods vessels were to be bound by 
 diplomatic notification. 
 
 The Orinoco was again blockaded by Venezuela in 1880.® 
 
 A blockade of the Gold Coast was established on 29 August, 
 1873, t>y a royal proclamation issued by the Administrator at 
 Cape Coast Castle. This amounted to a blockade of our own 
 protected territories, and on the whole seems to be of doubtful 
 legality qua blockade. One cannot blockade one's own territory 
 unless it is in hostile effective occupation, and although one can 
 Interdict access to the shore, one cannot interfere with vessels on 
 the high seas. Consequently, Captain Fremantle's ensuing de- 
 nunciation of the penalties authorized by the law of nations and 
 by treaties against vessels attempting to violate the blockade was 
 a little wanting in foundation. It may have been for this reason 
 that a further proclamation was issued on 15 December by the 
 succeeding naval officer (Com. Hewett), in which the blockade 
 was carefully limited to the districts occupied by the enemy and 
 his allies. The blockade was finally raised in April, 1874.'^ 
 
 Sulu (said to be Spanish and in insurrection) was blockaded by 
 the Spanish in 1873. Unlike many of these blockades of semi- 
 civilized districts, the Sulu blockade gave rise to several captures, 
 and an interesting correspondence with the British and German 
 Governments ensued.^ The first measures of exclusion were 
 represented as an exclusion of foreign trade, in practice limited 
 to the exclusion of firearms, etc. But on 15 August, 1873, a 
 German ship, the " Marie Louise," was captured in Sulu waters, 
 and declared good prize for (inter alia) breach of a blockade, 
 which was asserted to have commenced de facto on 2 August, it 
 
 1 State Papers, LXVI, p. 939. ^ /},v., LXVII, p. 520. 
 
 3 Ibid., p. 601. * Ibid., Vol. LXVI, p. 1033. 
 
 6 Ibid., p. 1034. * Ibid., Vol. LXXI, pp. 228, 229. 
 
 ' Ibid., Vol. LXV, p. 1289, tt seq. « Ibid., Vol. LXXIII, p. 932, et seq. 
 
174 COMMERCE IN WAR 
 
 not being thought worth while at the time to notify it.^ How a 
 blockade could exist which it was not worth while to notify, on 
 the ground that it never occurred to the authorities that any ships 
 were likely to come, is inexplicable. The Spanish Foreign 
 Minister left this question unanswered, and refused to defend 
 the seizure on this ground. 
 
 Nor did he regard the individual notification to the ship as 
 sufficient to affect it with notice of a blockade. He therefore 
 relied on the ground of contraband : and treated the use of 
 British colours by the German ship as fraud, which justified con- 
 demnation of the latter as prize of war. Lastly, he justified the 
 capture as valid by municipal navigation laws, and effected in 
 territorial waters.^ 
 
 In November, a notification of blockade was published by the 
 Spanish Vice-Consul at Singapore, through the official "Gazette"; 
 this was objected to by Germany as insufficient,* but in March, 
 1875, we find Sir Hugh Low writing from Labuan that "the 
 blockade is being intensified in vigour."* H.M.S. "Frolic" was 
 accordingly excluded from Sulu.^ But in the early part of the 
 same year there seemed some likelihood of an acceptance of 
 the Spanish terms by Sulu : and the blockade was raised quoad 
 Spanish ships, which on the principles of the " Franciska,"* was 
 sufficient to invalidate it altogether. 
 
 Lord Derby, in a despatch to Lord Odo Russell, took occasion 
 to assert that the Spanish Government was not in a position to 
 proclaim a blockade in Sulu so long as she claimed sovereignty 
 over that archipelago. 
 
 " Blockade," he said, " is a belligerent right, and can only be exercised 
 against a State with which the blockading Power is at war. A Power 
 may prohibit foreign trade with its own ports ; but such prohibition does 
 not carry with it the same rights of interference with foreign vessels as are 
 conferred by a regularly constituted blockade." — (17 January, 1876.) 
 
 This is true : but it overlooks the fact that Spain and Sulu were 
 de facto belligerents, and it was extraordinary that Lord Derby 
 should have been advised to put forward such a contention as 
 that a nation cannot blockade its own ports, when twelve years 
 previously the United States had blockaded Charleston, Balti- 
 more, and New Orleans. 
 
 On 31 January, 1874, the Spanish Republic declared a blockade 
 of the north coast of Spain against the Carlists (excepting Gijon, 
 
 1 State Papers, Vol. LXXIII, p. 940. 
 
 2 Ibid., Mr. Carvahal to Baron von Canitz, 22 December, 1873. 
 
 3 Ibid., Count Munster to Earl Granville, 13 February, 1874. 
 
 * Ibid., p. 957- « Ibid., p. 958. 
 
 * Northcote v. Douglas, 10 Moo., P.C.C, 37. 
 
BLOCKADE 175 
 
 Santander and S. Sebastian) as from 20 February. It was, how- 
 ever, never put in force. ^ 
 
 The Dahomey coast within certain limits was blockaded by the 
 British Government (by Commodore's declaration) on 3 July, 
 1876. A previous blockade had been instituted by the Commo- 
 dore, but postponed by the Government.^ 
 
 A notification dated 28 June, 1877, was subsequently published 
 in the " London Gazette," to the effect that the Admiralty had 
 transmitted to the Foreign Office information received from the 
 senior officer on the station that the blockade had been raised 
 from 12 May, 1877.^ 
 
 The Turkish blockade of the Black Sea in 1877 was notified by 
 the Ambassador at Constantinople to the British Government on 
 4 May. A delay of three days for entrance and five for clear- 
 ance was allowed (subsequently extended).* The armistice of 
 1878 involved the raising of the blockade, which was officially 
 notified on 4 February.* 
 
 In October, 1879, Porto Plata and Monte Christi (in insurrec- 
 tion) were blockaded by San Domingo, lengthy indulgences being 
 accorded.® 
 
 At the outset of the Chili-Peruvian war of 1879 the Chilians 
 blockaded Iquique,' and the fact was notified to Foreign Ministers. 
 The blockade was raised on 5 August,® Arica was blockaded 
 (with due notification) on 6 December,' Callao on 10 April, 
 1880.^" 
 
 In the last case the Chilian naval authorities alone gave the 
 notification, communicating with the consular doyen at Callao ; 
 and short notice to leave was given (ten days). Ilo and 
 Mollendo were blockaded in a similar manner in the same 
 month. " 
 
 The years 1883 and 1884 saw several minor blockades, and one 
 (Formosa) of noticeable importance. 
 
 Jdrdmie and Jacmel (in Hayti) were blockaded by presidential 
 decree on 5 June and 24 July. A blockade of Mirago^ne, in the 
 same island, had been announced to the British Consul on 3 May,^^ 
 and on 14 December through the same channel it was notified 
 that the blockade of Jacmel had become effective through the 
 arrival of the corvette " Dessalines." This double declaration of 
 blockade and effective blockade suggests possible complications 
 which might be worth consideration. As a matter of fact, Jacmel 
 
 » State Papers, LXV, p. 642 et seq. « Ibid., LXVII, p. 530. 
 
 3 Ibid., LXVIII, p. 82. « Ibid., p. 922. 
 
 « Ibid., Vol. LXIX, p. 626. 8 Ibid., Vol. LXX, p. 181. 
 
 1 Ibid., p. 1195. ^ Ibid., p. 1195- 
 
 9 Ibid., Vol. LXXI, p. 128. >« Ibid., p. 374- 
 
 " Ibid., p. 763. ^ Ibid., Vol. LXXIV, pp. 762, 763. 
 
176 COMMERCE IN WAR 
 
 was taken very shortly afterwards,^ and Miragodne early in 1884,^ 
 when the insurrection ended. 
 
 The capture of the shipwrecked crew (British, Dutch, and 
 other) of the " Nisero " by an Achtn rija (the Rija of Tenom) was 
 the occasion of a blockade of his territories by the Dutch,' after a 
 fruitless and devastating land expedition.* The actual motive of 
 the Rija's action was to put pressure on the Dutch in order to 
 remove restrictions on his trade/ 
 
 Earl Granville observed that the blockade would constitute 
 
 "an act of war . . . giving other Powers the right to recognize the 
 Achinese as belligerents. To this it was replied," he says, "that the pro- 
 posed blockade was not intended as a blockade jure gentium, but as a 
 municipal act under which the ports would be closed to trade. I pointed 
 out that the closing of ports to foreign trade as a municipal act could 
 only apply to ports in the possession of the Netherlands Government, but 
 that as regards those ports which were in the possession and under the 
 control of the hostile Achinese, the access of neutral vessels thereto could 
 only be lawfully interdicted by an effective hXocVaA^ jure gentium''^ 
 
 In 1884, France blockaded certain ports in Madagascar, by no 
 further formality than the declarations of the Admiral (Micot) to 
 the diplomatic body in the island.^ She also blockaded the north 
 and west coasts of Formosa, In this case a declaration by the 
 Admiral appeared in the " Journal Officiel," and a copy was sent 
 by the French Foreign Office to the British Ambassador, At the 
 same time the blockade was notified to Lord Granville by the 
 French Ambassador in London. The Admiral's declaration ran 
 thus : — 
 
 " Nous, etc., d^clarpns qu'a partir du 23 Octobre, 1884, tous les ports et 
 rades de Tile Formosa compris entre le Cap Sud ou Cap Nansha et la Bale 
 Soo-an, en passant par I'ouest et le nord (ces points places, le premier par 
 21° 5S' lat. N. et 118° 30' long. E. de Paris ; le second par 24° 30' lat, N. et 
 119° 33' long. E. de Paris), seront tenus en dtat de blocus effectif par les 
 forces navales placdes sous notre commandement, et que les batiments 
 amis auront un delai de 3 jours pour achever leur chargeraent et quitter les 
 lieux bloqu6s. II sera procddd contre tout b^timent qui tenterait de violer 
 le dit blocus conform6ment aux lois Internationales et aux traitds en 
 vigueur. A bord du cuirass^ frangais ; ' Bayard,' le 20 Octobre, 1 884." 
 
 On the institution of the blockade of Formosa, Lord Granville 
 wrote to the French Ambassador that H.B.M.'s Government 
 were limiting their action to the observance of the Foreign Enlist- 
 ment Act, If the French proposed simply to interdict the access 
 
 > State Papers, Vol. LXXV, p. 492. 2 Ibid., p. 493. 
 
 3 Ibid., pp. 493, 1 125, 1 144, 1151, 1154, «/ passim. 
 * Ibid., p. 1 1 24. « Ibid., p. 1 1 32. 
 
 8 Ibid., p. 1 145- ' Ibid, pp. 493, 495. 
 
BLOCKADE i;7 
 
 to Formosa of neutral ships by force, he was prepared to let 
 matters remain on that footing. But if they were to be seized 
 and captured, further steps would have to be taken ^ such as the 
 issue of a proclamation of neutrality would entail.'' This sugges- 
 tion M. Waddington failed to appreciate. He declared* that 
 Britain and France were accustomed to establish blockades in 
 time of peace, and that the sanction of their courts (" juridictions 
 spdciales ") had been given to such a proceeding. Earl Granville 
 reiterated his view that France and China were at war, and put 
 the Foreign Enlistment Act in active execution. The blockade 
 was thus legitimated, and affords another instance of the tendency 
 of " pacific " blockades to furnish an avenue to war. 
 
 The French blockade of Madagascar gave rise to one or two 
 points of interest. The British vessel " Or6noque " was given 
 notice to leave one of the blockaded ports within five hours ; this 
 was protested against by Lord Granville, who stated that the 
 more recent custom was to allow fifteen days for egress.* 
 
 The Egyptian coast of the Red Sea, within certain limits, was 
 blockaded in the autumn of 1885.* 
 
 A blockade of Carthagena, in Colombia, was established in 
 February, 1885. It possesses this feature of interest for the 
 student of federal constitutions, that it was established by the 
 State of Bolivar over an insurgent port within its own territory 
 without reference to the central government of Santa F6 da 
 Bogota. 
 
 The blockade of Carthagena was declared on 16 February, 1885, 
 and a note to that effect was directed to H.B.M. Consul at Barran- 
 quilla by the Bolivar Secretary-General there. It was maintained 
 by a tug-boat of 120 tons with two guns. The whole proceedings 
 seem very confused, because another Colombian State (Panama) 
 had already declared Barranquilla (and the other port at the 
 mouth of the Magdalena, Savanilla) " closed to foreign com- 
 merce "on 14 January, and had been seconded by an officer 
 styled the Fiscal Inspector of the Custom Houses of the Atlantic, 
 who, as "the immediate representative of the national executive 
 power," had (from Carthagena) declared Savanilla and Barran- 
 quilla closed to foreign commerce and coasting trade, and had 
 declared that duties would be exacted over again from vessels 
 disregarding the prohibition. The outcome of this interesting 
 situation is unfortunately not apparent,^ but the result of the 
 general conflict seems to have been unfavourable to the Panama 
 authorities.^ 
 
 » State Papers, Vol. LXXVI, p. 424. « /hd., p. 431. 
 
 » Ihd., p. 425. * I6iei., p. 455. « Hid., p. 7i9- 
 
 • litii., pp. 1016-19. ' "Annual Register." 
 
 N 
 
178 COMMERCE IN WAR 
 
 In 1886, San Domingo blockaded the district of Monte Christi 
 for two or three months/ and the " pacific " blockade of Greece 
 took place. This was a blockade limited to Greek vessels, and 
 so presenting few analogies with a real blockade. It has been 
 justified as a measure of reprisals, but obviously went very much 
 further than the mere seizure of a definite number of ships as 
 security for liquidated damages — which is all that reprisals properly 
 cover. 
 
 France was not a party to this blockade, which, as is known, 
 was motived by the nervousness with which the Powers regarded 
 any possible outbreak of war in the Balkans. It was thought 
 at the time that any violent proceedings in that quarter would act 
 as a spark in a powder magazine. We now know that when 
 Greece and Turkey went to war ten years later there was little 
 difficulty in localizing the disturbance. Perhaps it is hard to 
 blame statesmen who were not so clear-sighted as M. de Frey- 
 cinet, who felt at liberty to declare^ to Lord Lyons that he was 
 not disposed to send ships to Greek waters . . , that he shrank 
 from running the risk of placing the naval forces of France in a 
 position in which they might be called to fire upon Greek ships, 
 and that he felt sure that anything of this kind would be very 
 repugnant to public feeling in France. 
 
 The Gladstone as well as the Salisbury Government is, how- 
 ever, responsible for the adoption of the " blockade " by Great 
 Britain, and Lord Rosebery strongly condemned the politics of 
 Greece in a lengthy justification of the attitude of the British 
 Government. On 7 May, 1886, the Ambassadors left Greece. 
 The curious blockade was then instituted, which included some- 
 what improperly, in any event, "the entrance to the Gulf of 
 Corinth," — part of the high seas,' — and which was declared to be 
 instituted "against ships under the Greek flag."^ It was also 
 limited by the specific instructions given to commanders not to in- 
 terfere with Greek vessels carrying the goods of other Powers under 
 arrangements made prior to the "blockade." How the blockading 
 Powers proposed to justify to other nations (say the North 
 American States or France) the detention of goods belonging 
 to their subjects being on board sequestrated Greek vessels, or 
 damaged by remaining on shore for want of a ship during these 
 sweeping interferences with commerce, is a point regarding which 
 no interest seems to have been shown. The sequestrated vessels 
 were to be restored at the conclusion of the blockade (no liability 
 for compensation being admitted).* 
 
 The French Charg^ d' Affaires informed Lord Salisbury on 
 
 1 State Papers, LXXVII., p. 1029. 2 Ibid., p. 653. 
 
 3 Ibid^ p. 682. « Ibid., p. 690. 
 
BLOCKADE 179 
 
 9 October, 1887, that the French President at Grand Bassam had 
 established a blockade of the Ebrie coast from Abre to Dabou 
 inclusive.^ It was raised 13 February, 1888.^ In a precisely 
 similar way Portugal announced the blockade and reopening of 
 Quissembo. No delays were fixed — probably none were neces- 
 sary. Various Haytian ports were blockaded by Hayti at the 
 end of October, 1888 ;^ this blockade is remarkable for the fact 
 that the British Consul-General in Hayti intimated in the follow- 
 ing June that it had plainly ceased to be effective, and would no 
 longer be respected.* 
 
 The blockade of the Zanzibar coast of East Africa by Britain 
 and Germany is worth a word of notice. Ostensibly established 
 by the assent of the Sultan of Zanzibar, it was directed to the 
 stoppage of the import of arms and the export of slaves,^ and was 
 apparently justified by the fact that the continental dominions of 
 Zanzibar were in insurrection.® However, the Sultan's self- 
 constituted mandatories, Britain and Germany, were in possession 
 of Bagamoyo and other places on the coast, and the blockade 
 seems illegal in so far as it prohibited access generally. The 
 Portuguese were induced to issue a notification of blockade of 
 their Mozambique coast, then in their effective occupation, "as 
 against the importation of arms and the exportation of slaves " — 
 a futile and absolutely illegal pretension^ if the proclamation 
 meant what it said. Probably it merely meant that the ports 
 would be closed to such traffic under municipal penalties. 
 
 His Highness the Sultan of Zanzibar (whose subjects found 
 their commerce with the mainland interdicted) declined to co- 
 operate actively. The "blockade" was notified by the British 
 Consul-General, and a British proclamation by him limited its 
 operation to the traffic in slaves and munitions of war. But no 
 Government can assume to prohibit certain kinds of traffic with 
 its ports under the penalties of blockade-running, and the British 
 and Germans were in this case trying to do exactly what they had 
 blamed the Spaniards for doing in Sulu.* 
 
 The actual establishment of the blockade — as distinguished 
 from the Sultan's and the Consul's notifications — was by a joint 
 declaration in the name of the Sultan by the British and German 
 Admirals, dated 2 December, 1888. 
 
 " In accordance with instructions received from our respective Govern- 
 ments, and in the name of H.H. the Sultan of Zanzibar, we, the Admirals 
 commanding the British and German Squadrons, hereby declare a blockade 
 
 1 State Papers, Vol. LXXVIII, p. 169. ^ /^^-^.^ vol. LXIX, p. 234. 
 
 » Ibid., p. 23s. * Ibid., Vol. LXXXI, p. 165. 
 
 6 Ibid., Vol. LXXIX, p. 382. « Ibid., p. 380. 
 
 ' Ibid., p. 385. ' Supra, p. 174. 
 
i8o COMMERCE IN WAR 
 
 against the importation of munitions of war and the exportation of slaves 
 only, on the continuous line of coast of Zanzibar, including the Islands of 
 Mafia and Lamu and the lesser islands adjoining the coast from io° 28' S. 
 to 2° 10' S. lat. The blockade will be in force from noon on the 2nd 
 December, 1888. 
 
 " (Signed) E. R. Fremantle, British Rear-Admiral, 
 
 C.-in-C. East Station. 
 " Deinhard, German Rear-Admiral, 
 
 Commanding Flying Squadron." 
 
 The Consul-General who issued the proclamation was made 
 the judge for deciding cases of prize arising out of its violation.^ 
 Italy joined the "blockading" Powers in December." By- 
 February, Admiral Deinhard was stopping provisions, and the 
 German Government justified his action. They considered it 
 " independent of the blockade," which was a peaceful operation 
 directed against the slave-trade ; and that it was a measure called 
 for by the exigencies of war. Thus we have the full cycle — the 
 term " blockade " has become so far wrested from its proper mean- 
 ing as to be actually treated as inapplicable to the isolation of a 
 besieged place. ^ 
 
 This blockade, which was nothing more than an exercise of 
 municipal law from first to last, was raised on i October, 1889.* 
 The permission of France had actually to be asked for before her 
 dhows could be searched for arms in Zanzibar waters themselves,® 
 which shows that the measure partook in no respect of the nature 
 of a blockade. 
 
 On 7 April, 1890, a blockade of part of the Slave Coast was 
 instituted by France. It was established by a notice issued by the 
 Commander-in-Chief in the Bay of Benin, and a delay of only 
 three days was allowed.* It was notified in London by the 
 French Ambassador, and raised on 28 October. In 1892 it was 
 renewed (15 June) and notified by the Ambassador, being again 
 raised on 19 December.'^ 
 
 During the Franco-Siamese difficulty of 1893, Lord Dufferin 
 elicited from M. Develle the information that, should the Eastern 
 Power prove recalcitrant, the French fleet would blockade the 
 Menam.^ This Lord Dufferin characterized as resembling "riding 
 another man's horse with one's own spurs" — as it would simply 
 damage British and German trade. The blockade was neverthe- 
 less imposed, and it can hardly be doubted that in view of the other 
 hostile measures which were taken by the parties, a state of war 
 
 1 State Papers, LXXXI, p. 98. 2 /^^y., p. 100. 
 
 3 Ibid., p. 119- ^ Ibid., p. 132. 
 
 5 Ibid., p. 121. (Consul Euan-Smith to Lord Salisbury, 26 February, 1880.) 
 
 « Ibid., Vol. LXXXII, p. 1071. 1 Ibid., p. 1072. 
 
 8 Ibid., Vol. LXXXIV, pp. 688, 689. 
 
BLOCKADE i8i 
 
 then existed between them. The blockade was not restricted to 
 Siamese vessels ; and not only was the blockaded coast and ports 
 indicated, but the modern innovation was adopted of interdicting 
 access to zones of sea. The proclamations ran as follows : — ^ 
 
 " Nous, etc., declarons qu'k partir du 26 Juillet, 1893 [the date of the 
 document] kgh.de soir, tous les ports et rades de le cote, et des iles 
 Siamoises compris entre la Pointe Chulaf et la Pointe Lem-kra-bang, en 
 passant par le nord (ces pointes, le premier par 13° 2' de lat. N. et 97° 43' 
 de long. E. du meridian de Paris ; le second par 13° 5' de lat. N. and 
 98° 31' de long. E. du meridian de Paris), seront tenus en 6ta.t de blocus 
 effectif pas les forces navales sous nos ordres, et que les bStiments amis 
 auront un ddlai de trois jours pour quitter les lieux bloques. II sera proc^d^ 
 centre tout bitiment qui tenterait de violer le dit blocus conforraement aux 
 lois internationales et aux traitds en vigueur. A bord du croiseur le 
 ' Forfait ' etc, 
 
 " (Signed) A. Reculoux." 
 
 The above was issued by the commander of the squadron in 
 the Gulf of Siam. Its mention of "amis" shows that hostilities 
 then existed : and it was followed by a proclamation by the 
 Admiral of the P'ar Eastern fleet. 
 
 "Nous, etc., vu r^tat de repr^sailles existant entre le France et le 
 Siam . . . declarons, qu'a partir du 29 Juillet, 1893 [date of the document] 
 le cote et les ports de Siam, compris : — 
 
 " Entre la Pointe Chulai' ... a la pointe Lem-krabang. . . . 
 
 "2. Entre la pointe S. de I'tle Ko-Samit, lat. 12° 31' N., long. 99° 6' E. 
 et la pointe Lem-Ling, lat. 12° 11' N., long. 99° 58' E., 
 
 " seront tenus en etat de blocus effectif par les forces navales plac^es 
 sous notre commandement, et que les bStiments amis ou neutres auront 
 un delai de trois jours pour achever leur chargement et quitter les lieux 
 bloques, 
 
 " Les limites du blocus s'etendront, — 
 
 " I. Pour la premiere zone bloquee jusqu'k une ligne joignant la pointe 
 Chulai (ci-dessus designee) a la pointe Lem-kra-bang (ci-dessus designee). 
 
 " 2. Pour la deuxieme zone bloquee jusqu'a une ligne joignant la pointe 
 de I'ile Ko-Samit (ci-dessus designee) a la pointe Lem-Ling (ci-dessus 
 designee). 
 
 " II sera proc6d6 etc. A bord de la ' Triomphante ' etc. 
 
 "(Signed) Humann," 
 
 There is a manifest contradiction in styling the proceedings 
 reprisals, and at the same time talking about "amis" and 
 "neutres." Besides, "a state of reprisals" is an expression 
 unknown to International Law. States are either at war, or at 
 peace : and when at peace, one or other or both may commit 
 reprisals, which is a different matter. The word was probably 
 introduced as an equivalent for the phrase "war" employed in 
 
 * State Papers, LXXXVII, p. 351. 
 
1 82 COMMERCE IN WAR 
 
 the common form, and designed to be less alarming than "war," 
 and less ridiculous than " peace." 
 
 The blockade was raised in two or three days by a proclamation 
 which it is unnecessary to quote. Before its institution (on 
 27 July), Lord Dufferin intimated to the Prime Minister that it 
 would be put in force on the 3ist.^ Whether or not the fact had 
 been officially intimated does not appear. The news caused 
 Lord Rosebery the greatest surprise, especially as the British 
 Minister at Bangkok telegraphed on the 27th that the blockade 
 had already been established ; and he at once instructed Lord 
 Dufferin to ask for explanations. Later he intimated,* that if 
 the blockade affected neutral vessels, it must constitute a state of 
 belligerency, French vessels must therefore be restricted In 
 their visits to Singapore, where the " Pepin " was daily expected^ 
 The French Government maintained that the discrepancy in 
 dates (between the 31st and 26th) was due to a telegraphic 
 error; unfortunately, a British vessel was stopped and excluded on 
 the 27th or 28th. Eventually she was permitted to enter and 
 discharge, clearing on the 30th. The French Admiral notified 
 the British senior officer that the blockade applied to warships, 
 and the latter instructed the " Linnet " to leave Bangkok. Lord 
 Rosebery, however, telegraphed that the " Linnet " " must on no 
 account leave under the present circumstances."* 
 
 M. Develle cited, in a despatch of 3 August, 1893, the stock 
 cases on the subject, beginning in 1827. It seems difficult to 
 say why France refused to admit that she was at war with Siam 
 -—except for the very pressing, but inadmissible, reason that 
 belligerency entails responsibility. On 13 July, her gunboats 
 " Inconstant" and " Comete " had passed the Menam bar under a 
 heavy fire from the forts at the mouth of the river.* On the 14th, 
 17th, and 19th, there had been fighting on the frontier, when 300 
 had been killed.' It is absurd to say that fighting, a blockade, 
 and a territorial occupation can go on while States are at peace. 
 If the French Government wished to disavow the passage of the 
 Menam bar, the institution of a blockade was a most unfortunate 
 method of exhibiting their pacific intentions. 
 
 The apparent attempt to extend the area of the blockade by 
 purporting to define its limits has been imitated on more than one 
 occasion. A line drawn from Point Chulai on the west to Cape 
 Lem-kra-bang on the east of the Gulf of Siam, encloses a space of 
 some sixty miles each way, which is not the territory of Siam 
 except at the coast-line. How it can be asserted to be possible 
 to blockade such an area is beyond comprehension ; for it would 
 
 1 State Papers, LXXXVII, p. 276 tt seq. 2 Ibid., p. 282. 
 
 ' Ibid., p. 287. * Z5iV/., p. 302. 6 Ibid., p. 320. 
 
BLOCKADE 183 
 
 involve the exclusion of neutrals from the common highway of 
 nations. Certainly no neutral vessel, except a yacht or surveying 
 ship, would be very likely to go so far up the Gulf, unless she were 
 going to Bangkok ; but that is entirely irrelevant to the question 
 of principle. 
 
 A similar assertion was made at the time of the Cretan 
 blockade instituted in 1897.^ 
 
 The establishment of a blockade of Crete may have been legal 
 or not. The assertion of a considerable area of the Medi- 
 terranean as "the limits of the blockade" was bad beyond argu- 
 ment. This was, perhaps, the most anomalous blockade known 
 to science. The territorial Power (which was Turkey) was not 
 injured : the blockade was established for her benefit. It was, in 
 fact, a kind of partial blockade of Greece, designed to prevent 
 Greek intercourse with Crete. Nothing is better settled than 
 that a blockade which is good against some Powers only, is utterly 
 bad •} consequently, the Cretan blockade was bad ab initio, and a 
 mere exercise of force majeure. For it was put forward as being 
 absolute as against Greek ships, and qualified as against 
 " neutrals," whose vessels were liable to supervision and to inter- 
 diction from commerce with the interior. 
 
 The limits within which the Admirals affected to circumscribe 
 their sphere of interference were the parallels of 34° 45' and 35° 
 48' N. and the meridians of 23° 24' and 26° 30' E., i.e. about 
 twenty miles E. and W. of Crete, and considerably more N. and S. 
 
 Notice was given in the "London Gazette" (13 December, 
 1898) of the raising of this so-called blockade;^ but there is no 
 information as to any captures in pursuance of it. Hostilities 
 supervened between the Greek kingdom and Turkey ; and in 
 its turn, Greece proclaimed a blockade of Epirus and parts of the 
 littoral of the Gulfs of Salonica and Volo. This was done by 
 an official communication from Mr. Metaxas to the Marquis of 
 Salisbury, dated 26 April (8 May), 1897.* 
 
 " J'ai I'honneur de porter 4 la connaissance de votre excellence qu'i 
 partir du 26 April (8 Mai) a six heures du matin les cotes de I'Epire et une 
 partie du littoral du golfe de Salonique sont mises en 6tat de blocus effectif. 
 Les limites gdographiques de ce blocus sont fix^es ainsi qu'il suit. Au golfe 
 de Salonique le blocus s'etendra de la riviere du P^nde entre 39° 54' lat. N. 
 et 23° 44' long. E. jusqu'i le riviere de Halicmon entre 40° 29' 30" Idt. N. 
 et 22° 3'* long. E. Le littoral bloqu6 serait d'une distance de S niilles 
 marins de le c6te. Sur les c6tes I'Epire, le blocus s'6tendre de Pr6vesa 
 entre 38° 50' lat. N. et 20° 44' 30" long, E. jusque et y compris Hagii 
 Seranta (Santi Quaranta) entre 39° 50' 4" lat. N. et 20° 8' long. E. de la 
 c6te. Le blocus s'etendra jusqu'i la port6e d'un canon. Les d^troits 
 
 1 State Papers, Vol. LXXXIX, p. 446. 
 
 2 The " Franciska " Northcote v. Douglas, 1 1 Moo. P. C. C. 37. 
 
 « Ibid., Vol. XCI, p. 1 13. * Ibid., Vol. LXXXIX, p. 443- " 33' (?)• 
 
i84 COMMERCE IN WAR 
 
 formds par I'lle de Corfu n'y sont compris et seront laiss^s libres k la 
 navigation. Les navires que traverseront ces ddtroits seront visit6s par 
 les vaisseaux de la Marine Royale qu'auront pour mission de maintenir 
 le blocus." 
 
 And three days later : — 
 
 "Faisant suite k ma note du 8 de ce mois, j'ai I'honneur, d'ordre de mon 
 Gouvernement, de porter k la connaissance de votre Excellence que le 
 blocus effectif des c6tes de I'Epire a 6t6 6tendu jusque et y compris 
 Valona entre 40° 22' 6" lat. N. et 19° 10' long. E." 
 
 And again {^ May, 1897) : — 
 
 " J'ai I'honneur de porter k la connaissance de votre Excellence que j'ai 
 6t6 charg^ par mon gouvernement de communiquer au gouvernement de 
 S.M.B. que le Golfe de Volo a 6t6 ddclard en blocus effectif." 
 
 Here the proposal is more modest : though many will demur to 
 the extension of the territorial waters blockaded to anything 
 further than the recognized limit of three nautical miles. The 
 treatment of the entire Gulf of Volo as a Turkish harbour is 
 legitimate enough. It was entirely enclosed by Turkish territory, 
 and has a mouth only four geographical miles wide. Meanwhile, 
 the Powers (except Austria and Germany) were continuing to 
 "blockade" part of the territory of one belligerent as against the 
 other 1 — a decided interference with the rights of belligerency, 
 though less evidently improper than the German plan of 
 blockading Greece. The threat of the latter measure had such 
 an exasperating effect that it is assigned as a main cause of the 
 outbreak of war between Greece and Turkey.^ 
 
 The United States blockades of 1898 were announced by 
 proclamations, in which the old form was adhered to, specifying 
 the ports blockaded, and refraining from blockading sea-water. 
 A period of thirty days was allowed for exit.^ 
 
 Both parties agreed that blockades, to be binding, must be 
 effective ; Spain in more specific terms.* 
 
 The following notifications with regard to blockades during the 
 Russo-Japanese War appeared in the " London Gazette " : — - 
 
 "May 28, 1904. 
 
 " H.M's. Principal Secretary of State for Foreign Affairs has received 
 a notification to the following effect from the Japanese Minister in 
 London : — 
 
 " ' By command of the Imperial Japanese Government, Admiral Togo 
 has declared that on the 26th inst. the entire coast of the Liao-Tung 
 Peninsula lying south of a straight line drawn between Pitsuwo and 
 Pulantien was effectively blockaded by the Imperial naval forces, and that 
 the blockade will continue to be maintained in an effective state.' " 
 
 1 State Papers, Vol. XCI, p. 219 (Egerton to Salisbury). 
 
 2 Ibid., Vol. XC, pp. 1035, 1038, 1039. 3 Ibid., pp. 159, 381. 
 
BLOCKADE 
 
 l8S 
 
 Individual warning and time for exit do not appear to have 
 been given. 
 
 "January 5, 1905. 
 
 " H.M's. Principal Secretary of State for Foreign Affairs has received the 
 following telegram from H.M's. Minister at Tokio, dated January 2, 1905 : — 
 
 " ' The blockade of the Liao-Tung Peninsula is modified by Proclama- 
 tion from January i as follows : — 
 
 " ' A line south of the line from Wedge Road on the north-west to South 
 Entry Cape on the south-east. For the present no vessels except Govern- 
 ment transports are allowed to enter Dalny Bay without special per- 
 mission.' " 
 
 LIST OF CASES ON BLOCKADE 
 
 I7S9- 
 1798. 
 
 1799. 
 1799. 
 1799. 
 1799. 
 1799. 
 
 1799. 
 1799. 
 1799. 
 1799. 
 1799. 
 1799. 
 1799. 
 1799. 
 
 1799. 
 
 1800, 
 1800. 
 1800. 
 
 1801. 
 
 1801. 
 
 1801. 
 1801. 
 1 80 1. 
 
 1801. 
 
 1801. 
 1801. 
 
 "Die Vier Gebrceders" Burrell, 159 
 
 The "Betsy "(Murphy) i Rob., 92(a) . 
 
 The " Mercurius " . i Rob., 80 
 The " Henrick and Maria" i Rob., 146 . 
 The " Vrow Judith " . i Rob., 1 50 
 The " Columbia" . i Rob., 154 
 The "Neptunus" . I Rob., 170 
 
 (Kuyp) I 
 The"Betsy"(Goodhue) I Rob., 332 
 The " Posten " . i Rob., 335 
 
 The "Neptunus" (Hempel) 2 Rob., no. 
 
 Judicial cognizance of 
 blockade. 
 
 Definition of a legal 
 blockade. 
 Knowledge by cargo owners. 
 
 Notification. 
 
 Egress ; notification. 
 
 Notification. 
 
 Notification and expira- 
 tion of blockade. 
 
 Notification. 
 
 Notification. 
 
 Notification. 
 
 The "Adelaide" 
 The "Juno" 
 The "Calypso" 
 
 The"JongePetronella" 2 Rob., 131 
 The " Hurtige Hane 
 
 2 Rob., 1 10 note (a) Notification. 
 
 2 Rob., 116 
 2 Rob., 298 
 
 The " Welvaart van Pil 
 
 law" 
 The "Neptunus" (Kuyp) II 
 
 The "Caroline" 
 
 The "Juffrow Maria 
 Schroeder" 
 
 The " Twee Gebrce- 
 ders" 
 
 The "Jonge Pieter" . 
 
 The " Alexander " 
 The " Potsdam " 
 The "Juffrow Maria . 
 
 Schroeder" II 
 The " Ocean " . 
 
 The "Adelaide" 
 The "Hurtige Hane" . 
 
 Licence. 
 
 Notification ; time. 
 Notification ; time. 
 2 Rob., 124 . Justification for entering 
 
 blockaded port. 
 2 Rob., 1 28 . Notification ; when liable 
 to capture. 
 3 Rob., 173 Notification 
 
 time. 
 3 Rob., 75 . False papers ; further proof. 
 
 3 Rob., 147 . Effect of relaxation, 
 
 3 Rob., 336 , Seizure of ship in neutral 
 
 territory. 
 
 4 Rob., 83 . Land carriage not breach 
 
 of blockade. 
 4 Rob., 93 . Destination. 
 4 Rob., 89 Transfer ofship during blockade. 
 4 Rob., 89 («.) . Withdrawal of goods 
 
 shipped before blockade. 
 3 Rob., 297 . Interior carriage from port 
 
 of destination. 
 3 Rob., 281 Agents' authority. Notification. 
 3 Rob., 324 . Notification ; semi-civilized 
 
 Powers. 
 
1 86 
 
 COMMERCE IN WAR 
 
 1801. The"Frau Ilsabe" 
 iBoi. The"Stert" 
 1803. The"Fortuna" . 
 
 1803. The "Nossa Senhora 
 
 de Adjuda" 
 
 1804. The "Spes" and the 
 
 "Irene" 
 1804. The "Adonis" . 
 
 1804. The "Apollo" . 
 
 1804. 
 1805. 
 1805. 
 
 1805. 
 1805. 
 
 1805. 
 1805. 
 1805. 
 
 1805, 
 1806. 
 1807. 
 
 The " Shepherdess " . 
 The"Neutralitet" . 
 "General Hamil- 
 
 Extent. 
 
 Inland transit. 
 
 Justification for entering 
 blockaded port. 
 
 Notification; time. Treaty 
 respecting enemy goods. 
 
 Inquiries at entrance of 
 blockaded port. 
 
 Owners bound by wrong- 
 ful act of master. 
 
 Remaining in neighbour- 
 hood of blockaded port after warning. 
 5 Rob., 264 Master's intoxication no excuse. 
 
 4 Rob., 63 
 
 4 Rob., 65 
 
 5 Rob., 27 
 
 5 Rob., 52 
 S Rob., 76 
 5 Rob., 256 
 5 Rob., 288 
 
 The 
 ton" 
 
 The " Triheten " 
 
 The "Charlotte Chris- 
 tine" 
 
 The"Hoffnung" 
 
 The " Tutela " . 
 
 The "Gute Erwarter- 
 
 6 Rob., 201 
 
 ung- 
 The " Maria 
 
 The "Charlotte Sophia" 6 Rob., 204(«.) 
 The " Lisette " . .6 Rob., 387 
 
 1807. The"Rolla" 
 
 6 Rob., 364 
 1807. The "Christiansberg" 6 Rob., 376 
 
 1808. 
 1808. 
 1808. 
 1809. 
 1809. 
 1809. 
 1809. 
 
 1809. 
 1809. 
 1809. 
 1809. 
 1809. 
 1 8 10. 
 
 1810. The " Elizabeth " 
 
 1 8 10 The "Arthur" 
 
 1 8 10. The"Charlotta" 
 1 810. The "James Cook" 
 
 6 Rob., 30 Lying near a blockaded port, 
 6 Rob., 61 . Purchase of ship in a 
 
 blockaded port. 
 6 Rob., 65 . Inept notification. 
 6 Rob., loi . Calling for a pilot off 
 
 blockaded port. 
 6 Rob., 112 . Notification ; notoriety. 
 6 Rob., 177 . Notification; notoriety. 
 6 Rob., 182 . Calling for a pilot off 
 blockaded coast. 
 Inland transit. 
 Inland transit. 
 Raising of blockade be- 
 tween time of sailing and of capture ; effect thereof. 
 ~ ' Naval commander's author- 
 
 ity. Individual relaxations. 
 Fraudulent attempt to 
 evade blockade. 
 I Edw., 32 . Neutral property. 
 
 4 Cranch, 434 . Operation of judgment. 
 Overt act necessary. 
 
 5 Cranch, 335 . Knowledge of blockade. 
 I Edw., 191 . Limits of blockaded area. 
 I Acton, 58 Sufficiency of blockading force. 
 I Acton, 63 . Sufficiency of blockading 
 
 force. 
 
 I Acton, 65 . Interruption of blockade. 
 
 I Acton, 128 . Definition of blockade. 
 
 I Edw., 124 . Participation in prize, 
 
 I Acton, 141 . Inquiry at blockaded port. 
 
 I Acton, 163 , Inquiry at blockaded port. 
 
 I Acton, 252 . Effectiveness and notifica- 
 tion of blockade, 
 
 I Edw., 198 . Excuse for entering block- 
 aded port. 
 
 Edw., 198 . Excuse for seeking block- 
 
 aded port. 
 
 I Edw., 252 . Stress of weather. 
 
 I Edw., 261 . Inquiry at blockaded port. 
 
 The "Comet" . 
 Croudson v. Leonard 
 Fitzsimmonsw. Newport 4 Cranch, 185 
 Yeaton v. Fry . . ~ 
 The " Luna " 
 The "Nancy" (Hurd) 
 The "Nancy" (Wood- 
 berry) 
 The "Eagle" . 
 The " Nordstern " 
 The " Forsigheid " 
 The "Little William" , 
 The "Dispatch" 
 The "Hare" 
 
BLOCKADE 
 
 187 
 
 1 8 10. 
 
 1 8 10. 
 
 1813. 
 1813. 
 1814. 
 1815. 
 1815. 
 1818. 
 1818. 
 1828. 
 1854. 
 
 Maryland Insurance v. 
 Woods 
 
 King V. Delaware In- 
 surance 
 
 Williams v. Armroyd 
 
 The "Drie Vrienden" . 
 
 The "Arthur" . 
 
 "La Henriette" . 
 
 "LaMelanie" . 
 
 The Naples Grant 
 
 Olivera v. Union Co. , 
 
 Naylor v. Taylor 
 
 The"Elise" 
 
 1855. The"Fortuna' 
 
 6 Cranch, 29 . 
 
 6 Cranch, 71 . 
 
 7 Cranch, 423 . 
 I Dods., 269 . 
 
 1 Dods., 425 
 
 2 Dods., 96 
 2 Dods., 122 
 
 2 Dods., 273 
 
 3 Wheat., 183 . 
 I Moo. &M., 207 
 Spinks, 95 
 
 Spinks, 307 
 
 Judgment not conclusive. 
 
 Deviation through block- 
 ade. 
 
 Judgment conclusive. 
 Necessity to break blockade. 
 
 Retaliatory blockade. 
 
 Participation in prize. 
 
 Participation in prize. 
 
 Definition of blockade. 
 
 Egress. 
 
 Effectiveness of blockade. 
 
 Notification of blockade 
 in " Gazette." 
 
 Position of ship in relation 
 
 X855. The " Franciska ' 
 
 to blockaded port ; Trinity masters ; captors' evidence. 
 
 1855. The"Ostsee" 
 
 18SS. 
 1855. 
 
 1856. 
 1856. 
 
 1856. 
 
 1857. 
 1858. 
 1862. 
 1864. 
 1864. 
 1864. 
 1865. 
 1865. 
 1865. 
 1865. 
 1866. 
 
 The " Otto and 
 
 10 Moo., P.C.C. 37 
 Spinks, III 
 
 9M00., P.C.C. ISO 
 Spinks, 174 
 Olaf" 10 Moo., 257 . 
 
 Powers of naval officer ; 
 notice, efficiency, and 
 relaxation of blockade. 
 Restitution after wrongful 
 
 seizure. 
 Costs and damages. 
 The "Johanna Maria" 10 Moo., P.C.C. 72 De facto blockade; know- 
 ledge by master. 
 De facto blockade. 
 Owner of cargo, when 
 bound by acts of master or shippers. 
 ' Spinks, 322 . Captors' evidence. 
 1 1 Moo., P.C.C. 88 Limitation of blockade. 
 
 The " Union " . 
 The "Jeanne Marie" 
 
 The "Aline and Fanny 
 The " Gerasimo " 
 
 Spinks, 164 
 Spinks, 167 
 
 The"PanagiaRhomba" 12 Moo., P.C.C. 168 Liability of cargo owner. 
 
 The " Hiawatha " 
 The " Circassian " 
 The " Andromeda " 
 The " Baigorry " 
 The "Admiral " . 
 The " Josephine . 
 The " Cornelius " 
 The "Cheshire". 
 The "Dashing Wave' 
 
 1866. The " Teresita " 
 1866. The " Sir Wm. Peel 
 
 1866. The " Pearl" . 5 Wall., 574 
 
 1867. The "Flying Scud" . 6 Wall., 263 
 
 2 Black, 635 . Notification. 
 
 2 Wall., 135 . Capture of blockaded port. 
 
 2 Wall., 481 . Procedure. 
 
 2 Wall., 474 . Effectiveness of blockade. 
 
 3 Wall., 603 . Notification of blockade. 
 
 3 Wall., 83 . Inquiry at blockaded port. 
 3 Wall., 214 . Presumption of intent. 
 3 Wall., 231 . Inquiry at blockaded port. 
 5 Wall., 170 . Rules as to navigation 
 when one bank of river is blockaded. 
 5 Wall., 181 . Accidental drifting of ship 
 
 into blockaded area. 
 5 Wall., 517 . Neutral port in proximity 
 to blockaded port. Duty of neutral ships. 
 
 1867. The«Adela" 
 1867. The "Sea Witch" 
 
 1867, The "Wren" 
 
 1868. The " Diana " 
 
 Inferences of fact from evi- 
 dence. 
 , Prior breach of blockade 
 no ground for condemnation. 
 6 Wall., 267 . Evidence. 
 6 Wall., 242 . Evidence. 
 
 6 Wall., 582 . Evidence. 
 
 7 Wall., 254 . Evidence. 
 
i88 COMMERCE IN WAR 
 
 1872. Geipel z;. Smith . . L.R., 7 Q.B.,404 Effectiveness of blockade. 
 
 1899. The "Olinde Rodri- 67 Davis, Supr. Effectiveness and notoriety 
 
 guez" Ct. Rep. (U.S.), of blockade. 
 510 
 
 In "Die Vier Gebroeders"^ the Admiralty Judge ^ condemned 
 certain brandy and salt as contraband, bound for Dunkirk. The 
 Lords, however, appear to have considered it impossible to treat 
 them as such, and proceeded to consider whether they might not 
 be condemned on account of the blockade of Dunkirk. But 
 as this blockade, though notorious, did not appear judicially^ in 
 the cause, plea and proof were ordered upon the claimant giving 
 security for costs. 
 
 The "Betsy" (Murphy, master),^ was the case of a ship and cargo 
 taken by the British at the capture of Guadeloupe, and asserted to 
 have broken a blockade by entering that place. Sir W, Scott's 
 judgment, so far as is material to the question of blockade, was as 
 follows : — 
 
 " On the question of blockade three things must be proved : first, the 
 existence of an actual blockade ; secondly, the knowledge of the party ; 
 and, thirdly, some act of violation either by going in, or coming out with 
 a cargo laden after the commencement of blockade. 
 
 "... It ^s necessary, however, that the evidence of a blockade should 
 be clear and decisive. In this case there is only an affidavit of one of the 
 captors, and the account which is there given is : ' That on the arrival of 
 the British forces in the West Indies, a proclamation issued, inviting 
 the inhabitants of Martinique, St. Lucie, and Guadeloupe to put them- 
 selves under the protection of the English; that on a refusal, hostile 
 operations were commenced against them all, though it cannot be meant 
 that they commenced against all at once, for it is notorious that they 
 were commenced against them separately and in succession.' It is further 
 stated, 'that in January, 1794 (but without any more precise date), Guade- 
 loupe was summoned, and was then put into a state of complete invest- 
 ment and blockade.' 
 
 " The word complete is a word of great energy ; and we might expect 
 from it to find that a number of vessels were stationed round the en- 
 trance of the port to cut off all communication. But from the protest I 
 perceive that the captors entertained but a very loose notion of the true 
 nature of a blockade; for it is there stated 'that on the 1st of January, 
 after a general proclamation to the French Isles, they were put into a 
 state of complete blockade.' It was a term, therefore, which was applied 
 to all those islands at the same time under the first proclamation. 
 
 " The Lords of Appeal have determined that such a proclamation was 
 not in itself sufficient to constitute a legal blockade ; it is clear, indeed, 
 that it could not in reason be held to produce the effect which the captors 
 
 ' Burrell, 159 (i759)- . , . . , 
 
 ^ Sir T. Salusbury. This judge entertained large views on the denomination of 
 
 contraband, and in the "St. Jacob" (Burr. 160) condemned as such a cargo of oil and 
 
 lemons. ^ j Rob., 92 (1798). 
 
BLOCKADE 189 
 
 erroneously ascribe to it. From the misapplication of these phrases in 
 one instance, I learn that we must not give too much weight to the use of 
 them on this occasion, and from the generality of these expressions I 
 think we must infer that there was not that actual blockade which the law 
 is now distinctly understood to require. 
 
 " But it is attempted to raise other inferences on this point, from the 
 manner in which the master speaks of the difficulty and danger of enter- 
 ing, and from the declaration of the municipality of Guadeloupe, which 
 states ' the island to have been in a state of siege.' It is evident that the 
 American master speaks only of the difficulty of avoiding the English 
 cruisers generally in these seas ; and as to the other phrase, it is a term of 
 the new jargon of France, which is sometimes applied to domestic dis- 
 turbances, and certainly is not so intelligible as to justify me in con- 
 cluding that the island was in that state of investment from a foreign 
 enemy which we require to constitute a blockade. I cannot, therefore, 
 lay it down that a blockade did exist till the operations of the forces were 
 actually directed against Guadeloupe in April." 
 
 The " Henrick and Maria "^ was a Danish vessel, taken on 
 a voyage from Norway to Amsterdam, 1798. It appears she 
 was boarded by a British man-of-war, and a notice was inscribed 
 on ship's papers that she was not to proceed to any Dutch port. 
 There was at that time no blockade which extended to all Dutch 
 ports, but there was a blockade of Amsterdam. The master 
 informed the naval officer giving the notice that he must proceed 
 to Amsterdam, whereupon the ship was arrested. The Court 
 held that the form of the notice, being for all Dutch ports, was bad, 
 and was not available by limitation for Amsterdam, and there- 
 fore the ship must be restored. The case is interesting and 
 important upon the question as to the limits of a naval com- 
 mander's authority. The judgment of Sir W. Scott was as 
 follows : — 
 
 " There are two objections taken in this case : First, that the notice of 
 the captor was illegal ; and secondly, that the master did not in fact 
 proceed towards Amsterdam. 
 
 " Now, the notice appears to have been ' not to proceed to any Dutch 
 port.' To be sure that goes a great deal beyond anything which the 
 captors had a right to prescribe ; for they ought to have specified the 
 ports to which the blockade was confined. The great point is to under- 
 stand what the master apprehended was the prohibition upon him ; for 
 certainly what is represented to have passed between him and the captor 
 cannot be conclusive. 
 
 " The master says he was captured on account of his destination to 
 Amsterdam and because he said he must proceed thither. This, it is 
 contended, was merely a hasty declaration of the master not carried into 
 effect. And if the master had taken upon himself to say that upon this 
 warning he did intend to change his course, but was seized immediately, 
 it would be pressing the matter too hardly upon his owners not to allow 
 
 * I Rob., 146 (1799). 
 
190 COMMERCE IN WAR 
 
 him time to express his determination. But he says no such thing. And 
 if his conduct amounts to an obstinate perseverance to go there, I should 
 hold that a blockade may be broken by obstinacy as well as by fraud ; 
 and if a master says he will go and he must go there in defiance of 
 notice, his owners must take the consequences of his conduct. 
 
 " It is a circumstance in favour of this man that the only ships in sight 
 were two Danish merchantmen. The sight of one vessel would not 
 certainly be sufficient notice of a blockade ; and, therefore, it is necessary 
 that it should be signified to me that there was a blockade de facto before 
 that port. 
 
 "The evidence is very imperfect on that point. I shall therefore 
 require further information, and give both parties an opportunity of pro- 
 ducing what they think favourable to them." 
 
 [Further proof was given of the notice which the master had 
 received of the blockade of the Vlie passage, and Sir W. Scott 
 resumed judgment] 
 
 " On the former hearing it appeared some notice had been given ; but 
 I wished to obtain more particular information respecting it. The notice 
 was written on the ship's papers to this effect: 'This ship was boarded 
 and warned not to proceed to any Dutch port.' The master states that 
 the ship was arrested because he said he must proceed according to the 
 bill of lading. 
 
 " It was open to both parties to have given explanatory affidavits, but 
 the captors have offered none ; therefore, unless it is shown that they 
 have been prevented by absence at sea or other just cause, I must take 
 the claimants' affidavit to be true. The notice is, I think, in point of 
 authority, illegal. At the time when it was given there was no blockade 
 which extended to all Dutch ports. A declaration of blockade is a high 
 act of authority, and a commander of a king's ship is not to extend it. 
 
 " The notice is also, I think, as illegal in effect as in authority ; it cannot 
 be said that such a notice, though bad for other ports, is good for Amster- 
 dam. It takes from the neutral all power of election as to what other 
 port of Holland he should go when he found the port of his destination 
 under blockade. A commander of a ship must not reduce a neutral to 
 this kind of distress ; and I am of opinion that if the neutral had contra- 
 vened the notice he would not have been subject to condemnation. 
 
 " But that he did so rests only on verbal answers and conversation. I 
 adhere to what I said before, that an obstinate adherence to a first inten- 
 tion would subject a ship to the penalty, and the owners must bear the 
 consequences of the obstinacy of their master. But I think the conversa- 
 tion of this man was not an expression of final intention, but that of a 
 man deliberating under difficulties in which he was unfairly placed. The 
 captain of the King's ship asked the master if he knew that Holland was 
 blockaded, and he answered ' that he did not.' This question agrees with 
 the written notice, and shows how strange a misapprehension the com- 
 mander had entertained of the nature of the blockade which he was 
 employed to form. 
 
 " The master said ' he could not answer it to his owners to go to any 
 place but Holland.' The commander does not point out to him any 
 ports of Holland to which he might go, but tells him he might go to 
 
BLOCKADE 191 
 
 Bremen, Hamburg, or England, and adds, * As you must go to Holland 
 you are my prize.' I think the notice was erroneous, and, besides, not 
 broken, and I restore the ship." 
 
 In the "Vrow Judith,"^ the blockade was one established de 
 facto, broken by egress. Sir W. Scott said : — 
 
 " I must observe that a blockade is just as much violated by a vessel 
 passing outwards as inwards. A blockade is a sort of circumvallation 
 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 that place, and a neutral is no more at 
 liberty to assist the traffic of exportation than that 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 considered as a rule which this Court 
 means to apply, that a neutral ship departing can only take away a cargo 
 bona fide purchased and delivered before the commencement of the 
 blockade. . . ." 
 
 He then distinguishes between the two modes of intimating 
 blockades to neutral merchants, i.e. either diplomatically (which 
 he prefers) or individually (where the blockade is de facto, and the 
 ship comes from a distance). But no such notice is necessary in the 
 case of egress "after the blockade has existed de facto for any 
 length of time,^ the continued fact is in itself a sufficient notice . . . 
 notoriety . . . supersedes the necessity of particular notice." 
 
 In the " Columbia"^ the voyage was from Hamburg to Amster- 
 dam, and it was found that the American owners knew nothing of 
 the investment of the latter port. But the master knew of it when 
 he left Hamburg, and his knowledge was held to affect the owners. 
 His sailing with that intent was also held sufficient to enable 
 confiscation to ensue. 
 
 "But it has been said," observed the judge, "that by the American 
 treaty there must be a previous warning. Certainly where vessels sail 
 without a knowledge of the blockade a notice is necessary ; but if you can 
 affect them with the knowledge of that fact, a warning then becomes an 
 idle ceremony, of no use, and therefore not to be required." 
 
 This was, perhaps, somewhat to cut down the operation of the 
 treaty, reducing it to an instrument merely declaratory of the law. 
 
 The " Neptunus " (Kuyp)* was the case of the capture of a ship 
 by two English cruisers about seven miles from the Dutch coast ; 
 the ship was coming out of the Texel. 
 
 Sir W. Scott, in the course of his judgment, observed : — 
 
 "There are two sorts of blockade: one by the simple fact only, the 
 
 1 I Rob. 150 (1799). ^ In this case eleven days. 
 
 3 I Rob., 154 (1799). * I Rob., 170 (1799)- 
 
192 COMMERCE IN WAR 
 
 other by a notification accompanied with the fact. In the former case, 
 when the fact ceases, otherwise than by accident or the shifting of the 
 wind, there is immediately an end of the blockade. But when the fact 
 is accompanied by a public notification from the Government of a 
 belligerent country to neutral Governments, I apprehend, ^rzmd faa'e, the 
 blockade must be supposed to exist till it has been publicly repealed. It 
 is the duty undoubtedly of a belligerent country, which has made the 
 notification of blockade, to notify in the same way and immediately the 
 discontinuance of it ; to suffer the fact to cease, and to apply the notifica- 
 tion again at a distant time would be a fraud on neutral nations, and 
 a conduct which we are not to suppose that any country would pursue. 
 I do not say that a blockade of this sort may not in any possible case 
 expire de facto, but I say such conduct is not hastily to be presumed 
 against any nation ; and, therefore, until such a case is clearly made out, 
 I shall hold that a blockade by notification is, primA facie, to be presumed 
 to continue till the notification is revoked." 
 
 The judge also remarks on the force requisite to constitute a 
 valid blockade : — 
 
 " In the month of September this ship sails, and is immediately stopped 
 by these two armed vessels. But it is said that there was no blockade 
 de facto, and that this small number of vessels only is a proof that there 
 was no efiScient actual blockade. I am of a contrary opinion, for surely it 
 is not necessary that the whole blockading force should lie in the same 
 tier, nor is it material that a vessel had escaped the rest. These ships 
 were in the exterior line, as I understand it, and if there had been only 
 these, I should have held them to be quite sufficient."^ 
 
 The " Betsy" (Goodhue)^ is an interesting case for two reasons : 
 firstly, because it (again) asserts with emphasis the view of our 
 Courts that a general notification to States is sufficient notice to 
 all traders ; and, secondly, because it decides that, though in the 
 then state of intercommunication where a blockade might reason- 
 ably be considered to have determined, a vessel might be justified 
 in making way towards the blockaded port for the purpose of in- 
 quiry at some place contiguous thereto, yet this ought not to be the 
 entrance of the blockaded port. The facts sufficiently appear from 
 the judgment of Sir W. Scott, which, so far as is material, was 
 as follows : — 
 
 " The ship sailed [from America] in January last, when the owners were 
 certainly informed of the blockade, but the distance of their country is a 
 material circumstance in their favour. I certainly cannot admit that 
 Americans are to be exempted from the common effect of a notification 
 of a blockade existing in Europe. But I think it is not unfair to say, 
 that lying at such a distance where they cannot have constant information 
 of the state of the blockade, whether it is continued or is relaxed, it is not 
 unnatural that they should send their ships conjecturally upon the 
 
 1 To the same effect is the "V.Johanna" (1799). i Rob., p. 109. 
 
 2 I Rob., p. 332(1799). 
 
BLOCKADE 193 
 
 expectation of finding the blockade broken up after it had existed for a 
 considerable time. A very great disadvantage would be imposed upon 
 them if they were bound rigidly by the rule which justly obtains in Europe 
 that the blockade must be conceived to exist till the revocation of it is 
 actually notified. For if this rule is rigidly applied, the effect of the 
 blockade would last two months longer upon them than on the trading 
 nations of Europe, by whom intelligence is received almost as soon as it is 
 issued. That American merchants should, therefore, send their ships 
 upon a fair conjecture that the blockade had, after a long continuance, 
 terminated, and for the purpose of making fair inquiry whether it had so 
 determined or not is, I think, not exceptionable, though I certainly agree 
 that this inquiry should be made, not in the very mouth of the river or 
 estuary from the blockading vessels, but in the ports that lie in the way, 
 and which can furnish information without furnishing opportunities of 
 fraud. In the present case the blockade had been understood in America 
 to have existed the whole winter, and therefore it was not unreasonable 
 to suppose that by that time it might have ceased. I decree restitution." 
 
 In the later case of the " Posten,"^ a Danish ship from Dron- 
 theim to Amsterdam, taken off the Texel, and proceeded against 
 for a breach of the blockade at Amsterdam, the same excuse was 
 made that her people expected to receive information on the spot. 
 The Court said : — 
 
 " Ships must call somewhere to obtain information, for the Court will 
 not allow the information to be obtained at the mouth of the blockaded 
 port." 
 
 The ship was condemned. 
 
 The " Neptunus " (Hempel)^ shows that a notification to a 
 foreign State affects its subjects, at all events as from the time 
 when the news might have reached them so far as physical con- 
 ditions are concerned. 
 
 " The effect of a notification to any foreign Government 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. 
 ... In the case of a blockade de facto only it may be otherwise, but this 
 is a case of a blockade by notification ; another distinction between 
 a notified blockade and a blockade existing de facto only is that in the 
 former the act of sailing to a blockaded place is sufficient to constitute 
 the offence. It is to be presumed that the notification will be formally 
 revoked, and that due notice will be given of it ; till that is done, the port 
 is to be considered as closed up, and from the moment of quitting port to 
 sail on such a destination the offence of violating the blockade is com- 
 plete, and the property engaged in it subject to confiscation. It may be 
 different in a blockade existing de facto only ; there no presumption arises as 
 to the continuance, and the ignorance of the party may be admitted as an 
 
 1 I Rob., p. 335 (note), (1799). " 2 Rob., p. no (1799). 
 
 O 
 
194 COMMERCE IN WAR 
 
 excuse for sailing on a doubtful and provisional destination. But this is 
 a case of a vessel from Dantzic after the notification, and the master can- 
 not be heard to aver his ignorance of it." 
 
 The ship, however, was restored, as the master had been 
 misled as to the continued existence of the blockade (of Havre) 
 by a British cruiser which he fell in with. 
 
 In the "Adelaide" (1799),^ Scott laid down the further pro- 
 position, which it is conceived cannot be supported, that — 
 
 " If a notification is made to the principal States of Europe ... a 
 time would come when it would affect the rest." 
 
 If one State will not take the trouble to notify its blockades to 
 another, it is scarcely fair to assume to affect the latter with the 
 consequences. As a matter of fact, notification to a single im- 
 portant nation would be reported to every chancellery in Europe. 
 Yet would other important nations consider themselves bound ? 
 
 " Suppose," says Scott, " a notification made to Sweden and Denmark, 
 it would become the general topic of conversation ; and it would be 
 scarcely possible that it should not have travelled to the ears of a Bremen 
 man ; and although it might not be so early known to him as to the 
 subjects of the States to which it was immediately addressed, yet in 
 process of time it must reach him, and must be considered to impose 
 the same observance of it on him. It would strongly affect him with 
 knowledge of the fact that blockade was de facto existing. Therefore, on 
 these grounds I should hold that, although a notification does not propria 
 vigore bind any country but that to which it is addressed, yet, in a 
 reasonable time, it must affect neighbouring States with knowledge, as a 
 reasonable ground of evidence ; and I think," he adds, " I do not strain 
 the matter in laying down this rule." 
 
 This amounts to a position according to which there may be 
 cases in which neither diplomatic nor individual notification, nor 
 notoriety of facts (as distinguished from notoriety of proclamations), 
 is requisite. It removes the theory of the validity of diplomatic 
 notification entirely from what was, in the " Neptunus," its pivqt. 
 namely, the assumed duty of Governments to protect their 
 subjects, and the possible remedy of the latter against the former. 
 For what relation subsisted between the Swedish and Danish 
 Governments and the Bremen mariner ? 
 
 The " Juno "^ is one of the comparatively few cases in which 
 the effect of a licence is considered. We have remarked that a 
 general licence exempting all ships of a particular nation from the 
 operation of a blockade invalidates the latter. In the "Juno," a 
 United States vessel arrived from America at Falmouth for 
 Amsterdam, haying sailed in ignorance of the fact that the latter 
 
 » 3 Rob., Ill, note (a). 2 /j^-^,^ ng (1799). 
 
BLOCKADE 195 
 
 port was blockaded. She then obtained a licence to go to " the 
 ports of the Vlie, Emden, Rotterdam, or elsewhere." The case 
 turned on the strict interpretation of the licence, which was held 
 to have been complied with by a voyage to Amsterdam, and 
 which was, moreover, held to imply a licence to come out again. 
 Scott again reiterated that — 
 
 " A ship that has entered previous to the blockade may retire in ballast, 
 or taking a cargo that had been put on board before the blockade ; this is 
 the distinction which I have held, and shall hold, till I am corrected by a 
 superior Court." 
 
 The " Hurtige Hane" (Dahl)^ was the case of a Danish ship 
 taken in the act of entering the Texel : plea, necessity from 
 distress and want of water. The Court condemned the ship, and 
 in the course of the judgment observed : — 
 
 "Nothing but an absolute and unavoidable necessity will justify the 
 attempt to enter a blockaded port ; considerations of all inferior nature, 
 such as avoiding higher fees or slight difficulties, will not be sufficient. 
 Nothing less than an unavoidable necessity which admits of no com- 
 promise and cannot be resisted, will be held by me to be a justification 
 of this offence." 
 
 The Court found as a fact that the vessel might very well 
 have put into some port, equally convenient, which was not 
 blockaded. 
 
 The " Welvaart Van Pillaw "^ was a Prussian ship taken for 
 a breach of the blockade of Amsterdam, having sailed thence 
 with a cargo. Sir W, Scott, in the course of his judgment, ob- 
 served : — 
 
 " It is said that it was not a matter of notoriety in Amsterdam that the 
 blockade was still continued, . . . and therefore that a ship in the block- 
 aded port may plead ignorance. But I am to remember that this is not a 
 Dutch ship, but a Prussian ship, and that it was the duty of the Prussian 
 Government, having received the public notification many months before, 
 to have communicated it to their subjects in different ports. Another 
 circumstance on which exemption is prayed is that she had escaped the 
 interior circumvallation, that she had advanced some way on her voyage, 
 and therefore that she had in some degree made her escape from the 
 penalties. I cannot accede to that argument. If the principle is found 
 that a neutral vessel is not permitted to come out of a blockaded port with 
 a cargo, I know no other natural termination of the offence but the end of 
 that voyage. It would be ridiculous to say, if you can but get past the 
 blockading force you are free. This would be a most absurd application 
 of the principle. If that is found, it must be carried to the extent that I 
 have mentioned ; for I see no other point at which it can be terminated.^ 
 
 1 2 Rob., 124 (1799). 
 
 2 Ibid., 128 (1799). 
 
 3 Vide Bynkershoek, Q.J.P., Lib. I, ch. xi. 
 
196 COMMERCE IN WAR 
 
 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 subject to confiscation." 
 
 In the " Jonge Petronella "^ there was a blockade of Rotterdam 
 notified to foreign ministers 21 March and gazetted 26 March. 
 The vessel was seized on 28 March. The notification stated that 
 all vessels that should attempt to enter blockaded ports "after this 
 notice " would be amenable. The judgment was as follows : — 
 
 " There seems to be no question made as to the property of the ship. 
 I do not think a week is sufficient time to affect the parties with a legal 
 knowledge of this blockade. I shall therefore restore this vessel." 
 
 The time within which the existence of a blockade must be 
 presumed to be known was again under consideration in the 
 " Calypso " (Schultz).^ It was proved that it was known at 
 Amsterdam on 12 April, and inferred that it must have been 
 known at Rotterdam on the 15th. 
 
 Again, in the " Neptunus" (Kuyp) (II)' the time within which 
 Portuguese residents were affected with notice of such a blockade 
 was considered. Hamburg claims were rejected. The shipment 
 was made 9 to 19 July, 1798, the notification of the blockade 
 of the port (Amsterdam) having preceded it by a month, reaching 
 Lisbon (as the judge computed) about the end of June. 
 
 " But then it comes to this general question . . . whether the owners are, 
 in all cases, bound merely by the act of their agents? The abstract rule is 
 undoubtedly just that persons are bound by their agent ; but two or three 
 considerations weigh much to induce me to limit the extent and applica- 
 tion of this principle in these particular cases. In the first place, I cannot 
 but recollect that the law of blockade is a thing rather out of the common 
 course of mercantile experience ; it is new to merchants, and not very 
 familiar to lawyers themselves. It might therefore be a little too rigorous 
 to expect in the very first instance an exact compliance with the strict 
 rule of law. A second consideration is that the agents of foreign mer- 
 chants in the enemy's country, that country being under blockade, 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, to fulfil the 
 commission at all risks, as rapidly as possible, for their own private advan- 
 tage, and for the public interest of their country, at that time under parti- 
 cular pressure as to the exportation of its produce. This may fairly be 
 allowed to impose a strong obligation 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." 
 
 The "Caroline"* was a case of a cargo taken on a voyage 
 
 1 2 Rob., 131 (1799)- 2 liiii., 298. 
 
 ' 3 Rob., 173 (1800). * Ibid., 75 (1800). 
 
BLOCKADE 197 
 
 from Bayonne ostensibly to Altona, but in fact to Ostend, a block- 
 aded port. Further proof was refused, and condemnation passed. 
 In the course of his judgment Sir W. Scott said : — 
 
 " It becomes material to see how the cargo is entered in the ship's 
 papers ; the whole is represented as to be delivered at Altona and Ham- 
 burg. Had there been any fair contingent deliberative intention of going 
 to Ostend, that ought to have appeared on the bills of lading; for it ought 
 not to be an absolute declaration to Hamburg if it was at all a question 
 whether the ship might not go to Ostend, a port of the enemy. There is 
 then an undue and fraudulent concealment of an important circumstance 
 which ought to have been disclosed. But it is said that it would be 
 extremely hard on claimants if the acts of persons in France giving orders 
 contrary to their instructions are to be held sufficient to affect them with 
 penal consequences ; and it might be so, although the hardship of being 
 affected by the acts of agents is a hardship which the law is not very shy 
 of imposing in a variety of cases ; but it is to be recollected that the 
 neutral claimants cannot be penally affected if they stand personally clear 
 of the fraud which accompanies these goods." 
 
 The "Juffrow Maria Schrceder"^ was the case of a Prussian 
 vessel taken for a breach of the blockade of Havre. The question 
 involved was whether there had been such a relaxation of the 
 blockade as to constitute a legal cessation — the ship had been per- 
 mitted to enter the harbour and was seized after leaving it on 
 return. Sir Wm. Scott in discussing this question observes : — 
 
 " I cannot shut my eyes to a fact that presses upon the Court, that the 
 blockade has not been duly carried into effect : a temporary and forced 
 secession of the blockading force, from the accidents of winds and storms, 
 would not be sufficient to constitute a legal relaxation : but here ships are 
 stopped and examined and suffered to go in. The master of this particular 
 vessel says 'that in coming out he saw no ships for forty-eight hours'; that 
 might be accidental ; but when he entered they were on the station, yet no 
 attempt was made to prevent them from going in. No contradiction is 
 opposed to this account, though I have no doubt that a proper application 
 has been made to the King's ships concerned. In other cases also, it 
 appears that no force was applied for the purpose of enforcing the blockade : 
 the same permission was given to go in. How this happened I cannot 
 divine, for I find the orders of the Admiralty of 27 August, 1779, were 
 ' to block up the port of Havre,' and these seem to connect themselves with 
 the former orders ; there is, besides, a letter from Mr. Nepean to Captain 
 Griffiths, in answer to a letter stating that the ' Fly ' had examined a snow 
 and suffered her to go in ; in which Mr. Nepean writes, ' I am commanded 
 to acquaint you that you are not to suffer any vessel to enter,' etc. There 
 can be no doubt then of the intention of the Admiralty that neutral ships 
 should not be permitted to go in, but the fact is that it was not in every 
 instance carried into effect. 
 
 "What is a blockade, but to prevent access by force? If the ships 
 stationed on the spot to keep up the blockade will not use their force for 
 
 ' 3 Rob., 147 (1800), at p. 155. 
 
198 COMMERCE IN WAR 
 
 that purpose it is impossible for a court of justice to say there was a 
 blockade actually existing at that time so as to bind the vessel." 
 
 Ship restored. 
 
 However, in the same case, as to the cargo, the Court came to 
 a different conclusion.^ It would appear that the view of the Court 
 was that there was no general relaxation of the blockade, but only 
 an exceptional indulgence granted to certain ships, and therefore 
 the blockade continued a valid blockade as against all to whom 
 such indulgence was not extended, and inasmuch as the ship had 
 been permitted to go into the harbour the master thereof might 
 reasonably conclude that he would be permitted to go out with a 
 cargo. But otherwise with the owners of the cargo ; they had not 
 been the recipients of this special indulgence, and therefore were 
 not entitled to be influenced by it. Their duty was to ascertain from 
 the belligerent whether or no the ship would be allowed to pass 
 out, or at any rate the order directing shipment should be 
 provisional on the blockade being raised. Further emphasis to 
 this view was given in the case of the "Venscab,"^ in which case 
 Sir W. Scott observed : — 
 
 " I beg it may be understood that I hold the blockade to have existed 
 generally, though individual ships, in some few instances, are entitled to an 
 exemption from the penalty in consequence of the irregular indulgences 
 shown to them by the blockading force." 
 
 In the case of the " Juffrow" cargo his judgment was on this point 
 as follows : — 
 
 " The rule by which the Court has been induced to act towards certain 
 vessels in consequencte of the relaxed manner in which the blockade 
 of Havre appeared to have been enforced in these particular cases by no 
 means interferes with the general effect and operation of this blockade ; 
 on the contrary, the Court has held that there was no general relaxation, 
 although particular vessels were considered to be protected by the loose 
 manner in which the blockade was kept up towards them. The ship in the 
 present case was restored on the ground that she had been allowed to go 
 in with a cargo, and therefore might be understood to be at liberty to come 
 out with a cargo. But the extent of that principle is to be confined to 
 those who had been the objects of this improper indulgence. The ship was 
 restored, but it by no means follows that the owners of the cargo stand on 
 the same footing. That must have been shipped in consequence of criminal 
 orders directing it to be sent on any opportunity of slipping out ; it is 
 therefore not to be argued that the release of the ship is any conclusive 
 evidence respecting the cargo. 
 
 " Then how stands this case as to the owners of the Cargo ? After the 
 blockade had been notified the most prudent conduct would have been to 
 wait for a relaxation from the belligerent who imposed the blockade before 
 
 > 3 Rob., 158 (1800). 
 
 2 Ibid., see p. 159, note (1799). 
 
BLOCKADE 199 
 
 they gave any orders : at any rate it could go no farther than this, that the 
 orders should be provisional, directing shipments to be made when the 
 blockade should be raised ; as an absolute order during the continuance of 
 a blockade, if executed, must be considered to be a breach of that blockade. 
 Under any circumstances such a provisional order would be attended with 
 great hazard in respect to the good faith of the enemy shipper, who may 
 be under a temptation to ship off his goods without regard to the risk of 
 his employer — and this risk persons giving such order must be content to 
 take on themselves. The affidavit that has been introduced only states 
 ' that he was ignorant at the time of shipment.' That will not be sufficient ; 
 that will not purge away the offence at the time of giving the orders. The 
 parties must either state themselves to have been ignorant of the blockade 
 at the time of ordering the goods, and show the grounds of their opinion 
 arising out of any of these particular instances of relaxation to individual 
 ships ; or at least they must show that the orders were provisional. . . . 
 I reject the application." 
 
 In the " Ocean "^ the question again rose whether the interior 
 carriage of goods from a blockaded port (Amsterdam) to an open 
 port (Rotterdam), from which they were shipped to a neutral 
 country, constituted a violation of blockade. Sir W. Scott's judg- 
 ment was as follows : — 
 
 " I am inclined to consider this matter favourably, as an exportation 
 from Rotterdam only, the place in which the cargo becomes first con- 
 nected with the ship. In what course it had travelled before that time, 
 whether from Amsterdam at all, and if from Amsterdam whether by land 
 carriage or by one of their inland navigations, Rotterdam being the actual 
 port of shipment, I do not think it material to inquire. On this view of 
 the case it would be a little too rigorous to say that an order for a ship- 
 ment to be made at Amsterdam should be construed to attach on the 
 owner, although not carried into effect. It has been said from the letter 
 of the correspondent at Amsterdam that the agents there had informed 
 their correspondents in America that the blockade was not intended to 
 prevent exportation ; the representation of the enemy shipper could not 
 have so acted to exonerate the neutral merchant, if otherwise liable. 
 Were this to be allowed it would be in the power of the enemy to put an 
 end to the blockade as soon as he pleased. If the general law is, that 
 egress as well as ingress is prohibited by blockade, the neutral merchant 
 is bound to know it ; and if he entertains any doubt, he must satisfy 
 himself by applying to the country imposing the blockade, and not to 
 the party who has an interest in making it. 
 
 " It happens in this case the intended exportation did not take plaCe. 
 The only criminal act, if any, must have been the conveyance from 
 Amsterdam to Rotterdam. It would be a little too much to say that by 
 that previous act the goods shipped at Rotterdam are affected. The 
 legal consequences of a blockade must depend on the means of blockade 
 and the actual or possible application of the blockading force. On the 
 land side Amsterdam neither was nor could be affected by a blockading 
 naval force. It could be applied only externally. The internal com- 
 
 ' 3 Rob., 297 (1801). 
 
200 COMMERCE IN WAR 
 
 raunications of the country were out of its reach and in no way subject 
 to its operation. If the exportation of goods from Rotterdam was at 
 this time permitted, it could in no degree be vitiated by a previous inland 
 transmission of them from the city of Amsterdam." 
 
 Restored. 
 
 In the " Adelaide " ^ a question as to sufficiency of time was 
 considered. The shipment was made at Amsterdam in April and 
 May, 1799. The blockade was instituted in June, 1798, but the 
 goods had been ordered in February and March, 1 798. 
 
 "Then comes the question as to the blockade, whether there was 
 sufficient time for countermanding the orders ? . . . and whether the mer- 
 chant is not bound by the acts of his agents ? and whether he himself 
 appears to have used due diligence ? ... It is a distinction of reasonable 
 equity ... to give rather a more liberal allowance of time for notice to 
 persons in the situation of merchants in America." 
 
 Under all the circumstances the judge held that the American 
 merchant was not culpably negligent, and proceeds to declare that 
 he was not absolutely bound by his agent's act, but ought to have 
 a fair opportunity of countermanding. With regard to shipments 
 ordered in October, 1798, it was, on the contrary, inferred that 
 the blockade of June must have been known in America in 
 October. 
 
 "There are two obligations which I must presume fulfilled until the 
 contrary is shown, because they are obligations arising out of the public 
 duties of Governments — the duty of making immediate communication 
 to foreign States on the part of the Government imposing the blockade, 
 and the duty of transmitting such communication immediately on the 
 part of those public ministers to whom it is immediately made. I cannot 
 suppose, without very injurious imputation upon the persons entrusted 
 with these great interests, that they did not use the utmost diligence for 
 that purpose. Then, on the strength of these two presumptions, I have 
 only to inquire whether there is not reason to suppose that the notification 
 so expedited had reached America before the date of the orders in 
 October, 1798." 
 
 And he concluded that there was. 
 
 With regard to orders given on 8 September, 1 798, the Court 
 thought it would be drawing the rule too close to hold the claim 
 concluded. 
 
 The " Hurtige Hane " (Dahl)^ is valuable as an exposition of the 
 history of blockade. The cargo was shipped at Safi in Barbary 
 for Amsterdam, and it was contended that no notification had 
 been made to Morocco, and that Barbary merchants were entitled 
 to special leniency. 
 
 ^ 3 Rob., 281 (1801). Cf. p. 194 supra, for the case of the ship. ^ 3 Rob , 324 (1801) 
 
BLOCKADE 201 
 
 " On a point like this," said Sir W. Scott, " the breach of a blockade, 
 one of the most universal and simple operations of war in all ages and 
 countries, excepting such as were merely savage, no such indulgence can 
 be shown. It must not be understood by them that if a European army 
 or fleet is blockading a town or port they are at liberty to trade with that 
 port. . . . They, in common with all other nations, must be subject to this 
 first and elementary principle of blockade, that persons are not to carry 
 into the blockaded port supplies of any kind. It is not a new operation 
 of war ; it is almost as old and as general as war itself." 
 
 Then, as to notice, he repeats that " after a limited time it lies 
 primd facie on the party to show that he was not apprised of the 
 fact of the blockade," and infers that the blockade of so important 
 a place as Amsterdam must have been well known, even though 
 there was no notification, diplomatic or individual. 
 
 In the " Frau Ilsabe"^ the somewhat curious point was taken 
 that the Scheldt was included in the blockade of Holland, on 
 account of having been appropriated to exclusive Dutch use, as 
 between Britain and Holland, by treaties of those Powers. Sir 
 W. Scott observed that such treaties would by no means affect 
 the interests of other States, and that in any event the treaties 
 were extinguished by the outbreak of war. 
 
 The " Stert,"^ referred to in a note in the case of the " Ocean," 
 {supra, p. 199) is more fully reported in Vol. IV of C. Robinson. 
 Butter and cheese were ordered from Edam, to be shipped by inland 
 navigation to Emden, for London, It was argued that as the 
 plan was preconcerted to send on the goods without any other 
 break in the continuity of the voyage than a transhipment at 
 Emden, it was to be considered as a circuitous mode of avoiding 
 the blockade of Amsterdam and a breach of that blockade. 
 
 Sir W. Scott : — " This is a question arising out of the blockade of 
 Amsterdam, respecting goods put on board in a port of the Texel, for the 
 very purpose of being sent to London, without any interruption of the 
 voyage, but conveyed out of Holland to Emden by the means of the 
 canal navigation, as I understand it. The question is, whether this is to 
 be considered as a breach of the blockade? A blockade may be of 
 different descriptions. The blockade of Amsterdam which was imposed 
 on the part of this country was from the nature of our situation a mere 
 maritime blockade, effected by force operating only at sea. As far as that 
 force could be applied, it was indubitably a good and legal blockade ; but 
 as to an interior navigation, how is it a blockade at all ? Where is the 
 blockading power ? . . . Can it be said that by the maritime blockade of the 
 Seine the interior access to Havre is blockaded, so as that goods belong- 
 ing to a neutral subject sent from Paris to Havre could be held subject to 
 confiscation by virtue of that blockade ? It is argued that if this course 
 of trade is allowed, the object of the blockade, which is to distress the 
 
 1 4 Rob., 63 (1801). = Ibid., 6s (1801). 
 
202 COMMERCE IN WAR 
 
 trade of Holland, will be defeated. If that is the consequence, all that 
 can be said is that it is an unavoidable consequence. It must be imputed 
 to the nature of the thing, which will not admit of an effective remedy of 
 this species. The Court cannot, on that ground, take upon itself to say 
 that a legal blockade exists where no actual blockade can be applied. In 
 the very action of a complete blockade it is concluded that the besieging 
 force can apply its power to every point of the blockaded State. If it 
 cannot, it is no blockade of that quarter where its power cannot be 
 brought to bear ; and where such a partial blockade is undertaken, it must 
 be presumed that this is no more than what was foreseen by the blockad- 
 ing State, which nevertheless thought it proper to impose it to the 
 extent to which it was practicable. The commerce, though partially 
 open, is still subjected to a pressure of difficulties and inconvenience ; to 
 cut off the power of immediate export and import from the ports of 
 Holland is of itself no insignificant operation, although it may not be 
 possible to exclude them from the benefit of an inland communication. If 
 the blockade be rendered imperfect by this construction, it must be 
 ascribed to the physical impossibility of the measure, by which the extent 
 of its legal pretensions is unavoidably limited." 
 
 In the " Jonge Pieter"^ the Court held that the despatch by a 
 neutral merchant of goods to a neutral port, whence by land 
 transit they were despatched to a port blockaded by sea, was not 
 a breach of blockade. Sir W. Scott observes : — 
 
 "The blockade of Amsterdam is from the nature of things a partial 
 blockade — a blockade by sea ; and if the goods were going to Emden with 
 an ulterior destination by land to Amsterdam, or by an interior canal 
 navigation, it is not, according to my conception, a breach of the blockade." 
 
 The " Alexander " ^ was the case of a cargo on a voyage 
 from Lisbon ostensibly to Altona, but actually going into Havre 
 under pretence of being in want of provisions. Sir W. Scott 
 held that such deviation must be presumed to be in the service of 
 the cargo, and not an act of the master for which the owners of 
 the cargo would not be responsible.' In the course of his judg- 
 ment, he observed that the inference in all cases is that — 
 
 " A ship going into a blockaded port is going with an intention of dis- 
 posing of the cargo." 
 
 He goes on to say : — 
 
 " The master makes no distinction nor asserts that he deviated under 
 particular directions applying to one part of the cargo only, or that when 
 that part was delivered under instructions unknown to the rest of the 
 shippers, he was to go on to Altona with that part of the cargo which is 
 the subject of the present claims. If that could have been made outj the 
 
 1 4 Rob., 79 (i8oi), at p. 83. 2 Ibid., 93 (1801). 
 
 * This was the converse of the " Imina" (3 Rob., 167), in which it was argued that a 
 deviation away from a blockaded port ought not to benefit the cargo-owners. 
 
BLOCKADE 203 
 
 Court might, perhaps, have given the claimants the benefit of that distinc- 
 tion. The same general cause is assigned for all, and I must suppose the 
 whole cargo was to be there delivered. It is true that the owners of 
 the cargo are not, in general cases, held to be affected by the act of the 
 master, unless he is specially appointed their agent. But it would be 
 impossible to maintain a blockade in cases of this nature, which is 
 directed more against the cargo than against ships, if the Court did not 
 draw the inference that a ship going in fraudulently is going in the service 
 of the cargo with the knowledge and by the direction of the owner." 
 
 The " Potsdam "^ was the case of a ship that, while lying in 
 Havre, a blockaded port, was transferred by one to another 
 neutral merchant, and then, in ballast, sailed out of Havre. Sir 
 W. Scott gave judgment as follows : — 
 
 " It was a transfer from one neutral to another, in no manner connected 
 with the commerce of the blockaded port. I am not disposed to think 
 that circumstance will affect the title ; the ship appears to have come out 
 in ballast, and therefore I think the claimant's title stands clear of all 
 objection on the ground of blockade." 
 
 But the captors were allowed their expenses. 
 
 In the "Juffrow Maria Schroeder,"^ a quantity of goods sent 
 into Havre in 1797, before the blockade, for the purpose of being 
 sent on to Paris, and sold for the account of the consignor, but 
 reshipped (as found unsaleable) by order of the neutral proprietor, 
 during the blockade, were restored, the Court saying : — 
 
 "As the truth of this representation is not impeached, these goods are, I 
 think, entitled to restitution. The same rule which permits neutral 
 merchants to withdraw their ships from a blockaded port, extends also 
 with equal justice to merchandise sent in before the blockade, and with- 
 drawn bona fide by the neutral proprietor." 
 
 In the " Fortuna," ^ a ship seized for violating the blockade of 
 the Weser, the excuses were urged — (i) lack of provisions ; (2) a 
 strong westerly wind. Sir W. Scott rejected the excuse as to 
 provisions, but, subject to proof, allowed that of the wind. He 
 observed as follows : — 
 
 " The want of provisions is an excuse which will not, on light grounds, 
 be received, because an excuse, to be admissible, must show an imperative 
 and overruling compulsion to enter the particular port under blockade, 
 which can scarcely be said in any instance of mere want of provisions. It 
 may induce the master to seek a neighbouring port, but it can hardly ever 
 force a person to resort exclusively to the blockaded port. What is stated 
 respecting the wind is of a different nature." 
 
 1 4 Rob., 89 (1801). 2 732-^.^ 89, n. (i797?)- 
 
 3 5 Rob., 27 (1803) 
 
204 COMMERCE IN WAR 
 
 The "Nossa Senhora de Adjuda"^ went to Havre before the 
 blockade of 6 September, 1803. She loaded, partly before and 
 partly after its establishment, in ignorance of it, and sailed on 
 I October. It will be remembered that in a prior case, Scott 
 thought eleven days sufficient to affect a vessel in a port with 
 notice that it was blockaded. But here, after twenty-five days, 
 the master's assurance was accepted that the fact was unknown. 
 It became a question, then, whether the French goods on board, 
 at any rate, could not be seized. By treaty the Portuguese had a 
 right to carry enemy's goods on their ships without molestation ; 
 and the curious point was raised that this would not extend to 
 the taking of them out of blockaded ports (even in legitimate 
 ignorance of the blockade). Sir W. Scott declined to deal with 
 the point, and decided that the goods asserted to be French 
 property were really Portuguese. 
 
 The " Spes " and the " Irene."^ In these cases it appeared that 
 the vessels, belonging to the same owner, were sailing from 
 Archangel with an avowed purpose of entering the Elbe, of 
 which there was a duly notified blockade. The owner was aware 
 of the blockade, but informed the masters of the vessels that he 
 did not think the blockade would long continue, and directed 
 them to proceed to the Elbe and inquire whether the river was 
 then under blockade. The Court held that it was contrary to the 
 principles of the law of blockade that after a formal notification 
 of blockade had been given a vessel might sail to the mouth of a 
 blockaded port to inquire whether the blockade continued. The 
 Court also held that as notification had been duly made by the 
 State imposing the blockade, it must be assumed that foreign 
 Governments had given due notice to their subjects. Sir W. Scott 
 observes in his judgment : — 
 
 " It has been said that no such intelligence (of the existence of the 
 blockade) had been received from the Consul of the State of Hamburgh, 
 though I must presume it had ; because as the notification was made to 
 the Consul here, it was his duty to make the communication to the 
 Consuls of his Government in foreign parts. And as the information 
 had arrived at Hamburgh, and had been actually communicated thence 
 to Archangel by private channels, the same communication must be sup- 
 posed to have been made from public authority to the public minister; or 
 if not, if there had been any neglect, the consequence must be imputed only 
 to the State and its officers, who are answerable to their subjects for the 
 consequence of their neglect. It is said, indeed, that the masters received 
 contrary information from their Consul, and that they were told by him 
 that the blockade was raised, though the averment does not, I per- 
 ceive, distinctly state that, as appears by the evidence in this very case, 
 but only that it would be raised before they arrived. Had the information 
 
 1 S Rob., 52 (1803). 2 Ibid., 76 (1804). 
 
BLOCKADE 205 
 
 been more positive, it would be difficult to attribute to it any such effect 
 as would serve to the indemnification of the parties. If this conjectural 
 information at Archangel proved false, they must look for redress to their 
 own Government, or to those employed under it who gave such erroneous 
 intelligence. If the information of foreign ministers could be deemed 
 sufficient to exempt a party from all penalty, there would be no end to 
 such excuses. Courts of Justice are compelled, I think, to hold as a 
 principle of necessary caution, that the misinformation of a foreign 
 minister cannot be received as a justification for sailing in actual breach of 
 an existing blockade. The letters of the owner inform the masters that 
 the blockade would probably be at an end before they arrived, and direct 
 them to proceed for the Elbe. Are these the orders which owners ought 
 to have given? I think not. The neutral merchant is not to speculate 
 on the greater or less probability of the termination of a blockade to send 
 his vessels to the very mouth of the river, and say, ' If you do not meet 
 with the blockading force, enter ; if you do, ask a warning and proceed 
 elsewhere.' Who does not at once perceive the frauds to which such a 
 rule would be introductory ? The true rule is that after the knowledge of 
 an existing blockade, you are not to go to the very station of blockade 
 under pretence of inquiry." 
 
 The question of excuses for apparent breach of blockade was 
 considered in the " Adonis."^ This ship had been individually- 
 warned by a frigate that Havre was blockaded, yet she was 
 discovered standing towards that port, E.S.E. of Cape Barfleur. 
 The explanation was that it was due to a simple mistake of the 
 mate's, which the master was endeavouring to understand and 
 correct. The plea being rejected as a palpable untruth, it was 
 further considered how far the cargo-owners were involved. 
 
 The consequences of such conduct of the master, says Sir W. Scott, 
 "must undoubtedly bind the [cargo] -owner; but the question is whether it 
 shall do so presumptively or conclusively ; and whether the party shall be 
 let in to prove a contrary intention. I am of opinion that he cannot. I 
 will not say that the fact may not exist, that a master should commit a 
 barratry in a case of this kind ; but I think myself justified in holding 
 that the owner cannot be admitted to go into proof on this point, on 
 account of the fraudulent abuse to which such a liberty must inevitably 
 lead, since it would be perfectly easy at any time to set up the pretence, 
 and equally impossible on the other side to detect it. . . . 
 
 " It has been argued that the master is not the representative of the 
 owner of the cargo. Certainly he is not, to that extent and in the same 
 direct manner in which he is held to be the representative of the owner 
 of the ship. On that account, in some cases, where facts have shown that 
 the intention of the owner was pure, the Court has given the party the 
 benefit of this distinction ; for instance, where the voyage began before 
 the knowledge of the blockade, and where the master, on being warned, 
 has appeared to be actuated only by a personal obstinacy and perverseness 
 in pursuing his course to the place of his original destination.^ That is a 
 
 1 5 Rob., 256(1804). 
 
 2 As in the "Columbia," i Rob., 154 ; supra, p. 191. 
 
206 COMMERCE IN WAR 
 
 case in which the intention of the owner is admitted to be pure, where 
 nothing stands against it in limine, where there is no question of fact, 
 whether he was consentient to the fraud ; and where, if he was affected at 
 all, it could only be by the strict legal principle, that affects the principal 
 by the conduct of his agent. Here, the blockade was perfectly well 
 known to all parties at the time of shipment, and therefore the question 
 is raised, whether the owner was not consentient at first, and whether the 
 conduct of the master is not demonstrative evidence that he was so. In 
 my opinion the effect of all just presumption is against him . . . consider- 
 ing the infinite danger of admitting the shippers to distinguish their 
 purpose from that of the master." 
 
 The " Shepherdess"^ was taken on a voyage from America to 
 the port of Havre. All the papers wrere made out for Emden, 
 with the exception of letters which only accidentally came to 
 light. It seems to have been allowed to vessels from America, in 
 view of their distance from Europe, to sail for a blockaded port, 
 even though the blockade had been notified diplomatically, on the 
 chance of finding it unblockaded^ at the time of arrival, just as 
 though it were a mere blockade de facto. But in such a case 
 they were expected to make inquiries as soon as they arrived in 
 the Channel. The excuse alleged in this case was that the 
 master was in a constant state of intoxication, and that the 
 supercargo was really intending to prevent his taking the ship 
 into Havre. 
 
 " If," said Sir Wm. Scott, " such an excuse could be admitted, there 
 would be eternal carousings in every instance of violation of blockade, 
 The master cannot, on any principle of law, be permitted to stultify 
 himself in this manner by the pretended or even real use of strong 
 liquors, of which, if it were a thing to be examined, the Court could in no 
 instance ascertain the truth of the fact." 
 
 In the "Apollo,"* the vessel, having sailed in ignorance of a 
 blockade of Dieppe, was duly warned of it, and on the mere de- 
 claration of the master that he would go there, coupled with the 
 fact of his not going elsewhere forthwith, was captured. In the 
 "Columbia,"* declarations by the master that he would persist in 
 his course were treated as scarcely sufficient to justify confiscation, 
 but in the present case the judge said : — 
 
 " It would not be the disposition of the Court to take advantage of 
 any hasty expressions used in the moment of surprise. If a foolish 
 declaration was made, apparently idle and without a persevering obstinate 
 intention of carrying it into execution, it would, I think, be a harsh 
 exercise of the rights of war to press such a hasty declaration to the dis- 
 advantage of the master, and more especially to the property of others, 
 
 1 5 Rob., 262 (1804). 2 Ibid., 264. 
 
 3 Ibid., 286 (1804). 4 I Rob., 156. 
 
BLOCKADE 207 
 
 entrusted in some measure to his discretion. But if such a declaration is 
 made, and accompanied by such circumstances as impress on the mind 
 of the Court a conviction that the master was persisting in a serious deter- 
 mination of acting agreeably to it, the captor is not bound to wait till he 
 proceeds to carry his design into execution. . . . 
 
 " It is said that a master in such a situation would be under much dis- 
 tress and difficulty to determine where he should go. It may be so ; but 
 he could be under no doubt as to his negative duty, as it may be called, 
 that he was not to go into the blockaded port. It must be clear and 
 obvious to him that the neighbourhood of the blockaded port cannot be 
 considered as the fit locus deliberandi for his future plans. If the Court 
 was to admit that a master might lie to and call a council of his own 
 thoughts, or of those of his crew, in such a place, the rights of blockade 
 could no longer exist to any purpose ; he would stay in all cases until an 
 opportunity offered of slipping into the interdicted port. It would be 
 practically inconsistent with the exercise of this right of war to hold that 
 the blockading force is bound to stay by him and wait for the result of his 
 deliberation in this suspected place. On the contrary, his first duty is 
 ohw'vav&jfuge littus; that neighbourhood is at all events to be avoided. He 
 is bound on the first notice to take himself out of an equivocal situation, 
 and if he obstinately refuses and neglects so to do, this Court will hold, 
 till it is corrected by the judgment of the superior Court, that such a 
 conduct will amount to a breach of the blockade, and subject the vessel 
 to condemnation." 
 
 In the " Neutralitet " ^ the Court held that if a ship lie in roads 
 which are so connected with particular ports as almost to forni part 
 of them, and such ports be subject to blockade, in the absence of 
 urgent necessity from distress, it is a reasonable inference that 
 the ship intended a violation of the blockade. Sir W. Scott gave 
 the following reasons for condemnation : — 
 
 "But I will take the case as if the vessel was not in the port, but only 
 near it. It comes then to be considered how far a neutral ship has a right 
 to anchor in such a spot, where she may have an opportunity of slipping 
 into a blockaded port without molestation. It will not be necessary in 
 the present case to lay down a general principle on this point, but I am 
 disposed to agree to a position advanced in argument that a belligerent is 
 not called upon to admit that neutral ships can innocently place them- 
 selves in a situation where they may with impunity break the blockade 
 whenever they please. If the belligerent country has a right to impose a 
 blockade, it must be justified in the necessary means of enforcing that 
 right ; and if a vessel could, under the pretence of going farther, approach 
 cy pres close up to the blockaded port so as to be enabled to slip in with- 
 out obstruction, it would be impossible that any blockade could be main- 
 tained. It would, I think, be no unfair rule of evidence to hold as a 
 presumption dejure that she goes there with an intention of breaking the 
 blockade ; and if such an inference may possibly operate with severity in 
 particular cases where the parties are innocent in their intentions, it is a 
 severity necessarily connected with the rules of evidence and essential to 
 the effectual exercise of this right of war," 
 
 1 6 Rob. 30(1805). 
 
208 COMMERCE IN WAR 
 
 The "General Hamilton"^ was the case of a ship which 
 had been purchased in a blockaded port and having sailed on 
 a voyage from the Seine to New Orleans, had been driven by 
 stress of weather into a British port, where she was seized. The 
 Court held that it was immaterial whether or no the ship had 
 been purchased out of the proceeds of an outward cargo, and that 
 the fact that the ship had been driven by stress of weather into a 
 British port did not constitute a termination of the voyage. 
 Sir W. Scott observed : — 
 
 " It is first said that the vessel had been purchased out of the proceeds 
 of the cargo of another vessel, but that circumstance cannot avail on a 
 question of blockade. If the ship had been purchased in a blockaded port, 
 that alone is the illegal act, and it is perfectly immaterial out of what 
 funds the vessel was purchased. Another distinction is that the vessel had 
 terminated her voyage, and therefore the penalty could no longer attach. 
 It is true that she had been driven into a port of this country by stress of 
 weather ; but that is not described by the master as any part of the 
 original destination, which is represented to have been New Orleans. It is 
 impossible to consider this accident as any discontinuance of the voyage 
 or as a defeasance of the penalty which has been incurred." 
 
 The " Triheten "^ deals with interruption of blockade. A block- 
 ade of S. Lucar (Spain) had been notified on 25 April. The 
 Swedish vessel in question sailed from Sables D'Olonne for that 
 port on 22 May, and was captured. But meanwhile, the blockade 
 notified had been suspended, the fleet having been driven off 
 before the notification was actually made (on 10 April). The 
 claimants argued^ that "the notification being defeated, the vessel 
 would have been entitled to a warning if any blockade de facto 
 had existed when she arrived." Without going so far as that — 
 for it will be remembered that Scott countenanced blockades 
 " by notoriety," independent of diplomatic or individual notice* — 
 the Court was " not disposed to hold that the mere act of sailing 
 for Seville or S. Lucar under the dubious representation which 
 we have of the state of the actual blockade at that time, is 
 sufficient to fix upon this vessel the penalty of breaking the 
 blockade. " 
 
 In the "Charlotte Christine,* the excuse for approaching a 
 blockaded coast was made that there only was it supposed that a 
 pilot could be had. It was held that an unduly close approach to 
 the shore, which had the effect of putting the vessel under the 
 protection of the shore batteries, rendered it liable to condemna- 
 tion. 
 
 » 6 Rob., 61 (180S). 3 Ibid., 6s (180s). 
 
 3 Per Laurence, D.CL. * Supra, p. 194 ; infra, p. 209. 
 
 6 6 Rob., loi (1805). 
 
BLOCKADE 209 
 
 " It is possible that his intention was innocent, but the Court is under 
 the necessity of acting on the presumption which arises from such a 
 conduct, and of inferring a criminal intention." 
 
 The " Hoffnung" (Schmidt).^ Ord's blockade of S. Lucar was 
 suspended by the squadron's being driven off on 10 April. ^ 
 CoUingwood was directed to resume it, and he arrived off the 
 coast on 8 June. The "Hoffnung" sailed from Nantes on 
 17 July for Seville, notwithstanding the notification of 25 April 
 to the effect that S. Lucar, its port, was blockaded. It was held 
 that there was no sufficient notoriety of the resumption of the 
 blockade to supply the place of the non-existent renewal of 
 the notification. 
 
 The judge said : — 
 
 " It appears that the ports of Cadiz and S. Lucar were put under block- 
 ade by a notification of the 25th of April, but it unfortunately happened that 
 the notification issued at a time when it became equally notorious that no 
 blockade actually existed, since the British squadron had been recently 
 driven off by a superior force. In a former case the question was raised 
 whether the notification which had issued was not still operative. . . . 
 But the Court was of opinion that it could not be so considered, and that 
 a neutral Power was not obliged under such circumstances to presume the 
 continuance of a blockade, nor to act upon a supposition that the blockade 
 would be resumed by any other competent force. 
 
 "It was argued on that occasion that neutrals were bound to act upon 
 such presumptions, and on the same principle on which it has been held 
 that when a blockading squadron is driven off by adverse winds, they are 
 bound to presume that it will return, and that there is no discontinuance 
 of the blockade. But certainly the two cases are very different. When a 
 squadron is driven off by accidents of weather, there is no reason to 
 suppose that such a circumstance would create a change of system, since 
 it could not be expected that any blockade would continue many months 
 without being liable to such temporary interruptions. But when a 
 squadron is driven off by a superior force, a new course of events arises, 
 which may lead to a very different disposition of the blockading force, 
 and which introduces, therefore, 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 to conjecture that 
 the blockade will be resumed ; and therefore, if it is to be renewed, it must 
 proceed de novo by the usual course. . . ." 
 
 In the "Tutela,"^ the vessel was loaded at Bordeaux in May 
 and August, 1805, for S. Lucar, and captured on the 25th of the 
 latter month.* It is clear that Sir W. Scott might have been dis- 
 posed to restore, only that actual knowledge of the blockade was 
 brought home to the master and consignees. At the same time, it 
 
 1 6 Rob., 112 (1805). 2 The "Triheten," 6 Rob., 65 ; supra, p. 208. 
 
 3 6 Rob., 177 (1805). 
 
 * See, in connexion with the dates, the " Hoffnung" and the "Triheten," supra. 
 
 P 
 
2IO COMMERCE IN WAR 
 
 is a distinct case of confiscation where neither diplomatic nor indi- 
 vidual notification was made by the blockading Power. 
 
 The "Gute Erwarterung"^ is to the same effect as the "Charlotte 
 Christine." 
 
 In the "Maria" (Monses)^ a case arose somewhat similar to that 
 of the " Lisette."' The export was from Bremen to America, 
 but the Weser being blockaded, the goods were taken by lighters 
 (against which the blockade was not enforced) to the Jahde, 
 whence the ship sailed, having taken them on board. This was 
 asserted to be a breach of the blockade of Bremen, not because 
 the goods had originally come from that town,* but because the 
 fact that the goods were really exported once for all from thence 
 was patent on the face of the ship's papers, which disclosed a 
 through charter-party from Bremen to America. There were also 
 the further facts that the "Maria" herself had come from Bremen, 
 and that thus both she and the lighters had actually passed through 
 the lines of the blockade — though, owing to certain relaxations in 
 favour of the coasting trade, the lighters were permitted to do so. 
 However, the judge held that the relaxation was wide enough to 
 permit lighters to take out goods from Bremen. 
 
 In the "Charlotte Sophia,"* where ship and goods went separately 
 from blockaded Hamburg to Tonningen, whence the ship lefv. 
 for Algeciras with the goods on board (the charter-party pro- 
 viding on its face for the through voyage), it was held that the 
 blockade of Hamburg had been broken, no such relaxation being 
 proved as had been conceded to Bremen. 
 
 The " Rolla"^ is an important case on the establishment and 
 notification of blockades by naval authorities in remote parts of 
 the world. A blockade of Montevideo was notified by the British 
 commander of the unfortunate La Plata expedition to the Spanish 
 Governor at the blockaded place, and this without any instructions 
 from the British Government. It was alleged that, if it was a 
 proper blockade at all, it was one de facto only, and not aided by 
 the presumptions which attach to one which is duly notified. 
 
 " It was contended," said the Court, " that the power of imposing a 
 blockade is altogether an act of sovereignty, which cannot be assumed or 
 exercised by a commander witn^^^i-^jpecial authority. But ... a com- 
 mander going out to a distant station may reasonably be supposed to 
 carry with him such a portion of sovereign authority delegated to him as 
 may be necessary to provide for the exigencies of the service on which he 
 is employed. On stations in Europe, where Government is almost at 
 hand to superintend and direct the course of operations, under which it 
 may be expedient that particular hostilities should be carried on, it may 
 
 > 6 Rob., 182 (1805). 2 ji,i^^ 201 (1805). 3 Infra, p. 212. 
 
 * See the "Stert," 4 Rob., 65 ; the "Ocean," 3 Rob., 297. 
 
 ^ 6 Rob., 204, note (1806). » Ibid., 364 (1807). 
 
BLOCKADE 211 
 
 be different. But in distant parts of the world it cannot be disputed, I 
 conceive, that a commander must be held to carry with him sufficient 
 authority to act, as well against the commerce of the enemy as against the 
 enemy himself, for the more immediate purpose of reduction. . . . How- 
 ever irregularly he may have acted towards his own Government, the 
 subsequent conduct of Government in adopting that enterprise . . . will 
 have the effect of legitimating the acts done by him, so far at least as the 
 subjects of other countries are concerned. . , . 
 
 " The second question that arises is whether the blockade was imposed 
 in a legal form. All that is necessary to make a blockade effectual and 
 valid is that it shall be communicated in a credible manner . . . any com- 
 munication which brings it to the knowledge of the party in a way that 
 could leave no doubt in his mind as to the authenticity of the information 
 would be that which ought to govern his conduct and will be binding upon 
 him." 
 
 He then recites the proceedings that had taken place, and 
 declares that between June, when Sir H, Popham arrived, and 
 23 September, when he notified the authorities of Montevideo, 
 no validity could be attached to anything that had passed. For 
 though the commander affected to consider a blockade in progress, 
 it was loosely kept up. But the Judge continues, approving the 
 notification of September : — 
 
 "The usual mode of communicating the intelligence undoubtedly is, 
 not to the hostile Government, but to neutral States, and when the more 
 regular form is practicable, it is proper that it should be observed. But 
 here it was not practicable. Sir Hume Popham took the only method that 
 could be adopted by sending to the governor of the place, and by desiring 
 him to make it known to the subjects of neutral Powers who had no 
 consuls or agents resident there to whom it could be more formally 
 addressed." 
 
 This, of course, is of importance only so far as egress is 
 concerned : and we have seen that the blockaded port early 
 becomes affected with notice of the blockade by evident notoriety. 
 We have also seen that it was considered of strict right that a ship 
 should take out cargo already on board before the institution of 
 ' the blockade. Popham's notice limited this egress to seven days, 
 and refused liberty to remove any cargo except that which had 
 been carried in. The Court held that this did not invalidate the 
 blockade, because it was a restriction " imposed by the commander 
 himself, who might possibly find himself under circumstances that 
 would make such a restraint perfectly justifiable, though no such 
 circumstances are stated." This is tantamount to denying any 
 right to bring away cargoes, except as a concession : which is in 
 accordance with modern practice, but scarcely what would have 
 been inferred from the earlier cases. 
 
 The Judge then touches on the extremely important topic of 
 
212 COMMERCE IN WAR 
 
 the bearing of individual relaxations on the continuance of the 
 blockade, and expresses himself with some emphasis. 
 
 " It is then said . . . that the blockade was irregularly maintained by 
 the blockading force, in suffering some ships to go in and others to come 
 out, which would tend to deceive other persons, and would therefore violate 
 the effect of the notification. And I confess if I was satisfied of the fact 
 that such instances did occur, I should be disposed to admit the conclusion 
 that such a mode of keeping up, or rather relaxing, the blockade, would 
 altogether destroy the effect of it. For what is a blockade but a uniform, 
 universal exclusion of all vessels not privileged by law ? If some are per- 
 mitted to pass, others will have a right to infer that the blockade is raised.^ 
 If it was shown, therefore, that ships not privileged by law have been 
 allowed to enter or come out, from motives of civility or other considera- 
 tions, I should be disposed to admit that other parties would be justified in 
 presuming that the blockade had been taken off." 
 
 He adds that a liberation or omission to seize vessels on account 
 of strategical reasons, such as shortness of hands, would not have 
 this effect. 
 
 The " Lisette."* In this case a vessel sailed from the Elbe to 
 Tonningen, under a charter party to take on board a cargo of 
 goods from Malaga, which were to be sent from the Elbe in 
 lighters. The goods were so shipped and sailed on 6 September. 
 Capture was effected on the 26th, after the blockade of the Elbe 
 had been notified (on 25 September) to be withdrawn. The Court 
 held that the penalty was discharged by the raising of the blockade 
 between the time of sailing and the capture. Sir W. Scott gave 
 judgment as follows : — 
 
 " The Court has already restored the ship, but it is said this passed on 
 grounds^ which will not apply to the cargo ; that the ship had gone from 
 Hamburgh in ballast, but that the goods are to be considered as taken in 
 one uninterrupted voyage commencing in an actual breach of the blockade, 
 and continuing, as the same identical shipment, on the original destination 
 from the blockaded port to Spain. . . , The distinction which is now taken 
 between the case of the ship and the cargo cannot, I think, be sustained. 
 In the former case of the 'Charlotte Sophia'* both the ship and the cargo 
 were condemned, and this ship had been engaged in precisely the same 
 course of trade. The master had taken on board the cargo, knowing it 
 to have come from Hamburgh in breach of the blockade, and under an 
 engagement to carry it on to the ultimate port of illegal destination. 
 One visible distinction of fact between the two ships is immaterial, viz. 
 that this vessel had gone from Hamburgh in ballast, whilst in the former 
 case the ship had a few articles on board, though the bulk of the cargo 
 was in that case also taken in at Tonningen. There is no doubt, then, 
 that this vessel must have been condemned on the authority of that case, 
 
 1 But see the " Maria" (Monses), supra, p. 210 ; the " J. M. SchrcEder," p. 197 ; and 
 the " Venscab," p. 198. 
 
 2 6 Rob., 387 (1807). 3 Supra, p. 210. 
 
BLOCKADE 213 
 
 unless one other material distinction of fact had existed, leading to a 
 rule of law to which the Court is strongly disposed to adhere. It is this, 
 that this vessel was not captured till the blockade had ceased. It is said 
 that the offence was consummated by the act of sailing; so it is in a 
 certain sense. But the ship was not taken in delicto, and I have not had 
 any case pointed out to me in which the Court has pronounced an un- 
 favourable judgment on a ship seized for the breach of a bygone blockade. 
 I know of no such case, and certainly the same reason for rigour does not 
 exist, because the blockade being gone, the necessity of applying the 
 penalty to prevent future transgression cannot continue. ... It is true, 
 as has been observed, that the offence incurred by a breach of blockade 
 generally remains during the voyage, but that must be understood subject 
 to the condition that the blockade itself continues." 
 
 The "Christiansberg"' was the case of a ship which had 
 sailed from Rotterdam ostensibly for Smyrna, but had put 
 into Alicant, as asserted, in distress. The outward cargo was 
 there sold, and another cargo taken on board, with which the 
 vessel sailed on a destination to Copenhagen, being captured 
 on that voyage. It appeared that the vessel had come out of 
 Rotterdam under the benefit of an indulgence Order in Council 
 that vessels might leave that port, which was blockaded, for the 
 purpose of going to a neutral port ; and an ostensible destination 
 was assumed to Smyrna. But the ship, as already stated, went 
 to Alicant, a blockaded port, under asserted distress, where the 
 master disposed of the cargo and purchased another cargo, which 
 the vessel was proceeding to take to Copenhagen when captured. 
 Sir W. Scott, in condemning the ship on the ground of fraudulent 
 evasion, gave judgment as follows : — 
 
 " I am to consider first the situation in which the ship was shut up at 
 Rotterdam. She was, in fact, blockaded in the port of Rotterdam, 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 
 the destination should be bond fide pursued. The vessel avails herself of 
 the indulgence and comes out with a professed intention of acting con- 
 formably to the order. But the fact turns out afterwards that she de- 
 posits her cargo in a port to which she would not have been permitted to 
 go if the real intention of the voyage had been declared. This is un- 
 questionably an act of perfidy ; and I ask by what means can the order 
 be maintained or such a conduct be repressed unless by the application 
 of the penalty to the subsequent voyage? Until the vessel had actually 
 entered the interdicted port, nothing appeared whether she was in delicto 
 or not. Cruisers see nothing ; she goes in, and then the offence is con- 
 summated, 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. It is objected 
 that if the penalty is applied to the subsequent voyage, it may travel on 
 
 » 6 Rob., 376 (1807). 
 
214 COMMERCE IN WAR 
 
 with the vessel for ever. In principle, perhaps, it might not unjustly be 
 pursued further than to the immediate voyage. But we all know that in 
 practice it has not been carried further than to the voyage succeeding, 
 which affords the first opportunity of enforcing the law." 
 
 The vessel was condemned. 
 
 Robinson refers to an old case reported in Stair's " Decisions," 
 Vol. I, p. 529 [Parkman v. Allen), to the following effect : — 
 
 "That the ship was taken in her return, having taken contraband to 
 the enemy in that voyage, which is founded upon evident reason, because, 
 that whilst ships are going towards the enemy, it is but an intention of 
 delinquency against the King in assisting his enemies ; but when they 
 have actually gone in and sold the contraband, it is delictum comtntssum, 
 and though it might infer a quarrel against the delinquent whenever he 
 could be found, yet the law of nations, liable for the freedom of trade, 
 abridged it to the immediate return of the same voyage, because quarrels 
 would be multiplied upon pretence of any former voyage." 
 
 Croudson v. Leonard'^ is a decision of the Supreme Court of 
 the United States to the effect that the condemnation of a vessel 
 for breach of blockade is conclusive evidence of the fact in an 
 action to recover from insurers in a neutral court. The doctrine 
 appeared to Johnson, J., "to rest upon three very obvious considera- 
 tions : the propriety of leaving the cognizance of prize questions 
 exclusively to courts of prize jurisdiction ; the very great incon- 
 venience, amounting nearly to an impossibility, of fully investi- 
 gating such cases in a court of common law ; and the impropriety 
 of reversing the decisions of the maritime courts of other nations, 
 whose jurisdiction is co-ordinate throughout the world." Wash- 
 ington, J., observed that in England "the sentence of a foreign 
 court of competent jurisdiction condemning the property upon 
 the ground that it was not neutral, is so entirely conclusive of the 
 fact so decided that it can never be controverted, directly or col- 
 laterally, in any other court having concurrent jurisdiction." All 
 persons, he goes on to say, are parties to an action in rem. But 
 this does not touch the point that the issue is not the same in the 
 action in rem and the action on the insurance policy ; and it is not 
 with surprise that we read that Chase and Livingston dissented. 
 
 In Fitzsimmons v. Newport Insurance Company^ the United 
 States Supreme Court discussed the British blockade of Cadiz. 
 The brig "John," cleared from Charleston for Cadiz, was warned 
 not to enter that port. It would seem that she arrived without 
 knowledge of any blockade ; and she was detained, and a British 
 prize-crew put on board. But eleven days later the Admiral asked" 
 the master where he would go if the ship were released, and upon 
 
 1 4 Cranch, 434 (1808). 2 Ibid., 185 (1808). 
 
BLOCKADE 215 
 
 his replying that he would adhere to his instructions, sent the vessel 
 to Gibraltar as upon a capture, and adjudication duly proceeded. 
 It was urged that the condemnation was not conclusive, and was 
 also bad on the face of it — reciting, as it did, persistence of the 
 master in his intention to enter Cadiz. Passing by the question 
 of conclusiveness, Marshall, C.J., held the condemnation bad : — 
 
 " The fact of clearing for a blockaded port is in itself innocent unless it 
 be accompanied with knowledge of the blockade. The clearance, there- 
 fore, is not considered as the offence ; the persisting in the intention to 
 enter the port, after warning by the blockading force, is the ground of the 
 sentence. 
 
 " Is this intention (evidenced by no fact whatever) a breach of 
 blockade ? . . . Vattel says,^ ' All commerce is entirely prohibited with a 
 besieged town. If I lay siege to a place, or only form a blockade, I have 
 a right to hinder any one from entering, and to treat as an enemy whoever 
 attempts to enter the place, or carry anything to the besieged, without my 
 leave.' 
 
 " The right to treat the vessel as an enemy is declared by Vattel to be 
 founded on the attempt to enter, and certainly this attempt must be made 
 by a person knowing the fact." 
 
 He then quotes a treaty between the United States and Great 
 Britain, stipulating for individual warning in cases where the 
 blockade was unknown, and proceeds : — 
 
 " Neither the law of nations nor the treaty admits of the condemnation 
 of the neutral vessel for the intention to enter a blockaded port, uncon- 
 nected with any fact. Sailing for a blockaded port, knowing 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 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. The cause assigned for condemnation would be a 
 justifiable cause, and it would be for the foreign^ court alone to determine 
 whether the testimony supported the allegation that the blockade was 
 broken. Had this sentence averred that the 'John' had broken the 
 blockade, 01 had attempted to enter the port of Cadiz after warning from 
 the blockading force, the cause of condemnation would have been justifi- 
 able, and without controverting the conclusiveness of the sentence, the 
 assurer could not have entered into any inquiry respecting the conduct of 
 the vessel. But this is not the language of the sentence." 
 
 It only recites persistence, after warning, in the intention: 
 whilst principle and compact require persistence in the attempt. 
 
 " Lingering about the place ... or the single circumstance of not making 
 immediately for some other port, or possibly obstinate and determined 
 
 * ni, sec. 177. 
 
 * i.e. belligerent. 
 
2i6 COMMERCE IN WAR 
 
 declarations of a resolution to break the blockade, might be evidence of 
 an attempt, after warning, to reach the blockaded port. But whether 
 these circumstances, or others, may or may not amount to evidence of 
 the offence, the offence itself is attempting again to enter," 
 
 The other six judges concurred. 
 
 The "Cornet"^ decided that it is not permissible to break a 
 blockade even for the purpose of bringing away neutral property. 
 The suggestion has recently been made that neutrals should 
 undertake to prevent the sailing of contrabandists and blockade- 
 runners, belligerents in their turn resigning their power of inter- 
 ference with neutrals on the high seas. Passing by the vexatious 
 inquisitions which this would impose on neutral commerce, and 
 the enormous expense which would be incurred by neutrals in 
 carrying out such a system of supervision and guarantee, it is clear 
 that its adoption would cause constant friction with belligerents, 
 who would continually complain of its inefficiency, and would raise 
 enormous demands after the fashion of the ' ' Alabama " claims when- 
 ever a cargo got through. Sir W. Scott seems to have been of 
 this opinion, for the suggestion having been thrown out that the 
 " Comet " was protected by a licence of the United States 
 authorities, he declared : — 
 
 " Meaning to express myself with all the reverence that is due to the 
 Governments of neutral nations, I must observe that it is not to be expected 
 that the belligerent country should trust the preservation of its rights to 
 the vigilance of others." 
 
 In the " Luna"^ (which is hardly otherwise worth quoting, as it 
 was decided on the very special circumstances of the extraordinary 
 Orders in Council which were issued as retaliatory to the Berlin 
 and Milan Decrees), Sir W. Scott made the remark which is now 
 in some danger of being forgotten : — 
 
 " I cannot admit that, because the port of S. Sebastian ^orders on 
 ports which are blockaded, therefore it is less accessible thail any other 
 open port ; the introduction of such a principle would have l^ie effect of 
 stretching out the limits of every blockade to an indefinite exjent." 
 
 In the "Nancy" (Hurd)^ the vessel had communicated with 
 Martinique in the absence of the blockading squadron, which had 
 gone on an expedition to Surinam. But the squaclron had left 
 one large frigate behind it, which was '• now and then ' seen by the 
 inhabitants. Held, tha,t to constitute a blockade thp intention to 
 shut up the port should not only be generally ihide known to 
 vessels navigating the seas in the vicinity, but that k was the duty 
 
 1 I Edw., 32 (1808). 2 Hid., 191 (i8c&). 
 
 3 I Acton, 58 (1809). j 
 
BLOCKADE 217 
 
 of the blockaders to maintain such a force as would be of itself 
 sufficient to enforce the blockade. This could only be effected by 
 keeping vessels so communicating with each other as to be able to 
 intercept all vessels attempting to enter. " The periodical appear- 
 ance of a ship-of-war in the offing could not be supposed a 
 continuation of a blockade" previously maintained with such 
 unparalleled vigour that no vessel whatever was able to enter 
 the island during its continuance. Vessel restored. 
 
 In the " Nancy " (Woodberry)^ it was held that a port might be 
 held to be blockaded by a vessel which was sometimes there and 
 sometimes seven miles away. Sir W. Grant makes (if correctly 
 reported) the unusual statement that as the commander on the 
 station considered the force completely adequate, the Court felt it 
 necessary to rely on his judgment. 
 
 In the " Eagle " (Marsan) ^ the claimants contended that the 
 blockade had been periodically interrupted by prevalence of 
 particular winds and the state of the tide, and by the exigencies 
 of chasing ; and also that licences to enter had been given to 
 particular vessels, so that the inhabitants of Martinique did not 
 know whether it subsisted. Without giving reasons the Court 
 condemned the vessel. 
 
 From the " Nordstern "' it can be gathered what the usual course 
 of blockade was when a hostile fleet was concerned. The ships- 
 of-the-line were disposed seven or eight leagues from Cadiz at 
 some distance in the offing, keeping up a communication with 
 each other, and extending in a circle outside the mouth of the 
 harbour, whilst the frigates and lighter vessels were placed from 
 two to four leagues from Cadiz within the harbour, with orders to 
 cruise as near in-shore as they could with safety, in order to watch 
 the motions of the enemy. Communication was constantly kept 
 up between them and the exterior squadron, and on a particular 
 signal from the latter, the frigates were to close in as near the 
 enemy's works as possible. It was doubtful whether any of 
 the line-of-battleships were in sight when the "Emerald" frigate 
 made the capture in question ; nevertheless they put in a claim 
 as joint captors. The Court of Appeals distinguished, per 
 Grant, M.R., between a " military " and a "commercial" block- 
 ade : i.e. between a blockade intended to affect neutral commerce 
 and a mere besetting of the enemy's fleet. It is generally under- 
 stood that it is military exigency which (at all events historically) 
 justifies the interference with commerce which a blockade involves : 
 but in this case the besetting of the Spanish fleet in Cadiz was 
 held to be a blockade only in a popular and loose sense, and not 
 
 1 1 Acton, 63 (1809). 2 Ibid., 65 (1809). ^ /^,v/., 128 (1809). 
 
2i8 COMMERCE IN WAR 
 
 such as to enable neutral commerce to be stopped. The enemy 
 cargo found on the " Nordstern " was further held to be the prize 
 of the actual captors alone ; the battleships were not admitted to 
 share in it. 
 
 The principles on which the whole blockading squadron is 
 entitled to participate in prizes made by one of the ships compos- 
 ing it are also discussed in the " Forsigheid." ' 
 
 In the " Little William"* the Court of Appeals considered the 
 question of approaching a blockaded port for inquiry. The ship 
 left America for Hamburg ; but, if blockaded, that port was to be 
 relinquished in favour of Tonningen. The Elbe was known to be 
 blockaded when the vessel sailed. Sir W. Scott pronounced for 
 the captors. But the Court of Appeals, per Grant, M.R., reversed 
 the decision. The capture was made off the Start, so that the 
 vessel still had opportunities for legitimate inquiry. But her 
 papers showed an intention to make the inquiry at Heligoland, or 
 at the mouth of the Eider (some twenty miles north of the Elbe). 
 The Appellate Court thought that this did not necessarily mean 
 an inquiry of one of the blockading squadron, and did not come 
 within the prohibition against making inquiry at the mouth of a 
 blockaded port. 
 
 It is generally sufficient to entail condemnation to sail for a 
 blockaded port ; but, says Arnold arguendo — ^ 
 
 " The exception in favour of American neutrals seems to be founded on 
 the increased hardship they must labour under were no contingent des- 
 tination permitted. . . . To obviate the numerous frauds which it was 
 apprehended might be resorted to, were the permission to sail with a 
 contingent destination not accompanied with definite rules for the purpose 
 of obtaining accurate information as to the state of the port supposed in 
 a state of blockade, it is required that vessels of this description shall 
 make inquiry and ascertain the state of such port at a safe and permitted 
 place, and in a safe and permitted manner ; and to show that they enter- 
 tain no disposition to elude the blockade, it is particularly necessary that 
 such inquiry shall not be attempted to be made at the mouth of the 
 blockaded port. This restriction," he goes on (and the Court accepted his 
 conclusions), " is confined to the mouth of the port blockaded and to the 
 blockading squadron at its mouth. . . ." 
 
 And Stephen, on the same side, says (p. 157) : — 
 
 " The strict meaning of the restriction concerning the place at which 
 inquiry may be legally made seems to amount to this — that no neutral 
 vessel shall, on pretence of making such inquiry, be in a place where 
 otherwise she was not entitled to be." 
 
 1 I Edw., 124 (1809). 2 I Acton, 141 (1809). 
 
 3 Ibid., 150. 
 
BLOCKADE 219 
 
 The " Spes " ^ was cited : but the Court pronounced for the 
 claimants. For one thing, since the date of the " Spes," the Berlin 
 Decree had made it dangerous to obtain information by touching 
 at an EngHsh port, and it was necessary to proceed further for 
 intelligence. 
 
 " To direct the inquiry to be made off the Eider appears," said Grant, 
 M.R., " under the peculiar circumstances of this blockade, to be fair and 
 unattended with any suspicion that fraud was intended." 
 
 This case has attracted less attention than it deserves. 
 
 Again, in the " Dispatch " ^ it was urged before the Court of 
 Appeals that the neutral sailing with a contingent destination for 
 a blockaded port should say in her papers where she meant to 
 make the inquiry. The ship left America with knowledge of the 
 blockade of Bremen and a contingent destination for that port or 
 Tonningen. 
 
 "The intended mode," say Dallas and Jenner, "of ascertaining this 
 material circumstance should be a prominent feature in a letter of instruc- 
 tions. The rule of law is positive that it must not be made at the mouth 
 of such port. By your lordships' decision in the 'Little William' it 
 seems it is not necessary it should be made during the prosecution of her 
 voyage up the Channel, in a British port ... It becomes more necessary 
 to require that the place shall be distinctly pointed out by the instructions." 
 
 Sir W. Grant peremptorily refused to entertain any such 
 reasoning, and the Court refused the appeal as groundless, with 
 costs to the claimants. All vessels, it was observed, did call at 
 Heligoland, where information could always be obtained ; and it 
 was superfluous to require the place to be particularized. 
 
 A somewhat similar point was taken in Yeaton v. Fry? In 
 that case a policy of insurance excepted from the risks insured 
 against, " blockaded ports." A voyage to a port not known to be 
 blockaded was held to be covered by the policy. The exception 
 is not of the port, but " of the risk of capture for breaking the 
 blockade." It had been contended that the insured took upon 
 himself the risk of ports turning out to be blockaded, and that 
 a voyage, to Cura9oa, in the prosecution of which the ship was 
 turned away and warned by a blockading ship, so that she had 
 to make for Tobago, sustaining damage en route, was outside the 
 policy. 
 
 The blockade of San Lucar and Cadiz, and the question of its 
 effectiveness and notification,* was again considered in the 
 " Hare." ^ The original blockade, it will be remembered, was 
 
 > S Robins, 76, supra, p. 204. 
 
 2 I Acton, 163 (1809.) 
 
 3 5 Cranch, 335 (1809). 
 
 * Supra, pp. 208, 209. The " Hoffnung" and the "Triheten." 
 6 I Acton, 252 (1810). 
 
220 COMMERCE IN WAR 
 
 discontinued owing to the appearance of a superior force ; and 
 it was contended that the reappearance of the British fleet was 
 not sufificient to re-establish it. Sir W. Scott held that time must 
 be allowed for it to become notorious (in the " Ho£fnung"^), and 
 that the Government at Madrid could not, in the beginning 
 of July, have known of the blockade, the existence of which was 
 still doubted at Cadiz on the 23rd. 
 
 In the " Hare," counsel for the claim note the difficulties in the 
 way of affecting a neutral with notice by " notoriety," 
 
 " The fleet, indeed, appeared off the port, but . . . that fleet might 
 have been supposed to be merely one of observation. . . . The mere 
 knowledge of the detention of vessels, if even brought home to the 
 master of this vessel, would have created no obligation on his part." 
 
 The causes of detention might have been very various. The 
 Court,^ however, considered that in this case notoriety was proved, 
 and was sufficient. The fleet had been before the port warning 
 off vessels for over a month.' 
 
 Insufficient excuses for seeking a blockaded port were put 
 forward in the " Elizabeth,"* viz. loss of binnacle compass, ex- 
 haustion of crew, alleged impossibility of procuring a pilot for the 
 safe port of destination (Tonningen). Another excuse, put for- 
 ward in the "Arthur,"^ was held insufficient, viz. that the visit 
 was merely to obtain a pilot. 
 
 Sir W. Scott said : — 
 
 " [The party] must show that he was led there by some accident which 
 he could not control, or by some want of information which he could not 
 obtain. In doing this he must prove his whole case ; and, however 
 innocent his intentions may have been, he must explain his conduct in a 
 way consistent not only with the innocence of himself and his owner, but 
 he must bring it within those principles which the Court has found it 
 necessary to lay down for the protection of the belligerent right of this 
 country, and without which no blockade can ever be maintained." 
 
 An admitted justification for breach of blockade is stress of 
 weather. In the "Charlotta"* it was successfully alleged, Trinity 
 Masters being called in. Sir W. Scott seems to indicate a strong 
 opinion that the mere calling at a blockaded port (no cargo being 
 shipped or landed) does not necessarily involve condemnation, 
 but that the ship may be admitted to prove that no intention of 
 commercial dealings in the blockaded port ever existed ; in which 
 case she will be released. 
 
 " I was much inclined to hold that, although a vessel going into a 
 blockaded port would be subject to condemnation, the legal presumption 
 
 1 Supra, p. 208. 2 Of Appeals. 
 
 3 Cf. the "Johanna Maria," infra. « Edw., 198 (i8io). 
 
 5 Ibid., 202 (1810). « Edw., 252 (i8io). 
 
BLOCKADE 221 
 
 that she is going in there for purposes of trade was ousted by the fact of 
 her being taken coming out without having delivered her cargo. But I 
 think that the case, in the first instance, is fit for further inquiry, because 
 if ... it should appear that [she went in under no distress], the legal pre- 
 sumption will be that she actually went in there for the fraudulent purpose 
 of delivering her cargo : and it is not her having come out again without 
 executing that purpose, owing to some unexpected change of circum- 
 stances, that will entirely remove the illegality, . . . Supposing the fact 
 to be that the cargo remains the same, but that she went in meaning to 
 dispose of it, and there found the rigour of the French decrees, or the 
 disadvantages of the market, to be such as to frustrate the intention, in 
 that case the delinquency of a fraudulent intention has actually been con- 
 summated, and the vessel would be subject to confiscation." 
 
 The case repays a little thought. Sir W. Scott appears to have 
 considered the whole essence of the offence of blockade-running 
 to consist in the matter of trading. At the present day a vessel 
 which, for some purpose of her own, not amounting to necessity 
 (say, to take a surgeon on board or gratuitous passengers), should 
 enter and leave a blockaded port with her cargo intact, would 
 stand a good chance of condemnation, however clearly it was 
 proved that there never was any intention of trading in the 
 blockaded port.^ In the "Charlotta" necessity did exist; but the 
 indication of Scott's opinion that the mere fact of exit without 
 trading went far to oust the presumption of illegality is worth 
 careful consideration. 
 
 The "James Cook,"^ ostensibly bound for Tonningen, was 
 found at the mouth of the Texel, and from the evidence of the crew 
 it was evident that she intended to enter that blockaded port. 
 
 Sir W. Scott, after reiterating that cargo-owners were bound 
 by the acts of the master, in cases where the existence of the 
 blockade was known at the port of shipment, 
 
 " for otherwise, by sacrificing the ship, there would be a ready escape for 
 the cargo," observed : — 
 
 " The ship is captured in a place where the fact is conclusive against 
 her, for it has been determined over and over again that a ship is not at 
 liberty to go up to the mouth of a blockaded port even to make inquiry. 
 That in itself is a consummation of the offence, and amounts to an actual 
 breach of the blockade." 
 
 In The Maryland Insurance Co. v. Woods^ the point was again 
 raised as to the conclusiveness in the U.S. of a foreign prize 
 judgment, in an action on a policy of insurance. The voyage of 
 the " William and Mary " was " from Baltimore to La Guayra, with 
 liberty of one other neighbouring port," and so back to Baltimore. 
 
 » Cf. "The Olinde Rodriguez" {infra, p. 250), and Vattel, III, § 177. 
 2 Edw., 261 (1810), 3 6 Cranch, 29 (1810). 
 
222 COMMERCE IN WAR 
 
 A blockade of Cura^oa had been diplomatically notified, and was 
 generally known in Baltimore at the date of sailing. The ship 
 was proceeding beyond La Guayra, when she was captured for 
 breach of the blockade. It was asserted that the consequent con- 
 demnation was conclusive on the underwriters. The judgment 
 turned on the construction of expressions in the policy intended to 
 have the effect of denying to it such an effect. 
 
 Incidentally, Marshall, C. J., observes that orders had been 
 issued by the British Government to consider only such West Indian 
 ports blockaded as were actually so : ^ and in those cases to warn 
 vessels off before effecting a capture. The Chief Justice declares 
 that under these circumstances it was quite proper for a neutral to 
 sail for a blockaded port on the chance of being warned away. 
 Until warning, she is in the situation of a ship having no notice 
 of the blockade. 
 
 The circumstances in which a master may abandon his voyage 
 on receipt of information from a belligerent cruiser that it would 
 be an illegal one are discussed in King v. Delaware Insurance Co. 
 {per Marshall, C. J.).= 
 
 In the " Drie Vrienden "* a ship left a blockaded port, on hearing 
 that her own country was likely to be involved in a war with the 
 territorial Power. Necessity was held to justify this exit, although 
 a cargo was taken out, since without it the enemy would not allow 
 the vessel to leave. That the danger must be immediate and 
 pressing is proved by the " Wasser Hundt." * This ship was lying 
 at Kiel, a port affected by the British Orders in Council. On a 
 rumour that the French proposed to seize all colonial produce that 
 might be found in that port, the ship left for Wismar. It was 
 at first argued that there was a continuous voyage from New York 
 (whence the goods had originally come) to Wismar ; but this being 
 rejected, the plea of necessity was raised. 
 
 " Will political and remote speculations of this kind," said Sir W. Scott, 
 " give the parties a right to violate the Orders in Council ? If these 
 apprehensions, so entertained and so extended to remote consequences, are 
 to authorize the violation of a blockade, one does not see how any blockade 
 is to be supported." 
 
 Parenthetically one may suggest that the danger is not so serious 
 as it looks : blockades of neutral ports are not very frequent, 
 and not entitled to much encouragement. 
 
 " The party smells danger at a distance, and satisfies himself that the 
 French army was assembled for no other purpose than to seize American 
 
 1 Cf. letters of British Admiralty and Minister; 3 Wheaton's Rep., Appx., pp. 12, 13. 
 
 2 6 Cranch, 71 (1810). 
 
 3 I Dods., 269 (1813). * Ibid., 270 n. (1810). 
 
BLOCKADE 223 
 
 property. But suppose his apprehensions were well founded, would that 
 justify his violating the rights of another country? Certainly not. He is 
 to rely on his neutrality, and look to his own Government for protection. 
 That the French, in this apprehended march, the creature of his own im- 
 agination, might have been guilty of excesses, can give him no right to 
 shove aside the British Orders in Council" 
 
 This is somewhat too strongly expressed, since it suggests that 
 under no circumstances is a neutral justified in leaving a block- 
 aded port with a cargo. But the " Drie Vrienden "^ (three years 
 later) corrects that impression. There a rumour current in 
 S. Martin's (Isle of Rhd) of impending war between Prussia and 
 France was held to justify a Prussian ship in leaving that port 
 with a cargo without which the French would not have permitted 
 her to sail. 
 
 In Williams v. Armroyd^ Marshall, C, J., declined to refuse to 
 recognize condemnations proceeding in France under the Milan 
 Decree, although that document had been declared a violation of 
 "national law" (i.e. the law of nations) by the United States 
 Legislature. 
 
 " Unquestionably the Legislature which was competent to make [that 
 declaration] was also competent to . . . give it effect by the employment 
 of such means as its wisdom should suggest. Had one of those been, that 
 all sentences pronounced under it should be considered as void and in- 
 capable of changing the property . . . this Court could not have hesitated 
 to recognize the title of the original owner in this case. But the Legis- 
 lature has not chosen to declare sentences of condemnation pronounced 
 under this unjustifiable decree absolutely void. It has not interfered with 
 them. They retain, therefore, the obligation common to all sentences 
 whether erroneous or otherwise, and bind the property which is their 
 object — whatever opinion co-ordinate tribunals may entertain of their own 
 property, or of the laws under which they were rendered." 
 
 In the "Arthur,"^ Sir W. Scott declared that under the special 
 circumstances of the retaliatory "blockades" established by the 
 Order of Council of 26 April, 1809, the usual requirements as to 
 the method of its maintenance did not apply. 
 
 " The blockade . . . was never intended to be maintained according to 
 the usual and regular mode of enforcing blockades, by stationing a 
 number of ships, and forming as it were an arch of circumvallation round 
 the mouth of the prohibited port. There, if the arch fails in any one 
 part, the blockade itself fails altogether; but this species of blockade 
 which has arisen from the violent and unjust conduct of the enemy was 
 maintained by a ship stationed anywhere in the neighbourhood of the 
 coast, or (as in this case) in the river itself, observing and preventing 
 every vessel that might endeavour to effect a passage up or down the 
 
 river." 
 
 1 Supra. 2 7 Cranch, 423 (1813). 
 
 3 I Dods., 425 (1814). 
 
224 COMMERCE IN WAR 
 
 In such circumstances, vessels employed in maintaining a 
 "blockade" of a long extent of coast at different points were 
 not considered so associated in one proceeding as to be entitled to 
 share in one another's captures. 
 
 The general principle with regard to captures by one ship of a 
 blockading squadron is laid down in " La Henriette,"^ viz. that the 
 rest are entitled to share, though not actually in sight, if they 
 were associated with her in and necessary to the due performance 
 of the operation. 
 
 In " La Mdlanie,"^ the " Briton " frigate, blockading Bordeaux, 
 chased a schooner and finally captured it in presence of the 
 British fleet blockading the Isle d'Aix. Citing an old case of 
 1746 before Sir Thomas Penrice, Lord Stowell refused to say 
 that a distant glimpse of a different blockading squadron, which 
 did not and could not assist in the capture,' would entitle it to 
 a share in the prize. He went on to observe : — 
 
 " They were employed in a blockade service, of the closest and strictest 
 kind, for the purpose of watching vessels which were earnestly seeking an 
 opportunity to escape. They were sentinels on their post. . . . Blockading 
 ships, it is true, are at liberty to take a prize if it comes in their way, but 
 they are not to chase to a distance, for that would, in effect, be a desertion 
 of the duty imposed upon them, and would amount to a breaking up of the 
 blockade!' 
 
 Whether the judge meant that any blockade would be legally 
 broken up by absence on a long chase, or only that a besetting 
 of a strong fleet would practically be nullified if the " blockading " 
 fleet went away on distant chases, may be a little uncertaiii; 
 We have seen that the reasonable exigencies of chasing do not 
 generally interrupt a duly established blockade ;* and probably Sir 
 W. Scott simply meant that the squadron in this case could not 
 have weakened its force without destroying its military efficiency. 
 
 Another case of besetting men-of-war, which was not con- 
 sidered to involve the consequences to neutral traffic incidental to 
 a blockade, arose at Naples in 181 5, and was examined in the 
 Naples Grant.^ The brig "Grasshopper" claimed to participate 
 in a grant made by the British Government in lieu of ships 
 and stores taken from, but restored to, the Neapolitan Govern- 
 ment. The ship alleged that from 30 April to 6 May she had 
 cruised off the northern passages of the Bay of Naples, for the 
 purpose of watching and blockading the said port. 
 
 " Now I agree," said Sir W. Scott,* " with the observation of the 
 King's Advocate, that it would have been better, perhaps, if the blockade 
 
 1 2 Dods., 96 (181S). 2 Ili^^ J22. 
 
 ' Cf. the "Sparkler," i Dods., 359 (1813), and see supra, p. 217 ; the "Nordstem." 
 * The "Eagle" {supra, p. 217). This case, however, is not a conclusive one. The 
 Court gave no reasons. ^ 2 Dods., 273 (1818). • Ibid., p. 280. 
 
BLOCKADE 225 
 
 had been more specifically described ; it turns out to be not so much a 
 blockade of Naples as a blockade of certain ships in the Bay of Naples 
 ... to prevent their egress for any purpose of hostility." 
 
 But on 7 May a somewhat different line had been adopted : the 
 senior officer proceeded (though not actually with the "Grass- 
 hopper" in company) "to blockade the Bay of Naples and the 
 ships there " ; further threatening to bombard the town if the 
 ships and stores were not delivered up. The town thereupon 
 surrendered, and meanwhile the "Grasshopper" had been in 
 touch with the senior officer and had been employed in executing 
 specific orders of his. 
 
 " It seems to me," says his lordship (p. 284), " to have been assumed, in 
 this case, that the commencement [of the blockade] was at the time at 
 which the summons was sent in, and that the termination of it was at the 
 time of the actual surrender. And I entirely agree with Dr. Arnold, that 
 if that is to be taken as the time of the actual blockade of the bay, that 
 the title of the ' Grasshopper ' was entirely revoked . . . the ' Grasshopper ' 
 was not in the Bay of Naples at that time, nor at the time of the summons, 
 nor upon any of the intermediate days, nor at the time of the surrender ; 
 and, therefore, if that be taken as the point of law, that the time of the 
 summons and surrender is to be so considered, then the ' Grasshopper ' is 
 not to be so entitled. But it strikes me that that is not by any means to 
 be considered as the commencement of this blockade ; but that the moment 
 these vessels were assembled to stop the egress of the vessels in the bay is 
 to be considered the commencement of it. . . . Now upon what ground 
 is it to be assumed that the blockade is to be taken to have commenced 
 from the time the summons was sent in? Is that so? The summons is 
 usually the conclusion of the business : after the parties have taken their 
 positions, and have made their advances, and have sounded the dispositions 
 of the persons who are the objects of attack : but the blockade or siege 
 commences long before that time." 
 
 In Olivera v. Union Insurance Company^ the United States 
 Supreme Court adopted the principle that a vessel may be allowed 
 to come out of a blockaded port with a cargo already laden before 
 the blockade was instituted. A concise statement of the law of 
 blockade is appended in a note. 
 
 Nay lor v. Taylor^ was an action on a policy of insurance, 
 arising out of a capture made in virtue of the Brazilian blockade 
 of Buenos Ayres and its ports in the River Plate. The capture 
 was made off Montevideo, then a Brazilian port, and one hundred 
 miles away from the nearest blockaded one. It was alleged that 
 the blockade was invalid, or at least that the ship should have 
 been warned ; but Lord Tenterden, C.J., held — 
 
 "That the blockading fleet may lie at any distance convenient for 
 shutting up the port blockaded, not obstructing any other — and that was 
 the case here, for Montevideo was open, and we do not learn that there 
 were any other ports not in a state of blockade higher up the river." 
 
 1 3 Wheat, 183 (1818), 2 I Moo. & M., 207 (1828). 
 
 Q 
 
226 COMMERCE IN WAR 
 
 It must be supposed that the destination was admittedly Buenos 
 Ayres ; and, in that case, it is quite immaterial where the capture 
 was made, except on the analogy of the English cases which 
 allowed vessels from America to call at a safe port in order to 
 ascertain whether the blockade still continued. On that analogy, 
 the ship would have been justified in making Montevideo ; but 
 the facts seem to show that she showed no intention of calling 
 there for information or discharge. The case is a nisi prius one, 
 and but for the eminence of Lord Tenterden, need hardly have 
 been noticed. 
 
 The " Elise "^ shows that the blockade of Archangel" was ac- 
 companied by a contemporaneous declaration (not gazetted) that 
 fourteen days would be allowed for shipment of cargo and exit. 
 A custom-house officer, ignorant of this relaxation, captured a 
 vessel from Archangel in Leith Docks. 
 
 " It does not follow," says Lushington, D.C.L., " because this [Gazette] 
 notification was so made, that therefore it is to be taken as an abso- 
 lute fact that the blockade was actually imposed at that period. 
 The ' Gazette ' is only prima facie evidence of the blockade, and not 
 conclusive. ... It is said that the non-commissioned [captor] was 
 entitled to avail himself of the ' Gazette,' and that he was not bound 
 to know whether there was any such permission given to the master or 
 not. I confess I entertain very grave doubts as to the truth of that pro- 
 position. ... I am much inclined to think that if those in command of 
 the British force gave full permission to certain vessels to come out of a 
 port which appears from the ' Gazette ' to have been blockaded, the seizor 
 must take the consequence if he did not get information as soon as 
 possible from the Government : the loss is not to fall on the innocent 
 owner." 
 
 In the "Franciska" (Spinks, iii). Dr. Lushington explained 
 that the " Nancy " ^ must not be pressed too far, and while ap- 
 proving that case, and the dictum of Grant, M.R., that a blockade 
 which a naval commander considers sufficient must be taken to 
 be so, he materially weakens their force by the reservations he 
 immediately makes. If the commander is contradicted, the Court 
 is at liberty to form its own opinion. It is equally free to follow its 
 own view, if the commander appears to be mistaken in his notions 
 as to what constitutes an effective blockade. Lushington treats 
 the latter case as somewhat academic, conceiving the possibility 
 unlikely. But naval officers are not necessarily omniscient. 
 
 The "Franciska,"* a neutral ship under Danish colours, was 
 captured in May, 1854, at the entrance of the Gulf of Riga, for a 
 breach of the blockade of that port. The main questions decided 
 
 » Spinks, 93 (1854). 2 Supra, p. 217. 
 
 3 Supra, p. 216 ; I Acton, 63. 
 J 4 loMoo. P.C.C.,p. 37(1855). 
 
BLOCKADE 227 
 
 in this case were as follows : — (i) Whatever may be the demerits 
 of a ship, she cannot be condemned for a breach of blockade 
 unless at the time when she committed the alleged offence the 
 port for which she was sailing was legally in a state of blockade 
 and was known to be so by the master or owner ; (2) the admiral 
 of the fleet must be presumed to have carried with him from 
 England sufficient authority to blockade such of the enemy's 
 ports as he might deem advisable ; (3) relaxation of blockade in 
 favour of belligerents to the exclusion of neutrals is illegal ; (4) 
 notice of blockade must not be more extensive than the blockade 
 itself; (5) the existence and extent of a blockade may be so 
 generally known that knowledge of it in an individual may be 
 presumed without distinct proof of personal knowledge, and such 
 knowledge may supply the place of a direct communication from 
 a blockading squadron ; yet the fact with notice of which an 
 individual is so to be fixed must be one which admits of no reason- 
 able doubt. This ship sailed in March, 1854, from Spain, with a 
 cargo of wine and salt belonging to subjects of the Queen of 
 Spain, for Elsinore for orders, thence for Lubeck, or some other 
 safe port in the Baltic. On 13 May she left Elsinore and passed 
 the Sound, where she cleared for the Baltic generally, without 
 naming any port, and was captured on 22 May off the entrance 
 of the Gulf of Riga by H.M.S. "Cruiser" for a breach of the 
 blockade of Riga, and sent to England for adjudication. 
 
 It was alleged by the owner that the master had orders to pro- 
 ceed to Riga if it was not in a state of blockade ; that to ascer- 
 tain whether it was so or not, he made inquiries at Copenhagen and 
 also of H.M.S. "Rosamond," but without effect, and upon des- 
 crying the "Cruiser," the "Franciska" sailed towards her with 
 a view of making the same inquiry, when she was captured. 
 
 On 27 January, 1855, the Judge of the Admiralty Court 
 delivered judgment, condemning the ship and freight for a breach 
 of the blockade on the grounds, first, that the blockade was 
 notorious at Elsinore on 14 May, the day the "Franciska" 
 sailed ; and, secondly, that the master had deposed falsely, as in 
 the opinion of the Court he was proceeding to violate the block- 
 ade with a full knowledge of the same. The judgment of the 
 Privy Council is of exceptional value, and therefore, although of 
 great length, is set out practically in extenso. 
 
 " At the hearing of this appeal it was contended by the appellant, first, 
 that the ship ought to have been restored on hearing the claim, or 
 that, at all events, further proof ought not to have been allowed to the 
 captors. 
 
 " Second, that upon the further proof (if properly received) restitu- 
 tion ought to have been decreed, with costs and damages. 
 
228 COMMERCE IN WAR 
 
 " As to the first point, the course of proceeding to be observed on the 
 original hearing is very clear. In everything that regards the ship and 
 cargo the case is to be considered, in the first instance, exclusively upon 
 the evidence furnished by the ship itself, namely, the papers on board and 
 the examination or the standing interrogatories of the master and some 
 of the crew. If the case be clear upon this evidence, restitution or con- 
 demnation is decreed at once. If upon such evidence the case be left in 
 doubt, further proof is usually allowed to the claimant only ; but it may 
 also be allowed to the captors, if in the opinion of the judge who hears 
 the case such a course appears to be required. With respect to matters 
 which cannot appear upon evidence furnished by the ship of the exist- 
 ence or non-existence, the suflficiency or insufficiency of a blockade, the 
 Court must necessarily resort to other means of information. In this case 
 the ship was labouring under the utmost suspicion. She had no Latin 
 pass, which the Danish Government provides for a ship of that country. 
 She had no papers whatever on board showing the port for which she was 
 bound. She did not appear to have had any communication with the 
 firm at Elsinore, from which, by the terms of her charter party, she was to 
 receive orders as to her further destination. The master stated that he 
 had received his orders from the owner of the ship at Copenhagen . . . and 
 that his orders were to proceed to Memel ; but if there was no blockade, 
 and if the English warships would permit him, to proceed to Riga ; and 
 that before he was captured he was sailing for Memel. Yet it clearly 
 appeared that he had never steered for Memel at all, but had passed that 
 port without approaching it and had been captured at the mouth of the 
 Gulf of Riga. . . . 
 
 " Whatever may be the demerits of the ship, she cannot be condemned 
 unless at the time when she committed the alleged offence the port for 
 which she was sailing was legally in a state of blockade, and was known 
 to be so by the master or ownen 
 
 " The offence imputed to the ship in an affidavit of Captain Douglas, the 
 captor, is that she was sailing for Riga, ' and the deponent had reason to 
 believe that the fact of the blockade of the Gulf of Riga was known at 
 Copenhagen on the 1 3th of May, the day of her departure from that port.' 
 
 " The grounds of the condemnation are then stated in the judgment : 
 ' I condemn this ship, first because I hold that the blockade was notorious 
 at Elsinore on May 14th, the day this vessel sailed. Secondly, because the 
 master had deposed falsely and was proceeding to violate the blockade 
 with a full knowledge thereof Under such circumstances he can derive no 
 benefit from the treaty with Denmark.' 
 
 "It is not contended by the captors that after the ship sailed from 
 Copenhagen she received any notice to affect her with knowledge of the 
 blockade, and the questions therefore are : — 
 
 " First : Was the port of Riga on the 14th May legally in a state of 
 blockade ? 
 
 " Second : If so, had the master or owner at that time such notice of the 
 fact as to subject his ship to condemnation ? 
 
 "With respect to the evidence on the first point, it is established that on 
 the iSth or 17th of April the admiral did establish, by a competent force 
 properly stationed for the purpose, an effective blockade of the ports of 
 Libau, Windau, and the Gulf of Riga 5 that with the exception of the 3rd and 
 4th of May, on which days all the blockading ships were absent from their 
 
BLOCKADE 229 
 
 stations, the blockade was maintained to a time subsequent to that at which 
 the 'Franciska' was seized, and their lordships agree with the judge in 
 the Court below in thinking that the Admiral must be presumed to have 
 carried with him from England authority from H.M.'s Government to 
 institute such blockade of the Russian ports as he might deem advisable. 
 
 " But while the Admiral was taking these measures in the Baltic, the 
 English and French Governments were taking measures at home of which 
 he was ignorant, and which, it is contended, seriously affect the validity 
 of the blockade in point of law, 
 
 " By an Order of H.M. in Council issued on the breaking out of the war, 
 and dated the 29th March, 1854, provision had been made for the case of 
 Russian merchant vessels which, at the date of the Order, should be in 
 British ports, or which, prior to the date of the Order, should have sailed for 
 any foreign port, bound for any port or place in H.M.'s dominions ; and by 
 another order, dated the i Sth of April, after reciting the former Order so 
 far as regarded the last- mentioned class of vessels, and that H.M., with the 
 advice of her Privy Council, was now pleased to alter and extend it, it was 
 ordered : — ' That any Russian merchant vessels which, prior to the 15 th of 
 May, 1854, shall have sailed from any port of Russia situated either in or 
 upon the shore or coasts of the Baltic Sea or of the White Sea, bound for 
 any port or place in H.M.'s dominions, shall be permitted to enter such 
 last-mentioned port or place and to discharge her cargo, and afterwards 
 forthwith to depart without molestation, and that any such vessel, if met at 
 sea by any of H.M.'s ships, should be permitted to continue her voyage to 
 any port not blockaded.' 
 
 " It has been held, and in their lordships' opinion properly held, in the 
 Court below, that the permission given by this Order to export goods from 
 Russian ports in the Baltic and the White Sea, would authorize such 
 exports from places which might at the time be in a state of blockade. 
 Indeed, as it appears to have been the intention of the Allied Powers, as 
 soon as possible after the commencement of the war, to blockade all the 
 Russian ports in the Baltic, any other construction would make the order 
 almost nugatory. The same construction must, in their lordships' opinion, 
 be put upon the corresponding Ordonnance of the French Government, 
 issued on the same isth April, by which Russian vessels bound for any 
 place in France or Algeria were to be at liberty to leave any Russian ports 
 in the Baltic and White Sea before the 15th of May, and pursue their 
 voyage and return to any port not blockaded. 
 
 " By a Russian ukase issued on the ground of the Orders made by the 
 Allied Powers, six weeks from the 25th April were allowed to English and 
 French vessels in Russian ports in the Baltic for ' taking on board their 
 cargoes and for an unobstructed departure for foreign ports.' 
 
 "The English Order in Council of the 15th April had provided only 
 for Russian vessels bound to British ports, and the French Ordonnance 
 of the same date for Russian vessels bound to French ports, but by a 
 further French Ordonnance dated the 26th April free passage was ordered 
 to be given to all Russian vessels loaded in Russian ports on French 
 account for French ports or on English account for English ports up to 
 the I Sth of May. 
 
 " As regards export, therefore, from the Baltic ports by the effect of 
 these several ordinances, all restriction up to the isth of May, on the con- 
 veyance of cargoes in Russian vessels to British and French ports was 
 
230 COMMERCE IN WAR 
 
 removed ; and though British and French vessels would, by the general 
 law of nations, be liable to confiscation for breach of blockade by sailing 
 from blockaded ports with cargoes taken on board after notice of blockade, 
 and the permission to export is by the Orders in terms confined to 
 Russian vessels, it seems improbable that the Allied Powers could intend 
 to deprive their subjects of the indulgence granted to them by the 
 Russian Government, or to subject their property to confiscation for doing 
 what the enemy was permitted to do with impunity. 
 
 "In effect, therefore, neutrals only would be excluded from that 
 commerce which belligerents might safely carry on ; and the question is, 
 whether by the law of nations such exclusion would be justifiable, and if 
 not, in what manner and to what extent neutral Powers are entitled to 
 avail themselves of the objection. 
 
 " That such exclusion is not justifiable is laid down in the clearest and 
 most forcible language in the following passage of the judgment here 
 under review : — ' The argument stands thus : By the Law of Nations a 
 belligerent shall not concede to another belligerent or take for himself the 
 right of carrying on commercial intercourse prohibited to neutral nations, 
 and therefore no blockade can be legitimate that admits to either 
 belligerent a freedom of commerce denied to the subjects of States not 
 engaged in the war. The foundation of the principle is clear, and rooted 
 in justice ; for interference with neutral commerce at all is only justified 
 by the right which war confers of molesting the enemy, all relations of 
 trade being by war itself suspended. To this principle I entirely accede ; 
 and I should regret to think if any authority could be cited from the 
 decisions of any British Court administering the Law of Nations which 
 could be with truth asserted to maintain a contrary doctrine.' 
 
 "The learned judge, after discussing the question how far licences to 
 enter blockaded ports would invalidate a blockade, and pointing out the 
 important distinctions between blockades according to the ordinary law 
 of nations and the blockades introduced during the last war by the 
 Berlin and Milan decrees on the one hand, and the British Orders in 
 Council on the other, and between special licences granted for a particular 
 occasion and licences granted indiscriminately, proceeds : ' I think that 
 if the relaxation of a blockade be, as to belligerents, entire, the blockade 
 cannot lawfully subsist ; if it be partial and such as to exceed special 
 occasion, that, to the extent of such partial relaxation, neutrals are 
 entitled to a similar benefit,' and he concludes in these words : ' With 
 respect to the present question, I, therefore, have come to the conclusion 
 that as Russian vessels might have left the ports of Courland up to the 
 I ith of May, the subjects of neutral States ought to be entitled to the same 
 advantages, and if there be any vessel so circumstanced I should hold her 
 entitled to restitution. I think the remedy should be commensurate with 
 the grievance.' The learned judge holds that such relaxation does not 
 affect the general validity of the blockade. 
 
 " In order to judge how far this conclusion can be maintained, it is 
 necessary to consider upon what principles the right of a belligerent to 
 exclude neutrals from a blockaded port rests. That right is founded not 
 on any general unlimited right to cripple the enemy's commerce with 
 neutrals by all means effectual for that purpose, for it is admitted on all 
 hands that a neutral has a right to carry on with each of the belligerents 
 during war all the trade that was open to him in time of peace, subject to 
 
BLOCKADE 231 
 
 the exception of trade in contraband goods and trade with blockaded 
 ports. Both these exceptions seem founded on the same reason, namely, 
 that a neutral has no right to interfere with the military operations of a 
 belligerent either by supplying his enemy with materials of war or by 
 holding intercourse with a place which he has besieged or blockaded." 
 
 Mr. Pemberton Leigh then quotes passages from Grotius and 
 other jurists, and proceeds : — ^ 
 
 "These passages refer only to ingress and the importation of goods, 
 but it is clear that the operations of the siege or blockade may be 
 interrupted by any communication of the blockaded or besieged place 
 with foreigners ; and Lord Stowell, when he defines a blockade, always 
 speaks of it as the exclusion of the blockaded place from all commerce 
 whether by egress or ingress. In the ' Frederick Molke,' i Rob. 87, he 
 says : ' What is the object of a blockade ? Not merely to prevent an 
 importation of supplies, but to prevent export as well as import ; and to 
 cut off all communication of commerce with the blockaded place.' In 
 the 'Betsy' (i Rob. 93): 'After the commencement of a blockade a 
 neutral cannot, I conceive, be allowed to interfere in any way to assist the 
 exportation of the property of the enemy.' In the ' Vrow Judith ' (i Rob. 
 151) : 'A blockade is a sort of circumvallation round a place, by which all 
 foreign connexion 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 that place, and a neutral is no more at liberty to assist the traffic of 
 exportation than of importation.' In the ' Rolla ' (6 Rob. 372) : ' What is 
 a blockade but a uniform universal exclusion of all vessels not privileged 
 by law?' In the ' Success ' (i Dods. 134) : ' The measure which has been 
 resorted to, being in the nature of a blockade, must operate to the entire 
 exclusion of British as well as of neutral ships ; for it would be a gross 
 violation of neutral rights, to prohibit their trade and to permit the subjects 
 of this country to carry on an unrestricted commerce at the very same 
 ports from which neutrals are excluded.' 
 
 " It is contended that the objection of a neutral to the validity of a 
 blockade, on the ground of its relaxation by a belligerent in his own 
 favour, is removed if a Court of Admiralty allows to the neutral the same 
 indulgence which the belligerent has reserved to himself or granted to his 
 enemy. But we have great difficulty in assenting to this proposition. In 
 the first place, the particular relaxation which may be of the greatest value 
 to the belligerents, may be of little or no value to the neutral. In the 
 instance now before the Court, it may have been of the utmost importance 
 to Great Britain that there should be brought into her ports cargoes which 
 at the institution of the blockade were in Riga ; and it may have been for 
 her advantage, with that view, to relax the blockade. But a relaxation of 
 the blockade to that extent, and a permission to neutrals to bring such 
 cargoes to British ports, may have been of little or no value to neutrals. 
 
 " The Counsel on both sides understood that the learned judge below in 
 this case intended thus to limit the rights of neutrals and to place neutral 
 vessels only in the same situation as Russians under the Order in Council. 
 Their lordships would be inclined to give a more liberal interpretation to 
 the language of the judgment ; yet if this be done, the allowance of a 
 
 * See p. 93, supra. 
 
332 COMMERCE IN WAR 
 
 general freedom of commerce, by way of export, to all vessels and to all 
 places from a blockaded port seems hardly consistent with the existence of 
 any blockade at all. 
 
 " Again, it is not easy to answer the objections which a neutral might 
 make, that the condition of things which alone authorizes any interference 
 with his commerce does not exist, namely, the necessity of interdicting all 
 communication by way of commerce with the place in question ; that a 
 belligerent, if he inflicts upon neutrals the inconvenience of exclusion from 
 commerce with such place, must submit to the same inconvenience him- 
 self; and that if he is to be at liberty to select particular points at which 
 it suits his purpose that the blockade should be violated with impunity, 
 each neutral, in order to be placed on equal terms with the belligerent, 
 should be at liberty to make such selection for himself 
 
 " But the ambiguity in which all these questions are left by the Order in 
 Council of the 15th April; the doubt whether the liberty accorded to 
 enemies' vessels extends to neutrals, and, if so, whether such liberty is 
 subject to the same restrictions, or to any other, and what restrictions, 
 affords, in our opinion, another strong argument against the legality of 
 the blockade in this case. If a partial modified blockade is to be 
 enforced against neutrals, justice seems to require that the modifications 
 intended to be introduced should be notified to neutral States, and that 
 they should be fully apprized what acts their subjects may or may not do. 
 They cannot reasonably be exposed to the hardship of either abstaining 
 from all commerce with a place in such a state of uncertain blockade, or 
 of having their ships seized and sent to the country of the belligerent in 
 order to learn therefrom the decision of its Court of Admiralty whether 
 the conduct they have pursued is, or is not, protected by an equitable 
 interpretation of an instrument in which they are not expressly 
 included. 
 
 " If these views of the law be correct, this ship cannot be considered to 
 have had notice of any blockade of Riga at the time she sailed for that port, 
 for in truth no legal blockade was then in existence, and it would be hard 
 to require a neutral to speculate on the probability, however great, of a 
 legal blockade de facto being established at a future time, when he is not 
 permitted to speculate on the chance of its discontinuance after he has 
 once had notice of its existence. 
 
 " We have considered the objections to the blockade only as it is 
 affected by the Orders in Council of the 15th April, which relate to egress 
 from Russian ports, and to this view of the case the arguments at the Bar were 
 confined both before the Judge below and before us. But it may not be 
 immaterial to advert to the position in which Russian vessels at this time 
 stood with respect to ingress into the Baltic ports, and to consider whether 
 a certain class of such vessels, namely, those which at the breaking out of 
 the war were in British or French ports, were not at liberty to sail with 
 their cargoes for the ports to which they were bound, although such ports 
 might be blockaded. 
 
 " By the Order in Council of the 29th March already referred to, it was 
 ordered ' that Russian merchant vessels in any ports or places of H.M.'s 
 dominions should be allowed until the loth of May next, six weeks from 
 the date hereof, for loading their cargoes and departing from such ports or 
 places, and that such Russian merchant vessels, if met at sea by any of 
 H.M.'s ships, should be permitted to continue their voyage, if on examina- 
 
BLOCKADE 233 
 
 tion 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 extend to Russian vessels having 
 on board any officer in the military or naval service of the enemy, or any 
 article prohibited, or contraband of wrar, or any despatch of or to the 
 Russian Government.' 
 
 " There is here an enumeration of the several particulars which are to 
 exempt a vessel from the Order, and to leave her, of course, subject to 
 capture as enemies' property. But the attempt to enter a blockaded port 
 is not amongst the exceptions, nor is there any prohibition against enter- 
 ing such port. An enemy's ship commits no offence against the law of 
 nations by attempting to elude a hostile squadron and enter a blockaded 
 port ; she has a perfect right to do so if she can. She is already subject 
 to seizure in another character, but does not incur any penalty by breach 
 of blockade. If, therefore, her liability to seizure as an enemy is to be 
 removed, but her liberty to sail in security to her port of destination is to 
 be restricted to such ports as may not be in a state of blockade, it should 
 seem that such restriction ought to be specified. 
 
 " Accordingly, in the next paragraph of this Order, which applies to a 
 different class of vessels, the restriction is specified. Russian merchant 
 ships, which at the date of the Order are on their voyage from foreign to 
 British ports, are to be permitted to unload their cargoes and forthwith to 
 depart and continue their voyage to any port not blockaded. 
 
 " By the corresponding Ordonnance of the French Government of the 
 27th March, permission is granted to Russian vessels in French ports for 
 six weeks, 'de se rendre directement au port de destination sans qu'ils 
 soient dans I'intervalle susceptibles d'etre captures.' There is no excep- 
 tion of blockaded ports. By subsequent orders of both Governments the 
 period for leaving certain distant ports was extended to six weeks after 
 promulgation of the Order. The same observations that have been made 
 with respect to the cases of egress may be repeated with respect to ingress, 
 namely, that if all the Russian ports were to be blockaded, and if a per- 
 mission to a Russian vessel to sail to her port of destination was to be 
 subject to a tacit exception of blockaded ports, such permission would be 
 delusive and hardly consistent with good faith towards the enemy. 
 
 " No doubt ships of one belligerent at the outbreak of war found in 
 the ports of another, into which they have entered for peaceful purposes, 
 with the expectation of the continuance of peace, form an exceptional 
 class which has a strong claim to an indulgent exercise of the right of 
 capture, and an express permission to such ships to enter their port of 
 destination, though blockaded, might perhaps not affect the validity of the 
 blockade. It might fall within the class of cases alluded to by the learned 
 Judge of the Court below, of licence 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 to him cargoes from their own ports, though he at 
 the same time insists on a blockade of such ports against neutrals. 
 
 " Supposing, however, the blockade in this case to be open to no objec- 
 tions in point of law during the interval between the 15th of April and 
 the isth of May, it remains to be inquired whether the notice which this 
 ship received of its existence was of such a character as to subject her to 
 the penalty of confiscation for disregarding it. Notice has been imputed 
 
234 COMMERCE IN WAR 
 
 to the claimant in the Court below from the alleged notoriety of the 
 blockade from the 14th of May at Elsinore, where the ship touched, and 
 at Copenhagen, where the owner resided. 
 
 " It is contended by the appellant that in a case of ingress of a port 
 subject to a blockade only de facto of which there has not been any official 
 notification, guilty knowledge cannot be inferred in an individual from 
 general notoriety, and that a ship is always entitled under such circum- 
 stances to warning from the blockading squadron before she is exposed to 
 seizure. 
 
 " To this proposition we are unable to accede. If a blockade de facto 
 be good in law without notification, and a wilful violation of a known 
 legal blockade be punishable with confiscation — propositions which are 
 free from doubt — the mode in which the knowledge has been acquired by 
 the offender, if it be clearly proved to exist, cannot be of importance. 
 Nor does there seem for this purpose to be much difference between 
 ingress, in which a warning is said to be indispensable, and egress, in which 
 it is admitted to be unnecessary. 
 
 " The fact of knowledge is capable of much easier proof in the one case 
 than in the other ; but when once the fact is clearly proved the conse- 
 quences must be the same. The reasoning of the learned Judge of the 
 Court below in this case and the language of Lord Stowell in the 
 'Adelaide,' reported in the note in the 'Neptunus' (2 Rob. ni), and the 
 ' Hurtige Hane ' (3 Rob. 324) are conclusive upon this point. 
 
 " But while we are quite prepared to hold that the existence and 
 extent of a blockade may be so well and so generally known that know- 
 ledge of it in an individual may be presumed without distinct proof of 
 personal knowledge, and that knowledge so acquired may supply the place 
 of a direct communication from the blockading squadron, yet the fact, with 
 notice of which the individual is so to be fixed, must be one which admits 
 of no reasonable doubt. 'Any communication which brings it to the 
 knowledge of the party,' to use the language of Lord Stowell in the ' RoUa ' 
 (6 Rob. 367), ' in a way that could leave no doubt in his mind as to the 
 authenticity of the information.' 
 
 " Again, the notice to be inferred from general notoriety must be of 
 such a character that if conveyed by distinct intimation from a competent 
 authority it would have been binding ; the notice cannot be more effectual 
 because its existence is presumed, than it would be if it were directly 
 established in evidence. The notice to be inferred from the acts of a 
 belligerent which is to supply the place of a public notification, or of a 
 particular warning, must be such as, if given in the form of a public 
 notification or of a particular warning, would have been legal and 
 effectual. 
 
 " For this purpose the notice of the blockade must not be more extensive 
 than the blockade itself A belligerent cannot be allowed to proclaim' 
 that he has instituted a blockade of several ports of the enemy, when in 
 truth he has only blockaded one ; such a course would introduce all the 
 evils of what is termed a paper blockade, and would be attended with the 
 grossest injustice to the commerce of neutrals. Accordingly, a neutral 
 is at liberty to disregard such a notice, and is not liable to the penalties 
 attending a breach of blockade, for afterwards attempting to enter a port 
 which really is blockaded. 
 
 "This was distinctly laid down by Lord Stowell in the case of the 
 
BLOCKADE 235 
 
 'Henrick and Maria' (i Rob. 148), where an officer of the blockading 
 squadron had informed a neutral that all the Dutch ports were blockaded, 
 whereas the blockade was confined to Amsterdam. . . . 
 
 " Applying these principles to the evidence before us, we can have no 
 doubt that the master and owner in this case are to be fixed with notice 
 of all that was publicly known at Copenhagen on the 14th of May on the 
 subject of the blockade, that it was known there that merchant vessels 
 had been turned back from ports on the coast of Courland, and that a 
 general impression prevailed that vessels seeking to enter Russian ports 
 ran great risk of seizure ; and that the owner in this case shared that 
 impression, and that to this cause are to be attributed the want of 
 proper ships' papers which has been already alluded to, and the absence 
 on the further proof of any affidavit on the part of the owner denying 
 knowledge of the blockade. 
 
 " But it is contended by the appellant that the impression which thus 
 prevailed at Copenhagen (if, in fact, there existed any general impression) 
 on the 14th of May, was, and of necessity from the acts of the belligerent 
 Powers must have been, that the ports of Libau, Windau, and the Gulf of 
 Riga were blockaded (which they really were), but that all the Russian ports 
 in the Baltic were blockaded, which they certainly were not ; and that a 
 notice to be gathered from such erroneous impressions was, on the principles 
 already referred to, of no effect." 
 
 Mr. Pemberton Leigh then examined the details of the evidence 
 as it applied to Copenhagen at the time the " Franciska " left that 
 city. He referred to (i) the notification sent on 11 April from 
 Admiral Napier, the officer commanding the blockading squadron, to 
 the British Envoy at the Danish Court, in which he stated that the 
 British fleet would that day sail from Kioge Bay to place in a state 
 of blockade the whole of the Russian ports in the Baltic and in 
 the Gulf of Finland and Bothnia; (2) the circular issued by the 
 British Envoy at Copenhagen to ministers, charges d'affaires, and 
 consuls of all nations, reciting the Admiral's notification; (3) the 
 fact of publication of the notification and circular in the Danish 
 papers by the Government of Denmark ; (4) the fact that the 
 Admiral sent notification similar to that sent to the British Envoy 
 at Copenhagen, to the British Ministers at Berlin, Stockholm, and 
 the Hanse Towns; also that similar information was officially sent 
 to the Governments of Lubeck, Hamburg, Bremen, Sweden, and 
 elsewhere. The speaker then proceeds as follows : — 
 
 " But the important point for consideration is, what impression would 
 these proceedings create on the public mind, and what reports on the 
 subject would be likely in consequence of them to circulate through the 
 ports of the Baltic ? The belief which they would occasion must necessarily 
 be, that whatever the blockade might be it was general, and extended to 
 all the Russian ports in the Baltic, and was not confined to a few ports or 
 to a particular division of the coast. 
 
 " There is evidence that this actually was the belief created." 
 
236 COMMERCE IN WAR 
 
 (Mr. Leigh here examines this evidence, and proceeds) : — 
 
 "Yet from the 'Gazette' of the 14th of August it appears that the 
 blockade of the coast of Courland commenced on the 17th of April, that 
 of Helsingfors and some other ports on the 26th of April, that of Revel 
 and other ports on the 26th of May, and that of Cronstadt and others 
 in the Gulf of Finland on the 26th of June. ... It is clear, therefore, 
 the real state of the blockade could not have been known at Copenhagen 
 on the 14th of May, and that the only notice which the master could 
 receive at that port, at that time, would be that he must not sail for any 
 of the Russian ports ; a notice which, if he had received it from a British 
 officer, he could not, on the principles already stated, be punished for 
 disregarding. 
 
 " If this view had been presented to the judge in the argument in the 
 Court below, it probably would have commended his assent, since he entirely 
 approves of the principles upon which it is founded. But unfortunately 
 the argument before him took a different direction. The contention then 
 appears rather to have been that there had been no blockade of any 
 Russian ports, which could have been known at Copenhagen on the 14th of 
 May ; and that if any knowledge, however accurate, had been acquired by 
 the master through the channel of notoriety, it would not have formed a 
 legal ground of condemnation for an attempt to enter a blockaded port. . . . 
 But further, though the Government and commercial classes of Denmark 
 could hardly have been ignorant on the 14th of May that the commerce of 
 neutrals had been subject to interruption, and that captains of British 
 ships of war had interfered with their vessels on the allegation of a 
 blockade of Russian ports, there were not wanting circumstances which 
 might reasonably excite grave doubts, whether such blockade had been 
 established with sufficient authority, or would ultimately be recognized by 
 the British Government. 
 
 " In the first place, the intention to blockade had been duly notified to 
 the Danish Government, and they might natually expect that as the 
 British Government on the one side, and the Admiral on the other, had 
 means of easy and rapid communication with Copenhagen, any measure 
 so seriously affecting their trade as the actual blockade of any of the 
 Russian ports would be forthwith intimated to them in the same authentic 
 manner. It now appears why this was not done, namely, that the 
 Admiral considered the notification of the iith April as equivalent to 
 notice of actual blockade, but of this, of course, the Danish Government 
 could not have been apprised. 
 
 " Besides this, they would see that, by the British Order in Council 
 and the French Ordinances of the isth April issued subsequently to the 
 notification by the Admiral of the intended blockade, a certain degree of 
 commerce — which if the ports were blockaded would expose neutrals to 
 confiscation — was permitted to Russian ships up to the 15th May; they 
 would observe that no such permission was given to neutrals ; and they 
 would not unreasonably infer that such permission was not granted only 
 because it was not required ; that the permission was granted to Russians 
 because they would be liable to capture, whether the ports were blockaded 
 or not ; that it was not extended to neutrals because, there being no 
 blockade, there would be on their part no risk ; and this impression would 
 be confirmed by observing that, in the permission to Russian ships in the 
 
BLOCKADE 237 
 
 ports of the allies to proceed on their voyages, no reference is made to 
 blockaded ports as either included or excluded from such permission. 
 
 " Again, it might be known at Copenhagen that the rumours of blockade 
 which prevailed were, to a certain extent at all events, so far unfounded 
 that many of the ports which were said to be closed were, in truth, open ; 
 that as to the coast of Courland itself there had been for two days no 
 ships of war upon the blockading station, and that on those days and the 
 day following a very large number of ships were reported at least, whether 
 truly or not, to have entered Riga. 
 
 "We cannot but think that these considerations might with great 
 justice affect the credit of any reports in circulation at Copenhagen, and 
 create a not unreasonable doubt whether any blockade of Russian ports 
 had yet been established by a competent authority ; and they go far to 
 explain much of the testimony which might otherwise be open to severe 
 animadversion. There has been much confusion and perplexity with 
 respect to this blockade ; there are, as usually happens in such cases, some 
 inaccuracies and errors in the evidence on both sides. . . . 
 
 " We must advise a restitution of the ship (or rather of the proceeds, 
 for it appears to have been sold) and of the freight. . . . There will be 
 simple restitution, without costs or expenses to either party." 
 
 The " Ostsee " ^ was a ship which sailed from Cronstadt v(^ith a 
 cargo of wheat, bound for Elsinore for orders, and on this voyage 
 was captured by a British man-of-war for breach of blockade of 
 Cronstadt and sent to England for adjudication. There was no 
 blockade of Cronstadt at that time, and the Court held that 
 owners of ship and cargo were entitled to restitution with costs 
 and damages, as the seizure was made without probable or 
 reasonable cause. 
 
 The Court further laid down the following rules which should 
 govern the restitution of a ship seized as a prize : — 
 
 (i) The claimants may be ordered to pay to the captors their 
 costs and expenses. 
 
 (2) The restitution may be simple restitution, without costs or 
 expenses or damages to either party. 
 
 (3) The captors may be ordered to pay costs and damages to 
 claimant. 
 
 Costs and damages when decreed against the captors are not 
 inflicted as a punishment on the captors, but as affording com- 
 pensation to the injured party. 
 
 In order to exempt captors from costs and damages in case of 
 restitution, there must be some circumstances connected with the 
 ship or cargo affording reasonable ground for belief that ship and 
 cargo might prove a lawful prize. What amounts to such a prob- 
 able cause as to justify a capture is incapable of definition, and is 
 to be regulated by the peculiar circumstances of each case. 
 
 1 9 Moo. P.C.C, 150(1855); Spinks, 174. 
 
238 COMMERCE IN WAR 
 
 It is not necessary to prove vexatious conduct on the part of 
 the captors to subject them to condemnation in costs and damages. 
 
 Neither will honest mistake, though occasioned by an act of 
 Government, relieve the captors from liability to compensate a 
 neutral for damage which the captors by their conduct have caused 
 the neutral to sustain. 
 
 In the "Johanna Maria,"^ it was held that as Riga was de facto 
 blockaded to the presumed knowledge of the neutral master who 
 left that port, no absence of, or inaccuracies in, official notification 
 could affect its validity. He could not be misled as to the patent 
 fact that Riga, at all events, was under blockade. 
 
 In the "Otto and Olaf,"^ it was said that it is scarcely possible 
 for a ship or cargo coming out of a blockaded port to be entitled 
 to costs and damages. " The very fact of coming out of a 
 blockaded port with a cargo is probable cause for detention." 
 
 The " Fortuna " * is somewhat important on the question of 
 destination. Where the papers and depositions are otherwise 
 satisfactory, the mere position of the ship will not infer an illegal 
 destination without the assistance of Trinity Masters. 
 
 " It is obvious," says Lushington, " that the Court could not safely 
 [infer one], because so many nautical matters — such as courses, winds, and 
 currents, must be taken into consideration, that none but persons of 
 nautical science could safely draw any conclusion." 
 
 In this case, the captors had refused to go on with Trinity 
 Masters, and the question remained whether there was probable 
 cause for seizure. Unassisted by expert evidence, Lushington 
 could see none and felt bound to decree costs and damages 
 against the captors. 
 
 " I am told," he observed, " that the officer commanding the ships 
 constituting the blockading force will be left at the mercy of the 
 claimants, who will make what statements they think best for their own 
 safety, as the captors will not be permitted to contradict it ; and that 
 captors will be compelled to pay costs and damages, though in truth and 
 reality they have only fulfilled their duty, and captured vessels justly 
 liable to the suspicion of breaking the blockade. And further, I am told 
 that such an administration of the law will tend to weaken and impair the 
 exercise of one most important belligerent right — the right of blockade. 
 To this my answer is that, looking at all the consequences of admitting 
 captors' evidence on such questions — to all that was said by Lord Stowell 
 on that subject, I never will admit it till authorized by superior authority." * 
 
 1 10 Moo. P.C, 70 ; Spinks, 307 (1855). 
 
 2 Spinks, 257 (1855). 
 
 3 Ibid., 307 (1855). 
 * Ibid., 312. 
 
BLOCKADE 239 
 
 It was added that — 
 
 "Lord Stowell expressed it as his opinion that with regard to the 
 destination of a vessel, the evidence of the master, unless it was fairly 
 discredited, was the most important evidence to decide the question, and 
 is conclusive on that point." 
 
 In the " Union," ^ Dr. Lushington held that neutrals might be 
 admitted to prove their individual ignorance of blockades estab- 
 lished de facto and validated by general notoriety. But the proof 
 must be exceedingly cogent. 
 
 In the "Jeanne Marie," ^ the cargo of a vessel condemned for 
 egress from Riga was released. Instructions to bring it away had 
 been given to the master before the blockade could have been 
 known in Amsterdam, where the charter party was signed ; and 
 the neutral charterers were not bound by the acts of the master, 
 who was not their agent, nor by those of the shippers who were 
 their agents, but were at the same time interested belligerents. 
 The captors had their costs. 
 
 Again, in the " Aline and Fanny," ^ the papers and depositions 
 were not allowed to be contradicted by captors' evidence. The 
 Lubeck vessel in question, ostensibly bound to Haparanda, in 
 North Sweden, ex Lubeck, was seized twenty miles from land, 
 between 63° and 64° N., on the ground of an intention to break the 
 blockade of Cronstadt. So the master stated her position ; but a 
 certificate signed by the officers of the capturing ship " Dragon" 
 set forth the circumstances that the ship was running for the 
 anchorage, and drew off on observing the British ship. Although 
 the actual facts attending the event of capture may perhaps be 
 allowed to be proved by captors as in the " Der Friede," * yet that 
 rule is of very limited applicability.* 
 
 "The Court, according to its ordinary practice — a practice affirmed 
 and sanctioned by all the highest authorities of the law of nations — looks 
 primarily to the ship-papers and the depositions. . . . [The captors] 
 have not contended that on the evidence, as it now appears before the 
 Court, condemnation could be decreed — i.e, upon the ship-papers, the 
 depositions and log — the primary evidence in the case." 
 
 In the "Gerasimo,"® the Privy Council had occasion to consider 
 the blockade of the Danube. The Russian forces in the Turkish 
 territories were hampered by want of provisions, and it seems 
 indisputable that Turkey, and consequently her allies, could 
 blockade her own territory in hostile occupation just as though it 
 were in insurrection. An Admiral's proclamation of 2 June, 1854, 
 
 1 Spinks, 164 (1856). 2 Ibid., 167 (1856). 
 
 3 Ibid., 322 (1856). * Ibid., 330 (note.) 
 
 6 Ibid, 325. « II Moo. P.C, 88 (1857.) 
 
240 COMMERCE IN WAR 
 
 declared the establishment of a blockade of all those mouths of 
 the Danube which communicated with the Black Sea, in order to 
 stop all transit of provisions to the Russian forces. The Privy 
 Council treated this as an intimation to neutrals that the sole object 
 of the blockade was to stop provisions, and that egress would not 
 be objected to : but, the primary object of blockade being to cut 
 off all commercial intercourse, it can hardly be supposed that 
 neutrals would in the case proposed feel themselves at liberty to 
 continue it, merely because the imposers of the blockade had seen 
 fit to take them into their confidence respecting their motives. 
 The case illustrates the dangers and impropriety of a purported 
 arbitrary limitation of a well-known process such as blockade. 
 
 The Privy Council expressed a doubt as to whether a blockade 
 of the Danube mouths could affect a vessel sailing from Galatz, 
 150 miles up the river, and inclined to the contrary opinion, on 
 account of the unfairness of fixing the inhabitants of Galatz with 
 notice of what was taking place at the sea-coast — a somewhat 
 strained argument, as it merely goes to the length of time 
 requisite for the de facto blockade to become notorious at Galatz. 
 
 In the " Panagia Rhomba,"^ the ship violated the blockade of 
 Odessa, and it was held by Lushington that the cargo-owners were 
 bound by her action, the blockade being known to them. On 
 appeal the Privy Council approved his conclusions. 
 
 Citing the " Mercurius,"^ they proceed : — 
 
 " The subsequent cases appear to have . . . established, that when the 
 blockade was known, or might have been known, to the owners of the cargo 
 at the time when the shipment was made ; and they might, therefore, by 
 possibility, be privy to an intention of violating the blockade; such privity 
 shall be assumed as an irresistible inference of law, and it shall not be 
 competent to them to rebut it by evidence."* 
 
 " Against a rule, acted upon and promulgated to the world for so many 
 years, the counsel for the appellants, though challenged to do so by the 
 respondents, have not produced a single decision or dictum by any one 
 judge or jurist in any part of the world. Under these circumstances their 
 lordships must consider it as a settled principle of prize law by which they 
 are bound. Holding themselves to be precluded by the rule of law from 
 looking into the evidence in this case in order to judge of the guilt or in- 
 nocence of the claimants, they can express no opinion upon this subject."* 
 
 In the " Hiawatha,"^ one or two points relative to the law of 
 blockade were treated of in the U.S. Supreme Court. The peculiar 
 circumstances under which the "Hiawatha" was held to have 
 
 » 12 Moo. P.C, 168 (1858.) 
 
 2 Ibid., 188. 
 
 3 Ibid., 186. 
 * I Rob., 80. 
 
 = 2 Black, p. 63s (1862). 
 
BLOCKADE 241 
 
 failed to proceed to sea within the time specified by the proclama- 
 tion of 27 April, announcing the blockade of Virginia, need not be 
 detailed. More important is the discussion of the effect of the 
 President's language (in the general proclamation of 19 April), 
 which purported to promise individual warning before ships could 
 be condemned. 
 
 " It would be absurd," thought Grier, J., and the majority of the Court, 
 " to warn parties who had full previous knowledge. According to the con- 
 struction contended for, a vessel seeking to evade the blockade might 
 approach and retreat any number of times ; and, when caught, her captors 
 could do nothing but warn her and endorse the warning on her registry. 
 The same process might be repeated at every port on the blockaded coast. 
 Indeed, according to the literal terms of the proclamation, the ' Alabama' 
 might approach, and if captured, insist upon the warning and endorsement 
 of her registry, and then upon her discharge. A construction drawing after 
 it consequences so absurd is ^felo de se."^ 
 
 But Taney, C.J., Nelson, Catron, and Clifford, JJ., dissenting, 
 remarked : — 
 
 " We think it very clear, upon all the evidence, that there was no inten- 
 tion on the part of the master to break the blockade, that the seizure under 
 the circumstances was not warranted, and upon the merits that the ship 
 and cargo should have been restored. 
 
 " Another ground of objection to this seizure is that the vessel was en- 
 titled to a warning endorsed on her papers by an officer of the blockading 
 force, according to the terms of the proclamation of the President ; and that 
 she was not liable to capture except for the second attempt to leave the 
 port. . . . We must confess that we have not heard any satisfactory answer 
 to the objection founded on the terras of this proclamation. It has been 
 said that the proclamation, among other grounds as stated on its face, is 
 founded on the 'law of nations,' and hence draws after it the law of 
 blockade as found in that code, and that a warning is dispensed with in all 
 cases where the vessel is chargeable with previous notice or knowledge that 
 the port is blockaded. But the obvious answer to the suggestion is, that 
 there is no necessary connection between the authority upon which the 
 proclamation is issued and the terms prescribed as the condition of its 
 penalties or enforcement ; and, besides, if founded upon the law of nations, 
 it surely was competent for the President to mitigate the rigours of that 
 code, and apply to neutrals the more lenient and friendly principles of 
 international law." 
 
 Grier, J., was only supported by the three junior judges (two of 
 whom had just been appointed), and by Wayne, J., of Georgia. The 
 dissent of the Chief Justice and three senior members of the bench 
 is therefore important. ^^ 
 
 The United States case of the "Circassian"^ is sometimes cited 
 
 1 This singular attempt at a reductio ad absurdutn is an example of the hair-splitting 
 and over-subtlety which is one characteristic vice of the Anglo-American genius for law. 
 
 2 2 Wall., 135 (1864). 
 
 R 
 
242 COMMERCE IN WAR 
 
 as a case of continuous voyage, although it is to be remarked that 
 it is really not a case of continuous voyage at all, but a simple 
 one of determining a ship's true destination. There were papers 
 on board clearly indicating an intention to run the blockade, e.g. 
 the following : — 
 
 "Memorandum of Affreightment. — Taken on freight of Mr. Bouvet, Jun., 
 by order and on account of Mr. J. Soubry, on board the British steamer 
 ' Circassian,' etc., bound to Nassau, Bermuda, or Havana, the quantity, etc. 
 Mr. J. Soubry engages to execute the charter-party of affreightment; 
 that is to say, that the merchandise shall not be disembarked but at the 
 port of New Orleans, and to this effect he engages to force the blockade, 
 for account and with authority of J. Soubry. " Laibert, Neveu." 
 
 So, the charter-party stipulated that the ship should proceed 
 to Nassau or Havana, as ordered on sailing, and thence "to a 
 port of America, and to run the blockade if so ordered by the 
 freighters." 
 
 Obviously there was here a case, as precise as could be wished, 
 of a contingent illegal destination. 
 
 But the main interest of the " Circassian " lies in the fact that, 
 on the day when the ship was captured, New Orleans was no 
 longer blockaded, having been occupied by the Federal forces. 
 The Supreme Court held that a diplomatic blockade must be 
 presumed to continue until diplomatic notification of its dis- 
 continuance (subject to diplomatic complaint if notification is 
 delayed) ; and, further, that the occupation of New Orleans did 
 not terminate the blockade — the city being disaffected and the 
 district (including part of the technical limits of the port) hostile. 
 
 It is almost beyond argument that these positions are wrong. 
 Few conquered cities give the conqueror no trouble. It is not 
 legitimate to put stress on a district by blockading a port in one's 
 own occupation. Nor is it likely that a Government will often 
 publish to the world the interruptions which are sustained by its 
 own blockades.^ It is absurd to hold that a blockade of a city 
 which is notoriously in a conqueror's occupation must be held to 
 subsist. Juris et de jure, until the belligerent sees fit to consider 
 his position sufficiently secure. 
 
 The Chief Justice (Chase) had only just (6 December) been 
 appointed. He had previously been Secretary to the Treasury, 
 and, before that, Governor of Ohio. A judge of nineteen years' 
 experience on the bench of the Supreme Court, Nelson, J., dis- 
 sented, in terms which are well worth partial quotation : — ^ 
 
 " I think the proof sufficient to show that the purpose of the master 
 was to break the blockade of the port of New Orleans, and that it existed 
 
 1 Sir W. Scott, in the "Neptunus," was evidently referring to cases in which the 
 belligerent voluntarily raised the blockade. ^ 2 Wall., p. 155. 
 
BLOCKADE 243 
 
 from the inception of the voyage ; but, in my judgment, the defect of the 
 case on the part of the captors is, that no blockade existed at the port of 
 New Orleans at the time the seizure was made. . . . The capture and 
 possession of the port of the enemy by the blockading force, or by the 
 forces of the belligerent, in the course of the prosecution of the war, puts 
 an end to the blockade and all the penal consequences growing out of 
 this measure to neutral commerce. The altered condition of things, and 
 state of the war between the two parties in respect to the besieged port 
 or town, makes the continuance of the blockade inconsistent with the 
 code of international law on the subject, as no right exists on the part 
 of the belligerent to blockade his own ports. . . . The cessation of the 
 blockade necessarily resulted from the capture and possession of the port 
 and town of New Orleans. They no longer belonged to the enemy, nor 
 were under its dominion, but were a port and town of the United 
 States. ... So far as intercourse with the town became material, whether 
 commercial or otherwise, after the capture and possession, it was subject 
 to regulation by the municipal law, which is much more efficient and 
 absolute and less expensive than the measure of blockade. It is true 
 these laws cannot operate extra-territorially, but within the limit of the 
 jurisdiction . . . their control over all intercourse with the port and the 
 town is complete. Seizures of neutral vessels and cargo on the high seas 
 are, indeed, not admissible, but blockades are not established for the 
 purpose of these seizures ; they are but incidental to the exercise of the 
 belligerent right against the port of the enemy. 
 
 "The proclamation of the President of the 12th of May, 1862, which 
 announces that the blockade of the port of New Orleans shall cease after 
 the 1st of June following, has been referred to as evidence of its con- 
 tinuance up to that period. But I think it will be difficult to maintain 
 the position, . . . upon any principle of international law, that the belligerent 
 may continue a blockading force at the port, after it has not only ceased 
 to be an enemy's, but has become a port of its own. It is not necessary 
 that the belligerent should give notice of the capture of the town, in order 
 to put in operation the municipal law of the place against neutrals. The 
 act is a public event, of which foreign nations are bound to take notice 
 and conform their intercourse to the local laws. The same principle 
 applies to the blockade and the effect of the capture of the port on it. 
 The event is public and notorious, and the effect and consequences of the 
 change in the state of war upon the blockading force well understood. 
 
 " I have felt it a duty to state the grounds of my dissent in this 
 case . . . from a conviction that there is a tendency, on the part of the 
 belligerent, to press the right of blockade beyond its proper limits, and 
 thereby unwittingly aid in the establishment of rules that are often found 
 inconvenient and felt as a hardship when, in the course of events, the 
 belligerent has become a neutral." 
 
 The "Andromeda"^ decided that a libel in prize need only allege 
 the capture as prize of war, and need not specify the grounds of 
 the allegation. 
 
 The "Cornelius,"^ again, was a case of ascertaining the true 
 destination of a ship. A variety of suspicious circumstances, all 
 
 1 2 Wall., 481 (1864). 2 3 Wall., 214 (i86s). 
 
244 COMMERCE IN WAR 
 
 appearing on the face of the ship's papers and depositions, was 
 brought forward ; the most cogent being the admission of a 
 witness that the captain told him he intended to run the blockade. 
 Further proof was allowed. 
 
 The vessel (a schooner) cleared from New York for an open 
 port near Charleston, some fifty miles to the south of that city. 
 On her way thither, she was said to have hovered by night in the 
 neighbourhood of a blockaded inlet about twenty miles to the 
 north of Charleston (Bull's Bay), when she was fired at by the 
 captors without effect. On arrival at the open port she did not 
 unload, but proceeded, after three months' delay, to return to 
 New York; and, again arriving off Bull's Bay, she was stopped by 
 the captors, and immediately ran for the shore, where she went 
 aground and was seized. Nautical assessors were asked the ques- 
 tion (which Lushington, in the " Fortuna," declined to consider 
 proper for them), whether the deviation, if it was one, was reason- 
 ably consistent with innocence of intention with reference to the 
 blockade. They answered it in the negative; but the Court, if it had 
 answered it itself, could hardly have come to any other conclusion. 
 It was unnecessary to invoke the proceedings of the " Cornelius" 
 on her voyage out. Her conduct in making Bull's Bay when 
 challenged by the blockaders was quite sufficient. She was 
 certainly leaking badly, but the intention to avoid the Federal 
 force was manifest. The disinclination of the United States to 
 admit that a neutral is prejudiced by using her best endeavours 
 to escape visit and search possibly led the Court to attach more 
 importance than was necessary to subordinate indications of 
 intention. 
 
 The question of the right of vessels to approach' the blockading 
 squadron with a view to obtaining a licence or making inquiry 
 — a right which had been strenuously contended for by diploma- 
 tists of the United States^ — was examined in the "Josephine,"^ 
 and the existence of any such right denied. The vessel left New 
 Orleans secretly, and virtually (as was alleged) under compulsion 
 of the Confederate authorities, who threatened to burn her cargo 
 of cotton rather than that it should be taken with the city. On 
 sound principles, therefore, she ought to have been restored.* 
 But the master denied all knowledge of any such compulsion. 
 
 Chase, C.J., said : — 
 
 " The appellant has filed an affidavit that the master of the ' Josephine ' 
 was seeking the blockading fleet with the purpose of procuring a licence 
 to proceed on his voyage ; but the statement of the master not only does 
 
 1 E.g. by Mr. Raguet with reference to Brazilian blockades ; vide p. 133 supra, and 
 of. Brit. State Papers, Vol. XVI, p. 11 15. 
 
 2 3 Wall., 83 (1865). 3 Cf. the " Drie Vrienden" (i Dods., 269), supra, p. 222. 
 
BLOCKADE 245 
 
 not support the affidavit, but goes far to discredit it. Nor, indeed, would 
 the alleged intent, if proved, avail the appellant ; for it would not excuse 
 the violation of the blockade." 
 
 In the "Cheshire,"^ the right of vessels to proceed to a blockaded 
 port for inquiry was again denied by the Supreme Court of the 
 United States. 
 
 "The intention to break the blockade is to be presumed from the position 
 of the ship when captured. As already stated, she knew of the blockade 
 when she sailed from Liverpool : she had no just reason to suppose it had 
 been discontinued ; her approach, under these circumstances, to the mouth 
 of the blockaded port for inquiry, was itself a breach of the blockade, and 
 subjected both vessel and cargo to seizure and condemnation. The rule 
 on this point is well settled, and is founded in obvious reasons of policy. 
 If approach for inquiry were permissible . . . the liberty of inquiry would 
 be a licence to attempt to enter the blockaded port."^ 
 
 This case of the "Cheshire" w^as, like the "Hiawatha" {supra), 
 entirely inconsistent with the diplomatic notification that vessels 
 would receive individual warning before being liable to capture.^ 
 But " it would be an absurd construction of the President's pro- 
 clamation to require a notice to be given to those who already 
 had knowledge" (per Grier, J., in the "Admiral," 3 Wall, at page 
 610). Apparently, the long diplomatic contentions of the United 
 States for the admission of such a construction were not present 
 to the judge's mind. 
 
 The " Admiral,"* five months after the proclamation of blockade 
 of the Southern States by President Lincoln, and when the 
 proclamation was known in England, sailed from Liverpool with 
 instructions to proceed with a cargo of salt, "off the port of 
 Savannah, and if the blockade is raised, then to proceed into 
 port and deliver the salt according to the bill of lading; and 
 if the blockade is not raised, then the ship to proceed to St. 
 John's, New Brunswick " ; she was captured just off Savannah. 
 The Court in the course of its judgment observed as follows : — • 
 
 "Settled rule, as established by the majority of this Court, is that 
 a vessel which has a full knowledge of the existence of a blockade is 
 liable to capture if she attempts to enter the blockaded port in violation 
 of the blockade regulations, and that it is no defence against an arrest 
 made under such circumstances that the vessel arrested had not been 
 previously warned of the blockade, nor that such previous warning had 
 not been endorsed on her register. 
 
 " Unlike what is usual in cases of this description, it is conceded in this 
 case that the primary destination of the ship was to the blockaded port ; 
 
 1 3 Wall., 231 (1865), at p. 235. 
 
 2 On the other hand, it is a material guarantee that the blockade will be effective. 
 
 3 Vide p. 240 supra. 
 « 3 Wall., 603 (i86s). 
 
246 COMMERCE IN WAR 
 
 but it is insisted that the mere act of sailing to a port which is blockaded 
 at the time the voyage is commenced is not an offence against the law of 
 nations where there is no premeditated intention of breaking the block- 
 ade. Take the proposition as stated, and it is undoubtedly correct, but it 
 is equally well established that it is illegal for a ship having knowledge of 
 the existence of a blockade to attempt to enter a blockaded port in 
 violation of the blockade, and this Court decided that after notification of 
 a blockade, the act of sailing for a blockaded port with the intention 
 of violating the blockade is in itself illegal." 
 
 In the case of the schooner " Baigorry "' the vessel was 
 captured at sea in June, 1862, 100 miles from Havana, to 
 which she was making from Calcasieu in Louisiana, one of the 
 Confederate States to which the proclamation of blockade by 
 President Lincoln in 1861 applied. The Chief Justice of the 
 Supreme Court of the United States, in dealing with the question 
 as to whether or no there was a legal blockade, observed as 
 follows : — 
 
 " Calcasieu Pass and all the neighbouring region was in possession of 
 the rebels, and the establishment of the blockade was well known to the 
 officers of the schooner. The master says he saw no blockading vessels 
 off Calcasieu when he went in or when he came out. . . . But the master 
 says also that he saw blockading ships as he was going towards the coast of 
 Louisiana in February, and also saw a steamer passing along the coast 
 while the schooner was at Calcasieu. The mate says he saw steamships 
 — not one, but several — off the coast during the same time. It is also in 
 evidence that when the master of the ' Baigorry ' saw the ' Bainbridge ' 
 [United States warship] on the afternoon before the capture, and that she 
 was hove-to and waiting for him, he changed his course to avoid her. 
 
 "We have already held that a blockade once established and duly 
 notified must be presumed to continue until notice of discontinuance, in 
 the absence of positive proof of discontinuance by other evidence, and we 
 do not think that the testimony of the master and mate that they saw no 
 blockaders when entering or leaving Calcasieu Pass supplies such proof. 
 On the contrary, we think that positive proof that the blockade was not 
 discontinued is made by the admissions that blockaders were seen when 
 the ' Baigorry ' approached the coast, and that one or more steamships 
 were seen off the coast while she lay within Calcasieu Pass. 
 
 " No attempt is made to account for her delay in sailing from the 3rd 
 to the 26th of May after her cargo was on board, and the absence of any 
 explanation of this circumstance warrants the inference that she was 
 watching her opportunity to go out without being seized. It goes to 
 establish guilty intent. So, too, the endeavour to escape from the ' Bain- 
 bridge.' No such attempt would have been made had the officers of the 
 'Baigorry' been unconscious of any infringement of the blockade. The 
 proof of the violation of the blockade and of its existence both when the 
 schooner entered and when she left Calcasieu Pass is clear." 
 
 Some misconception as to the meaning of this judgment 
 
 » 2 Wall., 474 (1864) 
 
BLOCKADE 247 
 
 appears to exist, and certain text writers have not hesitated to 
 affirm that the judgment is not consistent with those of Lord 
 Stowell ; the true view of this case appears to be that the Court 
 accepted against the ship slight evidence of the fact of blockade, 
 but, nevertheless, founded their decision upon the ground that 
 there was, in fact, a blockading force known to the master along 
 the coast where the ship lay, which he was successful in at first 
 eluding. 
 
 In the " Dashing Wave,"^ the blockade of the Texan side of 
 the Rio Grande was considered by the United States Supreme 
 Court. It was laid down that vessels for the Mexican side must 
 keep on the Mexican side of the stream, both in approaching and 
 navigating the river ; and costs and expenses were allowed to 
 captors in the case of a vessel which did not do so. The exact 
 situation of the ship, being uncertain on the depositions, was 
 allowed to be proved by the captors : the master absolutely deny- 
 ing their version. 
 
 In the " Teresita,"^ the master and mate testified positively to 
 the ship's being in neutral waters. Further proof was, improperly 
 enough, allowed to the captors.^ But it merely established that 
 the ship had accidentally drifted into Texan waters, and costs and 
 expenses were given against the cruiser. 
 
 The " Jenny "* is an unsatisfactory case. The ship came down 
 from Matamoras on the Mexican side with cotton, anchored in 
 Texan waters, and was proved (it is not shown how) to have 
 taken in more cotton there. Clearly she had violated the block- 
 ade : yet the cargo taken in at Matamoras was released, and the 
 Court relied, at least as much as on the fact of breach of blockade, 
 on "the unsatisfactory nature of her papers," and condemned the 
 ship and residue of cargo as enemy property. 
 
 In the "Sir William Peel,"^ the United States Supreme Court 
 again had a case concerning the Rio Grande blockade before 
 them. The vessel anchored well on the Mexican side, sent the 
 cargo up to Matamoras, and was taking in a return cargo of 
 cotton when captured. Further proof was allowed and was 
 adduced in the District Court as to the ownership of the cotton, 
 apparently on the quite unfair and inadequate ground that all 
 trade to Matamoras was suspicious. The "further proof" con- 
 sisted almost entirely of general rumour. 
 
 It was urged that no such special case of doubtfulness arose as 
 to warrant further proof being admitted, especially ex parte the 
 captors. It was further pleaded that the capture had actually 
 been made in neutral territory, and that a neutral might allege 
 
 1 5 Wall., 170 (1866). 2 Ibid., i8i (1866). ^ cf. the "Aline and Fanny," Spinks, 322. 
 * 5 Wall, 183 (1866). 6 Ibid., 517 (i866). 
 
248 COMMERCE IN WAR 
 
 this as a good ground of restitution without the concurrence of 
 the particular neutral Power whose territory it was, though an 
 enemy might not. 
 
 The Court held^ that the territorial Power must interpose in 
 the case of a neutral as well as of an enemy ; and on the hazy 
 further evidence, admitted on no definite ground of suspicion 
 beyond the mere character of the legal voyage, it refused costs 
 and expenses, though these were not given to the captors. The 
 injustice of allowing the trade of a neutral port to be hampered 
 because of its proximity to a blockaded one is evident. It is 
 what Sir W. Scott expressly and emphatically declined to do in 
 the case of the "Luna."^ The trade of neutrals with Emden, 
 Tonningen, and ports similarly situated, was most scrupulously 
 respected during the blockades of the period when he was judge 
 of the Admiralty. Further proof is only an indulgence allowed 
 to claimants whose property, without it, would be condemned. 
 For this, a case of extremely grave suspicion must be set up. It 
 cannot be that every vessel bound for a port near the blockaded 
 one \s prima facie subject to condemnation. 
 
 In the " Pearl,"' the capture and confiscation of the vessel was 
 justified by the suspicions appearing on the face of the depositions 
 of the crew, one of them having stated that she was bought, 
 fitted, and sailed for the especial purpose of running the blockade. 
 On this, further proof was (in accordance with sound practice) 
 allowed the claimants, and the order specified that the claimant 
 of the ship might produce evidence to show what use he intended 
 to make of the ship after her arrival at Nassau. He produced 
 none ; and although a person who was associated with him swore 
 positively that the steamer had been bought for use as a packet 
 between the West Indies and Cuba, the Court declined, on a 
 vague and unproved theory of liis " connexion with the purchase 
 of this and other vessels, and his own engagement in the 
 suspicious traffic with Nassau," to treat his statements as worthy 
 of credit. They inferred that the ship "was destined, either 
 immediately after touching at [Nassau], or as soon as practicable 
 after needed repairs, for one of the ports of the blockaded coast." 
 
 As her sole cargo consisted of ten bales of seamen's jackets and 
 cloths (consigned to Nassau), it appears to have been the opinion 
 of the United States Supreme Court that a vessel breaks blockade 
 when she is proceeding to a safe port with a view of shipping a 
 cargo for a blockaded one. There was no shred of evidence 
 (except the owner's failure to deny the fact in so many words) 
 that either the ship or the cloth was going through to the Con- 
 
 1 Cf. the "Twee Gebroeders" (Alberts), 3 Rob., 162. 
 
 2 Supra, p. 216. 3 5 Wall., 574 (1866). 
 
BLOCKADE 249 
 
 federacy. It may have been very likely that the surmises of the 
 seamen and the Court were correct, and that one or both of them 
 were going through. An international tribunal, however, does 
 not act on surmises, but on legal evidence. 
 
 It is a pleasure to recur to the judgments of Judge Nelson, 
 whose ripe experience and grasp of principle recall his great pre- 
 decessors Story, Kent, and Marshall, In the "Flying Scud,"^ the 
 well-worn argument of the suspicious nature of all trade with 
 the Rio Grande met with little encouragement. A valuable pro- 
 nouncement was also made on the bearing of a previous breach of 
 blockade on the aspect of the case. 
 
 The "Flying Scud" had admittedly broken the blockade of Texas 
 by entering and discharging at a port (Brazos) nine miles to the 
 north of the Rio Grande. She then went to the mouth of the 
 river, after about two months, and anchored. On 15 July, 1863, 
 she was chartered to take cotton from Matamoras to Havana, 
 and eventually captured while at anchor by the United States 
 " Princess Royal." 
 
 "The transaction," said Nelson J., "appears free from all doubt or 
 obscurity. The claimants, for aught that is shown, had no connexion 
 whatever with the cargo shipped from Nassau and discharged at Brazos, 
 or with the voyage, or with the vessel, until it was chartered by Caymari 
 to carry a cargo of cotton from Matamoras to Havana, which is dated the 
 15th of July, 1863. The argument, therefore, founded on suspicion that 
 the claimants were concerned with the breach of blockade at Brazos, in 
 the cruise of the inward voyage, is without any foundation." 
 
 The ship, however, had been condemned and no appeal entered. 
 As she came out of the Texan port light, and then commenced a 
 new voyage at an open port, the condemnation could hardly have 
 been sustained. If she was still affected by the consequences of 
 entering a blockaded port, the cargo must have been involved in 
 her fate. The principle as laid down in the " Welvaart von 
 Pillau" (2 Rob., 128) is that egress with a cargo is not permissible: 
 it is at least questionable whether there is any offence at all in 
 coming out in ballast, and hardly questionable at all that the ship 
 does not need to return to her original starting point in order to 
 be safe for the future. 
 
 In the " Adela,"'' the first officer frankly stated that the "Adela" 
 was intended to run the blockade, and judgment passed accord- 
 ingly, in spite of the denial of the master and other witnesses. 
 
 In the "Sea Witch,"^ the vessel was out of her direct course 
 from Vera Cruz for New Orleans (unblockaded). The suspicion 
 was raised that her destination was Galveston (still blockaded) ; 
 
 » 6 Wall, 263 (1867). 2 jua., 267 (1867). 3 Ibid., 242 (1867). 
 
250 COMMERCE IN WAR 
 
 but the Court accepted the explanation that heavy weather ren- 
 dered it necessary to keep inshore. 
 
 In the " Wren," ^ the dark devices of British shipowners were 
 countermined by an ingenious scheme matured by the United 
 States Consul at Havana, who incited the crew to mutiny and 
 carry the vessel into Key West. She was there libelled for 
 breach of blockade on the ground that she had previously run a 
 cargo to Galveston and a return one of cotton to Havana. The 
 Court rejected the captor's claim. 
 
 In the " Diana," ^ the facts were similar to those of the "Sea 
 Witch."' Further proof was allowed to captors and condemna- 
 tion proceeded, the papers being unsatisfactory, and the master 
 the same person as in the latter case of misfortune. 
 
 In Geipel v. Smith, ^ which was an action for breach of 
 charter-party. Lord Chief Justice Cockburn made the following 
 observations with reference to blockade : — 
 
 " It is an act of a sovereign State or prince ; and it is a restraint, pro- 
 vided the blockade is effective ; and in the eye of the law a blockade is 
 effective if the enemies' ships are in such numbers and position as to 
 render the running of the blockade a matter of danger, although some 
 vessels may succeed in getting through." 
 
 In the " Olinde Rodriguez,"'' the United States Supreme Court 
 reviewed thoroughly the law of blockade relating to (i) effective- 
 ness, and (2) notoriety. On 27 June, 1898, the United States 
 issued a proclamation instituting a blockade of the port of San 
 Juan in Porto Rico. From that date to 14 July, 1898, an 
 auxiliary cruiser — i.e. a merchant-ship temporarily taken up for 
 purposes of war, but fast and well armed — was stationed off the 
 port. She was replaced on 14 July by an armoured cruiser of 
 great efficiency, "commanding a circle of thirteen miles in 
 diameter." A French vessel, the " Olinde Rodriguez," left Havre 
 for San Juan, among other ports, on 16 June. On 27 June she 
 was at sea, on her way from Europe to S. Thomas. She 
 touched at S. Thomas on 3 July, and on the following day 
 entered San Juan. She passed out on the 5th, was boarded by 
 the blockading auxiliary cruiser, and had a notice of the blockade 
 endorsed. On 17 July the armoured cruiser captured her on the 
 allegation that she was attempting to re-enter San Juan. 
 
 On these facts the District Judge at Charleston, S.C, found that 
 there was no breach of blockade. But he admitted certain allega- 
 tions of the captor's crew, and thereupon reopened the case for 
 
 1 6 Wall., 582 (1867). 2 7 Wall., 354 (1868). 
 
 3 Supra, p. 249. * L.R., 7 Q.B. 404 (1872). 
 
 6 Davis' Supr. Ct. Rep. (U.S.), Vol. LXVII (U.S. Rep., Vol. CLXXXIV), p. 510 (1899). 
 
BLOCKADE 251 
 
 further proof. It need not be said that this was improper. 
 Further proof is an indulgence to claimants in a case which is, on 
 their own evidence, suspicious. It is not permissible for captors 
 to import the suspicion.^ Meanwhile, however, the case pro- 
 ceeded before the District Court, on the footing that further proof 
 and captors' evidence was admissible. The Court held that, even 
 receiving the further proof, the blockade was not an effective one 
 at the time of the capture. The United States authorities 
 appealed. 
 
 Fuller, C.J. (p. 513), delivering the opinion of the Court, 
 declared that there exists no rule of law determining that the 
 presence of a particular force is essential in order to make a 
 blockade effective. The phrase of the Declaration of Paris — " a 
 force sufficient really to prevent access to the coast of the enemy " 
 — was not meant to be literally construed. It was not intended 
 to alter the doctrine laid down by Lord Stowell in such cases as 
 the "Mercurius"^ and the "Frederick Molke,"^ and affirmed by 
 Dr. Lushington in the " Franciska."* 
 
 " It cannot be," added the Chief Justice, a good deal too 
 broadly, "that a vessel actually captured in attempting to enter 
 a blockaded port, after warning entered on her log by a cruiser 
 off that port only a few days before, could dispute the efficiency of 
 the force to which she was subjected." He proceeds: "As we hold 
 that an effective blockade is a blockade so effective as to make it 
 dangerous in fact for vessels to attempt to enter the blockaded 
 port, it follows that the question of effectiveness is not controlled 
 by the number of the blockading force. In other words, the 
 position cannot be maintained that one modern cruiser, though 
 sufficient in fact, is not sufficient as matter of law." 
 
 He then quotes the "Nancy"* (without exactly approving Sir 
 William Grant's dictum that the opinion of the naval commander 
 is conclusive) and the " Franciska,"® and dismisses particular 
 treaties requiring the presence of at least two vessels as incapable 
 of affecting the general law. The case of the " Arthur "'' was less 
 easy to dispose of There Scott had rested the validity of a 
 single-ship blockade on the extra-legal character of the particular 
 blockade in question — which was not so much a blockade as the 
 exercise of reprisals ; and, as such, absolved from the normal 
 restrictions and rules of blockade. 
 
 However, the judge observed that, in that case, a single ship 
 was held sufficient ; and refrained from any further comment. 
 "Assuming," he goes on, "that the 'Olinde Rodriguez' attempted 
 
 1 The " Haabet," 6 Rob., p. 57. ^ i Rob., 80, 84. ^ Ibid., 86. 
 
 * Spinks, 128. ^ I Acton, 63, supra, p. 217. " Supra, p. 226. 
 
 ^ Supra, p. 223. 
 
2S2 COMMERCE IN WAR 
 
 to enter San Juan 17 July, there can be no question that it was 
 dangerous for her to do so, as the result itself demonstrated. She 
 had had actual warning twelve days before ; no reeison existed for 
 the supposition that the blockade had been pretermitted or 
 relaxed ; her commander had no right to experiment as to the 
 practical effectiveness of the blockade ; and, if he did so, he took 
 the risk," 
 
 There was evidence that the naval authorities had been asking 
 for more force in the blockade of San Juan ; but the Court, dis- 
 tinguishing between a commercial and a military blockade, 
 thought that the suggestion of a zealous commander, "that the 
 blockade should be brought to the highest efficiency in a military 
 as well as a commercial aspect, cannot be allowed to have the 
 effect of showing that the blockade which did exist was, as to this 
 vessel, ineffective in point of law." 
 
 But, although the Court did not, on this ground, agree with the 
 District Court, it found on the facts that there was no intention to 
 enter San Juan at all; and for this reason restored the ship, though 
 without costs and damages, but with costs to the captors, " except 
 the fees of counsel." 
 
 The point appears not to have been adverted to, that if the 
 ship was going to San Juan at all, it was only for the purpose of 
 carrying away passengers. Such a communication with the shore 
 has never been held to be a breach of blockade, which is a 
 measure of commercial stress pure and simple, and is restricted to 
 interference with the movements of cargoes. So, at least, it is 
 expressly defined by Lord Stowell.^ The ground on which the 
 course was taken of giving the captors costs was that some special 
 obligation lies on a vessel which has received individual notice of 
 a blockade, to give the blockaded port a wide berth in future, even 
 though her normal and proper course towards a safe port should 
 lead her past it. It cannot be thought that any such proposition 
 is consistent with the English cases or with natural justice. 
 
 The facts present a striking similarity in some respects to Reg. 
 v. Hildebrandt (the " Aline and Fanny ")? The treatment of the 
 two cases shows clearly the different views entertained in Great 
 Britain and the United States as to the indulgence to be extended 
 to captors. 
 
 ^ Vide supra, p. 1 88. 
 
 * Spinks, 332 ; -vide supra, p. 239. 
 
CHAPTER ni 
 
 CONTINUOUS VOYAGE 
 
 THE subject of continuous voyage first came into prominence 
 in connexion with what is known as the " Rule of the War 
 of 1756." In the eighteenth century and earlier it was the practice 
 of European States to exclude foreign ships from commercial inter- 
 course with their colonies, and also from their home coasting trade ; 
 they strictly preserved their colonial and coasting trade for their 
 own shipping. This had its disadvantages in time of war, because 
 without maritime supremacy their jealously guarded colonies be- 
 came completely isolated, the ships of the mother-country no 
 longer daring to approach them. In such circumstances the 
 obvious mode of relief was to throw open the traffic to " safe " 
 ships. In 1756 France, in a position of naval inferiority to Great 
 Britain, opened its colonial trade to Dutch ships, but excluded 
 other neutrals. The British seized three Dutch ships on the 
 ground that such privileged trading by neutrals was tantamount 
 to the identification of such neutrals with the enemy, and such 
 ships and their cargoes were declared and adjudged to be lawful 
 prize. An interesting later instance of the application of this rule 
 was the case of the "Rebecca,"^ when an American ship admitted by 
 Holland, whose foreign policy was then controlled by Napoleon, to 
 the privileges of Dutch trade with Japan, normally an exclusive 
 trade, was condemned as good prize. The application of this rule 
 against neutrals gave rise to an attempt at evasion by the device of 
 making a colourable importation into some port with which trade 
 was not prohibited, and thence conveying the cargo to the pro- 
 hibited port. The English courts held that the destination of the 
 ship was to be ascertained not by its voyage to the port of colour- 
 able importation, but by that to the prohibited port, and that a 
 vessel seized on its ultimate voyage from the former port was 
 lawful prize. 
 
 The theories of commerce current during the nineteenth century 
 tended to minimize the importance of the Rule of 1756, but al- 
 though Adam Smith and his disciples struck a severe blow at the 
 
 * 2 Acton, 119. 
 
254 COMMERCE IN WAR 
 
 doctrine that colonies should only trade with the mother-country, 
 yet in these days, when monopoly of trade has acquired a new 
 impetus from the commercial rivalry of modern nations, this rule 
 cannot be regarded as obsolete, and it is no longer to " the for- 
 gotten corners of the earth's surface"^ that we must look for 
 possible occasions on which it may be invoked. 
 
 It is well to consider the bearing of this Rule on the doctrine of 
 continuous voyage. Clearly a colonial voyage is none the less 
 such merely because the vessel touches at other ports on her way, 
 or if the cargo be landed and reshipped at the intermediate port 
 or ports, or even if the merchant should go to the length of pay- 
 ing duties there, at any rate if these duties are counteracted by 
 drawbacks. If the ship should be found with papers showing or 
 suggesting, or in a situation incompatible with any reasonable 
 inference but that she is going to a colonial port in the progress 
 of an illegal voyage, then it will not matter that she is immediately 
 proceeding from an intermediate port or from a terminus. This is 
 all that is involved in the principle of continuous voyage, as laid 
 down by Scott and his predecessors. It does not mean that at 
 any part of the voyage an ultimate destination which would make 
 the voyage improper can be guessed at by the captor. Still less 
 does it mean that an ultimate destination of the goods which form 
 the cargo or some part of it can be, however plausibly, guessed at 
 so as to subject them to condemnation. 
 
 As laid down by the English courts, the principle was only ap- 
 plied in the last stage of the voyage, when it was a matter of 
 direct evidence that the ship was making for the improper port. 
 It was apparently only applied in point of fact when the same 
 ship was concerned in both stages of the voyage. 
 
 It was a simple assertion of the truth that once a vessel was 
 evidently making for a colonial port, having come from a conti- 
 nental one (or vice versa), the two parts of the voyage (if there 
 was an intermediate port) must be looked at as a whole. It did 
 not assert that a hypothetical second port could be assumed and 
 tacked on for the benefit of captors, during the first stage. Nor 
 did it assert that goods which were sent to a safe port and pro- 
 ceeded thence in another ship to a colony, had performed a " con- 
 tinuous voyage," when in fact their voyage was ex hypothesi dis- 
 continuous." 
 
 The courts of the United States during the Civil War did what 
 Sir W. Scott never felt at liberty to do. It is sometimes said that 
 
 1 Walker, "Science of International Law," p. 261. A recent instance of condemnation 
 for participation in a close trade of the enemy is that of the Montara, seized by the 
 Japanese for trading with Alaska under a Russian licence to deal in sealskins. — "Times," 
 22 December, 1905 ; " Law Magazine," February, 1906, p. 220. 
 
 2 The "William" (i«/>-a, p. 267) is of superior authority to the "Thomyris" {tnfra,^.2(><)). 
 
CONTINUOUS VOYAGE 255 
 
 they applied the principle of continuous voyage to blockade and 
 contraband. This, of course, is not accurate. If a vessel sails 
 with the intention of violating a blockade, it does not matter what 
 kind of port she sails from. There is no need to piece two stages 
 of a voyage together. If it is clear that she is going to a blockaded 
 port, it does not matter that she is also going to a neutral one ; 
 only, it must be clear that she is going to the blockaded port. 
 And suspicions can never prove this, apart from the ship's papers, 
 the admissions of the ship's company, and the local situation and 
 course of the vessel.^ This is why Sir W, Scott never found 
 occasion to anticipate the American courts (as he undoubtedly had 
 many opportunities of doing). To condemn for breach of blockade 
 there must be a clear and positive attempt of the vessel to enter 
 the blockaded port, which involves either an admission, contra- 
 dictory papers, or an otherwise inexplicable course steered. " A 
 prize court," says Evarts truly,^ "which observes the true prin- 
 ciples of its jurisdiction, as acknowledged by Britain, France, and 
 Spain, never admits doubts or difficulties from extraneous sources, 
 and demands further proof to allay them." What the American 
 courts were doing in such cases was not to apply the principle of 
 continuous voyage, but to depart from the old rules of evidence. 
 They accepted well-founded surmise as to a vessel's destination in 
 lieu of proof. The danger of such a departure needs no com- 
 ment. 
 
 When they affected to apply the principle to the matter of 
 contraband, on the ground that ships, apparently destined for such 
 ports as Bermuda, were really going further, they fell into pre- 
 cisely the same error. In both cases, instead of imitating Scott in 
 piecing together two proved legal transactions in order to show 
 that they composed one illegal one, they employed hypothetical 
 suspicions of illegality in order to supply the defect of evidence. 
 
 Lord John RusselP confesses that the British Government 
 " were far from pressing hard on the United States, and, in spite 
 of remonstrances from many quarters, put no impediment in the 
 way of the capture of British merchant ships, but placed full reli- 
 ance on the courts of America for redress in case of wrongful 
 capture by American ships of war." This is thoroughly borne 
 out by the debates in Parliament, when Lord Derby had much 
 difficulty in eliciting the fact that Lord J. Russell's vague state- 
 ments about the rights of belligerents over ships with neutral 
 destinations were only meant to apply to cases where the neutral 
 
 1 The " Haabet," 6 Rob., 54 ; and see letter of Sir W. Scott and Sir J. Nicholl to 
 the U.S. Minister, apud Story on Prize Courts. 
 
 2 "Brief": Inner Temple Pamphlets, I.H., XXXIV, No. 4. 
 
 3 " Recollections and Suggestions," p. 276. 
 
256 COMMERCE IN WAR 
 
 destination was a merely simulated and false one. In the event, 
 the cases were referred to the Mixed Commission, which refused 
 to hear Mr. Evarts, or to give its reasons, and baldly disallowed 
 the claims. Evidently a great international compromise such as 
 this leaves the question of principle undetermined. 
 
 Gessner^ thinks that the Foreign Office forebore to press the 
 claim, in the hope of turning the "Springbok" precedent to profit- 
 able future account. In fact, in still more modern times, the theory 
 of the North American courts has, without their poor justification,^ 
 been apparently adopted on one or two occasions by Britain 
 and Italy.^ The new development of the theory cuts at the 
 root of the established doctrine according to which the direct 
 destination of contraband must be a belligerent port, by declaring 
 that it is enough if the articles are ultimately intended to be 
 carried into the enemy's territory or to his forces. The un- 
 necessarily wide scope which this allows to a belligerent's 
 nervous surmise is patent. A neutral which has a port adjacent 
 to belligerent territory may easily find its trade entirely para- 
 lysed by this means. Italy affected to condemn goods bound 
 for the Red Sea littoral, on the ground that they would 
 eventually reach Abyssinia ; and Britain captured ships bound 
 for a Portuguese African port because weapons on board were 
 supposed to be destined for the Transvaal. It is time to say 
 plainly that neutrals are not likely ever to permit their own trade 
 to be threatened by such extended theories of belligerent right, 
 or to allow their ports to be virtually closed to traffic because they 
 happen to be convenient ports for the enemy. 
 
 The justification of such a novel infringement of neutral rights is 
 sometimes put forward, that internal communication is now so easy 
 that belligerents must have increased powers of stopping overland 
 supplies. Lord Stowell had this argument ab inconvenienti ad- 
 dressed to him in the " Frau Margaretha,"* and refused to attach 
 any weight to special facilities of internal communication. Nor 
 was canal transit ever regarded as a breach of blockade ; and 
 canals are still serious rivals to railways. Nor was the carriage of 
 
 1 "Juridical Review of the 'Springbok' Case," p. 19. 
 
 2 Mr. Justice Nelson says : " The truth is that the feeling of the country was deep 
 and strong against England, and the judges as individual citizens were no exceptions to 
 that feeling. Besides, the Court was not then familiar with the law of blockade." (Quoted 
 by Twiss, "Law Magazine and Review," 4th ser.. Ill, 141, November, 1877). Hall 
 remarks that the judgments are thus admitted to be founded on passion and ignorance — 
 a dictum erased by his editor, but not unsupported by the facts. {Vide Hall, "Inter- 
 national Law," ed. Ill, p. 695.) 
 
 3 In the cases of the " Bundesrath," " Herzog," etc. (1900), and in that of the " Doel- 
 wijk" (1896) (see "Times," 4 January, 1900, and State Papers, LXXXVIII, p. 212, and 
 XCIV, pp. 973 et seq.), the neutral ships were released and (in the former cases) a 
 solatium paid. 
 
 * 6 Rob., p. 92. See also the " Stert " and the " Jonge Pieter," infra, pp. 262, 263 ; 
 and the "Luna," supra, p. 216. 
 
CONTINUOUS VOYAGE 25; 
 
 goods to the great smuggling emporium of Emden in Prussia 
 ever thought to be a cause of neutral forfeiture, although Emden 
 was within five easy miles of laffoon transit from belligerent 
 Holland. ^ 
 
 The unconvincing assertion that Lord Stowell's clear words 
 laying down the necessity of an immediate belligerent destination 
 do not mean what they appear to do, is surely the last refuge of 
 argument. It is not upon isolated passages alone, however clear 
 and explicit, that the conclusion of the necessity of a belligerent 
 destination is arrived at, but upon the whole tenor of the cases 
 reported in the books, and upon the fact that, despite every 
 temptation to stretch the rights of Great Britain to the fullest 
 pitch, not a single case can be found of a ship being stopped, 
 much less condemned, when in transit to a neutral port, however 
 suspiciously convenient for the enemy. The pretensions of the 
 United States courts in 1862-4 were promptly and widely con- 
 demned, and it is surprising to find responsible writers en- 
 deavouring to rehabilitate them, on such slender grounds as the 
 supposed convenience of modern belligerents affords. 
 
 The modern jurist, finding a rule of practice laid down by a 
 continuous catena of authority from Stowell to Hall — upheld by 
 the Court of Common Pleas in a formal decision — approving itself 
 to common sense by the cogent and exhaustive arguments of Twiss 
 and Evarts — treated as supplying a conclusive test in the British 
 Admiralty Manual of Naval Prize Law during thirty-four years, 
 and invoked with success as recently as 1900 by the German 
 Government — must continue to believe it to be in full force, not- 
 withstanding the " Institut de Droit International" and those 
 theorists of the Continent who have advanced the contrary opinion. 
 It is impossible to regard without the gravest apprehension the 
 concession of a licence to belligerents to condemn goods all over 
 the world on suspicions, satisfactory to themselves, that their 
 enemies are ultimately intended to have the benefit of them. A 
 continental jurist who regards contraband as strictly limited to 
 weapons of warfare may feel fewer scruples about admitting such 
 an extension. 
 
 The old reports are full of cases on questions of enemy property. 
 Now that that ground of seizure is generally barred, the rapacity 
 of captors oozes out in the direction of contraband. 
 
 As Twiss points out,^ "the term contraband of war is the 
 
 1 "Law Magazine and Review," 4th sen, III, 9. This article is specially commended 
 to the perusal of the reader. Mr. Evarts' " Brief before the Mixed Commission " (Inner 
 Temple Pamphlets, I.H. XXXIV, No. 4), is less easily accessible, but is a most important 
 summary of the argument. See also " International Law in South Africa," chap. I 
 (T. Baty), where the authorities are collected ; and particularly L. Gessner, "Juridical 
 Review of the 'Springbok' Case" (Inner Temple Pamphlets, ut supra. No. 5). 
 
 S 
 
258 COMMERCE IN WAR 
 
 gauge, as it were, of the liberty secured to neutral trade under the 
 second and third articles of the Declaration [of Paris], and it is not 
 too much to say, that if the novel interpretation recently given to 
 the term contraband of war by the Supreme Court of the United 
 States in the case of the "Bermuda" (3 Wallace Rep., p. 515) 
 should be adopted by the prize courts of half the Powers who 
 have acceded to the Declaration of Paris, the Declaration, as a 
 public act, will be little else than diplomatic waste paper, or it will 
 aggravate the difficulties and conflicts between belligerents and 
 neutrals which it was intended to mitigate." 
 
 It is, indeed, probable that recent attempts to extend the 
 category of contraband and the area within which goods can be 
 seized as such, are really motived by a half-realized desire to evade 
 the freedom of trade proclaimed at Paris. "It will be idle," wrote 
 Sir Travers Twiss,^ " for the future historian of the Law of Nations 
 to cite, in evidence of the greater mildness of modern maritime 
 warfare towards ocean commerce, the concessions which have 
 been made under the Declaration of Paris, in favour of enemy s 
 property laden on board of a neutral ship bound to a neutral port, 
 if neutral property laden on board the same ship is to be liable to 
 confiscation under the general law, upon the suspicion of its ulterior 
 destination to enemy's uses." 
 
 The paramount importance of a simple objective test by which 
 neutral liability to capture and confiscation shall be gauged is 
 beyond estimation, and it is highly improbable that neutrals will 
 be any more likely to submit to its abolition in the future than in 
 the past. " There can be no doubt," Twiss observes, " that the 
 doctrine of ' prospective continuity ' applied to the transport of 
 merchandise on the high seas opens wide the floodgates of visita- 
 tion and search, which it was one object of the Declaration of 
 Paris to close partially, and that instead of tending to localise the 
 future operations of maritime warfare, it is calculated to extend 
 them to every sea." 
 
 We now turn to the cases on the subject. 
 
 The "Sarah Christina"^ is a good instance of the kind of cir- 
 cumstances under which the asserted neutral destination may 
 be disregarded. The ship's papers were for Cagliari, a neutral 
 port ; but she was captured, not in the Straits of Gibraltar on 
 suspicion that she was eventually going to Marseilles or Toulon, 
 but actually entering into Cherbourg.^ 
 
 There are many cases of the same kind where the nominal 
 destination has been held, in view of the course of the ship, or 
 
 * Ut stipraj'p.iji. 2 I Rob., 237 (1799). 
 
 3 The usual excuse of necessity was given, as in the "Patapsco" and "Two Brothers," 
 infra, p. 271. 
 
CONTINUOUS VOYAGE 259 
 
 admissions, not to be the real one. Where the ship was on her 
 right course for the nominal destination, it was never disregarded 
 as being a mere simulated one, unless the declarations of the 
 master and crew admitted it or were contradictory. Such cases 
 are the "America,"^ the "Carolina,"' the "Margaretha Charlotte,"^ 
 the " Nancy " (Joy),* the " Phoenix,"^ the " Franklin,"« the 
 "Edward,"^ the "Convenientia,"^ the "Exchange,"" the "Mentor,"^" 
 the "James Cook,"" the " Snipe,"^' the " Patapsco,"'' the "Two 
 Brothers,"^* the "Santissima Cora^ao,"^^ the " Hurtige Hane,"" 
 the "Calypso,"^^ the " Richmond, "^^ the "Susa."" the "Johanna 
 Tholen,"'" the "Mars,"^^ the "Maria" (MonsesP^ the "Charlotte 
 Sophia. "2« 
 
 The " Providentia "^ incidentally shows that the interposition of 
 a neutral port in a colonial voyage was resorted to during the war 
 of 1756 itself. In argument it was stated that — 
 
 " Another expedient was also at that time resorted to, of sending the 
 produce to Monte Christi (in the island of Hayti) in the iirst instance, 
 and of taking it from thence, without going at all to the French islands ; 
 but still that was considered as an evasion, and confiscation followed." 
 
 In reply, Drs. Arnold and Laurence made it clear that it was 
 only tra^ffic /rom Monte Christi (after the goods had come thither) 
 and not traffic io Monte Christi, on the supposition that the goods 
 were going to an ulterior improper destination, that was struck at. 
 
 " It must be remembered that the principle," they say, " was first set up 
 to meet the case of ships sailing under special licences, to participate in 
 the close trade, and if it was afterwards extended to ships without licences, 
 or to cargoes taken from Monte Christi, it was merely in prosecution of the 
 same purpose of counteracting the fraudulent trade of the enemy, which 
 had first shown itself under the contrivance of these special licences, and 
 of which the later practices were but a variation for the purposes of 
 evasion." 
 
 The " Immanuel "'^ was the case of a ship which left Hamburg 
 for S. Domingo via Bordeaux, and in reference to the capture of 
 which Sir W. Scott definitely stated the Rule of 1756 to be still 
 in force, notwithstanding that it had not been acted upon in the 
 American war. Remarking that colonial trade is a close trade 
 preserved for the benefit of the mother-country, he observes : — 
 
 " With respect to other countries, generally speaking, the colony has no 
 
 1 3 Rob., 36 (1800). 2 Hid., 75 (1800). 3 Hid., 78, n. (1801). 
 
 « Idid., 82 (1800). 6 I6id., 186 (1800). 8 4 Rob., 147 (1801). 
 
 7 Hid., 68 (1801). 8 /^^^.^ 201 (1802). » Edw., 39 (1808). 
 
 10 /did., 207 (1810). " Ih-d, 261 (1810). 12 7^2^.^ 381 (1812). 
 
 13 I Acton, 270 (1810). " 2 Acton, 38 (181 1). " Hid., 91 (i8n;. 
 
 i« 2 Rob., 124 (1799). " Hid, 154 (i799)- '* S Rob., 325 (1804). 
 
 19 2 Rob., 251 (1799). 20 6 Rob., 72 (1805). 21 /^2-^._ yg (1805). 
 
 22 Hid., 201 (1805). 23 I Acton, 56 ; 6Rob.,204,n. ^ 2 Rob., 142 (i799)- 
 2« 2 C. Rob., 186 (1799). 
 
26o COMMERCE IN WAR 
 
 existence ; it is possible that indirectly and remotely such colonies may 
 affect the commerce of other countries. The manufactures of Germany 
 may find their way to Jamaica and Guadeloupe, and the sugar of Jamaica 
 or Guadeloupe into the interior parts of Germany, but as to any direct 
 communication or advantage resulting therefrom, Guadeloupe and Jamaica 
 are no more to Germany than if they were settlements in the mountains 
 of the moon ; for commercial purposes they are not in the same planet. 
 If they were annihilated, it would make no chasm in the commercial map 
 of Hamburg. If Guadeloupe could be sunk in the sea by the effect of hos- 
 tility at the beginning of a war, it would be a mighty loss to France, as 
 Jamaica would be to England if it could be made the subject of a sinister 
 act of violence. But such events would find their way into the chronicles 
 of other countries as events of disinterested curiosity, and nothing more." 
 
 The judge proceeds, after stating that a neutral cannot take up 
 such a trade in order to relieve a belligerent — 
 
 " It is argued that the neutral can import the manufactures of France 
 to his own country, and from thence directly to the French colony ; why 
 not immediately from France, since the same purpose is effected ? It is to 
 be answered that it is effected in a manner more consistent with the 
 general rights of neutrals, and less subservient to the special convenience 
 of the enemy. If a Hamburg merchant imports the manufactures of France 
 into his own country . . . and exports them afterwards to the French 
 colony, which he does, not in their original French character, but as goods 
 which by importation had become a part of the national stock of his own 
 neutral country, they come to that colony with all the inconvenience of 
 aggravated delay and expense ; so if he imports from the colony to 
 Hamburg, and afterwards to France, the commodities of the colony, they 
 come to the mother-country under a proportionable disadvantage ..." 
 
 It cannot escape the reader that this is a somewhat lame justifi- 
 cation of what Sir W. Scott felt to be a necessary qualification of 
 the rule against trading with the colonies — viz. that it must not be 
 applied when the port of destination is neutral. The slight 
 expense of circuitous route and extra duties cannot weigh in the 
 balance against the continued maintenance of a valuable trade. 
 The true reason why such trade cannot be interfered with is the 
 danger which would accrue to the bona fide commerce of neutral 
 ports. The criterion of extra expense and delay was finally 
 abandoned in the "William,"^ where it was decided that such 
 considerations were (as such) irrelevant to the continuity of a 
 voyage. And Scott himself was not long in abandoning the mere 
 fact of importation by the merchant who re-exports the goods as 
 a sufficient ground to protect the trade from interruption. 
 
 On account of the recent suspension of the rule and the difficulty 
 of the subject, the ship was by indulgence restored, but without 
 freight. 
 
 I 5 Rob., 385 ; infra, p. 267. And the " Mercury " (Roberts) and the " Eagle," infra, 
 p. 263, are inconsistent with any such test. 
 
CONTINUOUS VOYAGE 261 
 
 The "Imina"^ laid down a rule which is expressed in clear and 
 definite terms, and from which Sir W. Scott and his successors 
 never departed. The ship was laden with timber fit for making 
 masts. She was proceeding to Amsterdam, but finding it block- 
 aded, made for Emden, just outside the belligerent frontier, and 
 exceedingly easy of access — in fact, a notorious smuggling centre. 
 Sir W. Scott released ship and cargo. 
 
 " This is a claim for a ship taken, as it is admitted, at the time of 
 capture sailing for Emden, a neutral port and destination on which, if it is 
 considered as the real destination, no question of contraband could arise ; 
 inasmuch as goods going to a neutral port cannot come under the descrip- 
 tion of contraband, all goods going there being equally lawful. It is 
 contended, however, that they are of such a nature as to become contra- 
 band if taken on destination to a hostile port. On this point, some 
 difference of opinion seems to have been entertained ; ^ and the papers 
 which have been brought in may be said to leave this important fact in 
 some doubt. Taking it, however, that they are of such a nature as to be 
 liable to be considered contraband, [if] on a hostile destination, I cannot 
 fix that character on them on the present voyage. The rule respecting 
 contraband, as I have always understood it, is that the articles must be 
 taken in delicto, in the actual prosecution of the voyage to an enemy's 
 port. . . . 
 
 " It was said that although the ship was not actually going to an enemy's 
 port, yet the owner had meant that she should, and it was argued that 
 as a criminal deviation by the master towards a blockaded port would not 
 have incriminated the cargo owner, so a repentant deviation away from it 
 ought not to release him, and that the offence must, in both instances, 
 be judged by the act and designs of the owner. But in those cases," 
 Scott proceeds, " there was the guilty act really existing at the time of 
 capture" (the only question was whether the master's act involved the 
 cargo owners or his principals). "In the present instance there is no 
 existing delictum. . . . Here there is nothing requiring any explanation : 
 the cargo is taken on a voyage to a neutral port." 
 
 It only needs to be added, that if ever there was a strong 
 case for holding that a contraband cargo was unmistakably 
 destined for sale in a belligerent country, this is that case. Scott 
 deliberately refrained from laying down any such rule as that an 
 ultimate intention to send the goods by an easy route to the 
 enemy could be invoked in order to justify condemnation. He 
 saw that such a rule would sap the foundations of mercantile law. 
 One cannot read his word " real " as simply equivalent to 
 *• ultimate " — for it was almost certain that Emden was not the 
 ultimate destination. 
 
 I 3 C. Rob., 167 (i8cx)). 
 
 * It had been argued that the timber was not contraband, being no more fit for shipping 
 construction than any other timber. 
 
262 COMMERCE IN WAR 
 
 The " Rosalie and Betty "^ was a mere case of enemy property, 
 in which the probable destination of the vessel was one element in 
 ascertaining the national character of the goods. It is, like the 
 other cases of the kind, of no authority in cases where destina- 
 tion is conclusive and all important, as in questions of contraband, 
 blockade running, and colonial trading. 
 
 The " Polly"" is the first case, after the war of 1756, in which 
 continuous colonial voyages came up for decision. A United 
 States ship sailed from Marblehead, in Massachusetts, for Spain, 
 and was captured on the voyage. Her cargo consisted of fish, 
 sugar, and cocoa. The fish (the principal portion of the cargo) 
 appeared to have been shipped at Marblehead. The sugar wais 
 part of a whole cargo which the vessel had previously brought to 
 Marblehead from Havana and discharged ; the sugar (after shfe 
 had beeti repaired) being put on board again. The cocoa had 
 been brought from another Spanish colony (Venezuela), in a 
 different schooner, and it was shipped on the " Polly" at Marble- 
 head. 
 
 " It would be the most nugatory thing in the world," say the captors' 
 counsel, flying in the face of the judge's dictum in the " Immanuel," ^ " to 
 say that that trade which is not allowed to be carried on direct, should 
 become legalized or allowable by a mere transhipment in America." 
 
 Sir W. Scott, in his judgment dismissing the case, after dis- 
 posing of the question of property, observes : — 
 
 " Then there remains only the question of law, which has been raised, 
 whether this is not such a trade as will fall under the principle that has 
 been applied to the interposition of neutrals in the colonial trade of the 
 enemy ? on which it is said, that if an American is not allowed to carry 
 on this trade directly, neither can he be allowed to do it circuitously. 
 An American has, undoubtedly, a right to import the produce of the 
 Spanish colonies for his own use ; and after it is imported bona fide into 
 his own country, he would be at liberty to carry them on to the general 
 commerce of Europe. ... It is not my business to say what is universally 
 the test of a bona fide importation ; it is argued that it would not be suffi- 
 cient that the duties should be paid, and that the cargo should be landed. 
 If these criteria are not to be resorted to, I should be at a loss to know 
 what should be the test ; and I am strongly disposed to hold that it would 
 be sufficient, that the goods should be landed and the duties paid. . . ." 
 
 This had been done in the case of the sugar, and the quantity 
 of cocoa was insignificant. It should, however, be noted that 
 Scott does not appear to have thought the fact material that 
 different ships were engaged in its transport. 
 
 The " Jonge Pieter"* was decided on the ground of trading with 
 the enemy. The further ground was taken in argument, of the 
 
 1 2 C. Rob., 343 (1800) 2 Tbtd., 361 (i8cx5). 
 
 3 Ibid., 186 {supra, p. 259). « 4 Rob., 79 (1801). 
 
CONTINUOUS VOYAGE 263 
 
 voyage (from England to Emden) being intended to bring the 
 cargo ultimately to Holland, that country being then blockaded. 
 
 "The probable ulterior destination to Holland," say Drs. Laurence 
 and Swabey in opposition to this claim, "must be considered as a new 
 undertaking, and the illegality attaching on such a course of trade, as 
 Pesiding only in intention, and not amenable to penalty in the present 
 stage." 
 
 Sir W. Scott, in giving judgment, said : — 
 
 " Supposing the cargo to be American property, I am not inclined to 
 think that it would be affected by the blockade on the present voyage. 
 The blockade of Amsterdam is, from the nature of the thing, a partial 
 blockade — a blockade by sea ; and if the goods were going to Emden, 
 with an ulterior destination by land to Amsterdam, or by an interior 
 canal navigation, it is not, according to my conception, a breach of the 
 blockade." 
 
 It will be noticed that the judge leaves out of account the case 
 of ulterior sea transit, neither affirming nor denying that its con- 
 templation might raise a case of breach of blockade. 
 
 In the " Stert,"^ the ship was proceeding with dairy produce 
 from an unblockaded port (Emden) to London. The cargo had 
 reached Emden by internal navigation from Holland, which was 
 under blockade, and it was alleged that this was a circuitous mode 
 of evading the blockading forces. Sir W. Scott said : — 
 
 "... It is argued that if this course of trade is allowed, the object of 
 the blockade, which is to distress the trade of Holland, will be defeated. 
 If that is the consequence, all that can be said is that it is an unavoidable 
 consequence. It must be imputed to the nature of the thing, which will 
 not admit of an effectual remedy of this species. The Court cannot, on 
 that ground, take upon itself to say that a legal blockade exists where no 
 actual blockade can be applied " ; 
 
 and consequently decreed restitution. 
 
 The " Mercury "^ is the first case of actual condemnation on the 
 ground of continuous voyage which is noticed in the books. The 
 vessel was taken on a voyage from Charleston. On the standing 
 interrogatories administered to the crew, it came out that she had 
 brought the cargo intact from Havana, and that it had never even 
 been landed at Charleston, although import duties had been paid 
 " or secured " there. 
 
 In the " Eagle "^ — ^again by the formal and legal original 
 evidence — it appeared that the cargo was going to Havana from 
 Bilbao, having been landed at Philadelphia en route. On this 
 case of suspicion arising from the original evidence, further proof 
 
 > 4 Rob., 65 (1801). 2 5 Rob., 400 (1802). 8 Ibid., 401 (1803). 
 
264 COMMERCE IN WAR 
 
 was adduced, but it was not limited to ascertaining whether duties 
 had or had not been paid. Orders and insurances were equally 
 relevant. 
 
 " Had it clearly appeared from those orders or insurances that the cargo 
 was from the beginning destined for the Havana, could it be supposed that 
 we would pay no regard to that result of the inquiry . . . but would 
 ascribe to the payment of duties such a conclusive effect as would have 
 rendered every other part of the inquiry perfectly nugatory ? " 
 
 says Sir W. Grant, speaking of this case in the "William." 
 
 In the " Freeport,"^ the voyage admittedly was from Cadiz to a 
 Spanish colony, via Boston. The cargo was landed, and lay in 
 America some time (the inference being that duty was paid), so 
 that evidently the capture was made after the ship had left for her 
 ultimate destination. 
 
 The " Richmond "^ was duly documented for an incriminating 
 port (Mauritius). The case merely decided that, having put in 
 to S. Helena, it could not be concluded that she meant to stop there. 
 It is cited here because Sir William Harcourt refers to it as an 
 authority for taking ultimate destinations into account. 
 
 The "Haabet"' demonstrates the impropriety of admitting 
 evidence on the part of the captors in the first instance. 
 
 " The first source of information," says Sir W. Scott, " to which the 
 Court usually resorts, is the evidence of persons on board the captured 
 ship. . . . The general rule of law is that on all points the evidence of the 
 claimants alone shall be received in the first instance ; and if no doubt 
 arises on that view of the case, the Court is bound ... to take those 
 points as fully demonstrated. It is a possible thing indeed that witnesses 
 may be forsworn, and that much injustice may be done, as in all references 
 to human testimony dangers of that kind may have to be encountered. 
 Courts of Justice must nevertheless proceed on general principles, though 
 they will receive the evidence with caution, and weigh it against any test 
 of credibility that can be collected from the nature and complexion of the 
 whole case taken together." 
 
 The " Flora "* was a peculiar case. An Order in Council had 
 directed the restitution of Spanish Wool " consigned to this 
 country." The " Flora's " cargo of wool was consigned to Emden, 
 and the claimants tried to prove against the captors that it was 
 intended to be carried on. Sir W. Scott expressed himself as to 
 such hypothetical voyages thus : — 
 
 "Unless I could hold to the extent contended in argument that a 
 circuitous ulterior destination to this country, either in the same ship or in 
 other ships, is to be considered in law as one identical consignment, I fear 
 it is out of my power to bring the case within the provisions of the Orders 
 of Council." 
 
 1 S Rob., 402 (1803). 2 Ibid., 325 (1804). 
 
 3 6 Rob., S4 (180S). < Ibid., 9 (180S). 
 
CONTINUOUS VOYAGE 265 
 
 He expatiated on the ease with which vessels could go on 
 forbidden voyages on the allegation of an innocent termination of 
 their wanderings. Yet if captors are to be allowed to prove 
 illegal terminations to apparently innocent voyages, there seems 
 some injustice in refusing to claimants the same ready faculty of 
 proving a redeeming innocent intention to take the character of 
 illegality from a proved illegal voyage.^ 
 
 In the " Essex," ^ a United States ship, the vessel took on 
 board a cargo at Barcelona, and was freighted for the Havana, 
 but with instructions to touch at Salem, in America (where the 
 owner resided, who adopted the plan and sent the vessel on), in 
 order to break the continuity of the voyage. The vessel was 
 captured, and the case eventually came before the Lords of 
 Appeal. 
 
 " It appeared clearly to the Court," says Sir W. Scott, " that it was the 
 intention, originating in the mind of an authorized agent, acting with 
 full powers, that the vessel should go to the Havana, and that this 
 purpose was adopted by the owner ; that it was in reality a continued 
 voyage from Spain to the Havana ; that as to the intention, all doubt 
 was done away by the adoption on the part of the owner, who had the 
 vessel in his own port} and was fully implicated in the engagement of 
 sending her on, according to the projected voyage." 
 
 From the italicized words, it is plain that the vessel was not 
 seized in the Atlantic, on the ground that she was going to 
 Havana after touching at Salem ; she had, when captured, been 
 to Salem, and the only question was, whether she must be taken 
 as having come from Salem or from Barcelona. 
 
 In the " Enoch,"* a charter-party conclusively proved the voyage 
 to be one " to a colony of the enemy and back to America, and 
 from thence to the mother-country in Europe." Sir W. Scott 
 comments on these cases in the significant words : — 
 
 " It was not merely a circumstance ; it was an absolute and conclusive 
 fact, declaratory of the intention of sending on the cargo to Europe." 
 
 In the " Rowena,"^ there was no such charter-party, but the ship 
 was making for the final destination, and the question whether she 
 must be taken to have come from an intermediate American port 
 or a prior colonial one was thus left open to be decided by further 
 evidence. This was found in her course of trading, and in the 
 fact that the cargo had lain in America just long enough to be 
 landed and reshipped. 
 
 > Cf. the " Trende Sostre."— " If the port had continued Dutch, a person could not, 
 I think, have been at liberty to carry thither articles of a contraband nature, under an 
 intention of . . . proceeding with the contraband articles to a port of ulterior destination." 
 —Ibid., p. 390 (n.), (1807). 
 
 " S Rob., 369, ex rel. Scott; 402, ex rel. Grant (1805). ^ Italics ours. 
 
 * 5 Rob., 370 (1805). * Ibid., 370 (180S). 
 
266 COMMERCE IN WAR 
 
 In the " Maria,"^ as in the " Polly," restitution was decreed. 
 The voyage was one of a United States ship from New 
 Providence (U.S.), to Amsterdam ; a considerable portion of 
 the cargo had come in the same ship from Havana, and together 
 with some other goods of the same owner, and others taken on 
 freight constituted the cargo at the time of capture. The vessel 
 had stayed at the intermediate harbour nearly two months for 
 repairs. 
 
 Sir W. Scott reviewed the above cases of the " Essex," "Enoch," 
 and " Rowena," and observed : — 
 
 " There are no letters or writings, as in the ' Essex,' purporting an origi- 
 nal intention to send on ; there is no charter-party, as in the ' Enoch ; 
 there are no instructions disclosing a course of similar voyages to Amster' 
 dam, as in the ' Rowena.' " 
 
 On these and on other grounds of distinction, Havana not 
 being a colony of Holland, and the cargoes having been broken 
 up at the intermediate port, he ultimately, after further proof, 
 released ship and cargo, in spite of their having been taken in the 
 very act of making for the colonial port, the ship and much of the 
 cargo having come from the port of an allied enemy. 
 
 In the " Eliza and Katy,"^ the capture took place during the 
 concluding stage of the voyage, viz. as the ship proceeded from 
 Philadelphia to Rotterdam. The alleged commencement of the 
 voyage at an earlier stage was supported by the evidence of a 
 member of the original crew, then in the British navy, and the 
 Court expressed a strong opinion against the propriety of this 
 evidence being adduced, and released the ship and cargo. 
 
 It is a somewhat important case, because an ulterior voyage 
 from Rotterdam to Havana was contemplated, and considered 
 quite immaterial. 
 
 " These are strong proofs," says Sir W. Scott, " of concerted fraud as to 
 the ulterior voyage, on the part of the persons for whom the claim is given, 
 but no objection has been raised against the present transaction, except as 
 to the continuous voyage, on which it is said ' that some part of the cargo 
 had been recently brought from Martinique, and that they were immedi- 
 ately transhipped and put on board this vessel. But that objection is 
 answered by a paper on board. . . ." 
 
 In the " Maria "* (Monses) the goods were taken on board in the 
 unblockaded Jahde. They had come in lighters from the blockaded 
 Weser under a through charter-party, and the ship conveying 
 them was captured, and would have been held good prize but for 
 the operation of a special declaration of indulgence to Bremen 
 commerce. 
 
 1 5 Rob., 365 (1805). 2 6 Rob., 185 (1805). ^ Ibid., 201 (1805). 
 
CONTINUOUS VOYAGE 267 
 
 So the " Charlotte Sophia." ' 
 
 In the "Ebenezer"^ the capture was made of a Prussian ship 
 proceeding to Antwerp. The cargo was described as laden at 
 Emden, whilst the witnesses deposed that it had been brought 
 immediately there from Bordeaux, and not unladen but carried on 
 within three days. The Court believed them, and condemned the 
 cargo and restored the ship (thinking that the owner might not 
 have known of the attempted voyage from Emden onwards). Sir 
 W. Scott observes : — 
 
 " Very different is it from the case which has been cited, in which the 
 ship had been lying three weeks at Emden. That material fact afforded 
 time for new speculations, and rendered it equivocal at least, whether the 
 ulterior voyage which was afterwards pursued did not spring from some 
 change of intention which had taken place in the mind of the owner." 
 
 The "Sophie,"' like the " Ebenezer," was a case of a vessel 
 captured going from Emden to Antwerp. It was said she had 
 brought goods from some French island "on grounds of proba- 
 bility and suspicion," but she had spent five weeks at Emden, and 
 the Court restored the cargo without further proof. 
 
 In the "William,"* as in the "Polly," Marblehead was the 
 intermediate port ; but the event was not so fortunate. Like the 
 " Polly," she had on board at the time of capture cocoa, sugar, and 
 salt fish. The cocoa she had brought herself from Venezuela, as 
 the " Polly " had brought sugar from Havana. Inversely, the 
 sugar had been brought from Havana in other ships, like the 
 " Polly's " cocoa. Some repairs had been effected at Marblehead, 
 the ship being unladen for the purpose, but only staying a week, 
 though the crew and hands were paid off as on the conclusion of a 
 voyage. Salt fish was shipped there, and the vessel left for Bilbao. 
 Duty had been paid on the cocoa landed and reshipped, and (one 
 infers) on the sugar. Ship and cargo were condemned at Halifax. 
 
 The Lords of Appeal admitted the claim for ship and cargo, 
 except as regarded the cocoa. The remarkable point about the 
 case is that no question seems to have been entertained that the 
 sugar, although travelling from Havana to Spain, would not have 
 been interfered with. The case as regards it, no less than the 
 fish, was absolutely dismissed without any reasons being assigned. 
 So far, therefore, as the "Thomyris" is of any authority on the 
 normal law of close trade and continuous voyage, it is directly in 
 conflict with the " William " — a decision of a superior tribunal. 
 
 As regards the cocoa, the claimants were called upon to prove 
 that it was a real importation into Marblehead. They failed to 
 do so.® 
 
 » 6 Rob., 204 n. (1806). 2 Ibid., 250 (1806). 
 
 3 Ibid., 251 n. (180S). * 5 Rob., 385 (1806). 
 
 6 Their evidence and that of the customs collector is set out at p. 391 of the report. 
 
268 COMMERCE IN WAR 
 
 Sir William Grant said : — 
 
 " The question in this case is whether that part of the cargo which has 
 been the subject of further proof, and which, it is admitted} was at the time 
 of the capture going to Spain, is to be condemned on coming directly from 
 La Guayra within the meaning of His Majesty's instructions. According 
 to our^ understanding of the law, it is only from those instructions that 
 neutrals derive any right of carrying on with the colonies of our enemies 
 during war a trade from which they were excluded in time of peace. . . . 
 What the present claimants accordingly maintain is not that they could 
 carry the produce of La Guayra directly to Spain, but that they were not 
 so carrying the cargo in question, inasmuch as the voyage in which it was 
 taken was a voyage from North America, and not directly from a colony 
 of Spain. 
 
 "What, then, with reference to this subject, is to be considered as a 
 direct voyage from one place to another ? Nobody has ever supposed that 
 a mere deviation [would prevent its being direct]. Neither will it be con- 
 tended that the point from which the commencement of a voyage is to be 
 reckoned^ changes as often as the ship stops in the course of it ; nor will it 
 the more change, because a party may choose arbitrarily, by the ship's 
 papers or otherwise, to give the name of a distinct voyage to each stage of 
 a ship's progress. The act of shifting the cargo from the ship to the shore, 
 and from the shore back again to the ship, does not necessarily amount to 
 the termination of one voyage and the commencement of another. It may 
 be wholly unconnected with any purpose of importation into the place 
 where it is done. Suppose the landing to be merely for the purpose 
 of airing or drying the goods, would any one think of describing the 
 voyage as beginning at the place where it happened to become necessary 
 to go through such a process ? Again, let it be supposed that the party 
 has a motive for desiring to make the voyage appear to begin at some 
 other place than that of the original lading, and that he therefore lands 
 the cargo purely and solely for the purpose of enabling himself to affirm 
 that it was at such other place that the goods were taken on board, would 
 this contrivance at all alter the truth of the fact ? Would not the real 
 voyage still be from the place of the original shipment, notwithstanding 
 the attempt to give it the appearance of having begun from a different 
 place? The truth may not always be discernible, but when it is discovered, 
 it is according to the truth, and not according to the fiction, that we are 
 to give to the transaction its character and denomination. If the voyage 
 from the place of lading be not really ended, it matters not by what acts 
 the party may have evinced his desire of making it appear to have been 
 ended. ... If the evasive purpose be admitted or proved, we can never be 
 bound to accept as a substitute for the observance of the law the means, 
 however operose, which have been employed to cover a breach of it." 
 
 These strong expressions as to the paramount value of the 
 truth, when discovered, were made in a case in which sugar, 
 transhipped at Marblehead, was allowed to pass from Havana to 
 
 ' Italics ours. 
 
 « The Lords of Appeals. 
 
 ' He does not say " to which the end of a voyage is to be reckoned." 
 
CONTINUOUS VOYAGE 269 
 
 Spain without question or inquiry. It is obvious that Sir W. 
 Grant was referring to the truth as established by admissible 
 evidence in the regular course of prize procedure, and was not 
 contemplating a roving inquisition into the intentions of vessels 
 making for a lawful port. 
 
 He proceeds to examine the claimants' affidavit, and gives his 
 reasons for considering it insufficient : — 
 
 " The claimants," he adds, " seem to have conceived that the inquiry to 
 be made here was not whether the importation was real or pretended, but 
 whether the pretence had assumed a particular form. . . . And it has, I 
 understand, been said that our departure from that supposed rule in the 
 case of the ' Essex ' (Orne) was a surprise upon the merchants of America, 
 who had by our former decisions been led to believe that proof of landing 
 and payment of duties in America would in every case be held absolutely 
 decisive of the character of the voyage."^ 
 
 He quotes the cases above cited (the " Mercury," " Eagle," 
 " Freeport," and " Essex ") to rebut the imputation of surprise ; 
 and remarks that even a decision as to the conclusiveness of pay- 
 ment of duty would not exclude the captor from rejoining that the 
 duties were balanced by drawbacks. In the result, the cocoa is 
 declared good prize. 
 
 The "Thomyris"^ is a decision not on continuous voyages 
 generally, but on the interpretation of a particular Order in 
 Council (that of 7 January, 1807) forbidding trade between the 
 ports of France and those under her control. The peculiar 
 feature of the voyage in question was that it was one from a 
 safe port (Lisbon) to a French one. But certain barilla, part 
 of the cargo, had come to Lisbon direct from a port under 
 French control, and had merely been transhipped there. Now 
 there are several cases of trading with the enemy, and others 
 decided under British Navigation Acts, which must have been 
 present to the mind of the Court, and which clearly lay down the 
 principle that a traffic, illegal by municipal common law, or by the 
 terms of municipal Navigation Acts, cannot be rendered legal by 
 being carried on in different vessels during separate stages. 
 Therefore, when the judge condemned the barilla, observing — " In 
 all cases of this description it is a clear and settled principle that 
 the mere transhipment of a cargo at an intermediate port will not 
 break the continuity of the voyage, which can only be effected by 
 a previous actual importation into the common stock of the country 
 where the transhipment takes place " — he was probably thinking 
 of these cases where, under municipal law, a State strikes at a 
 
 » They had some reason for thinking so ; see the " Polly" (Lasky), supra, p. 262. 
 2 I Edw., 17 (1808). 
 
270 COMMERCE IN WAR 
 
 particular kind of injurious trade, however and by whatever 
 circuitous stages carried on. 
 
 The Order in Council was designed to strike at French trade, 
 by way of reprisals, in the same sweeping and quite extra-legal 
 manner. The interpretation put upon it is of little value as a 
 guide to the treatment of the legal and normal doctrine of 
 continuous voyage. That doctrine concerned itself only with 
 continuous voyages of one and the same ship (or of goods 
 going under a through charter-party), as is obvious from the 
 case of the " William."^ In short, under the Order in Counqil, 
 as under the Navigation Laws, it was the traffic, however carried 
 out, that was threatened ; under the International Law embodied 
 in the "Rule of 1756," it was the un-neutral identification of a 
 particular vessel with the enemy which was the cause of con- 
 demnation. 
 
 In any case, it is to be noted that the capture was made during 
 the last stage of the barilla's transit, when it was certain that it 
 was going to the unsafe port. 
 
 The " Baltic"^ ( 1 809) was a ship captured en route from Mauritius 
 to Philadelphia. The ground of condemnation of ship and cargo 
 was that the bulk of the cargo was enemy property, and that it 
 was attempted to disguise the fact. The case is of no authority 
 on the subject of continuous voyage ; although the possibility that 
 the voyage might be a continuous colonial one from Mauritius to 
 Bordeaux is alluded to by the King's Advocate in argument, 
 counsel for the owners do not think it necessary to deal with the 
 suggestion in reply. The cargo had, in fact, been bought with the 
 proceeds of contraband, and there was every reason to condemn 
 it \ and the ship for the fraud in representing it to be American. 
 
 The "John"* sailed from New Providence, in the British West 
 Indies, for Havana with provisions and spirituous liquors which 
 had been carried to the former port by the "Columbia" from 
 Amsterdam, and by the " Nancy " from Trieste. She was captured, 
 and on an appeal from the Vice-Admiralty Court of New 
 Providence, the High Court of Appeals restored her, but without 
 Stating the reason. The principal argument was directed to the 
 fact of the cargoes of the "Columbia" and " Nancy" having been 
 incorporated into the general commerce of the intermediate port ; 
 and the case appears too clear for argument. 
 
 In the " Hope,"* the Court was asked to condemn certain tea and 
 sugar taken in transit from the United States (probably New 
 York) to Bordeaux, having previously come in the " Peace " 
 from a French colony (probably Mauritius), on the ground of 
 
 1 Supra, p. 267. 2 I Acton, p. 25 (1809), 
 
 3 Ibid., 39 (1809). 4 Ibid., 43 (1809). 
 
CONTINUOUS VOYAGE 271 
 
 the continuity of the voyage. This ground would, if maintainable, 
 have justified the confiscation of the ship and the whole cargo ; 
 and the Court preferred to rest its condemnation of the tea and 
 sugar in question on the ground of their being enemy property. 
 
 The question of enemy property is indeed much complicated 
 with that of continuous colonial voyages. (Cf. the "Mercury."^) 
 
 " Die Jungfer Charlotta"^ is a rather unusual example of a con- 
 tinuous voyage becoming such at its very end. She was a Papen- 
 burg ship, which sailed from St. Martin's for the Baltic with salt. 
 Having put into Oporto in distress, where the salt was sold to a 
 Portuguese, who freighted the ship with cork in addition, she was 
 captured en route for Middleburg in Holland. The Court of 
 Admiralty at London condemned the salt, restored the cork, and 
 also released the ship. On appeal, the ship was condemned as 
 good prize on account of participating in the prohibited trade 
 between the French island of St. Martin's and the port of Middle- 
 burg, an ally of France. 
 
 This was not, however, precisely a case of continuous voyage as 
 governed by the old principles applicable to colonial voyages, but 
 one under the stringent Order in Council of 7 January, 1807, 
 under which Britain attempted to stop all trade with France. 
 
 The question in such cases becomes simply one of the proper 
 interpretation of an order confessedly extra-legal. 
 
 The " Patapsco "^ was a United States ship captured when pro- 
 ceeding to Mauritius from Java with a miscellaneous cargo. 
 The High Court of Appeals seems disposed to have held that 
 trade between a Dutch colony and a French one (both hostile) 
 was a close trade, and not permissible to neutrals. But they 
 hesitated to hold that the ship was intended to discharge at 
 Mauritius, her papers being for Baltimore, and restored ship and 
 cargo, with costs to the captors. 
 
 The " Two Brothers "* is a case very like that of the " Patapsco,"^ 
 but it ended in the condemnation of the cargo and ship, the 
 ostensible destination of the cargo to Tranquebar being dis- 
 believed. These cases of the "Patapsco," " Richmond," and "Two 
 Brothers " are inversions of the principle of continuous voyage : 
 in them it is the owner who asserts that the voyage is con- 
 tinuous and the making for an intermediate port a mere incident. 
 
 The " Commercen " ^ has been much misunderstood by foreign 
 writers, who do not clearly separate the topics of enemy property 
 and contraband.'^ It was simply a case of a cargo, condemned 
 as admittedly the property of the hostile British. As W. Beach 
 
 1 1 Acton, 66. 2 jiiia,^ 171 (1809). ' Ibid., 270 (Grant), (1810). 
 
 * 2 Acton, 38 (18 16). 5 Supra. « i Wheaton, 382 (18 16). 
 
 ' E.g. Calvo, who treats it as a parallel case to the " Springbok " I 
 
272 COMMERCE IN WAR 
 
 Lawrence^ points out, the sole question was whether or not 
 the ship which carried them to neutral Bilbao was entitled to 
 freight. In an ordinary case it would have been so entitled. But 
 this was not a case of the carriage of a merchant's silks and 
 wines, but of the carriage to a fleet and army of their Govern- 
 ment's naval and military forage. Of course freight was denied. 
 
 Story, J., took occasion to observe, obiter, that if contraband 
 goods were destined to a neutral port " for the direct and avowed 
 use of the enemy's army or navy," he and the concurring judges^ 
 considered they would be confiscable. The word " direct" seems 
 to import that the enemy's forces must be within the neutral terri- 
 tory ; and the word "avowed" excludes all matters of suspicion or 
 evidence. The illustration he gives clinches the interpretation: 
 "Suppose in time of war a British fleet were lying in a neutral 
 port, would it be lawful for a neutral to carry provisions or muni- 
 tions of war thither, avowedly for the exclusive supply of such 
 fleet .■* " Other incidental observations on contraband found their 
 way into the head-note, and create the erroneous impression that 
 the case is one of contraband. 
 
 The real interest of the case lay in the fact that the British 
 troops in Spain were not fighting the United States troops, but 
 those of France, with which Power the States were not even 
 informally allied. 
 
 Some correspondence on an early case of condemnation of 
 cargo as destined ultimately for a blockaded port, though the ship 
 was bound for a safe one, arose out of the Brazilian blockade of 
 Buenos Ayres. The United States brig " Pioneer " was bound to 
 Montevideo ; she was properly documented thither, and did not 
 pass to the west of it. Admiral Guedes, therefore, did not 
 consider her a lawful prize. "It is easy," he says, "to compre- 
 hend and believe that the vessel was under engagement to go to 
 Buenos Ayres ; but presumptions and indications still stronger do 
 not determine me to act. Believing, therefore, that the brig 
 ' Pioneer ' intended to proceed with her cargo to Buenos Ayres, 
 I . . . released her, because I had no legal evidence against her." 
 The cargo, however, he did seize, because the supercargo was 
 provided with two sets of papers — one for Buenos Ayres and one 
 for Montevideo. "According to good faith," says the Admiral, 
 " the papers ought to have been for Montevideo alone ; and if 
 upon arriving there the blockade should have been found not in 
 vigour, another direction might have been given to the merchan- 
 dise if convenient." 
 
 Again, in 1828, Lord Aberdeen correctly laid down the true 
 
 ' Wheaton's "Elements," ed. Lawrence (1863), p, 810. 
 * Marshall, C.J., Livingston and Johnson, JJ., dissented. 
 
CONTINUOUS VOYAGE 273 
 
 principle.^ Russia had blockaded the Dardanelles with a view of 
 putting stress on Constantinople, and affected to consider trading 
 with the northern coast of the Archipelago as a violation of the 
 blockade. Lord Aberdeen observed : " It becomes my duty to 
 point out to Prince Lieven the irregularity of this conduct, which, 
 under the plea of enforcing the blockade of the Dardanelles, had 
 imposed a new and extensive blockade, and had prohibited all 
 access to ports hitherto open to the commerce of neutrals. It is 
 sufficiently intelligible that the Russian Admiral, looking to the 
 blockade of the Dardanelles as the means of preventing the arrival 
 of provisions at Constantinople, should endeavour to increase the 
 privations of that city, and should desire to render his measure 
 more efficacious by its application to the several points along the 
 coast from whence such provisions could be conveyed overland to 
 the Turkish capital. 
 
 " But he should recollect that the traders of neutral States have 
 no such interest ; that in directing their commerce to ports not 
 ctctually under blockade, they violate no law and are guilty of no 
 offence ; that the same reasoning which admits the extension of 
 the blockade as proposed by Admiral Ricord, with the view of 
 increasing the horrors of famine at Constantinople, would equally 
 authorize the blockade of Salonica or of Smyrna." 
 
 The " Frau Houwina" (1855)^ was a Hanoverian ship, taken by 
 the French in transit from Lisbon to Hamburg with saltpetre, 
 and condemned on suspicion of an ulterior destination of ship or 
 cargo to Russia, during the Crimean war. The reasons were : — * 
 
 "(i) Que ce bitiment avait en effet a bord 973 sacs de salpfetre brut de 
 rinde, d^signds sur le manifeste et les connaissements sous la simple 
 denomination de marchandises. 
 
 " (2) Que les connaissements y relatifs, signds seulement du capitaine, 
 indiquent que le chargement avait ^t6 fait par le Sieur Roiz 4 son ordre et 
 k destination de Hambourg. 
 
 "(3) Qu6 ces 973 sacs provenaient integralement d'un chargement 
 apporte d'Angleterre a Lisbonne le 17 Oct. dernier par le navire le 
 ' Julius,' d'ou ils avaient et6 transbdrdes sur la ' Frau-Houwina ' par les 
 soins du Sieur Schaltz, negotiant 4 Lisbonne, ^ qui ils avaient et6 con- 
 signees par connaissement au nom du Sieur Jean Esken, de Londres. 
 
 "(4) Que I'exportation d'Angleterre avait eu lieu au moyen de trois 
 acquits-i-caution portant engagement d'en faire constater le d^barque- 
 ment dans le pays de destination, et que, pour remplir cet engagement, 
 Schaltz avait obtenu du consul d'Angleterre k Lisbonne un certificat 
 attestant, d'aprfes sa declaration, que ledit salp^tre dtait destine 4 ^tre 
 consomme dans ce pays, et non k Stre r^-exporte. . . . 
 
 1 Aberdeen to Heytesbury, 22 May, 1828 {Ibid., Vol, XVII, 390). 
 
 2 Calvo, sec. 2767. ' Numerals ours. 
 
274 COMMERCE IN WAR 
 
 "(5) Au fond, consid^rant que le salpfitre est un objet susceptible 
 d'etre contrebande de guerre ; 
 
 "(6) Que la contrebande de guerre est saissible sous pavilion neutre 
 quand elle appartient k I'ennemi ou quand elle est dirig^e vers le terri- 
 toire, les armies ou les flottes de I'ennemi ; 
 
 "(7) Q"6 le commerce des objets de contrebande ne saurait ^tre 
 pr6sum6 licite qu'^ le condition d'etre effectue avec la plus entiere bonne 
 foi et la plus complete sincerite, et que toute dissimulation, toute fraude 
 ou tout dol dont ce commerce serait accompagn6 doivent de plein droit le 
 faire pr^sumer illicite ; et que c'est k ce commerce surtout qu'il importe 
 d'appliquer avec rigueur le principe d'aprfes lequel il y a lieu de consid6rer 
 comme appartenant k I'ennemi les objets dont la propriety neutre ou amie 
 n'est pas justifi^e pas les pieces trouvees k bord ; 
 
 " (8) [That allies are entitled to no specially favourable treatment in 
 case of ' simulations 6videmment destinies k tromper ' their own or their 
 allies' cruisers]. 
 
 " (9) Q^s ^ss pretendus usages commerciaux invoques par les r^clamants 
 pour expliquer ces simulations ne sauraient s'appliquer en temps de guerre 
 ci des expeditions d'objets de contrebande de guerre. 
 
 "(10) Qu'ils ne peuvent non plus expliquer dans I'espece la dissimula- 
 tion de la nature de la marchandise sur le manifeste et les connaisse- 
 ments. . . . 
 
 "(11) Qu'^ ces pr^somptions de propri6t6 ennemie suffisantes pour 
 determiner la confiscation du salp^tre saisi, il faut encore ajouter celles 
 qui se rattachent k la destination du b&timent ; qu'en effet, si la bitiment 
 a ete r6lkch6 comme neutre, il ne s'ensuit pas de plein droit que par la 
 decision le conseil ait reconnu la r6alit6 de la destination neutre assignee 
 a sur voyage, puisque cette relaxation efit du ^tre prononc^e egalement, 
 aux termes de r^glements fran9aises, dans le cas oil le batiment aurait 
 6t6 destine d'une mani^re patente pour un port ennemi ; 
 
 "(12) Qu'il est d'autant plus permis de supposer que la destination de 
 Hamburg n'etait qu'apparente, et que la ' Frau-Houwina,' apres avoir 
 debarque dans ce port son chargement licite, devait relever pour un port 
 ennemi de le Baltique; que son depart de Lisbonne coincidait precis6- 
 ment avec le moment de la retraite des escadres alli^es, qui laissaient les 
 ports russes debloques, et que cette dissimulation de plus sur les papiers 
 de bord ne serait que la reproduction d'une fraude analogue, k I'aide de 
 laquelle ce mfeme batiment avait et6 pr6cedemment expedite de Lisbonne 
 pour Elsineur par le mSme negotiant Schaltz avec un chargement destine 
 en realite pour la Russie. 
 
 "(13) Mais que, sans recourir meme a cette supposition, I'expedition 
 du navire pour Hambourg cachait, suivant toute apparence, sinon pour le 
 navire, du moins pour le chargement, une destination ennemie, attendu 
 qu'il est de notoriete publique que la ville de Hambourg a re5U dans le 
 courant de I'annee derniere des quantit^s de salpgtre, soit a I'etat de 
 nitrate de potasse, soit a I'etat de nitrate de sonde, qui excedait de beau- 
 coup ses importations habituelles ; qu'au mois de decembre dernier, k 
 I'epoque mdme ou le ' Frau-Houwina ' pouvait Stre attendu k Hambourg, 
 des tentatives etaient faites par des negociants de cette ville pour obtenir 
 d'un armateur de Lubeck I'affr^tement d'un batiment destin6 a porter en 
 
CONTINUOUS VOYAGE 275 
 
 Russie du plomb, du salpfetre et du soufre, et qu'^ la fin du mois de Janvier 
 suivant une autre expedition de plomb et de salp^tre, partie de Ham- 
 bourg par chemin de fer a destination de Koenigsberg, a ^t^ de cette 
 derniere ville dirigee par terre et par triineaux russes vers la fronti^re de 
 Russe, du c6t6 de Kowno " ; 
 
 And in fine — 
 
 "(14) Qu'une expedition de contrebande de guerre prepar^e a I'aide 
 d'une fraude contre les mesures politiques prescrits par un gouvernement 
 alli^ dans rint6r6t d'une guerre commune, continuee sous un nom suppos6, 
 dissimulde sur les papiers de bord et faite k destination de parages 
 rapproch^s du pays ennemi et servant de voie habituelle aux appro- 
 visionnements de I'ennemi, doit fetre efFectu^e pour compte et k destination 
 de I'ennemi, et qu'il y a lieu des lors de prononcer la confiscation des 
 objets saisis. . . ." 
 
 Because, therefore, there was a good market for saltpetre at 
 Hamburg, in consequence of the Russian demand, a neutral ship's 
 neutral cargo destined thither was condemned ; and the most 
 trivial matters, such as the want of detail in the manifest, and the 
 variance from the original intention of taking the goods no further 
 than Lisbon, were eagerly fastened on as the most glaring proofs 
 of fraud. Calvo praises the luminous exposition of the judgment. 
 It does indeed announce with an air of lucid finality various 
 sweeping and disputable propositions of theory ; but what can be 
 thought of the clearness of a decision which confuses the topics of 
 contraband and enemy property as they are confused in para- 
 graph 6 ? 
 
 It is true that the Declaration of Paris of 1856 is open to the 
 same charge of confusing these topics : — 
 
 " Le pavilion neutre couvre la marchandise ennemie, k I'exception de 
 la contrebande de guerre." 
 
 Enemy goods cannot be contraband of war. The Declaration 
 must mean " such articles as are capable of being contraband of 
 war as between belligerent and neutral." But did it mean to 
 limit the right to seize them to those cases in which neutral con- 
 traband could be captured ? or did it allow noxious articles belong- 
 ing to the enemy to be seized on the high seas wherever found, 
 under the old rule as to the seizure of enemy goods ? If it meant 
 to assimilate them completely to neutral contraband, belligerents 
 must be content to see their enemies' munitions of war going 
 safely in neutral ships to neutral ports, unless they can establish 
 that the ships are under the control and in the temporary service 
 of the enemy Government. It is partly because the Declaration 
 is not recognized as giving belligerents a right to capture enemy 
 goods of contraband quality, everywhere, that we find attempts 
 
276 COMMERCE IN WAR 
 
 made to break down the wholesome rule that the trade of neutral 
 ports in neutral goods must be unaffected by the outbreak of war. 
 
 It has been thought worth while to set out the lengthy reasons 
 of the Conseil des Prises in the " Frau-Houwina," in order that it 
 may be seen how slender are the grounds on which goods may be 
 held to be contraband by a belligerent who is entrusted with such 
 liberty of supervising the commerce of neutrals. 
 
 Jecker v. Montgomery^ which Chase, C.J., confidently cites in 
 the " Bermuda," was a simple case of trading with the enemy. 
 A nation naturally has a right to prevent its own subjects from 
 trading with the enemy, and to do this and to infer the trading, in 
 any way and by any evidence it likes. In the present case, several 
 authorities on trading with the enemy are cited, but not one on 
 continuous voyage. 
 
 "Attempts," say the Court, "have been made to evade the rule of 
 public law by the interposition of a neutral port between the shipment 
 from the belligerent port and their ultimate destination in the enemy's 
 country ; but in all such cases the goods have been condemned, as having 
 been taken in a course of commerce rendering them liable to confiscation ; 
 and it has been ruled that, without licence from Government, no com- 
 munication, direct or indirect, can be carried on with the enemy ; that the 
 interposition of a prior port makes no difference ; that all trade with the 
 enemy is illegal, and the circumstance that the goods are to go first to a 
 neutral port will not make it lawful," 
 
 and citation is made of the "Indian Chiefs and the "Jonge 
 Pieter."^ Because any arbitrary steps can be taken in order to 
 stop one's own subjects from hostile trading, it does not follow that 
 the received rules limiting the search of foreign ships for contra- 
 band can be set aside so as to render them liable to the like treat- 
 ment. 
 
 A very proper case of condemnation, and one strictly in analogy 
 with the British authorities, was that of the "Gertrude."* The 
 voyage was ostensibly to New Brunswick, and the ship was cap- 
 tured putting into Charleston with a Charleston pilot on board. 
 
 In the "Bermuda,"' the facts were these: The "Bermuda" 
 was a steamship which had successfully run the blockade of 
 Savannah towards the end of 1861 (the year of her launch at 
 Stockton-on-Tees). The great Southern firm of Eraser, Tren- 
 holm & Co. then despatched her, early in 1862, from Liverpool to 
 St. George's in Bermuda, where she remained about five weeks 
 waiting for orders. The Supreme Court (U.S.) is puzzled to 
 know why the cargo was not transhipped there for the Confederate 
 
 1 18 Howard (Supreme Court), no (Daniel, J.) (1855). 
 
 2 3 Rob., 22 (1800). 3 4 m^^ 7g (1801). 
 
 4 5 Wall., 8 (1863). 5 3 ihia,^ 514 (1865). 
 
CONTINUOUS VOYAGE 277 
 
 States. The owners state that it was the consignee who wished 
 it sent to Nassau ; but a letter from Messrs. John Fraser & Co., 
 of Charleston, was produced, directing the person who was alleged 
 to be the consignee to have the goods sent to the latter port. 
 There was a swift steamboat of light draught, the " Herald" (an 
 old Dublin mail-packet), which, on somewhat slight evidence, the 
 Court considered to be held at Bermuda in readiness to take on 
 the " Bermuda's " cargo if the latter ship did not proceed to the 
 C.S.A. herself, thus affording some colour to the theory of a 
 concerted plan. The "Bermuda" was taken en route from 
 St. George's to Nassau ; and the master destroyed certain papers, 
 which of itself raised strong suspicions. 
 
 Three points were taken, and all decided in favour of the 
 captors. 
 
 (i) The ship and cargo were held to be really the property of 
 the Confederate firm, John Fraser & Co., and therefore enemy 
 property. The point is not germane to our present subject ; but 
 it is relevant to remark (a) that the finding rendered any decision 
 on the continuity of the voyage unnecessary ; {b) that it was 
 unsupported by the evidence, which was perfectly consistent with 
 Fraser & Co. being the mere agents of the British firm of Fraser, 
 Trenholm & Co. 
 
 (2) The ship was held liable for being engaged in an attempt 
 to carry contraband to the Southern ports, whether she was 
 actually going thither herself or not. Nominally admitting that 
 "the description of cargo, if neutral, and in a neutral ship, and on 
 a neutral voyage, cannot be inquired into in the Courts of a 
 belligerent," Chase, C.J., shifts the ground of liability from 
 the unmistakable evidence of course and papers to the shadowy 
 suspicions of captors, by admitting an inquiry as to intention. 
 " Neutrals may convey in neutral ships, from one neutral port 
 to another, any goods, whether contraband of war or not, if 
 intended for actual delivery at the port of destination and to 
 become part of the common stock of the country or of the port." 
 Once admitting this novel principle, the nature of part of the 
 cargo was sufficiently patent. Nearly eighty tons of the cargo 
 were cannon, guns, shells, and fuses ; there were also considerable 
 quantities of pistols, swords, and cartridges, and about 400 barrels 
 of gunpowder. 
 
 Then as to the ulterior destination, the very fact that the cargo 
 was of such a noxious nature was held sufficient to prove it. This 
 (as Evarts notices) is tantamount, in the first place, to condemning 
 goods on their contraband nature alone. 
 
 " It makes no difference," says the Court, " whether the destination to 
 the rebel ports was ulterior or direct ; nor could the question of destina- 
 
278 COMMERCE IN WAR 
 
 tion be afifected by transhipment at Nassau, if transhipment was intended, 
 for that could not break the continuity of transportation of the cargo." 
 
 (It might not break it, but it made it impossible, by the Law of 
 Nations, to prove it.) 
 
 " The interposition of a neutral port between neutral departures and 
 belligerent destination has always been a favourite resort of contraband 
 carriers and blockade-runners. But it never avails them when the 
 ultimate destination is ascertained. A transportation from one point to 
 another remains continuous so long as intent remains unchanged, no 
 matter what stoppages or transhipments intervene," 
 
 It might have been thought necessary that some proof of these 
 confident statements should be afforded. None of these numerous 
 cases of the favourite practice of blockade-runners and contraband 
 traders are forthcoming from the recesses of the Chief Justice's 
 information ; and he only substantiates his position by a reference 
 to the case oijecker v. Montgomery^ which has nothing whatever 
 to do with either blockade or contraband, and to the British cases 
 on continuous colonial voyage, which he fails to notice rest on 
 proved facts and not on plausible hypothesis. He proceeds, how- 
 ever : — 
 
 " If there be an intention, either formed at the time of original shipment 
 or afterwards, to send the goods forward to an unlawful destination, the 
 continuity of the voyage will not be broken, as to the cargo, by any trans- 
 actions at the intermediate port. There seems to be no reason why this 
 reasonable and settled doctrine should not be applied to each ship where 
 several are engaged successively in one transaction, namely, the con- 
 veyance of a contraband cargo to a belligerent. . . . Successive voyages, 
 connected by a common plan and a common object, form a plural uhit. 
 They are links of the same chain, each identical in description with every 
 other, and each essential to the continuous whole. The ships are planks 
 of the same bridge, all of the same kind and all necessary to the con- 
 venient passage of persons and property from one end to the other." 
 
 Arguments from analogy are a convenient mode of begging the 
 question. A chain is no stronger than its weakest link ; and 
 when some of the links are invisible to the eye, it is hardly for a 
 prize court, with its imperfect methods of appreciation, to declare 
 positively that they exist. Nor is it safe to assert that a plank is 
 a bridge because it is possible to see another plank reflected in 
 the water. 
 
 The spoliation of papers was relied on as a ground of confisca- 
 tion of the ship itself as a carrier of contraband, though a variety 
 of other circumstances were also held capable of justifying it ; 
 among which was the very fact of the " deceptive " destination to 
 
 1 i8 Howard, 114 ; supra, p. 276. 
 
CONTINUOUS VOYAGE 279 
 
 Bermuda. It seems, therefore (as in the "Frau-Houwina"), that 
 the Court would have preferred contraband to be carried to the 
 enemy direct, and that it would have been actually safer so to 
 transport it. It was even hinted that the whole transaction was 
 one behind which stood the Confederate Government, and that 
 the ship was in its service. 
 
 (3) The Court held ship and cargo confiscable likewise on the 
 ground of attempted breach of blockade. 
 
 "What has been already adduced of the evidence satisfies us com- 
 pletely that the original destination of the ' Bermuda' was to a blockaded 
 port ; or, if otherwise, to an intermediate port, with intent to send forward 
 the cargo by transhipment into a vessel provided for the completion of 
 the voyage." 
 
 The Court thus disregarded the catena of authorities which 
 show that the intent to enter a blockaded port must be clear and 
 unmistakable, and proved in practice from admissions by the 
 master or else patent from the papers or the situation of the ship. 
 
 The schooner "Stephen Hart"^ had a cargo of arms and 
 munitions of war, and was taken en route from London to the 
 Cuban port of Cardenas, and in a situation perfectly consistent 
 with that course.^ The curious statement of the case by Wallace 
 runs : " The nominal destination of the vessel and cargo was 
 Cardenas ; but the preparatory proofs clearly established that this 
 pretended destination was false." We are now prepared to learn 
 that the schooner was not going to Cardenas at all, but to Balti- 
 more or Charleston ; but the reporter proceeds, " and that the 
 entire lading was to be there transhipped, to be conveyed by a 
 swifter vessel, or was to be carried on without transhipment to its 
 belligerent destination." 
 
 It is impossible to think of Lord Stowell characterizing as 
 "false " the destination to which a ship was admittedly going. 
 
 The "Springbok,"^ unlike the "Bermuda," was a case decided 
 almost entirely on the score of blockade-running. She was a 
 barque, and it was highly improbable that she was intended to 
 run the blockade herself. But on arrival at Nassau, it was sup- 
 posed, her cargo was to be transferred to a light-draft steamer for 
 conveyance to the Confederate sea-board. The papers were 
 regular, and candidly dealt with. 
 
 The claimants took the point — one of the highest, and indeed 
 of crucial, importance — that evidence beyond what was furnished 
 by the ship's papers and the declarations emitted by her people 
 (the "preparatory examination") was inadmissible, unless to con- 
 
 1 3 Wall., 559; cf. also 5 Wall., 7 (1865). 
 
 2 s Wall., I C1866). 3 jiid., I (1866). 
 
280 COMMERCE IN WAR 
 
 tradict "further proof" when allowed as an indulgence to the 
 claimants. That is, all the circumstances of suspicion — previous 
 conduct of consignees and owners, nature and quality of the cargo, 
 private letters, and the like — must be swept aside, and the plain 
 facts appearing from the papers and depositions alone looked at. 
 If the plain facts were themselves ground primd facie for con- 
 demnation, evidence of innocence might, as a concession, be 
 allowed, and then rebutting evidence would be admissible to 
 contradict it. But it was urged that it was never primarily 
 looked at. 
 
 The District Court rejected this argument, which seems histori- 
 cally indisputable. Under the influence of common law ideas, it 
 treated the case as though it were an ordinary mercantile one, in 
 which its duty was to look at all the evidence procurable and to 
 give a verdict on the balance of probabilities — instead of a quasi- 
 criminal one, governed by a special procedure designed to afford 
 extra safety to the accused. 
 
 The editor of the " Black Book of the Admiralty " remarks on 
 the difficulty experienced by common lawyers in accommodating 
 themselves to the peculiarities of Admiralty jurisdiction. " It will 
 be by no means a light task for judges who have been trained up 
 in the exclusive study of the principles of the English municipal 
 law to accommodate themselves to a new standpoint of law . . . 
 as judges in maritime cases," and he quotes a case where the 
 Privy Council itself, presided over by a chief justice, had much 
 difficulty in mastering the true conception of an indelible maritime 
 lien.^ 
 
 The Supreme Court, on appeal, thought that the argument was 
 good, but that they could not go behind what the District Court 
 had done in the way of admitting evidence. They released the 
 ship, which had been condemned on slight circumstances tending 
 to identify the owners with the design of importing the goods 
 into the Confederacy. But they upheld the confiscation of the 
 cargo. After gravely animadverting on the " misconduct " of the 
 shippers in not stating the contents and consignees of certain 
 packages on the bills of lading, but observing (as, of course, was 
 the case) that such conduct did not warrant condemnation, the 
 Court proceeded to " ascertain the real destination of the cargo." 
 
 The grounds which the Court then give for believing the cargo 
 to have an ultimate belligerent destination amount to the follow- 
 ing somewhat remarkable reasons : — 
 
 (i) All the cargo must have had the same destination.^ 
 
 1 " Black Book of the Admiralty," Vol. IV, cxxxii. 
 
 2 " Nor can we doubt that the whole cargo had one destination." 
 
CONTINUOUS VOYAGE 281 
 
 (2) Some of it was specially fitted for the Confederate military 
 service.^ 
 
 (3) Some of it was well adapted for that service.^ 
 
 (4) No sale was intended at Nassau, because " most likely " the 
 goods would have been consigned to some established house 
 there if it had been. 
 
 (5) The master was directed to take instructions at Nassau 
 from the charterers' agent there. 
 
 (6) The shippers had sent goods to the Confederate authorities 
 by indirect shipments before. 
 
 (7) If these circumstances were insufficient grounds for what the 
 Court does not hesitate to style a "satisfactory" conclusion, 
 another might be found in the presence of the "Gertrude" at 
 Nassau ready to take the goods on. It seemed to the Court 
 "extremely probable" that she had been sent to Nassau to await 
 the arrival of the " Springbok." 
 
 The Court evidently did not appreciate the fact that it is not 
 on interesting and " extremely probable " conjectures that neutral 
 cargoes are to be condemned by nations ; and condemned the 
 whole cargo — ^tea, medicines, and ginger — as prize. 
 
 The " Peterhoff "^ turned on contraband, as the "Springbok" 
 mainly turned on blockade. The bills of lading were for delivery 
 at the mouth of the Rio Grande (Mexico), for Matamoras, on the 
 Mexican side of the river, which formed the frontier between 
 Mexico and the C.S.A. It was urged that this was a breach of 
 blockade, but the Court thought that the northern bank of the 
 Rio Grande was not blockaded like the rest of the littoral of the 
 Confederacy, and that the ultimate transit (if such was contem- 
 plated) of cargo from Matamoras across the river was a legitimate 
 traffic. But on the point of contraband it found that an im- 
 mediate destination for the Rio Grande and Matamoras would not 
 protect the goods if it was found that they were "intended" for 
 the Confederate States. Mexico, it may be stated, was at the 
 time at war with France. 
 
 The " Peterhoff " (a slow screw-steamer) was taken on a proper 
 course for the Rio Grande : at the time of capture, the master 
 threw overboard a paper, said to contain a patent article belonging 
 
 ' Two boxes of buttons which bore the initials C.S.N. In the same category of things 
 specially fit for the Confederates, the Court included eight cavalry swords and eleven 
 ijayonets (British pattern) and about 500 gross of army buttons marked " A," " I," or " C." 
 (The number of swords and bayonets is unaccountably exaggerated in the judgment to 
 sixteen dozen and ten dozen respectively.) 
 
 2 Army cloth and blankets. 
 
 s 5 Wall., 28 (1866). 
 
282 COMMERCE IN WAR 
 
 to one of the passengers and supposed to be dangerous, and 
 tore up some alleged private letters. 
 
 The District Court (S. New York) condemned vessel and 
 cargo. The latter comprised artillery harness, "army" boots, 
 "regulation" grey blankets, ninety-five casks of horseshoes, 
 52,000 horseshoe nails, a quantity of iron, steel, shovels, spades, 
 blacksmiths' bellows and anvils, nails, leather; and drugs — 
 calomel, morphine, chloroform, and quinine, with large varieties 
 of ordinary goods. 
 
 The Supreme Court held that not even the cargo could be 
 condemned (on the ground of breach of blockade) simply because 
 it was meant to reach the Confederacy through a port which had 
 perhaps by oversight been left unblockaded (Brownsville, opposite 
 Matamoras), or by inland conveyance. But on the question of 
 contraband it took up the surprising position that " the conveyance 
 by belligerents to neutrals of contraband articles is always unlaw- 
 ful, and such articles may always be seized during transit by sea." 
 This is a proposition which throws neutral commerce entirely at 
 the mercy of a belligerent ; it is a proposition entirely unheard of 
 before the middle of the nineteenth century, and it derives no 
 sanction from the practice of any maritime war. 
 
 Lord J. Russell was disposed to take the rulings of the 
 U.S. Courts with some humility; but, invited by Lord Derby 
 to say plainly whether he admitted that the trade of neutral 
 ports was liable to such interferences, he explained that all he 
 meant was that a simulated neutral destination could not protect 
 a ship. 
 
 Eventually the matter was slurred over in the general arbitra- 
 tion and proceedings before the Mixed Commission. It must be 
 noted that neither the "Peterhoff" nor the "Springbok" was 
 confiscated; and the "Bermuda" was so closely identified with 
 Confederate interests that morally, if not legally, the seizure was 
 hardly to be regarded as an affront to Britain. The point of 
 principle, however, remained open. 
 
 In Hobbs v. Henning^ the English Court of Common Pleas 
 had the opportunity of pronouncing on the legality of the " Peter- 
 hoff s " voyage. The action was on a valued policy of insurance 
 on goods, and the defendants pleaded that the goods were contra- 
 band of war and shipped for importation into a belligerent port 
 and liable to seizure as contraband, and also the fact of their con- 
 demnation by the District Court. Plaintiff pleaded that the ship 
 was bound to Matamoras and not to a belligerent port ; which 
 defendants asserted was no answer to their above plea. 
 
 1 17 C.B.N.S. 791 ; Erie, Byles, and Keating (1864). 
 
CONTINUOUS VOYAGE 283 
 
 The Court rejected the defendant's plea. 
 
 " The allegation," said Erie, C.J., " that the goods were shipped for the 
 purpose of being sent to an enem5^s port is an allegation of a mental 
 process only. We are not to assume therefrom either that the plaintiff 
 had made any contract or provided any means for the further trans- 
 mission of the enemy's goods into the enemy's State, or that the shipment 
 to Matamoras was an unreal pretence. If the goods were in course of 
 transmission, not to Matamoras, but to an enemy's port, the voyage would 
 not be covered by the policy." 
 
 But that point was raised by a different plea ; on the plea under 
 discussion, a mere allegation of mental purpose was raised, which 
 might be consistent with a bona fide importation of goods into 
 Mexico as a commercial speculation, well knowing that they 
 would be bought by a belligerent. The plea further alleged 
 generally that the goods were seizable as contraband ; but — 
 
 " The right of capture, according to Sir W. Scott's opinion expressed 
 in the case of the ' Imina,'^ attaches only when they are passing on the 
 high seas to an enemy's port. . . . The liability therefore of these goods 
 to lawful seizure, although their quality was such as might make them 
 contraband of war, depended on their destination, and they were not liable 
 unless it distinctly appeared that the voyage was to an enemy's port." 
 
 Then as to the allegation that the ship did not sail on the 
 voyage covered by the policy — which was also pleaded as matter 
 of estoppel, on account of the decision of the United States Court 
 — the judges^ held the American decision to be no estoppel as to 
 particular facts, and also that, if it could have been such, it did 
 not decide that the ship did not sail on her insured voyage to 
 Matamoras, but, on the contrary, it decided that she did. Judg- 
 ment was given for the insured plaintiff. 
 
 • Supra, p. 261. 
 
 2 Keating, J., expresses no opinion as to whether the finding of fact by a prize-court 
 would operate as an estoppel. 
 
CHAPTER IV 
 CARRIAGE OF PROPERTY AT SEA 
 
 enemy's goods in neutral ships — NEUTRAL GOODS IN ENEMY'S SHIPS 
 
 A NEUTRAL flag covers enemy's goods except contraband of 
 war : Neutral goods, except contraband of war, are not liable 
 to seizure under the enemy's flag.^ 
 
 Although these propositions contained in the Declaration of 
 Paris, 1856, are to-day generally recognized in practice, they are 
 not yet of universal acceptance, and therefore not enforceable upon 
 all nations. 
 
 The States possessing a coast which up to the present have 
 withheld a formal adherence, are the United States, Spain, Mexico, 
 and Venezuela. 
 
 The first named, however, at the commencement of the Civil 
 War, and again in the Spanish-American War, declared their 
 adherence for the duration only of hostilities, and Spain, whilst 
 repudiating her obligation to the Declaration of Paris, responded 
 in the latter case by taking a similar course. 
 
 Under such circumstances, then, it is still necessary to state the 
 opposing doctrines, and to examine the principles upon which they 
 are based. 
 
 The Competing Rules. 
 
 (i) Enemy's goods may be captured even on board neutral ships, 
 and neutral goods are free on board enemy's ships. 
 
 This doctrine was embodied in the Consolato del mare, and was 
 universally accepted in Western Europe during the Middle Ages, 
 It was based upon the principle : 
 
 That the quality of the goods should be determined by the 
 character of the owner. 
 
 In the sixteenth century France not only seized enemy's 
 goods in neutral ships, but the ships as well, and it was not till 
 1744 that neutral vessels carrying enemy's goods were freed from 
 confiscation. In 1778 this practice was altogether abandoned, 
 and France became the advocate of the opposing doctrine, " Free 
 
 1 Hertslet, "Treaties," X, p. 547. 
 
CARRIAGE OF PROPERTY AT SEA 285 
 
 ships, free goods." In the war with England, however, in 1793, 
 the temptation was too strong, and three months had scarcely 
 passed before she reverted to her former practice, with the ex- 
 ception that the neutral ship was released and freight paid by the 
 captors. 
 
 On the other hand, France stands almost alone in consistently 
 upholding the maxim, " Enemy's ships, enemy's goods." This 
 principle that the goods of a neutral friend laden on board an 
 enemy's ship were good and lawful prize was incorporated in the 
 ordinances of 1538, 1543, and 1584. The declaration of 1650 
 formed an exception, but the former practice was revived in 1681. 
 From this period France generally adhered in her ordinances and 
 in her treaties to this principle, sometimes in conjunction with the 
 principle, " Free ships, free goods," sometimes without it. 
 
 Spain pursued a similar policy. In 1780, however, she too 
 abandoned the principle of " Enemy's ships, enemy's goods," and 
 exempted not only enemy's goods in neutral vessels, but the 
 vessels as well. 
 
 So far as the recognition of the old rule was concerned, there 
 was no change in English policy, either in theory or practice, 
 apart from some treaty, until the Crimea War. How far that 
 part of the rule which allowed the confiscation of the neutral 
 ship laden with enemy's goods was followed in early times it is 
 impossible to say. It was, however, asserted in 1640, on the 
 authority of Sir Henry Martin, that it had never been the practice 
 to condemn neutral ships for having enemy's goods on board. 
 On the contrary, that the freight of such goods had always been 
 paid.^ 
 
 In the case of the " Pearl," in 1704, although the cargo was con- 
 demned as enemy's goods, freight was ordered to be paid. 
 
 The celebrated answer^ in 1753 to the Prussian memorial con- 
 tains a list of Prussian cases, amongst which a class is described 
 as "ships restored with freight according to the bills of lading for 
 such goods, which were found to be the property of enemy and 
 condemned as prize." 
 
 "It was the invariable practice," says Sir Sherston Baker, "of the 
 British Court of Admiralty during the wars of 1801 to restore the vessel, 
 unless in cases where some circumstances of mala fides occurred, or where 
 the ship was adjudged to have drawn on herself the loss of freight — as 
 a penalty for some act which, though a departure from pure neutral 
 conduct, has not, according to the practice of the law of nations, made her 
 liable to condemnation." * 
 
 * Sydney, State Papers, Vol. XXI, 662. 
 
 2 Printed in the " Collectanea Juridica." Described as one of the ablest expositions 
 of International Law ever embodied in a State Paper. 
 
 3 Halleck's " International Law," Vol. II, 309. 
 
286 COMMERCE IN WAR 
 
 England, therefore, continued the old practice of seizing enemy's 
 goods on board neutral ships whilst releasing the vessel upon 
 payment of freight. 
 
 Upon the question of the carriage of neutral goods in enemy's 
 ships, Great Britain appears in the early part of the nineteenth 
 century to have wavered in her application of this part of the 
 doctrine of the Consolato del mare. But this was only temporary, 
 and, apart from treaties. Great Britain continued up to the Declara- 
 tion of Paris to maintain the rule of International Law in her 
 municipal code that neutral goods in enemy's ships were free. 
 
 The First Armed Neutrality was, as we shall presently see, silent 
 upon this point, since it was useless to ask for what Great Britain 
 already gave voluntarily. 
 
 This rule was, however, very considerably modified in practice 
 by the application of a conflicting doctrine embodied in the rule, 
 (2) Free ships, free goods ; enemy's ships, enemy's goods. 
 
 This rule is based upon the principle : 
 
 That the quality of the goods should be determined by the 
 character of the carrier. 
 
 The earliest recorded deviation from the Common Law rule is 
 to be found in a treaty between France and the Porte in 1604, 
 whereby French goods on board the ships of the Porte's enemies 
 were to be restored to the owner, and goods on board French 
 ships belonging to the Porte's enemies were not liable to seizure.^ 
 
 It was not, however, till 1650 that the application of this 
 principle formed the subject of agreement between Christian 
 Powers. 
 
 The United Provinces. — The Dutch at this period may be 
 fairly styled the carriers of the world, and it was to their obvious 
 interest to obtain the immunity of goods carried in neutral 
 bottoms. 
 
 In that year they concluded a treaty with Spain whereby it 
 was agreed that the goods of the enemies of either party should 
 be free from capture when on board the ships of the other party 
 provided the latter were neutral.^ 
 
 This policy was continued and embodied in treaties having 
 similar objects with Portugal in 1661, France in 1661 and 1662, 
 England in 1667, Sweden in 1667, England in 1674, Sweden in 
 1675, France in 1678, Sweden in 1679, England in 1689, and 
 France in 1697. 
 
 France. — In addition to her treaty with the Porte, France 
 gradually followed the example of the Dutch. In 1646 she had 
 
 1 Dumont, V, XI, 40. 2 Ibid., VI, I, 571. 
 
CARRIAGE OF PROPERTY AT SEA 287 
 
 concluded a treaty with the United Provinces for four years, 
 exempting Dutch ships and neutral cargoes from confiscation, 
 declaring that "their ships should free their cargo, notwithstand- 
 ing the presence in it of merchandise and even of grain and 
 vegetables belonging to enemies, excepting always articles con- 
 traband of war."* The same construction must, says Manning, be 
 placed upon the treaty with the Hanse Towns in 1655, by which 
 for fifteen years the Hanse flag covered the cargo, and the goods 
 of Hanse subjects, if neutral, were restored if seized on board the 
 ships of the enemies of France.^ 
 
 By the Treaty of the Pyrenees, in 1659, the rule, " Free ships, 
 free goods; enemy's ships, enemy's goods," was agreed to by 
 France and Spain.' This rule was included in treaties with 
 Denmark in 1662 and 1663, United Provinces in 1662, Portugal 
 in 1667, Spain in 1668, Sweden in 1672, England in 1677, United 
 Provinces in 1678, United Provinces in 1697. In the eighteenth 
 century this principle was embodied in the Treaty of Utrecht, 
 171 3, with England and the United Provinces. 
 
 In her treaty with the Hanse Towns in 17 16, the old rule by 
 which "/« robe ennemie" confiscated both the ship and the goods 
 was annulled, and the Hanseatic ships carrying enemies' goods 
 were declared to be free, the goods only being seized and con- 
 fiscated.* 
 
 The new principle " Free ships, free goods ; enemies' ships, 
 enemies' goods " was renewed by the treaty of 1 739 with the 
 United Provinces,® in 1742 with Denmark,^ in 1748 with England 
 and Spain by the Treaty of Aix-la-Chapelle, and in 1763 with the 
 same Powers by the Treaty of Paris, ^ in 1774 with Mecklenbourg- 
 Schwerin,' in 1778 with the United States of America,^ in 1783 
 with England and Spain,^" in 1 785 with the United Provinces," in 
 1786 with England," in 1787 with Russia,^' and in 1789 with 
 Hamburg.** 
 
 In spite of this long advocacy the temptation of war was, as we 
 have seen, too strong, and France in 1793 reverted to the old 
 rule and declared enemy's goods on neutral vessels to be lawful 
 prize, the neutral ship, however, being released and freight paid 
 by the captors.*® This policy was again enforced in 1797 by a 
 similar declaration.*® 
 
 * This treaty expired in 1650, when the French Commissioners repudiated the 
 principle of " Free ships, free goods." Walker's " International Law," 298. 
 
 2 Manning, 317. ' Dumont, VI, XI, 267. * Ibid., VIII, I, 431. 
 
 ^ Wenck, " Codex Juris Gentium" I, 424. * Ibid., 621. 
 
 ^ Wheaton's " Hist, of Law of Nations," 120-5. ^ Ibid., II, 709. 
 
 9 De Martens, « Rec," I, 39- *° Ibid., Ill, 439- *' Ibid., IV, 68. 
 
 »2 Ibid., IV, 168. " Ibid, IV, 210. w Ibid, IV, 426. 
 
 '6 Ibid., V, 382. " Ibid., V, 393. 
 
288 COMMERCE IN WAR 
 
 With the nineteenth century France returned to the new 
 principle, and in the treaty of 1800 with the United States once 
 more agreed to the rule, " Free ships, free goods ; enemy's ships, 
 enemy's goods." After the peace of 18 15, the following treaties 
 embodying the rule were concluded : with Venezuela in 1843, with 
 Ecuador in 1843, with New Grenada in 1844, with Chile in 1846, 
 and with Guatemala in 1848. 
 
 In the alliance with England against Russia in 1854, had each 
 country adhered to its own policy neutral trade would have been 
 rendered impossible. Working rules were thereupon temporarily 
 enforced by the allied Powers, which ultimately were embodied 
 in the Declaration of Paris, 1856. Thus by a joint declaration, 
 the two Powers in April, 1854, agreed to waive their rights of 
 seizing enemy's property laden on board a neutral vessel unless 
 it were contraband of war, and confiscating neutral property, not 
 being contraband of war, found on board an enemy's ship. 
 
 Spain. — As we have already seen, Spain adopted the new rule 
 in her treaty with the United Provinces in 1650. This was 
 followed by treaties embodying the same rule with France in 
 1659, with England in 1667, and again with France in 1668, 
 whilst in her treaty with England in 1670, the old rule was left 
 untouched. 
 
 In the eighteenth -century, by the Treaty of Utrecht, 1713, the 
 new rule was renewed with England. The treaty of 1650 was, in 
 1 7 14, confirmed with the United Provinces, and the same principle 
 was embodied in the Treaty of Vienna, 1725, with the Empire. 
 Apart from these treaties, however, Spain had followed the more 
 severe French practice, based upon the principle "que la robe 
 ennemie confisque celle d'un ami," and it was not till 1780 that her 
 national laws exempted from capture enemy's goods on neutral 
 vessels and allowed the vessels themselves to go free and the 
 freight paid on the goods taken out.^ In the same year Spain, 
 in conjunction with France — then both belligerents — warmly 
 approved of the principles put forward by the Powers, which 
 adhered to the First Armed Neutrality, viz. the immunity of 
 belligerent cargoes in neutral vessels, contained in the following 
 articles : — 
 
 " I. That neutral ships might freely trade from port to port and upon 
 the coasts of nations at war. 
 
 " 2. That the property of the subjects of belligerent Powers should be 
 free on board neutral ships excepting goods that were contraband." 
 
 This was the principle of " Free ships, free goods," without the 
 converse " Enemy's ships, enemy's goods." This declaration of 
 
 > De Martens, "Rec," III, 98. 
 
CARRIAGE OF PROPERTY AT SEA 289 
 
 neutrality issued by Russia was also acceded to by the United 
 States as belligerents, and by Denmark, Sweden, Prussia, 
 Holland, Portugal, and Naples as neutrals. 
 
 By the Treaty of Versailles, 1783, with England and France, 
 Spain once more revived and confirmed the new rule; but ten 
 years later, upon the outbreak of the revolutionary war with 
 France, she agreed with Great Britain, Russia, Prussia, and the 
 Empire that the contracting Powers would unite all their efforts 
 to prevent neutrals (especially Denmark and Sweden) 
 
 " from giving on this occasion of common concern to every civilized State, 
 any protection whatever, directly or indirectly, in consequence of their 
 neutrality, to the commerce or property of the French on the sea or in the 
 ports of France." ^ 
 
 But in the treaty with the United States in 1795, Spain declared 
 cargoes in neutral ships to be free, " no distinction being made as 
 to who were the proprietors of the merchandises laden thereon."* 
 And lastly, although, as already stated, Spain in her struggle 
 with the United States acceded to the provisions of the Treaty of 
 Paris for the duration of hostilities, she has declined to make 
 them or the new rule " Free ships, free goods," and its converse, 
 part of her municipal code. 
 
 Russia. — The conduct of Russia in relation to the new rule 
 has been uniformly inconsistent. "As long as she was herself 
 neutral," says Manning, " she employed all her weight to enlarge 
 the profits of neutrality ; but she no sooner became belligerent 
 than she pressed with unusual severity upon the commerce of 
 neutrals." Her recent attitude in the Russian-Japanese war 
 would appear to endorse these words, and to prove that since 
 they were written Russia has not altered her sentiments or her 
 habitual characteristics. The first treaty embodying the new rule 
 was concluded with the United Provinces in 171 5,' but in the 
 treaty of commerce with England in 1734* no alteration in the 
 old rule occurs. The First Armed Neutrality of 1780 has 
 already been mentioned. It owed its origin to the instigation of 
 Russia, and maintained the doctrine of " Free ships, free goods," 
 without the converse " Enemy's ships, enemy's goods." This 
 movement was especially directed against Great Britain, who, 
 owing to her weakness after the American War of Independence, 
 was unable to vindicate her objections beyond formal protests. 
 Moreover, some of the Powers violated the provisions by which 
 they were bound on the first opportunity. In the war between 
 
 1 De Martens, "Rec," V, 409, 440, 2 /^,^_^ yi, 154. 
 
 ' Dumont, VIII, I, 431. * Ibid., II, n, 495. 
 
 U 
 
290 COMMERCE IN WAR 
 
 Sweden and Russia in 1788, Gustavus III renounced the prin- 
 ciples of the Armed Neutrality, and Russia followed suit, although 
 not with the same frankness.^ 
 
 In the treaty of commerce with Denmark in 1782, the principles 
 of the Armed Neutrality were embodied," but in the treaty with 
 the Porte in 1783, it was agreed that Russian goods on board the 
 ship of an enemy should not be confiscated nor the merchants 
 enslaved, if there on peaceful business. This was in accordance 
 with the old rule. It was renewed by the Treaty of Jassy in 
 1792.^ In the treaties with Austria in 1785, and with France, 
 the Two Sicilies, and Portugal the engagements of the Armed 
 Neutrality were renewed.* 
 
 Upon the outbreak of the French revolutionary wars in 1793, 
 the new principles were universally discarded. Russia had 
 already repudiated her treaty with France of 1787,* and she 
 became the leader of the combination against the French shipping 
 trade and the chief instigator of the unusual severities exercised 
 against neutrals. 
 
 In 1793 she renewed with Great Britain her treaty of 1766, 
 which stipulated that neutral commerce should be carried on 
 "according to the principles and rules of the Law of Nations 
 generally recognized," ^ and on the same day she concluded another 
 treaty with the same Power engaging that the contracting Powers 
 would unite all their efforts to prevent neutrals 
 
 " from giving on this occasion of common concern to every civilized State, 
 any protection whatever, directly or indirectly, in consequence of their 
 neutrality, to the commerce or property of the French on the sea or in the 
 ports of France." ^ 
 
 In her treaty with Great Britain in 1797 no alteration was 
 made in the old rule ; the article dealing with neutral commerce 
 was silent on the question.* But in her treaty with Portugal, in 
 1798, the new rule "that free ships made free goods, and neutral 
 goods in an enemy's ship should be confiscated," appeared.' 
 
 By the Second Armed Neutrality of 1800, which owed its 
 circulation to Russia, an attempt was made to force upon Great 
 Britain the recognition of the new rule. The principles declared 
 to be established by her treaties with Sweden,^" Denmark," and 
 Prussia ^^ were as follows : — 
 
 " I. That any vessel may freely sail from port to port and on the coasts 
 of nations at war. 
 
 1 Manning, 336. 2 De Martens, "Rec," III, 474. 
 
 3 Ibid., Ill, 635, and V, 293. * Ibid., IV, 76, 210, 236, 327. 
 * Ibid., V, 409. « Ibid., 432. 
 
 7 Ibid., 440. 8 jifi^^^ VI, 362. » Ibid., S50. 
 
 10 Ibid, VII, 172. " Ibid., 181. " Ibid., 188. 
 
CARRIAGE OF PROPERTY AT SEA 291 
 
 " 2. That property belonging to the subjects of belligerent Powers shall 
 be free on board the ships of neutrals excepting goods that are contra- 
 band." 
 
 This confederacy was of short duration. The battle of Copen- 
 hagen and the assassination of the Emperor Paul brought it to the 
 ground. By the treaty with Great Britain in 1801, Russia re- 
 turned to the old rule that neutral ships should not protect 
 enemy's goods, and that goods in neutral ships should be free, 
 excepting contraband of war and the property of enemies. 
 Similar treaties were subsequently made with Sweden and Den- 
 mark,^ but meanwhile Russia had concluded with the former 
 Power a treaty embodying the principles of the Second Armed 
 Neutrality." 
 
 In 1807, however, the treaty of 1801 with Great Britain was 
 repudiated, Russia proclaiming afresh the principles of the Second 
 Armed Neutrality, and declaring that she would never depart 
 from them;* but in spite of these professions, by her Ukase of 
 August, 1809, she declared that — 
 
 " Ships laden in part with goods of the manufacture or produce of hostile 
 countries should be stopped, and such merchandise confiscated and sold 
 by auction for the profit of the Crown. And if the merchandise aforesaid 
 composed more than half the cargo, not only the cargo, but also the ship 
 should be confiscated." * 
 
 By a treaty between Russia and the United States of 22 July, 
 1854, it was agreed that free ships should make free goods, and 
 that neutral goods on enemy's vessels should not be subject to 
 confiscation, provided in either case the goods were not contra- 
 band.* 
 
 United States of America. — In spite of numerous treaties 
 in the contrary sense, the United States have never swerved from 
 the English view of International Law as the common law of 
 nations. 
 
 "Although," says Wheaton, "by the general usage of nations inde- 
 pendently of treaty stipulations, the goods of an enemy found on board 
 the ships of a friend are liable to capture and condemnation, yet the con- 
 verse rule, which subjects to confiscation the goods of a friend on board the 
 vessels of an enemy, is manifestly contrary to reason and justice. It may, 
 indeed, afford, as Grotius^ has stated, a presumption that the goods are 
 enemy's property; but it is such a presumption as will readily yield to 
 contrary proof, and not of that class of presumptions which the civilians 
 call presumptiones juris et dejure, and which are conclusive upon the party. 
 
 1 De Martens, " Rec," VII, 260-281. ^ 73/^.^ 329. 
 
 3 Ortolan, "Dip. de la Mer," II, 156. 
 
 « De Martens, "Supp." V, 485. « State Papers, Vol. XLV, p. 125. 
 
 * "Res hostium navibus presumuntur esse hostium, donee contrarium probetur." " De 
 Jure Belli ac Pac," lib. Ill, c. 6, s. 6. 
 
292 COMMERCE IN WAR 
 
 But however unreasonable and unjust this maxim may be, it has been 
 incorporated into the prize codes of certain nations and enforced by them 
 at different periods." 
 
 Valin and Pothier endeavour to support this maxim by declar- 
 ing that those who put their goods on board an enemy's vessels, 
 thereby favour the commerce of the enemy and share the charac- 
 ter of the vessel. In so acting, adds Pothier, they contravene the 
 law which interdicts to them all commercial intercourse with the 
 enemy. 
 
 " The fallacy of this argument," says Wheaton, "consists in assuming what 
 requires to be proved, that by the act of lading his goods on board an 
 enemy's vessel, the neutral submits himself to abide the fate of the vessel ; 
 for it cannot be pretended that the goods are subjected to capture and 
 confiscation ex re, since their character of neutral property exempts them 
 from this liability. Nor can it be shown that they are thus liable ex delicto 
 unless it be first proved that the act of lading them on board is an offence 
 against the law of nations. It is therefore with reason that Bynkershoek 
 concludes that this rule where merely established by the prize ordinances 
 of a belligerent power, cannot be defended on sound principles. When, 
 indeed, it is made by special compact, the equivalent for the converse maxim 
 thaty^-^^ ships make free goods, this relaxation of belligerent pretensions may 
 be fairly coupled with a correspondent concession by the neutral that 
 enemy ships should make enemy goods. These two maxims have been, in 
 fact, commonly thus coupled in the various treaties on this subject, with a 
 view to simplify the judicial inquiries into the proprietary interest in the 
 ship and cargo, by resolving them into the mere question of the national 
 character of the ship." ^ 
 
 "The rule," said Chief Justice Marshall, in the "Nereide,"^ "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. Certainly it has been fully and unequivocally 
 recognized by the United States. 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 application of this principle, so as to form the rule, the proposi- 
 tion that the neutral flag constitutes no protection to enemy property, 
 and that the belligerent flag communicates no hostile character to neutral 
 property, are necessarily admitted. The character of the property, taken 
 distinctly and separately from all other considerations, depends in no 
 degree upon the character of the vehicle in which it is found." 
 
 And the learned judge, in pointing out how this simple principle 
 has been varied by treaty, showed how the two new maxims so 
 far from being inseparable, were, in fact, entirely separate and 
 distinct. For instance, the parties to the Armed Neutrality con- 
 tended for the maxim that free ships should make free goods, but 
 
 ' Lawrence's "Wheaton," 738. 
 ^ 9 Cranch, p. 418-9 (1815). 
 
CARRIAGE OF PROPERTY AT SEA 293 
 
 not for the converse. Indeed, so far were they from supposing 
 the one to be a corollary of the other, that the contrary opinion 
 was openly and distinctly avowed. The King of Prussia declared 
 his expectation that in the future neutral bottoms would protect 
 the goods of an enemy, and that neutral goods would be safe in 
 any enemy's bottom. Again, in the " Atalanta," ^ Chief Justice 
 Marshall said : — 
 
 "It is unnecessary to repeat the reasoning on which the ' Nereide' was 
 decided. The opinion then given by the three judges is retained by them. 
 The principle of the law of nations, that the goods of a friend are safe in 
 the bottom of an enemy, may be and probably will be changed, or so im- 
 paired as to have no object to which it is applicable ; but so long as the 
 principle shall be acknowledged, this Court must reject constructions which 
 render it totally inoperative." 
 
 The same principle was accepted in the " Amiable Isabella." ^ 
 It was said in the " London Packet"' by Livingston J. : — 
 
 " It is not denied that a neutral may use the vessel of a belligerent 
 for the transportation of his goods, and whatever presumption may arise 
 from the circumstance, that it is not of itself a cause of condemnation." 
 
 Although this principle has always been recognized by the 
 United States as a subsisting right under the law of nations, the 
 Government has consistently endeavoured to introduce the new 
 rule" Free ships, free goods" into their treaties, and advocated 
 its adoption as a rule of international jurisprudence. But it has 
 never treated the two maxims as inseparable. On the. contrary, 
 in some treaties it has stipulated for one only, in some for both, 
 in some that neutral bottoms should make neutral goods, and that 
 friendly goods should be safe in an enemy's bottom. 
 
 Thus the United States were amongst the Powers which 
 acceded to the principles of the First Armed Neutrality of 1780, 
 their prize courts having previously during the War of Inde- 
 pendence acted upon the rule of International Law that enemy's 
 property in neutral ships was liable to confiscation, whilst neutral 
 property in enemy's ships was exempt. With some exceptions, 
 e.g. in the treaty with France in 1778,* which stipulated for the 
 new rule "Free ships, free goods" and its converse, the United 
 States have invariably opposed the principle of " Enemy's ships, 
 enemy's goods." 
 
 By the treaty with the Netherlands of 1782^ the principle of 
 " Free ships, free goods " except contraband of war, and " Enemy's 
 ships, enemy's goods" was adopted, and similar provisions were 
 
 1 3 Wheaton, p. 415 (i8i8). 
 
 2 6 Wheaton, I (1821). 
 
 3 s Wheaton, p. 137 (1820). 
 
 « Statutes at Large, U.S., Vol. VIII, 20. « Ibid., 38. 
 
294 COMMERCE IN WAR 
 
 included in the treaty with Sweden in 1783.' But the treaty of 
 1785 with Prussia, whilst stipulating for the rule " Free ships, free 
 goods," did not provide for the converse " Enemy's ships, enemy's 
 goods." In 1799 the new rule was renewed by the treaty of that 
 year,^ which declared that the principle "Free ships make free 
 goods" had not been sufficiently respected during the last two 
 wars, and bound the contracting parties to use their best en- 
 deavours to obtain a rule of universal acceptance, so as to con- 
 solidate the liberty and safety of neutral navigation and commerce 
 in future wars, and meanwhile, if either should be involved in war, 
 to observe the principles and rules of International Law. This 
 treaty was again renewed in 1828' with similar declarations of 
 intention to obtain 
 
 " further provisions to ensure just protection and freedom to neutral navi- 
 gation and commerce, and which might at the same time advance the 
 cause of civilization and humanity." 
 
 Meanwhile, the Government had concluded treaties embodying 
 the new rule " Free ships, free goods," but that neutral goods 
 found on enemy's ships should be exempt and restored to the 
 owners, with Morocco in 1787,* with Tripoli in 1796, and with 
 Tunis in 1797.* 
 
 But in their treaty with Great Britain in 1795® it was agreed 
 that the property of enemies on neutral ships should be con- 
 fiscated, the ship and the remainder of the cargo being allowed 
 to proceed ; whilst in their treaty with Spain of the same year '' it 
 was declared that cargoes in neutral ships were to go free, " no 
 distinction being made as to who are the proprietors of the mer- 
 chandises laden thereon." 
 
 In the treaty with France of 1800,^ the principle of " Free ships, 
 free goods," contraband of war excepted, was combined with the 
 principle of "Enemy's ships, enemy's goods." In 1816^ in the 
 treaty with Sweden and in 1819^° in the treaty with Spain, it was 
 declared that with respect to the fifteenth article of the treaty of 
 1795, which stipulated that the flag covered the cargo, the contract- 
 ing parties agreed that this should be so understood with respect to 
 those who recognized this principle ; but if either of the parties 
 should be at war with a third party and the other neutral, the 
 flag of the neutral should cover the property of enemies whose 
 Governments acknowledged this principle and not of others. 
 
 The principles of "Free ships, free goods" and "Enemy's 
 ships, enemy's goods," were combined in the following treaties, 
 
 1 Statutes at Large, U.S., Vol. VIII, x. 68. 2 Ibid., 168. 
 
 ^ Ibid.,i%ir '^ Ibid., 101. ^ Ibid.,it,7. 
 
 « De Martens, "Rec," V, 672. ^ Ibid., VI, 154. 
 
 8 Ibid., 186. 9 Ibid., 240. 10 Ibid., 262. 
 
CARRIAGE OF PROPERTY AT SEA 295 
 
 viz. : with Columbia in 1824,' with Central America in 1825,^ with 
 Brazil in i828,» with Mexico in 1831,* with Chile in 1832,'* with 
 Venezuela in 1836,^ with Peru-Bolivia in 1836,^ with Ecuador 
 in 1839,* with New Grenada in 1846,' with Guatemala in 1849,^° 
 with Peru in 1851," and with San Salvador in 1850." 
 
 In the treaty with Russia of 1854," whilst the principle of " Free 
 ships, free goods" was recognized, neutral property in enemy's 
 ships, unless contraband of war, was declared not to be subject to 
 confiscation. The contracting parties further agreed to apply 
 these principles to the commerce and navigation of all such 
 Powers and States as should consent to adopt them on their part 
 as permanent and immutable. 
 
 These stipulations were repeated in the treaty with the Two 
 Sicilies in 1855,^* and with Peru in 1856.^^ In the treaty with 
 China of 1858" it was stipulated that in case the latter Power 
 should be at war with any other nation, the vessels of the United 
 States should be free to continue to trade with the belligerent 
 ports, provided their flag was not used to cover the transport of 
 officers or soldiers in the enemy's service, nor to enable enemy's 
 ships with their cargo to enter Chinese ports. 
 
 In the treaty with Bolivia in 1858," the principles of "Free 
 ships, free goods " and " Enemy's ships, enemy's goods " were 
 recognized, with the further stipulation that those on board a 
 neutral ship, although enemies, were not to be taken out unless 
 they were officers or soldiers and in the actual service of the 
 enemy. 
 
 The treaty with Venezuela in 1860^* contains the stipulation 
 that " Free ships shall make free goods," except contraband of 
 war, but is silent as to the converse, " Enemy's ships, enemy's 
 goods." 
 
 In the treaty with Hayti in 1864,^* however, the stipulations of 
 the treaty with Bolivia are repeated. So, too, in the treaties with 
 the Dominican Republic in 1 867,^" and with the Republics of Peru 
 and San Salvador of 1870.^^ 
 
 In the treaty with Italy in 1871,^^ the principle of " Free ships, 
 free goods " was r.ecognized, but it was stipulated that the flag of 
 the neutral should cover the property of those enemies who 
 acknowledged this principle. 
 
 In the treaty with Peru in 1887,^' the former stipulation of 
 
 1 De Martens, " Rec," V, 310. 2 Ibid., 328. ^ jud., 393. * Ibid., 418. 
 
 6 Ibid., 436. « Ibid., ^,72. ' Ibid., 49°- ° Il>i'^-> S40. 
 
 9 Ibid., Vol. IX, 888. ^ Ibid., Vol. X, 7. " Ibid, 38. 12 Ibid., 74. 
 
 13 Ibid, 215. " Ibid., Vol. XI, 608. i« Ibid., 696. 
 
 »« Ibid, Vol. XII, 77, repeated in 1858, p. 183. " Ibid, 300. " Ibid, 215. 
 
 19 Ibid, Vol. XIII, 719. 2° Ibid, Vol. XV, 481. 
 
 M Ibid., Vol. XVIII, pp. 707, 732. ^^ Ibid., Vol. XVII, 853. 
 23 Ibid., Vol. XXV, 1452. 
 
296 COMMERCE IN WAR 
 
 " Enemy's ships, enemy's goods " was reversed, and it was agreed 
 that the flag of the neutral should cover the property of those 
 enemies who acknowledged this principle. 
 
 Great Britain. — The Treaty of Westminster with Portugal of 
 1654 was the first instance in the history of Great Britain of 
 applying the new rule that the flag should cover the cargo. This 
 treaty was renewed in 1661, and again in 1703, and remained 
 in force till 18 10, when it was abandoned by the Treaty of Rio 
 Janeiro. 
 
 But in our treaties with the United Provinces, Sweden, Den- 
 mark of the same year, with the United Provinces and Branden- 
 burgh in 1655, ^^^ with the United Provinces in 1662, no altera- 
 tion with the old rule was made. 
 
 Again, by the treaty with Sweden in 1661, the new rule was 
 expressly excluded, and the treaties with Brandenburg and Den- 
 mark of the same year left the old rule unaltered. Neither was 
 any alteration made in the treaty of 1662 with the United 
 Provinces.^ 
 
 In 1667 the new rule was included in the treaty with Spain," 
 and from that time to 1796 thirteen treaties were concluded with 
 that Power, in each of which, with the exception of that of 1670, 
 which was silent on the point, there was an article recognizing 
 the new rule. All those treaties, and particularly the Treaty of 
 Utrecht, which had provided in the fullest manner for the rule 
 " Free ships, free goods " and its converse, were by the Treaty of 
 Madrid, 18 14, expressly ratified and confirmed, and, since Spain 
 has refused to accede to the Treaty of Paris, form the rule by 
 which our present relations with that Power must be governed. 
 
 It was in the same year of 1667 that the new rule was embodied 
 in the Treaty of St. Germain-en- Laye with France. From that 
 year till 1793 eight treaties were concluded with this Power, in 
 every one of which, except that of Ryswick, there was an article 
 either expressly recognizing the rule that the flag covers the 
 cargo, or renewing the provisions of the Treaty of Utrecht. 
 
 But in the treaty with Denmark on the same day of the same 
 year, 1667, no alteration was made in the old rule, and in the 
 treaty of 1670 with the same Power, express provision is made to 
 prevent the goods of enemies from being screened from capture. 
 
 In the treaty with Savoy in 1668, no alteration in the old rule 
 is made. 
 
 By the treaties with the United Provinces in 1654 and 1662, 
 no alteration was made, but by the Treaty of Breda,^ 1667, the 
 new rule was introduced for the first time. This was renewed by 
 
 ' Dumont, VI, 11, 423. 2 I6id., VII, i, 27. 
 
CARRIAGE OF PROPERTY AT SEA 297 
 
 the treaties of 1668,^ 1674,^ and 1689.* By the Treaty of 
 Utrecht the principle was once more afifirmed and recognized in 
 the fullest manner. 
 
 Up to the peace of 181 5, Great Britain may be said to have 
 halted between two opinions. But although she had by numerous 
 ^"&3'g6ments departed in practice from the established Law of 
 Nations, she still held the old rule to be the law. Thus from the 
 date of the Napoleonic wars, when her maritime power became 
 assured, she entered into no more similar engagements, and, till 
 the Crimean War, continued to declare the Law of Nations to be— 
 
 1. That a belligerent may take enemy's goods from neutral 
 custody on the high seas. 
 
 2. That the carriage of enemy's goods by neutral ships is no 
 offence by law, and consequently not only does not involve the 
 neutral ship In penalty, but entitles it to its freight from its captors 
 as a condition precedent to any interference with it on the high 
 seas.* 
 
 To the question whether, in the event of war between Great 
 Britain and Russia in 1854, bona fide British property, the produce 
 of Russia, would be privileged from seizure, if shipped in neutral 
 vessels, the Earl of Clarendon replied that such property, if 
 exported from Russia by and on account of British merchants 
 domiciled and trading there, although purchased before the war 
 and exported to England, would not be respected by British 
 cruisers unless in pursuance of a licence or of some special in- 
 structions to the officers of the navy. 
 
 "By the law and practice of nations," he added, "a belligerent has a 
 right to consider as enemies all persons who reside in a hostile country or 
 who maintain commercial establishments therein ; whether such persons 
 be by birth neutrals, allies, enemies, or fellow-subjects; the property of 
 such persons exported from such country is therefore res hostium, and, as 
 such, lawful prize of war. Such property will be condemned as prize, 
 although its owner may be a native-born subject of the captor's country, 
 and although it may be in transitu to that country ; and its being laden 
 on board a neutral ship will not protect the property." 
 
 Thus, in 1854, Great Britain and France held diametrically oppo- 
 site views. The latter Power respected enemy's goods in neutral 
 bottoms, and confiscated neutral goods on board enemy's ships ; 
 whilst the former confiscated enemy's goods on neutral ships, and 
 respected neutral goods on enemy's ships. The situation was an 
 impossible one for neutrals. Between the two theories there 
 would have been no loophole of escape. Accordingly each Power 
 abandoned part of its theories, and each acceded to part of its 
 
 > Ibid., VII, I, 49. * Schmauss, I, 979. ^ Dumont, VII, 11, 236. 
 
 ♦ Hall, " Inter. Law," Sth ed. 691. * State Papers, 1853-4, Vol. XLIV, 105-9. 
 
298 COMMERCE IN WAR 
 
 ally's theories, and out of the compromise was evolved the present 
 rule — 
 
 A neutral flag covers enemy's goods, except contraband of 
 war; neutral goods, except contraband of war, are not liable to 
 seizure under the enemy's flag. 
 
 According to the Earl of Clarendon, who defended the Declara- 
 tion of Paris in the House of Lords, these provisions were in accord- 
 ance with the jus natures principle of reason and justice, and the 
 communis gentium consensus. Every other maritime power in the 
 world had, he declared, protested against our practice, which was 
 not consonant to the general practice of Europe.^ 
 
 Neutral goods on enemy's ships still liable to in- 
 cidental loss. — Although free, neutral goods are still liable to 
 incidental losses arising from contamination with a belligerent 
 ship. The owner is not therefore entitled to be indemnified for 
 damage sustained through the loss of time or markets. 
 
 Neither is he entitled to compensation for the total or partial 
 loss of the goods which are destroyed with the ship owing to the 
 necessities of the captors. 
 
 In the case of two German ships, the " Ludwig " and the 
 " Vorwarts," where the neutral goods had been destroyed with the 
 ships, it was decided by the French Prize Court in 1872, that 
 though 
 
 "under the terms of the Declaration of Paris neutral goods on board 
 an enemy's vessel cannot be seized, it only follows that the neutral who 
 has embarked his goods on such vessel has a right to restitution of his 
 merchandise, or, in case of sale, to payment of the sum for which it may 
 have been sold ; and that the Declaration does not import that an in- 
 demnity can be demanded for injury, which may have been caused to him 
 either by a legally good capture of the ship or by acts of war which may 
 have accompanied or followed the capture"; and that in this case "the 
 destruction of the ships with their cargoes having taken place under orders 
 of the commander of the capturing ship, because from the large number of 
 prisoners on board no part of the crew could be spared for the navigation 
 of the prize, such destruction was an act of war, the propriety of which the 
 owners of the cargo could not call in question, and which barred all claim 
 on their part to an indemnity." ^ 
 
 1 Hansard, CXLII, 488-501. 
 ^ Calvo, sec. 3033. 
 
CHAPTER V 
 RIGHT OF SEARCH, OR RIGHT OF VISIT AND SEARCH 
 
 THE right to stop, detain, and overhaul merchant vessels on 
 the high seas can only he exercised by belligerent ships of 
 war lawfully commissioned during the continuance of the war. 
 
 It is now generally conceded by all jurists and accepted by all 
 nations as a rule of International Law, that the right of search 
 belongs to belligerents, and to belligerents only. 
 
 This right is, as Vattel points out, a logical sequence of the 
 doctrine of contraband. Without the right of search it would 
 become impossible to prevent the carriage of contraband goods. 
 The mere duty of self-preservation gives to belligerent nations 
 this right. 
 
 "The right of visiting and searching merchant ships upon the high 
 seas," said Sir William Scott in the " Maria," " whatever be the ships, what- 
 ever be the cargoes, whatever be the destinations, is an incontestable right 
 of the lawfully commissioned cruisers of a belligerent nation. I say be 
 the ships, the cargoes, and the destinations what they may, because till 
 they are visited and searched it does not appear what the ships, 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 right is so clear in principle, that no man can deny it who admits the 
 legality of maritime capture ; because if you are not at liberty to ascertain 
 by sufficient inquiry whether there is property that can legally be captured, 
 it is impossible to capture. Even those who contend for the 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. The many European treaties which refer to 
 this right, refer to it as pre-existing, and merely regulate the exercise of it. 
 All writers upon the Law of Nations unanimously acknowledge it, without 
 the exception of Hubner himself, the great champion of neutral privileges.^ 
 
 As a proof of the antiquity of this right, it is interesting to 
 observe that it appears to have been recognized as early as 1164 
 by the maritime Christian and Mohammedan Powers of the 
 Mediterranean. '^ 
 
 A distinction was at one time drawn by the Government of 
 
 1 I Rob., pp. 359-60. 2 Twiss, Vol. II, 147, 2nd ed. 
 
300 COMMERCE IN WAR 
 
 Great Britain between the right of visit and the right of search. 
 They contended that in time of peace a ship of war was entitled 
 to visit a merchant vessel in order to ascertain whether she was 
 justly entitled to the protection of the flag under which she was 
 sailing. 
 
 The reason for this claim was in order to discover the real 
 nationality of vessels suspected of being engaged in the slave 
 trade. 
 
 It was contended, on the other hand, that there was no such 
 distinction in International Law ; that right of visit implied right 
 of search, and that " right of visit " was always used by continental 
 jurists in the sense of right of search ; that the terms were, in 
 fact, synonymous, and that no such right of visit in time of peace 
 was known to International Law. 
 
 Great Britain yielded to these arguments, and in 1858 aban- 
 doned her claim. 
 
 The right of approach, however, has been conceded. Ships of 
 war authorized to arrest pirates and other public offenders may 
 approach any vessel descried at sea for the purpose of ascertaining 
 their real characters. Signals or words only may be exchanged, 
 but if these are ambiguous, and from the information given by 
 others or the behaviour of the vessel is otherwise suspicious, the 
 commanders of the ships of war are not liable in damages for 
 exercising right of search, even if the vessel should prove to be 
 innocent. But if the mistake is inexcusable they will be liable. 
 If the vessel is guilty, then their action is legal ab initio} 
 
 Merchant Vessels. — The right of visitation and search is 
 confined exclusively to private merchant vessels. Public vessels 
 are exempt. This rule is universally admitted by all jurists, and 
 in the practice of all nations. 
 
 " A public vessel," says Wheaton, " belonging to an independent 
 sovereign is exempt from every species of visitation and search even 
 within the territorial jurisdiction of another State ; a fortiori must it be 
 exempt from the exercise of belligerent rights on the ocean, which belongs 
 exclusively to no one nation." 
 
 The question of how far a public vessel was liable to civil or 
 criminal process in a British port was discussed, but not decided, 
 in the case of the " Prins Frederick." ^ 
 
 In the United States, however, it was decided in the case of 
 the Exchange v. McFadden^ that a public vessel of a foreign 
 Power, entering their ports and demeaning herself in a friendly 
 
 1 Lawrence, " Inter. Law," 393-5 ; Halleck, XI, 268. 
 
 2 "Elem. Int. Law," Part. IV, ch. HI, sec. i8. 
 
 3 2 Dodson, 451. « 7 Cranch, 116. 
 
RIGHT OF SEARCH 301 
 
 manner, was exempt from municipal jurisdiction. This exemption 
 was said to be founded, not upon the inherent right of foreign 
 Powers, but upon principles of public comity and convenience, and 
 arose from the presumed consent of nations. This consent might 
 be withdrawn upon notice, without offence, and if after such notice 
 a foreign public ship came into their ports she became amenable 
 to the municipal jurisdiction to the same extent as any other 
 vessel ; and, further, that although a public ship and her arma- 
 ment might be exempt, her prize property brought into port was 
 subject to the local jurisdiction for the purpose of examination 
 and inquiry, and in a proper case of restitution. 
 
 In France there is no interference with the domestic discipline 
 on board foreign merchant vessels, nor with crimes or offences 
 committed by her officers or crew against each other, provided 
 the peace of the port is not disturbed. But if crimes or offences 
 are committed on board against persons not forming part of her 
 officers and crew, or by any other person not a member of the 
 crew, or by the officers and crew against each other whereby the 
 peace of the port is disturbed, then the local authority is entitled 
 to interfere. 
 
 A vessel admitted into a French port is of right " amenable to 
 the municipal law and its crew to the municipal tribunals for 
 offences committed on board against persons not belonging to the 
 ship, as well as in actions for civil contracts entered into with 
 them."^ 
 
 Mail-boats. — Neutral mail steamers and other vessels carry- 
 ing mails, even although the property of a neutral Government, 
 are not exempt from the ordinary process of the tribunals of a 
 belligerent Power, unless expressly exempted by treaty. But the 
 mere innocent and unconscious carriage of enemy despatches does 
 not incriminate the cargo or the ship. 
 
 Thus mail-packets are by International Law still liable to 
 visitation and search. For instance, the Russians were clearly 
 within the law when they visited and searched the British mail- 
 steamer " Osiris" in the Mediterranean in May, 1904, in order to 
 discover whether or not she carried Japanese mails. 
 
 But if the mail-steamer had been the property of the British 
 Government the case might have been different. For instance, 
 in the case of the " Parlement Beige," ^ which was the property of 
 the King of the Belgians as reigning sovereign, it was held that 
 the subordinate and partial use for trading purposes did not take 
 away its public character and deprive it of the immunities thereby 
 conferred. 
 
 1 Ortolan, " Ragles Inter, de la Mer.," torn. I, 193-8. 
 
 2 42 L. T., 273. 
 
302 COMMERCE IN WAR 
 
 Modern Practice. — The general inconvenience of stopping 
 and searching mail-boats has, however, in recent years been miti- 
 gated by the practice adopted by some of the Powers. In the 
 war with Mexico, the United States allowed British mail-steamers 
 to pass unmolested, in and out of the port of Vera Cruz. In 1862 
 they went still further, and exempted from search the mail-steamers 
 of all neutral Powers provided that the mails were duly sealed and 
 authenticated, and were not " simulated mails verified by forged 
 certificates and counterfeit seals." If the mail-boat were other- 
 wise incriminated and liable to capture, she might be seized, but 
 the mails were to be forwarded unopened to their destination. 
 
 This practice was followed by France in 1870, when, at the 
 commencement of the war, she announced that — 
 
 " When a vessel subjected to a visit is a packet-boat engaged in postal 
 service, and with a Government agent on board belonging to the State of 
 which the vessel carries the flag, the word of the agent may be taken as to 
 the character of the letters and despatches on board." 
 
 The arrest, during the war between China and Japan, on a 
 French mail-boat in Japanese waters at Kobe, of two American 
 citizens who were proved by their papers to be proceeding to 
 China to assist the Chinese Government with certain military in- 
 ventions, though a novel proceeding, was, in Professor Holland's 
 opinion, probably justifiable.^ 
 
 In the Hispano- American war, President McKinley declared 
 by proclamation of April 26th, 1898, that — 
 
 " The voyages of mail-steamers were not to be interfered with, except 
 on the clearest grounds of suspicion of a violation of law in respect of con- 
 traband or blockade." 
 
 The " Panama " ^ was a Spanish mail steamer on a voyage from 
 New York to Havana, carrying a general cargo, passengers, and 
 mails. In accordance with a contract entered into with the 
 Spanish Government long prior to the war, she carried guns, 
 rifles, ammunition, and cutlasses, and it was a term of the contract 
 that in case of war the Government might take possession, in- 
 crease her armament, and use her as a ship of war. 
 
 It was found by the Supreme Court of the United States that 
 the vessel was owned by a subject of the enemy ; possessed an 
 armament fit for hostile use ; was intended to be used as a war 
 vessel in the event of war ; was destined to a port of the enemy ; 
 and liable on arriving there to be taken possession of by the 
 enemy and employed as an auxiliary cruiser of the enemy's navy 
 in the war with the United States. 
 
 " "Studies in Int. Law," 122. 2 176 United States, 535 (1899). 
 
RIGHT OF SEARCH 303 
 
 The "Panama" was therefore declared to have been lawfully 
 captured, and was condemned. 
 
 In the course of the Anglo- Boer war a similar indulgence was 
 granted by Great Britain to German mail steamers, which were 
 not to be stopped merely on suspicion that noxious despatches 
 were being carried. 
 
 But the practice has been by no means uniform. Spain failed to 
 follow the example set by America in 1898, and in 1902 Great 
 Britain and Germany stopped all mail steamers proceeding to the 
 ports of Venezuela, and, after overhauling the mail-bags, detained 
 what appeared noxious, and only sent ashore the remainder. 
 
 Immunities of Mail-boats by Treaty. — The middle of the 
 nineteenth century witnessed the commencement of an organized 
 postal service between the majority of the recognized States of 
 the world, in consequence of which international conventions were 
 constituted for the provision and protection of mails in case of 
 war. 
 
 By the Postal Treaty of 15 December, 1848, between Great 
 Britain and the United States, it is provided that — 
 
 " In case of war between the two nations the mail-packets of the two 
 offices shall continue their navigation without impediment or molestation 
 until six weeks after a notification shall have been made, on the part of 
 either of the two Governments, and delivered to the other that the service 
 is to be discontinued ; in which case they shall be permitted to return 
 freely and under special protection to their respective ports." ^ 
 
 By the treaty of 24 September, 1856, between Great Britain 
 and France* the following stipulations relating to mails were 
 agreed upon : — 
 
 "Art. V. — When the packets employed by the British Post Office or 
 by the French Post Office, in the execution of Art. I. and II. of the present 
 Convention, are national vessels, the property of Government, or vessels 
 chartered or subsidized by Government, they shall be considered and 
 treated as vessels of war in the ports of the two countries at which they 
 regularly or accidentally touch, and be there entitled to the same honours 
 and privileges. These packets shall be exempted in the said ports, as well 
 upon their entrance as upon their departure, from all tonnage, navigation, 
 and port dues, excepting, however, vessels freighted or subsidized by 
 Government, which must pay such dues in those ports when they are 
 levied on behalf of corporations, private companies, or individuals. They 
 shall not on any account be diverted from their special duty or be liable 
 to seizure, detention, embargo, or arrit de Prince. 
 
 "■Art VI. — The packets of the two offices shall be at liberty to take on 
 board or land at the ports of the two countries at which they touch, 
 whether regularly or accidentally, specie and gold and silver bullion, as 
 
 U.S. Statutes at Large, Vol. IX, 965, Art. 20. 
 2 State Papers, Vol. XLVI, 195. 
 
304 COMMERCE IN WAR 
 
 well as passengers of whatever nation they may be, with their wearing 
 apparel or luggage, on condition that the captains of these packets shall 
 submit to the sanitary, police, and customs regulations of these ports con- 
 cerning the arrival and departure of travellers. Nevertheless, the pas- 
 sengers admitted on board these packets who do not think fit to land 
 during the stay at one of the said ports, shall not under any pretext be 
 removed from on board, be liable to any search, or be subjected to the 
 formality of a visa of their passports," 
 
 "Art. XL — In case of war between the two nations, the packets of the 
 two offices shall continue their navigation until a notification is made on 
 the part of the two Governments of the discontinuance of the postal com- 
 munications, in which case they shall be permitted to return freely and 
 under special protection to their respective ports." 
 
 On the High Seas. — When the Russian gunboat " Krabi " 
 stopped and searched the British mail steamer "Osiris" betw^een 
 Brindisi and Port Said, a portion of the British Press contended 
 that belligerents had no right to search neutral vessels so far from 
 the scene of hostilities. It may be at once stated that no such 
 limitation is known to International Law. The right of search 
 may be exercised everywhere except in neutral territorial waters. 
 
 In the words of the notice on this point issued to mariners by 
 the Board of Trade in March, 1904 — 
 
 " Masters of British merchant vessels must immediately stop or heave 
 to when summoned on the high seas to do so by a warship of either 
 belligerent, and niust not resist being visited or searched for contraband of 
 war by such warship, as any attempt on their part to evade or resist visit 
 or search may be attended with serious consequences to themselves and 
 to their vessels and cargoes," 
 
 Noxious Despatches. — Despatches connected with the pur- 
 poses of the war are noxious. 
 
 Their character may in some cases be surmised from their des- 
 tination. When they are addressed to persons in the naval or 
 military service of a belligerent, or to his unaccredited agents in 
 a neutral State, they may be presumed to refer to the war. 
 
 If, therefore, when opened they are found to have been written 
 with a belligerent purpose, the carrier cannot plead ignorance 
 of their contents. He can only plead successfully that he was 
 ignorant of their possession or of the character of the persons to 
 whom they were addressed. 
 
 They have been defined by Sir W. Scott to be " ofificial com- 
 munications of official persons on the public affairs of the Govern- 
 ment."^ The gist of the offence is the fraudulent or hostile 
 carriage of despatches to or from a belligerent port.^ But if 
 although the voyage terminates at a neutral port the « ultimate 
 
 » " Caroline," 6 Rob., 465 (i8o8)» 2 Wheaton, 461. 
 
RIGHT OF SEARCH 30Sr 
 
 destination is to a belligerent, the carriage of such hostile papers 
 would be an offence, and the fact that the voyage was between 
 two neutral ports, would merely be allowed in mitigation of the 
 penalty,^ 
 
 "Two classes of despatches," says Mr. Hall, "are in this manner dis- 
 tinctly marked : those which are sent from accredited diplomatic or 
 consular agents residing in a neutral country to their Government at hom.e, 
 or inversely, are not presumably written with a belligerent object,, the 
 proper function of such agents being to keep up relations between their 
 own and the neutral State. The despatches are themselves exempt from 
 seizure on the ground that their transmission is as important in the interest 
 of the neutral as of the belligerent country, and to carry them is therefore 
 an innocent act. Those, on the other hand, which are addressed to persons 
 in the military service of the belligerent, or to his unaccredited agents in a 
 neutral State, may be presumed to have reference to the war, and the 
 neutral is bound to act on that presumption. If, therefore, they are found, 
 when discovered in his custody, to be written with a belligerent purpose, 
 it is not open to him to plead ignorance of their precise contents; he is 
 exonerated by nothing less than ignorance of the fact that they are in his 
 possession or of the quality of the person to whom they are addressed. 
 Letters not addressed to persons falling within either of the above categories 
 are prima facie innocent; if they contain noxious matter they can only 
 affect the vessels when other facts show the knowledge of the owner or 
 master." ^ 
 
 In 1877 the Russian Government in their war with Turkey 
 declared that they would treat despatches and correspondence of 
 the enemy as analogous to contraband of war.^ 
 
 In the case of the "Constantia,"* a Danish vessel captured on a 
 voyage from the Isle of France to Copenhagen, a packet was on 
 board to be delivered to the French ambassador at Copenhagen, 
 and to be forwarded by him to the Government in France. The 
 master had taken charge of the packet knowingly, and though there 
 did not appear to have been any fraudulent concealment, he had 
 been in the custody of a British frigate for fifteen days before he 
 disclosed the packet. The ship and cargo were condemned. 
 
 The "Susan,"* an American vessel, was captured on a voyage 
 from Bordeaux to New York with a packet on board addressed 
 to the Prefect of the Isle of France, relating apparently only to 
 the payment of that officer's salary. The master was ignorant of 
 the contents of the packet, stating that it had been delivered to 
 him by a private merchant as containing some old newspapers and 
 some shawls. The Court held that a master is not at liberty to 
 
 1 Phillimore, " Int. Law," Vol. Ill, 37o. 
 
 2 " Int. Law," sth ed., 675. 
 
 s "Journal de St. Petersburg," ^ Mar, 
 
 * 6 Rob., 261, note (1808). 
 6 I6ia., 46 r, note (1808). 
 
306 COMMERCE IN WAR 
 
 plead his ignorance, but that if he becomes the victim of imposi- 
 tion, practised on him by his private enemy, or by the Government 
 of the enemy, he must seek his redress against them. In this 
 case he did not appear to have used any caution to inform himself 
 of the nature of the papers, and although they were not fraudulently 
 concealed, they were not produced to the captors as they ought to 
 have been. The ship was condemned. 
 
 The "Hope"^ was an American vessel captured on a voyage 
 from Bordeaux to New York, having on board various despatches 
 to the Government officials in the French West Indies and the 
 Isle of France. She also carried a military officer of rank, who 
 was returning to Martinique, and who had shipped as a merchant's 
 clerk. 
 
 The Court disbelieved the master's plea of ignorance. 
 
 " It was scarcely credible that the master could have been deceived with 
 respect to the character of a military officer of high rank, so as to be im- 
 posed upon by the disguise of a merchant's clerk, which he had pretended 
 to assume ; that he was further discredited by the representation which he 
 had attempted to impose upon the Court, respecting the manner in which 
 the trunk (which contained the despatches) was concealed." 
 
 The ship was condemned. 
 
 The " Madison " ^ was an American ship which had been 
 captured by a French privateer and carried into Dieppe, whence, 
 after obtaining her release, she proceeded in ballast to Baltimore. 
 On this return voyage she was captured by an English cruiser, 
 and proceedings were instituted upon the ground {inter alia) that 
 she had sailed from a blockaded port carrying despatches from 
 the Government of the enemy to a consul of the enemy in 
 America. These despatches, which turned out to be of an inno- 
 cent character, were sent through an agent of the American 
 Ambassador at Paris by the Danish Government, with which we 
 were at war, to the Danish Consul-General at Philadelphia. 
 
 Sir William Scott was of opinion that a communication from 
 the Danish Government to its own Consul in America did not 
 necessarily imply anything that was of a nature hostile or injurious 
 to the interests of Great Britain. It was not to be so presumed : 
 such communications must be supposed to refer to the business of 
 the Consul-General's office, which was to maintain the commercial 
 relations of Denmark with America. If such communications 
 were forbidden, the functions of such officials would cease alto- 
 gether. 
 
 " It has been said," declared the learned judge, " that this communica- 
 tion of the Danish Government, with one of its delegates in another 
 
 > 6 Rob. 463 (1808). 2 I Edw., 224 (1810). 
 
RIGHT OF SEARCH 307 
 
 country, through the medium of the American minister at Paris, is a 
 matter in which the neutral Government is not at liberty to interpose and 
 carry on, and that the neutral Government is not to concert measures with 
 the enemy, for the purpose of assisting in communications relating solely 
 to his own commerce. But I take it to be a correspondence in which 
 the American Government is itself interested. A Danish Consul-General 
 in America is not stationed there merely for the purpose of Danish trade, 
 but of Danish-American ; his functions relate to the joint commerce in 
 which the two countries are engaged, and the case therefore falls within 
 the principle which has been laid down in the case of the ' Caroline ' in 
 regard to despatches from the enemy to his Ambassador resident in a 
 neutral country. In the transmission of these papers America may have 
 a concern and an interest also ; and therefore the case is not analogous to 
 those in which neutral vessels have lent their services to convey despatches 
 between an enemy's colony and the mother country. Here there is no 
 such departure from neutrality as to subject the vessel to confiscation." 
 
 The ship was ordered to be restored upon payment to the 
 captors of their expenses. 
 
 Character of Despatches. — The comparative importance of 
 particular papers is, as Sir William Scott declared, immaterial. The 
 Court will not construct a scale of relative importance. It is not 
 to be argued that this or that letter is of small moment. The true 
 criterion is that the communication is on the public business of 
 the State, and passing between public persons for the public 
 service. If the papers relate to public concerns, be they great or 
 small, civil or military, the Court will not split hairs, and consider 
 their relative importance.^ 
 
 " It is impossible," the learned judge declared in another case, " to limit 
 a letter to so small a size, as not to be capable of producing the most im- 
 portant consequences in the operations of the enemy ; it is a service there- 
 fore which, in whatever degree it exists, can only be considered in one 
 character, as an act of the most noxious and hostile nature." ^ 
 
 Hautefeuille considered that the carriage of despatches could 
 only invest a neutral vessel with a hostile character, where it was 
 specially employed for that purpose by a belligerent, and that it 
 could not affect with criminality either a regular postal packet or 
 a merchant ship, which takes a despatch in the ordinary course of 
 conveying letters, and of the contents of which the master must 
 necessarily be ignorant.^ 
 
 The fraudulent carriage of despatches of the enemy is a criminal 
 act involving the confiscation of the ship, and of the cargo also if 
 it is the property of the owners of the ship.* 
 
 1 " Caroline," 6 Rob., 465. ^ « Atalanta," 6 Rob., 455. 
 
 3 "Droits des Nations Neutres," torn. II, 463. 
 * "Atalanta," 6 Rob., 455-6°. 
 
308 COMMERCE IN WAR 
 
 Noxious Persons. — i. The transport in a neutral ship, hired 
 by, or under the control of, a belligerent for that purpose, of naval 
 or military persons in the service of the belligerent is a criminal 
 act. 
 
 The "Orozembo" was an American vessel ostensibly chartered 
 by a merchant at Lisbon " to proceed in ballast to Macao and 
 then to take a cargo to America," but which was afterwards, by 
 his directions, fitted up for the reception of military officers of 
 distinction, and two persons in civil departments in the Govern- 
 ment of Batavia who had come from Holland to take their passage 
 to Batavia, under the appointment of the Dutch Government. 
 In condemning the vessel as a transport in the service of the 
 Dutch Government, Sir William Scott asked what number of 
 persons would incriminate the vessel. Number alone, he declared, 
 was immaterial, since fewer persons of high quality and character 
 may be of more importance than a much greater number of 
 persons of lower condition. To send out one veteran general of 
 France might be a much more noxious act than the conveyance 
 of a whole regiment. 
 
 (a) Ignorance. — As in the case of despatches, ignorance on 
 the part of the owner or master cannot successfully be pleaded. 
 It is sufficient if there is an injury to the belligerent arising from 
 the employment in which the vessel is found.^ If imposition has 
 been practised it operates as force. ^ 
 
 (d) Compulsion. — In the "Caroline"^ there was an absence 
 of intention in the owner and in the master. The latter was an 
 involuntary agent, acting under compulsion put upon him by the 
 officers of the French Government, and so far as intention alone 
 is considered, perfectly innocent. But none the less, as in the 
 case of ignorance, the penalty of confiscation must be enforced, and 
 redress by way of indemnity must be sought against those who 
 either by deceit or compulsion have exposed the vessel to danger. 
 Otherwise such opportunities of conveyance would be constantly 
 used, and it would be almost impossible in the greater number 
 of cases to prove the knowledge and privity of the immediate 
 offender.* 
 
 2. The transport in a neutral ship not hired by, or under the 
 control of, a belligerent, of civil or military persons is not a 
 criminal act unless the service performed is such as might be 
 rendered by a belligerent transport, and such as substantially to 
 assist his military operations. 
 
 1 The " Orozembo," 6 Rob., 430-4. 2 /^/^^ 435 
 
 3 4 Rob., 256. 4 « Orozembo," 6 Rob., 435. 
 
RIGHT OF SEARCH 309 
 
 In the South African war the German mail steamer, the 
 " Bundesrath," left Aden for Lorenzo Marquez on 5 December, 
 1899, with twenty-seven alleged passengers on board. She was 
 intercepted by the "Magicienne" and brought into Durban on 
 the ground of carrying ammunition as contraband of war. The 
 carriage of enemy troops does not appear to have been raised, 
 and as a partial search failed to reveal any contraband, the ship 
 was released on 18 January. 
 
 The case of the German mail steamer " Herzog " was very 
 similar. She left Aden on 18 December, 1899, with about forty 
 Dutch and German medical and other officers and nurses on 
 board. She was captured by the "Thetis" and brought into 
 Durban on 6 January, the senior naval officer there telegraph- 
 ing to the Admiralty that there was " a large ambulance party on 
 board, most of whom had revolvers." 
 
 In spite of this fact, however, as after a summary search no 
 contraband of war was discovered, the vessel was ordered to be 
 released. 
 
 The right of a belligerent to take out of an innocent 
 neutral vessel noxious persons. — Whether such a right 
 exists apart from some conventual obligation appears more than 
 doubtful, and the uncertainty surrounding the phrase " noxious 
 persons " renders the preposition still more ambiguous. 
 
 "The doubt on the question propounded," says Dana,^ "arises chiefly 
 from the fact that great numbers of treaties have provided that the persons 
 of enemies shall not be taken from free ships unless they be military men in 
 the actual service of the enemy ; seeming to imply, not only that the latter 
 may be so taken, but also that, without this provision, any enemy could 
 be so taken, whether a military man or not. The first trace of this pro- 
 vision is in a treaty of commerce between the Netherlands and Sweden of 
 1676. In a clause of that treaty which secures freedom to carry enemy 
 goods not contraband in neutral vessels, is the further provision that either 
 party to the treaty may carry in their vessels the subjects of an enemy of 
 the other party, and that they shall not be taken or forced therefrom 
 unless they be military commanders or officials — ' nee eos inde evelli aut au 
 ferri licebit, exceptis tantum ducibis sive officialibus hostilibus,'^ It next 
 appears in the Treaty of Nimeguen in 1678, at the end of Art. 22 — 'And 
 as it has been provided above that a free ship shall be free to carry her 
 cargo, it is further agreed that this liberty shall extend also to persons 
 who shall be found in a free ship, to the effect that although they be 
 enemies of one or the other of the contracting parties, yet when in a 
 neutral vessel they shall not be taken therefrom, provided they be not 
 military persons and effectively in the service of the enemy.' This clause 
 was copied into the treaty between Sweden and Holland of the next year ; 
 
 ' Dana's "Wheat6n,*' 656, note. 
 '' Dumont, "Corps DipL," VII, 316. 
 
310 COMMERCE IN WAR 
 
 into the Commercial Treaty of Ryswick of 1697 ; into the treaties of 
 Utrecht of 17 13, between France and the Netherlands and France and 
 England ; and into the treaty of 1739 between France and the United 
 Provinces. The only change is that ' actuellement au service desdits 
 ennemis,' is substituted for ' effectivement au service, etc' This clause is 
 also in the treaty between France and Hamburg of 1769. 
 
 " This provision afterwards appears in the conventions between France 
 and the United States of 1778 and i8cx3, between the United States and 
 Holland in 1782, between the United States and Sweden in 1783 and 
 1816, the United States and Prussia of 1785, the treaty between France 
 and England of 1786, and between the United States and Spain of 1795 
 and 1 8 19, and in the treaties of the United States with Columbia in 1824, 
 Central America in 1825, Brazil in 1828, Mexico in 183 1, Chili in 1832, 
 Peru in 1851, Venezuela in 1836, and, in fact, with nearly if not all the 
 South American States. In the French and English treaty of 1786 is 
 added after the words 'actuellement au service desdits ennemis,' the 
 words ' et se transportant pour 6tre employes comme militaire dans leurs 
 flottes ou dans leurs armdes,' and in the treaty between France and 
 Hamburg of 1769 after the words, 'au service des ennemis' is added 
 'auquel cas, ils seront faits prisonniers de guerre.' The clause does not 
 exist in any form in any treaty between Great Britain and the United 
 States." 
 
 Thus where the Powers concerned are parties to such treaties it 
 must be admitted that a class of persons of a defined character 
 and in defined predicament may be taken out. This practice had 
 its origin, Dana considers, in the fact that two hundred and fifty 
 years ago, and for some time afterwards, it was a common custom 
 to take out contraband goods without carrying the vessels in for 
 adjudication, and so the removal of noxious persons without 
 adjudication did not appear singular. 
 
 Between the parties to these treaties the only question is on 
 the construction of the phrase " noxious persons." Are they 
 military persons in the actual service of the enemy ? If they are, 
 then, apart from any further question as to the offence committed 
 by the vessel, they may be taken out. 
 
 But even in the absence of treaty stipulations, a strong argu- 
 ment might be advanced in favour of the right to take out military 
 persons in the actual service of the enemy, 
 
 " Yet," says Dana, " it is out of harmony with the practice of modern 
 times in cognate cases. The proper rule would seem to be, that if there is 
 no probable cause for thinking the vessel in fault for carrying them, and 
 as no prize proceedings can be had against the persons, the persons should 
 not be taken out of the vessel. But if the case warranted proceedings 
 against the vessel on grounds of probable cause to believe her in fault, she 
 should be brought in for proceedings and the persons held as prisoners of 
 war on the responsibility of the State to the neutral flag, until the case is 
 determined. Still, it must be admitted that the subjecj: is an embarrassing 
 one, whether the right to take such persons be generally conceded or be 
 
RIGHT OF SEARCH 311 
 
 coupled with prize proceedings against the vessel, and seems to present a 
 case for some special proceedings of a peculiar character, arranged by 
 convention on national guarantees." 
 
 Exceptions to Right of Visitation and Search.— i. 
 
 Messengers and couriers of public ministers in the service of a 
 belligerent resident in a neutral country, together with their 
 despatches, are exempt on the high seas from every species of 
 visitation and search, provided they bear passports attesting their 
 official character furnished not only by their own Government, 
 but also by the enemy, and provided the vessel or aviso also 
 carries a commission or pass. In the " Caroline " ^ Sir William 
 Scott drew the distinction between the carriage of despatches of 
 a belligerent from its colonies to the mother country and the 
 carriage of despatches of an Ambassador in the service of a 
 belligerent, but resident in a neutral country. The former, he 
 said, is a criminal interposition, which leads to condemnation 
 because the belligerent has the right to interrupt and to cut off all 
 communication between the enemy and his settlements, and to the 
 utmost of his power harass and disturb this connexion, and he is 
 entitled to assume that these despatches are hostile to him ; but an 
 Ambassador resident in a neutral country is there for the purpose 
 of maintaining relations of amity between that State and his own 
 Government. 
 
 The neutral country has a right to preserve its relations with 
 the enemy, and a belligerent is not at liberty to assume that any 
 communication between them can partake in any degree of the 
 nature of hostility to him. As Vattel remarks : — 
 
 " Couriers sent or received by an Ambassador, his papers, letters, and 
 despatches, all essentially belong to the Embassy, and are consequently to 
 be held sacred, since if they were not respected the legitimate objects of 
 the Embassy could not be attained, nor would the Ambassador be able to 
 discharge his functions with the necessary degree of security." ^ 
 
 To open the letters of an Ambassador has been declared to be 
 a breach of International Law, although this privilege may be 
 lost when the Ambassador himself is guilty of some breach of his 
 duties towards the neutral State. ^ 
 
 The case of the "Trent," which occurred in 1862 during the 
 American Civil War, has given rise to a great deal of controversy 
 without resulting in any agreement between the parties imme- 
 diately concerned and the other Powers. 
 
 The "Trent" was a British mail steamer running on her usual 
 course from Havana to Nassau, both neutral ports. Two Con- 
 federate diplomatic agents, Messrs. Slidell and Mason and their 
 
 1 6 Rob., 461 (1808). 
 
 2 Vattel, Lib. IV, iv, ch. ix, sec. 123. ' Halleck, I, 275-6. 
 
Sia COMMERCE IN WAR 
 
 suite, embarked at Havana as ordinary passengers for Nassau 
 with the ihtention of proceeding to England and France. Whilst 
 on the high seas, just before reaching Nassau, the " Trent " was 
 stopped by a Federal ship of war, the "San Jacinto." Her 
 commander, Captain Wilkes, in spite of the protests of the 
 "Trent's" captain, took Messrs. Slidell and Mason with their 
 secretaries out of the ship, which was then allowed to continue 
 her voyage. 
 
 Upon the demand for their restoration by Great Britain, backed 
 tip by the Ambassadors of France, Austria, Prussia, Italy, and 
 Russia, Messrs. Slidell and Mason were released. The conten- 
 tion by the Federal Government was that the persons seized were 
 contraband of war, and that the "Trent" being a neutral vessel, 
 the "San Jacinto," as a belligerent cruiser, was entitled to stop 
 her for the purpose of ascertaining her true national character and 
 of seizing any contraband found on board. The first contention 
 was met by Sir William Harcourt's citation from Sir William 
 Scott's judgment in the " Imina " : " Goods.going to a neutral port 
 cannot come under the description of contraband, all goods going 
 there being equally lawful." The essence of contraband, added 
 Sir William Harcourt, is twofold — there must be a hostile quality 
 and a hostile destination. 
 
 The most serious mistake made by the Federal captain was the 
 omission to take the " Trent " before a prize court and the 
 arbitrary seizure of Messrs. Slidell and Mason. It is a rule of 
 International Law that a ship and cargo are not lawful prize until 
 condemned by a competent court, and that until so condemned a 
 captor has no right to do anything beyond bringing the vessel 
 before the court. 
 
 Mr. Seward, in his Note to the British Government, maintained 
 that an Ambassador from a belligerent Power on his way to a 
 neutral port is liable to capture on board a neutral vessel as con- 
 traband of war. 
 
 This view, thus stated without any modifications, has never 
 been accepted by International Law. Ambassadors and diplo- 
 matic agents are not contraband of war, although in some respects 
 they are analogous, and are sometimes termed analogues of con- 
 traband. They are, in fact, quite different, and are governed by 
 different rules. 
 
 But there were three points of real substance in the case of the 
 " Trent" — first, the ultimate destinaition of the diplomatic agents ; 
 secondly, that the Confederate States had not yet been recognized 
 as an independent belligerent, and so the agents had not acquired 
 an official character ; and, lastly, that they had not been recog- 
 nized by the Governments to which they were accredited. There 
 
RIGHT OF SEARCH 313 
 
 can be no doubt that Messrs. Slidell and Mason intended to pro- 
 ceed to England and France for the purpose of persuading those 
 countries to recognize the independence of the Confederate States 
 and then to return home. Such a service was of a hostile 
 character. 
 
 " Ambassadors," said Sir William Scott in the " Caroline," ^ " are, in a 
 peculiar manner, objects of the protection and favour of the Law of 
 Nations. The limits that are assigned to the operations of war against 
 them by Vattel and other writers upon those subjects are that you may 
 exercise your right of war against them, wherever the character of hostility 
 exists; you may stop the Ambassador of your enemy on his passage ; but 
 when he has arrived and has taken upon himself the functions of his office 
 and has been admitted in his representative character, he becomes a sort 
 of middle-man, entitled to peculiar privileges, as set apart for the protection 
 of the relations of amity and peace, in maintaining which all nations are 
 in some degree interested." 
 
 On the other hand. Earl Russell contended that for the purpose 
 of avoiding the difficulties which arise from the non-recognition 
 of the independence of the de facto Government of one of the 
 belligerents by the other belligerent or by neutrals — 
 
 " Diplomatic agents are frequently substituted, clothed with the powers 
 and immunities of ministers, although not invested with the representative 
 character nor entitled to diplomatic honours." ^ 
 
 It was upon this footing that Messrs. Slidell and Mason must 
 have been sent, and their reception upon this footing could not 
 have been justly regarded as a hostile or unfriendly act towards 
 the Federal States. The conveyance of such agents and their 
 despatches (if any) on board the " Trent " was not and could not 
 be a violation of the duties of neutrality, and since their destina- 
 tion was bona fide neutral, they could not be contraband. 
 
 Sir William Scott's dictum that "you may stop the Ambassa- 
 dor of your enemy on his passage " was declared to be irrelevant. 
 No writer of authority has ever suggested that an Ambassador 
 proceeding to a neutral State on board one of its merchant vessels 
 is contraband of war. 
 
 The true rule appears to be that you may stop an enemy's 
 Ambassador in any place of which you are yourself the master, or 
 in any place where you have a right to exercise acts of hostility. 
 Your own territory or ships are places of which you are yourself 
 the master. The enemy's territory or ships are places in which 
 you have a right to exercise acts of hostility. In neutral vessels, 
 innocent of any violation of neutral duties, you have no such 
 right. 
 
 1 6 Rob., 467-8 (1808). 
 
 2 Wheaton, "Elements," Part III, ch. i, sec. S- 
 
314 COMMERCE IN WAR 
 
 If the real and ultimate destination of the " Trent " had been 
 to an enemy's port, it is undoubtedly laid down by British 
 authorities that if the real destination of the vessel be hostile it 
 cannot be covered and rendered innocent by a fictitious destina- 
 tion to a neutral port. 
 
 Upon this case the following question has been formulated by 
 Prof Mountague Bernard as still remaining unsettled : — 
 
 " Does a neutral ship forfeit that character and expose itself to con- 
 demnation by conveying as passengers from one neutral port to another 
 persons going as diplomatic agents of the enemy to a neutral country? " * 
 
 The American Government, as we have seen, answered the 
 question in the affirmative, in all those cases at least in which the 
 agent has not yet acquired an official character, and the com- 
 munity he is commissioned to represent has not been recognized 
 as independent. Great Britain and the other Powers replied in 
 the negative. 
 
 Both parties appear to have relied upon a false principle. 
 The principle of contraband does not apply. By the strict letter 
 of the law, neither an Ambassador nor a diplomatic agent is 
 clothed with any immunities until he is recognized by the Power 
 to which he is accredited as the representative of an independent 
 belligerent. In the words of Sir William Scott, "you may stop 
 the Ambassador of your enemy on his passage." It is true that 
 Sir William was dealing with the case of a passage between the 
 mother country and her colonies, but the language he adopted 
 from Vattel is quite general, and is not limited to a passage 
 between neutral ports. If the Confederate States had been recog- 
 nized by Great Britain and France as independent, and Messrs. 
 Slidell and Mason had been admitted as their representatives 
 (e.g. by wire), then they would have become clothed with the 
 immunities of Ambassadors ; but as unofficial agents with des- 
 patches upon a mission hostile to one belligerent, it would appear 
 that the carriage of such persons is a breach of neutrality, inas- 
 much as it substantially assists the military operations of one 
 belligerent. 
 
 It is an undoubted rule of International Law that an Am- 
 bassador, diplomatic agent, or other public minister proceeding 
 to his post in time of war, must be provided with a safe-conduct 
 or passport from the Government of the State with which 
 his own country is at war, to enable him to travel securely 
 through its territories.^ 
 
 ' " Neutrality of Great Britain," p. 233. 
 2 Wheaton, " Elements," 4th ed., p. 330. 
 
RIGHT OF SEARCH 31 5 
 
 In laying down this rule that — 
 
 " A passage may not only be refused to the ministers of an enemy sent 
 to other sovereigns, but if they undertake to pass privately and without 
 permission into places belonging to their master's enemy, they are liable 
 to be arrested." 
 
 Vattel cites the following case furnished by the Anglo-French 
 war of 1 743 : An Ambassador of France going to Berlin, by the 
 imprudence of his guides passed through a village within the 
 electorate of Hanover, of which the sovereign, the King of 
 England, was at war with France. He was arrested, and after- 
 wards sent over to England. As His Britannic Majesty had 
 herein only made use of the rights of war, neither the court of 
 France nor that of Prussia made any complaint.^ 
 
 Belligerent ship of war lawfully commissioned. — A 
 
 private ship the property of a subject of one belligerent may 
 lawfully seize a private or public ship the property of the other 
 belligerent with which it is at war, although unfurnished with a 
 Commission of War or Letters of Marque. 
 
 " If the subject," says Story J., " capture without a commission, he can 
 acquire no property to himself in the prize ; and if the act be contrary to 
 the regulations of his own sovereign, he may be liable to municipal 
 penalties for his conduct. But as to the enemy, he violates no rights by 
 capture." '^ 
 
 But all prizes captured by an English non-commissioned ship 
 become the property of the State, and are termed Droits of 
 Admiralty. The same principle applies to captures made by 
 commissioned ships, but in practice, unless for good reason shown 
 to the contrary, lawful prize is given up to its captors. 
 
 Mr. Hall denies the right of a non-commissioned ship to attack, 
 on the ground that the weight of practice and of legal authority 
 is against it. It is, he says, "too much opposed to the whole bent 
 of modern ideas to be now open to argument."* The weight of 
 authority certainly appears to be the other way. 
 
 But if such a ship attack a vessel belonging to a neutral State 
 she may be treated as a pirate. A Commission of War empowers 
 the person to whom it is granted in time of war /<? setse not only 
 the ships and goods of the enemy, but also such ships and goods 
 
 > B. IV, c. VII, sec. 85. 
 
 2 "The Nereide," 9 Cranch, at p. 449. See also 2 Bro. Civ. and Adm. App., 524 ; 
 Grotius, lib. 3, ch. 6, sec. 8, 9, 10 ; Barbeyrac's Note on sec. 8 ; Pufifendorf, lib. 8, ch. 6, 
 sec. 21 ; Bynkershoek, 2 P. J., ch. 3, 4, 16, 17 ; 2 Woodes' Act., 432 ; Consol. del Mare, 
 ch. 287-8 ; 4 Inst., 152, 154 ; Zouch Adm., loi ; Casaregis Disc, 24, n. 24 ; Com. Dig. 
 Admiralty, E 3 ; Buls. c. 27. 
 
 s " Inter. Law," sth ed., 530. 
 
3i6 COMMERCE IN WAR 
 
 the property of neutral Powers as are liable to tonfiscation pur- 
 suant to treaties or the Law of Nations. A Letter of Marque and 
 Reprisals empowers the person to whom it is granted to make 
 reprisals in time of peace against the ships and goods of the sub- 
 jects of that State which has refused to make reparation for an 
 injury done by one of its subjects. 
 
 The Xexra. privateers, which appears to have been first used in a 
 letter from Sir Leoline Jenkins, dated 5 December, 1665, was 
 originally intended to designate a particular class of private armed 
 vessels employed by the Admiralty in the reign of Charles H. It 
 is to-day applied indiscriminately to private vessels sailing under 
 Commissions of War or under Letters of Marque and Reprisals. 
 A privateer has consequently been thus defined : — 
 
 "A privateer is an armed vessel belonging to one or more private 
 individuals, licensed by Government to take prizes from an enemy; its 
 authority in this regard must depend altogether upon the extent of the 
 commission issued to it, and is qualified and limited by the laws under 
 which the commission is issued." ^ 
 
 In the "Sea Laws," a text-book published at the commence- 
 ment of the eighteenth century and representing the opinion of 
 the seventeenth, it is quaintly said : — 
 
 " Our laws take not much notice of these privateers, because the manner 
 of such warring is new and not very honourable, but the diligence of our 
 enemies in this piratical way obliges us to be also diligent for the preserva- 
 tion of our commerce." ^ 
 
 The first attempt to discourage the practice of privateering 
 occurs in the treaty of commerce concluded at Stockholm in 
 1675 between Sweden and the United Provinces, whereby it was 
 provided : — 
 
 "That none of their subjects should be allowed to equip privateers 
 against the subjects of the other, nor to accept Commissions of War from 
 their respective confederates." 
 
 Owing to the exigencies of war, however, Sweden found herself 
 compelled to depart from these stipulations, and was condemned 
 to make compensation to the States-General for her violation. 
 Curiously enough the United States of America were the next to 
 follow this example. In 1785 a treaty was concluded with Prussia 
 whereby each party agreed in case of war between them not to 
 grant commissions authorizing privateers to seize the merchant- 
 men of the other party freighted with innocent cargoes. The 
 real object of this policy appears to have been to secure immunity 
 
 1 The "Thomas Gibbons," 8 Cranch, 421. 
 
 2 3rd ed., 472. 
 
RIGHT OF SEARCH 317 
 
 for private property which was not contraband and was not 
 destined for an enemy port. 
 
 Upon the renewal of the treaty in 1 799 this stipulation was not 
 renewed. But in 1856 the United States returned to her old 
 policy, and upon the Powers declining to add to the Declaration 
 of Paris a clause exempting all private property on the high seas 
 belonging to one belligerent, except contraband, from seizure by 
 public armed vessels of the other belligerent, refused to be a party 
 to the Declaration, the first article of which recites that " Priva 
 teering is and remains abolished." 
 
 In 1854 President Pierce, in his annual message to Congress, 
 had said : — 
 
 " Should the leading Powers of Europe concur in proposing as a rule of 
 International Law to exempt private property upon the ocean from seizure 
 by public armed cruisers as well as by privateers, the United States will 
 readily admit them on that broad ground." 
 
 Upon the invitation to adhere to the Declaration of Paris in 
 1856 the President agreed, provided the following paragraph was 
 added to the first article : — 
 
 " And that the private property of the subjects or citizens of a belli- 
 gerent on the high seas shall be exempted from seizure by public armed 
 vessels of the other belligerent unless it be contraband." 
 
 This offer was renewed by Mr. Seward in 1861, and in 1870, in 
 consequence of Bismarck's despatch, the Government expressed 
 the hope that the amendment might be universally accepted.^ 
 
 Bismarck's despatch contained the Prussian Decree of 18 July, 
 1870, whereby it was declared that French merchant vessels 
 should be no further subject to capture as prize of war than any 
 other neutral vessels.^ This decree was annulled, as from 
 10 February, 1870, in consequence of the refusal of the French 
 Government to take reciprocal steps and their action in burning 
 and scuttling prizes taken from the Germans.* 
 
 By the Italian Mercantile Marine Code, Art. 211, the capture 
 and making prize of the enemy's merchant vessels by ships of war 
 belonging to the State will be abolished by way of reciprocity 
 towards any Power which adopts similar treatment in favour of 
 merchant vessels. 
 
 This reciprocal treatment may result from municipal law, 
 diplomatic conventions, or declarations made by the enemy on the 
 first outbreak of war. 
 
 1 State Papers, Vol. LXI, 678. 
 
 2 Ibid., Vol. LX, 923. 
 
 3 "London Gazette," 7 February, 1871, 
 
3i8 COMMERCE IN WAR 
 
 In the war with Austria in 1866 this practice was observed by 
 both parties respectively.^ 
 
 This principle of the inviolability of private property at sea was 
 adopted by the Institut de Droit International at the Congress of 
 Turin in 1882, of Munich in 1883, and of Heidelberg in 1887 by 
 Sec. 4. 
 
 " La propri6t6 priv6e est inviolable sous la condition de 
 reciprocity, et sauf les cas prdvus au Sec. 23." ^ 
 
 The Government of Great Britain, which has most to gain by 
 the general recognition of this principle, is, strangely enough, the 
 most consistent opponent to its introduction. 
 
 Spain and Mexico, though otherwise parties to the Declaration, 
 repudiated this article, and the former, whilst contenting herself 
 with organizing a service of auxiliary cruisers, declared her inten- 
 tion of granting Commissions of War to privateers. 
 
 During the American Civil War, Congress passed an Act on 
 3 March, 1863, authorizing the President in any foreign or 
 domestic war to issue Letters of Marque, but he does not appear 
 to have availed himself of this power. The Confederate States 
 granted Letters of Marque to several private armed vessels. 
 They also offered their Letters to foreigners, but the restrictive 
 legislation of the maritime Powers and the threat of the Federal 
 States to treat such vessels as pirates, prevented their acceptance. 
 
 In the war between Spain and the United States the Govern- 
 ment of the latter Power announced its policy would be not to 
 " resort to privateering, but to adhere to the Rules of the Declara- 
 tion of Paris." ^ 
 
 By the Spanish Decree of 23 April, 1898,* laying down the 
 rules to be observed, it was declared by Art. 4 that the Govern- 
 ment — 
 
 "while maintaining their right to issue Letters of Marque, which they 
 expressly reserved in their Note of 16 May, 1857, in reply to the 
 request of France for the adhesion of Spain to the Declaration of Paris 
 relative to maritime war, would organize for the present 'a service of 
 auxiliary cruisers of the navy ' composed of ships of the Spanish Mercantile 
 Navy, which would co-operate with the latter for the purposes of cruising, 
 and which would be subject to the statutes and jurisdiction of the navy." 
 
 It was further declared by Art. 5 that — 
 
 " In order to capture the enemy's ships, to confiscate the enemy's mer- 
 chandise under their own flag, and contraband of war under any flag, the 
 Royal Navy auxiliary cruisers and privateers, if and when the latter were 
 authorized, would exercise the right of visit on the high seas and in the 
 territorial waters of the enemy, in accordance with International Law, and 
 any regulations which might be published for the purpose." 
 
 » Raikes, " Maritime Codes of Italy," p. 178. 2 Annuaire, 1888, p. 219. 
 
 3 State Papers, Vol. XC, p. 380. « Ibid., p. 159. 
 
RIGHT OF SEARCH 319 
 
 It was also further notified by Art. 7, that — 
 
 " Captains, commanders, and officers of non-American vessels manned 
 as to one-third by other than American citizens captured while committing 
 acts of war against Spain, would be treated as pirates with all the rigour 
 of the law, although provided with a licence issued by the Republic of the 
 United States." 
 
 In spite, therefore, of the Declaration of Paris and of its accept- 
 ance by nearly all the Powers, privateering, apart from conventual 
 stipulations, is not an offence against International Law. Suppose, 
 for instance, that Great Britain were at war with the United 
 States, the latter would be at liberty to instruct its privateers to 
 visit all neutral vessels and to capture such as carried enemy's 
 goods or contraband of war, whereas the former, being a party to 
 the Declaration of Paris, would be bound to instruct her privateers 
 to refrain from molesting in any way the vessels of any of the 
 parties to the Declaration, inasmuch as, so far as they are con- 
 cerned, privateering is abolished. 
 
 The reasons advanced by the United States for their refusal 
 to abolish privateering are stated by Mr. Marcy, Secretary of 
 State : — 
 
 " The United States consider powerful navies and large standing armies, 
 as permanent establishments, to be detrimental to national prosperity and 
 dangerous to civil liberty. The expense of keeping them up is burden- 
 some to the people ; they are in some degree a menace to peace among 
 nations. A large force ever ready to be devoted to the purposes of war is 
 a temptation to rush into it. The policy of the United States has ever 
 been, and never more than now, adverse to such establishment, and they 
 can never be brought to acquiesce in any change in International Law 
 which may render it necessary for them to maintain a powerful navy or 
 large standing army in time of peace. If forced to vindicate their rights 
 by arms, they are content, in the present aspect of international relations, 
 to rely in military operations on land mainly upon volunteer troops, and 
 for the protection of their commerce in no inconsiderable degree upon 
 their mercantile marine. If this country were deprived of these resources 
 it would be obliged to change its policy and assume a military attitude 
 before the world. In resisting an attempt to change the existing maritime 
 law that may produce such a result, it looks beyond its own interest and 
 embraces in its view the interest of such nations as are not likely to be 
 dominant naval Powers. Their situation in this respect is similar to that 
 of the United States, and to them the protection of commerce and the 
 maintenance of international relations of peace, appeal as strongly as to 
 this country to withstand the proposed change in the settled Law of 
 Nations. To such nations the surrender of the right to resort to privateers 
 would be attended with consequences most adverse to their commercial 
 prosperity without any compensating advantages. ... 
 
 " It certainly ought not to excite the least surprise that strong naval 
 Powers should be willing to forego the practice, comparatively useless to 
 them, of employing privateers, upon condition that weaker Powers agree 
 
320 COMMERCE IN WAR 
 
 to part with their most effective means of defending their maritime rights. 
 It is, in the opinion of this Government, to be seriously apprehended that 
 if the use of privateers be abandoned the dominion over the seas will be 
 surrendered to those Powers which adopt the policy and have the means 
 of keeping up large navies. The one which has a decided naval superiority 
 would be potentially the mistress of the ocean, and by the abolition of 
 privateering that domination would be more firmly secured. Such a 
 Power engaged in a war with a nation inferior in naval strength would 
 have nothing to do for the security and protection of its commerce but to 
 look after the ships, of the regular navy of its enemy. These might be 
 held in check by one-half or less of its naval force, and the other might 
 sweep the commerce of its enemy from the ocean. Nor would the in- 
 jurious effect of a vast naval superiority to weaker States be much 
 diminished if that superiority were shared among three or four great 
 Powers. It is unquestionably the interest of such weaker States to dis- 
 countenance and resist a measure which fosters the growth of regular 
 naval establishments," ^ 
 
 Since these words were penned the wave of modern Imperialism 
 has passed over the United States^ and the creation of a powerful 
 navy, together with the acquisition i of over-sea possessions, may 
 very considerably modify the force of these views. Moreover 
 such views, however intelligible, have not, as Sir Henry Maine 
 points out, always prevailed. In the treaty with Prussia of 1785, 
 negotiated by Benjamin Franklin, it was agreed that neither 
 party should commission privateers. And subsequently President 
 Monroe had declared that it was unworthy of civilized States to 
 prey upon private property at sea. Indeed, the Government has 
 from time to time expressed its willingness to adhere to Art. i of 
 the Declaration, provided that the Powers would go one step 
 further and apply the principle of the inviolability of all private 
 property on the high seas. 
 
 In the treaty with Italy of 26 February, 1871,* it was agreed 
 that in the unfortunate event of war, the private property of their 
 respective citizens and subjects, with the exception of contraband 
 of war, should be exempt from capture or seizure on the high 
 seas or elsewhere of by the military forces of either party. This 
 exemption was not, of course, to apply to vessels and their cargoes 
 attempting to break blockade. 
 
 To this proposal to exempt private property from capture at 
 sea Great Britain is, curiously enough, the only serious opponent. 
 Our trade is the largest in the world. We are still very largely 
 both the constructors of ships and the carriers for the world. Our 
 shipping is equal to that of all the rest of the world put together. 
 Consequently we should suffer more than any other Power from 
 
 ' Maine, "Int. Law," loi. 
 
 2 U. S. Statutes at Large, Vol. XVII, 850. 
 
RIGHT OF SEARCH 321 
 
 all the dangers, interruptions, and annoyances which beset mari- 
 time carriage. Thus, in spite of our naval superiority, our trade 
 might be seriously injured, if not almost wholly checked by even 
 a weak opponent. 
 
 On the other hand, it is argued that owing to the enormous 
 growth of insurance and its cosmopolitan character, the loss would 
 be widely diffused, and so far as it fell on this country would 
 chiefly affect the well-to-do classes, unless the war was of a pro- 
 tracted nature. But even the advocates of this theory are obliged 
 to admit that if the war were very protracted, and our navy was 
 too much occupied elsewhere to protect our trade, the loss to this 
 country would be too enormous to contemplate. The losses in- 
 flicted by the "Alabama" and her sister ships are a sufficient 
 indication of the danger of a few fast light-armed privateers to 
 our numerous and widely scattered mercantile marine. 
 
 These differences of views may not be without practical em- 
 barrassment to both Powers if, unfortunately, they should be 
 brought into conflict. An English publicist writes : — 
 
 "They (the United States) retain the practice of privateering; but 
 should they avail themselves of it under the old law, they would clearly 
 not be entitled to invoke any of the provisions of the new law in their own 
 favour, and the same power might, of course, be used by their adversary. 
 So, too, as to the principle which affords to enemy's property at sea the 
 protection of the neutral flag ; the United States have acquired no right 
 to invoke it against this country. It would rest in the option of England 
 either to adhere to the old rules of maritime warfare in a war with the 
 United States or to maintain the principles of the Declaration of Paris." ^ 
 
 Lawfully Commissioned. — What constitutes a lawful com- 
 mission has occasionally given rise to great difficulties. Strictly, 
 a commission can only be granted by the Government of an 
 independent State, but a concession has been made in practice 
 by virtue of which in the case of civil war vessels sailing 
 under the flag of either of the two belligerents are held to be 
 entitled to jura belli, so that they cannot be treated as pirates by 
 the public ships of neutral Powers. For instance, after the revolt 
 of the Low Countries, not only Spain, but other Powers refused 
 to recognize the Letters of Marque issued by the Prince of 
 Orange upon the ground that he had no admiralty jurisdiction. 
 
 Upon his nomination as Admiral of the United Provinces in 
 1576, however, his Letters were recognized as binding by the 
 neutral Powers, although Spain continued for some time to treat 
 the sea-beggars as pirates. 
 
 Again, in the civil war in Mexico, the " Invincible," sailing 
 under the flag of the newly constituted Republic of Texas, in the 
 
 1 "Edinburgh Review," CCXXXIII, Art. 10. 
 
322 COMMERCE IN WAR 
 
 month of April, 1836, captured the American brig "Pocket," 
 carrying contraband for the Mexican army. She was thereupon 
 captured by the American ship of war " Warren " and brought 
 into New Orleans for condemnation as a pirate. In his report to 
 the President the Attorney-General of the United States declared 
 that— 
 
 "When a civil war breaks out in a foreign nation, 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 Govern- 
 ment, do yet recognize 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 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 
 belligisrehts makes 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 intent." 1 
 
 After the burning of Colon by the Columbian insurgents, the 
 brigantine "Ambrose Light," ^ commissioned by the rebels as a 
 Columbian ship of war, being overhauled and searched by the 
 United States gunboat "Alliance" on 3 June, 1885, for the 
 purpose of finding Preston, by whose orders Colon had been fired, 
 to the great loss and injury of 'American subjects, was seized 
 under the United States naval regulations for not carrying a 
 proper commission. 
 
 Neutral merchantmen under convoy of ships of war of 
 their own nation not exempt from visit and search. — The 
 
 claim to exemption has been a matter of controversy since 1653, 
 when Sweden, during the war between England and the United 
 Provinces, asserted that its merchantmen sailing under convoy 
 were exempt from search. Various attempts were subsequently 
 made by the United Provinces, Russia, Sweden, and Denmark to 
 introduce this principle, and the numerous treaties concluded by 
 the majority of the Powers conclusively show that prior to their 
 execution no such exemption existed at Common Law. 
 
 Great Britain has consistently maintained the older view, and 
 has instructed her naval commanders that — 
 
 " No vessel is exempt from the exercise of these powers on the ground 
 that she is under the convoy of a neutral public ship." * 
 
 1 "Opinions of the Att.-Gen. U.S.," Vol. Ill, p. 120. 
 
 2 25 Fed. Rep., 408 (1885). 
 
 3 Holland, "Admiralty Manual of Prize Law," p. 2. 
 
RIGHT OF SEARCH 323 
 
 On the other hand, France, Russia, Germany, Austria, Spain, 
 Italy, Denmark, and Sweden provide by their naval regulations 
 that the declaration of the commanding officer of the convoying 
 ship shall be accepted as a guarantee that the vessels under his 
 charge are not engaged in illicit traffic. 
 
 The decisions of the American Courts and the opinions of 
 American jurists support the English view. The question was 
 first raised in the case of the " Nancy "^ in 1796, which was a 
 neutral vessel laden with neutral cargo and captured when under 
 enemy convoy. It was there held that the presence of a convoy 
 is constructive resistance and a denial of the right of search, which 
 authorizes seizure and consequent condemnation. 
 
 In the " Elsebe " " one of the questions was whether the cargoes 
 belonging to subjects of the Hans Towns laden on board Swedish 
 vessels and sailing under Swedish convoy were liable to con- 
 demnation. It was contended on their behalf that they were not 
 involved in the penalties of Swedish resistance, which was an 
 Act of the Swedish Government and did not bind the subjects of 
 other Powers ; that the proprietors of these cargoes were not 
 privy to this fact, and that the masters of the vessels were not the 
 agents of the vessels so as to bind them. 
 
 Sir William Scott, after stating that there was in the charter 
 party an express stipulation that the ship should proceed under 
 convoy, says : — 
 
 "But I will take the case on a supposition that there was no such 
 engagement. The master associates himself with a convoy, the instruc- 
 tions of which he must be supposed to know ; he puts the goods under un- 
 lawful protection, and it must be presumed that this is done with due 
 authority from the owners and for their benefit. It is not the case of an 
 unforeseen emergency happening to the ship at sea, where the fact itself 
 proves the owners to be ignorant and innocent, and when the Court has 
 held, that being proved innocent by the very circumstances of the case, 
 they shall not be bound by the new principle of law which imposes on the 
 employer a responsibility for the acts of his agent. On the contrary, it is 
 a matter done antecedently to the voyage, and must therefore be presumed 
 to be done on communication with the owners and with their consent ; 
 and the effect of this presumption is such that it cannot be permitted to 
 be averred against, inasmuch as all the evidence must come from the 
 suspected parties themselves, without affording a possibility of meeting it, 
 however prepared. The Court has therefore thought it not unreasonable 
 to apply the strict principle of law, in a case not entitled to any favour, 
 and holds, as it does in blockade cases of that description, that the master 
 must be taken to be the authorized agent of the cargo, that he has acted 
 under powers from his employer, and that if he has exceeded his authority, 
 it is barratry, for which he is personally answerable, and for which the 
 
 1 27 C. Cls. R. 99. 
 
 2 5 Rob., 174 (1804). 
 
324 COMMERCE IN WAR 
 
 owner must look to him for indemnification. I pass over many considera- 
 tions which have been properly pressed in argument, but I cannot omit to 
 observe that this is not merely a question arising on a single act of limited 
 consequence ; it is a pretension of great extent, being nothing less than an 
 opposition to the general law of search, by which, if it could in one 
 instance be admitted, the whole provisions of the Law of Nations on that 
 head might be effectually defied ; for if this principle could be maintained 
 by an interchange of convoys the whole unlawful business might be carried 
 on with security. To put the goods of one country on board the ships of 
 another would be a complete recipe for the goods with a trifling alteration, 
 easily understood and easily practised, whilst the mischief itself would exist 
 in full force." 
 
 The American view has been expressed nowhere more clearly 
 than by Mr. Justice Story in the "Nereide,"^ which was a non- 
 commissioned armed British ship chartered by Mr. Pinto, a 
 Spaniard, for a voyage from London to Buenos Ayres and back. 
 It was a term of the charter party that the vessel should be 
 navigated at the expense of the owner and should sail under 
 British convoy. The " Nereide " sailed with her cargo (part of 
 which was the property of Pinto and part the property of British 
 subjects) under British convoy and with Pinto on board. In the 
 course of the voyage the " Nereide " became accidentally separated 
 from the convoy, and whilst endeavouring to regain it was, after 
 a vigorous but unsuccessful resistance, captured by the privateer 
 " Governor Tompkins," and brought into New York for adjudi- 
 cation. 
 
 It must be observed that Pinto took no part in the navigation 
 of the vessel, nor in the resistance at the time of the capture. 
 
 Upon these facts Mr. Justice Story asked whether Pinto, assum- 
 ing him to be a neutral, had so incorporated himself with the 
 enemy interests as to forfeit that protection which the neutral 
 character would otherwise have afforded him, ? 
 
 From the well-established rule that neutral goods on board 
 enemy ships (provided they are not contraband) are privileged, 
 it has, says the learned judge, been attempted to be inferred that 
 "no distinction can exist, whether the ship be armed or unarmed, 
 or be captured with or without resistance." Such an inference 
 cannot be drawn from the mere silence of the jurists upon this 
 point. The question must be determined "upon a just applica- 
 tion of the principles which regulate neutral as well as belligerent 
 rights and duties." 
 
 " It is a clear maxim," proceeds Mr. Justice Story, " of National Law 
 that a neutral is bound to a perfect impartiality as to all the belligerents. 
 If he incorporate himself into the measures or policy of either ; if he become 
 
 ' 9/Sranch, pp. 436-448. 
 
RIGHT OF SEARCH 325 
 
 auxiliary to the enterprises or acts of either, he forfeits his neutral charac- 
 ter — nor is this all. In relation to his commerce he is bound to submit to 
 the belligerent right of search, and he cannot lawfully adopt any measures 
 whose direct object is to withdraw that commerce from the most liberal and 
 accurate search without the application on the part of the belligerent of 
 superior force. If he resist this exercise of lawful right, or if with a view 
 to resist it he take the protection of an armed neutral convoy, he is treated 
 as an enemy and his property is confiscated. Nor is it at all material 
 whether the resistance be direct or constructive. The resistance of the 
 convoy is the resistance of all the ships associated under the common pro- 
 tection, without any distinction whether the convoy belong to the same or 
 a foreign neutral sovereign — for upon the principles of natural justice a 
 neutral is justly chargeable with the acts of the party which he voluntarily 
 adopts or of which he seeks the shelter and protection. Qui sentit com- 
 modunt sentire debet et onus — ^these principles are recognized in the 
 memorable cases of the ' Maria '^ and the 'Elsebe,'^ and can never be 
 shaken without delivering over to endless controversy and conflict the 
 maritime rights of the world." 
 
 The learned judge then deals with the argument that although 
 resistance by a neutral convoy is unlawful and may incriminate 
 the whole of the associated ships, yet since resistance by a belli- 
 gerent convoy is lawful a forfeiture cannot flow from an act which 
 is strictly justifiable. 
 
 " The fallacy of the argument," answers the learned judge, " consists in 
 assuming the very ground in controversy, and in confounding things in 
 their nature entirely distinct. An act perfectly lawful in a belligerent 
 may be flagrantly wrongful in a neutral. A belligerent may lawfully resist 
 search j a neutral is bound to submit to it. A belligerent may carry on 
 his commerce by force ; a neutral cannot. A belligerent may capture the 
 property of his enemy on the ocean ; a neutral has no authority whatever 
 to make captures. The same act, therefore, that with reference to the 
 rights and duties of the one may be tortious, may with reference to the 
 rights and duties of the other be perfectly justifiable. The act then, as to 
 its character, is to be judged of, not merely by that of the parties, through 
 whose immediate instrumentality it is done ; but also by the character of 
 those who, having co-operated in, assented to or sought protection from 
 it, would yet withdraw themselves from the penalty of the act. It is 
 analogous to the case at Common Law where an act justifiable in one 
 party does not from that fact alone shelter his coadjutor. They must 
 stand or fall upon their own merits. It would be strange indeed, if 
 because a belligerent may resist search a neutral may co-operate to make 
 it effectual. It is therefore an assumption utterly inadmissible that a 
 neutral can avail himself of the lawful act of the enemy to protect himself 
 in an evasion of a clear belligerent right. 
 
 "And what reason can there be for the distinction contended for? 
 Why is the resistance of the convoy deemed the resistance of the whole 
 neutral associated ships, let them belong to whom they may ? It is not 
 that there is a direct and immediate co-operation in the resistance, because 
 
 ^ I Rob., 340. 2 5 Rob., 173. 
 
526 COMMERCE IN WAR 
 
 the case supposes the contrary. It is not that the resistance of the convoy 
 of the sovereign is deemed an act to which all his subjects consent, because 
 the ships of foreign subjects would then be exempted. It is because there 
 is a constructive resistance resulting in law from the common association 
 and voluntary protection against search under a full knowledge of the in- 
 tention of the convoy. Then the principle applies as well to a belligerent 
 as to a neutral convoy ? For it is manifest that the belligerent will at all 
 events resist search; and it is quite as manifest that the neutral seeks 
 belligerent protection with an intent to evade it. Is it that an evasion of 
 search, by the employment of protection or terror of force, is inconsistent 
 with neutral duties.' Then a fortiori the principle applies to a case of 
 belligerent convoy, for the resistance must be presumed to be more 
 obstinant and the search more perilous. 
 
 " There can be but little doubt that it is upon the latter principles that 
 the penalty of confiscation is applied to neutrals. The law proceeds yet 
 farther, and deems the sailing under convoy as an act per se inconsistent 
 with neutrality, as a premeditated attempt to oppose, if practicable, the 
 right of search, and therefore attributes to such preliminary act the full 
 effect of actual resistance. In this respect it applies a rule analogous to 
 that in eases of blockade when the act of sailing with an intent to break a 
 blockade is deemed a sufficient breach to authorize confiscation. And 
 Sir W. Scott manifestly recognizes the correctness of this doctrine in the. 
 ' Maria,' although the circumstances of that case did not require its 
 vigorous application. 
 
 " Indeed, in relation to a neutral convoy, the evidence of an intent to 
 resist as well as of constructive resistance is far more equivocal than in 
 case of a belligerent convoy. In the latter case it is necessarily known to 
 the convoyed ships that the belligerent is bound to resist, and will resist 
 until overcome by superior force. It is impossible, therefore, to join such 
 convoy without an intention to receive the protection of belligerent force 
 in such manner and under such circumstances as the belligerent may 
 choose to apply it. It is an adoption of his acts and an assistance of his 
 interests during the assumed voyage. To render the convoy effectual pro- 
 tection it is necessary to interchange signals and instructions, to com- 
 municate information and to watch the approach of every enemy. The 
 neutral solicitously aids and co-operates in all these important transactions^ 
 and thus far manifestly sides with the belligerent, and performs, as to him, 
 a meritorious service — a service little reconcilable with neutral duties, as 
 the agency of a spy, or the friend of a bearer of hostile despatches. In 
 respect to a neutral convoy the inference of constructive co-operation and 
 hostility is far less certain and direct. To condemn in such case is push- 
 ing the doctrine to a great extent, since it is acting upon the presumption 
 which is not permitted to be contradicted, that all the convoyed ships 
 distinctly understood and adopted the objects of the convoy and intimately 
 blended their own interests with hostile assistance. 
 
 " And this doctriiie," continues the learned judge, " seems conformable 
 to the sense of other European sovereigns. In Sie recent cases of the 
 American ships captured while under British convoy by the Danes, the 
 right of condemnation was not only asserted and enforced by the highest 
 
RIGHT OF SEARCH 327 
 
 tribunal of prize, but expressly affirmed by the Danish sovereign after an 
 earnest appeal made by the Government of the United States. On that 
 occasion the Danish Minister pressed the argument 'that he who causes 
 himself to be protected by that act (i.e. enemy convoy) ranges himself on 
 the side of the protector, and thus puts himself in opposition to the enemy 
 of the protector, and evidently renounces the advantages attached to the 
 character of a friend to him against whom he seeks the protection. If 
 Denmark should abandon this principle, the navigators of all nations 
 would find their account in carrying on the commerce of Great Britain 
 under the protection of English ships of war without any risk," and he 
 further declared that none of the Powers in Europe have called in question 
 the justice of this principle.^ To the argument that a party, neutral as to 
 one Power and an enemy as to another Power, may lawfully place himself 
 under belligerent convoy in order to escape from his own enemy, the 
 learned judge answers that in such a predicament it is always open to the 
 neutral to explain his conduct in taking convoy, and to show by proofs his 
 innocent intentions as to all friendly belligerents, but that such a state of 
 facts would not, in his judgment, remove a single difficulty. 
 
 " It is not," he argues, " in relation to enemies that the question as to 
 taking convoy can ever arise. It has reference only to the rights of 
 friendly belligerents ; and these rights remain precisely the same whatever 
 may be the peculiar situation of the neutral as to third parties. Was it 
 ever heard of that a neutral might lawfully resist the right of search of one 
 Power because he was at war with another? And is not the evasion of 
 this right just as injurious whether the neutral be at peace with all the 
 world or with a part only ? 
 
 "There would be extreme difficulty in establishing by any disinterested 
 testimony the fact of any such special intentions as the argument supposes. 
 Independent of this difficulty, it would, in effect, be an attempt to repel by 
 positive testimony a conclusive inference of law flowing from the very act 
 of taking convoy. The belligerent convoy is bound to resist all visitations 
 by enemy ships, whether neutral to the convoyed ships or not. This 
 obligation is distinctly known to the party taking its protection. If, there- 
 fore, he choose to continue under convoy, he shows an intention to avail 
 himself of its protection under all the chances and hazards of war. The 
 abandonment of such intention cannot be otherwise evidenced than by the 
 overt act of quitting convoy. And it is impossible to conceive that the 
 mere secret wishes or private declarations of a party could prevail over his 
 own deliberate act of continuing under convoy, unless courts of prize 
 v/ould surrender themselves to the most stale excuses and imbecile artifices. 
 It would be vain to administer justice in such courts if mere statements of 
 intentions would outweigh the legal effects of the acts of the parties. 
 Besides, the injury to the friendly belligerent is equally great whatever 
 might be the special objects of the neutral. The right of search is 
 effectually prevented by the presence of superior force or exercised only 
 after the perils and injuries of victorious warfare. And it is this very 
 evasion of the right of search that constitutes the ground of condemnation 
 in ordinary cases. The neutral, in effect, declares he will not submit to 
 search until the enemy convoy is conquered, and then only because he 
 cannot avoid it. The special intention of the neutral then could not, if 
 
 ' U.S. State Papers, 1811, p. 527. 
 
328 COMMERCE IN WAR 
 
 proved, upon principle prevail, and it has not a shadow of authority to 
 sustain it. The argument upon this point was urged in the 'Maria' and 
 ' Elsebe,' and was instantly repelled by the court." 
 
 The learned judge therefore held upon this point — 
 
 " That the act of sailing under belligerent or neutral convoy is of itself 
 a violation of neutrality, and the ship and cargo if caught in delicto are 
 justly confiscable ; and, further, that if resistance be necessary — as, in his 
 opinion, it is not — to perfect the offence, still that the resistance of the 
 convoy is to all purposes the resistance of the associated fleet. 
 
 " It might with as much propriety," he added, " be maintained that 
 neutral goods, guarded by a hostile army in their passage through a 
 country, or voluntarily lodged in a hostile fortress for the avowed purpose 
 of evading the municipal rights and regulations of that country, should not 
 in case of capture be lawful plunder (a pretension never yet asserted) as 
 that neutral property on the ocean should enjoy the double protection of 
 war and peace." 
 
 To the argument that a belligerent ship has an undoubted right 
 to take the protection of the convoy of the nation to w^hich she 
 belongs, and that this extends a perfect and lawful immunity to 
 the neutral cargo on board, the learned judge answers that — 
 
 " It is not true that a neutral can shelter his property from confiscation 
 behind an act lawful in a belligerent. The law imputes to the neutral the 
 consequences of the act, if he might have foreseen and guarded against it, 
 or if he voluntarily adopts it. Was it ever supposed that a neutral cargo 
 was protected from seizure by going in a belligerent ship to a blockaded 
 port? or that contraband goods belonging to a neutral were exempted 
 from confiscation because on board of such a ship bound on a voyage 
 lawful to the belligerent but not to the neutral ? Yet the pretensions in 
 those cases seem scarcely more extravagant than that now urged. Why 
 should a neutral be permitted to do that indirectly which he is prohibited 
 from doing directly? Why should he aid the enemy by giving extra- 
 ordinary freight for belligerent ships sailing under belligerent convoy with 
 the avowed intention of escaping from search, and often with the concealed 
 intention of aiding belligerent commerce, and yet claim the benefits of the 
 most impartial conduct ? Until some more solid ground can be laid for 
 the distinction than the ingenuity of counsel has yet suggested, it would 
 seem fit to declare ita lex non scripta est." 
 
 Directions to resist visitation. — A direction to resist 
 visitation and search given by the sovereign of the neutral State 
 to the commanders of his vessels, whether armed or unarmed, 
 whether under convoy or not, affords no protection against the 
 penalties provided by International Law for unlawful resistance to 
 visitation and search. 
 
 In the " Maria," ^ one of the first Swedish convoy cases, Sir 
 William Scott clearly laid it down that the authority of the 
 
 1 " Maria," i Rob., 340 ; " Elsebe," 4 Rob., 408. 
 
RIGHT OF SEARCH 329 
 
 sovereign of the neutral country being interposed in any manner 
 of force cannot legally vary the rights of a lawfully-commissioned 
 belligerent cruiser. 
 
 Two sovereigns may unquestionably agree by special covenants 
 that the presence of one of their armed ships along with their 
 merchant ships shall be mutually understood to imply that nothing 
 is to be found in that convoy inconsistent with amity or neutrality ; 
 and if they consent to accept this pledge, no third party has a 
 right to quarrel with it, but no sovereign can legally compel the 
 acceptance of such a security by force. 
 
 Apart from such a covenant, the only security known to the 
 Law of Nations is the right of personal visitation and search to 
 be exercised by those who have the interest in making it. 
 Another instance is the statute of 25 June, 1798, passed by the 
 United States Legislature authorizing the commanders and crews 
 of merchant vessels "to oppose and defend against any search, 
 restraint or seizure, which shall be attempted upon such vessels " 
 by the commander or crew of any armed vessel sailing under 
 French colours. 
 
 In the case of the " Nancy," ^ which was tried shortly afterwards, 
 it was argued that this statute authorized resistance by United 
 States merchantmen to French visitation and search, but it was 
 there held that " no single State can change the Law of Nations 
 by its municipal regulations." 
 
 Hautefeuille is entirely opposed to the English view, which, he 
 says, is founded upon a false basis. The right of visit is, he con- 
 tends, a creation of conventional law. He admits that Wheaton 
 supports the English view, but he considers that he does not 
 represent American opinion. " La plupart des publicistes," he 
 says, " ont adopts la doctrine du droit secondaire ; ils regardent 
 que le privilege du pavilion d'un bitiment de guerre ou d'etat 
 neutre s'dtend au navires convoyds, et que I'afifirmation de I'ofificier 
 commandant suffit, et fait preuve complete de la nationality des 
 navires aussi que de I'innocuit^ de leur chargements."^ 
 
 Ortolan, however, merely states the substance of the English 
 and American decisions, without expressly stating his own 
 opinion.' He does, however, indicate his own view in the follow- 
 ing passage : — 
 
 "Nous croyons, conform^ment k I'opinion de plusieurs auteurs eminents, 
 que rimmunit6 d'un navire de guerre, en ce qui concerne la visite, se com- 
 munique a bon droit aux b^timents de commerce de sa nation, naviguant 
 
 1 27 Court of Claims, 99; see also "The Ship 'Rose' v. United States," 36 C. of 
 CI., 291. 
 
 2 Des Nations Neutres, liv. XI, ch. ni, sec. 2. 
 8 "Diplomatie de la Mer," Vol. Ill, ch. vn. 
 
330 COMMERCE IN WAR 
 
 sous son escorte et sous sa protection. Verifier la neutrality des navires, 
 s'assurer qu'ils n'ont k bord aucune contrebande de guerre et lorsque Ton 
 suit le principe ' le pavilion ne couvre pas la marchandise,' reconnaitre 
 s'ils ne portent pas de marchandises ennemis — tels sonts les droits incon- 
 testables des bellig^rants," 
 
 Right of search limited to duration of the war. — In the 
 suppression of the slave trade by Great Britain and other 
 countries, the restriction of the right of visit to time of war caused 
 much inconvenience, and Great Britain, as we have seen, attempted 
 to set up a distinction between the right of visit and the right 
 of search. It was argued that the right of visit might be 
 exercised in time of peace so far as to ascertain the nationality 
 of the vessel suspected of carrying on this inhuman trade. This 
 right was claimed as late as 1841, when Lord Aberdeen, in a 
 despatch to the American minister, asserted the right to visit 
 vessels suspected of being engaged in the slave trade, but this 
 claim was abandoned in 1858, when it was declared in the House 
 of Lords that — 
 
 " On receiving the unanimous opinion of the law officers of the Crown, 
 Her Majesty's Government at once acted, and we frankly confessed that 
 we had no legal claim to the right of visit and of search which has hitherto 
 been assumed." 
 
 Why, in face of Sir William Scott's judgment in 1817, such a 
 claim should ever have been assumed is very remarkable. 
 
 In his exhaustive judgment, Sir William declared that this 
 exemption rested upon two fundamental principles of public law. 
 First, the principle of the perfect equality and entire independence 
 of all distinct States ; secondly, that all nations being equal, all 
 have an equal right to the uninterrupted use of the unappropriated 
 parts of the ocean for this navigation. He could, he continued, 
 find no authority giving the right of interruption to the navigation 
 of States in amity upon the high seas, excepting that which the 
 rights of war gave to both belligerents against neutrals. A 
 desirable end must not be accomplished by unlawful means. 
 
 " To press forward to a great principle by breaking through every other 
 great principle that stands in the way of its establishment ; to force the 
 way to the liberation of Africa by trampling on the independence of other 
 States in Europe ; in short, to procure an eminent good by means that are 
 unlawful is as little consonant to private morality as to public justice. 
 Obtain the concurrence of other nations, if you can, by application, by 
 remonstrance, by example, by every procurable instrument which man can 
 employ to attract the consent of man. But a nation is not justified in 
 assuming rights that do not belong to her, merely because she means to 
 apply them to a laudable purpose; nor in setting out upon a moral 
 crusade of converting other nations by acts of unlawful force. Nor is it 
 
RIGHT OF SEARCH 331 
 
 to be argued that because other nations approve the ultimate purpose, 
 they must therefore submit to every measure which any one State or its 
 subjects may inconsiderately adopt for its attainment." ^ 
 
 Exception to right of visitation and search. — Where a 
 belligerent cruiser grossly abuses its power, resistance in self- 
 defence may lawfully be made by a neutral ship. 
 
 " How stands it," asked Sir William Scott in the " Maria," ^ « by the 
 general law ? " 
 
 " I don't say," he answered, " that cases may not occur in which a ship 
 may be authorized by the natural rights of self-preservation to defend 
 itself against extreme violence threatened by a cruiser grossly abusing his 
 commission ; but where the utmost injury threatened is the being carried 
 in for inquiry into the nearest port, subject to a full responsibility in costs 
 and damages if this is done vexatiously and without just cause, a merchant 
 vessel has not a right to say for itself (and an armed vessel has not 
 a right to say for it), ' I will submit to no such inquiry, but I will 
 take the law into my own hands by force.' What is to be the issue if 
 each neutral vessel has a right to judge for itself in the first instance 
 whether it is rightly detained, and to act upon that judgment to the 
 extent of using force ? Surely nothing but battle and bloodshed as often 
 as there is anything like an equality of force or an equality of spirit. For 
 how often will the case occur in which a neutral vessel will judge itself to 
 be rightly detained ? " 
 
 Right of visitation and search limited by treaty : con- 
 voy. — That the right of visitation and search belongs to every 
 belligerent by International Law, and cannot be varied by the 
 interposition of any municipal law of any neutral Power, is incon- 
 testable. But there is nothing to prevent two or more Powers 
 agreeing between themselves that in case one shall be at war, the 
 presence of the ships of war of the other along with their merchant- 
 men shall be mutually understood to imply that nothing is to be 
 found in that convoy of merchantmen inconsistent with amity or 
 neutrality. Or if the mere presence is not considered a sufficient 
 guarantee, that the word of the commander of the neutral ships of 
 war shall be accepted as a pledge of right conduct. 
 
 By Art. XX of a treaty of peace between Oliver Cromwell and 
 the United Provinces, in 1652, it was provided that the ships of 
 war of either State should take into their protection and under 
 convoy all ships belonging to the other State as long as they 
 steered the same course,^ 
 
 In the war between England and Holland in 1653, Queen 
 Christina of Sweden instructed the commanders of her merchant 
 vessels to take every advantage of convoy, and ordered such 
 convoying ship to resist by force every attempt on the part of 
 
 1 " Le Louis," 2 Dod. at pp. 243-257. 
 
 2 I Rob., pp. 373-4. ^ " Sea Laws," 3rd ed., p. 541. 
 
332 COMMERCE IN WAR 
 
 belligerents to visit the merchantmen under their protection. This 
 ordinance, however, was never put into operation, as the war was 
 of too short a duration. 
 
 The treaty with Cromwell probably explains the contention of 
 Holland, in the succeeding war between Great Britain and Spain, 
 that her merchant vessels under convoy were exempt from visita- 
 tion. At any rate, an English squadron contented itself with the 
 bare word of De Ruyter, that the vessels under his convoy con- 
 veyed nothing belonging to the King of Spain. But whenever 
 she was a belligerent, Holland claimed the right to visit merchant 
 vessels under neutral convoy, although she supported the action 
 of Captain Deval in 1 762, and of Admiral De Byland in 1 780, in 
 forcibly resisting the attempt of English men-of-war to visit 
 merchant vessels under their convoy. 
 
 No reference to this exemption was made in the Armed 
 Neutrality of 1780, although in 1781 the Swedish man-of-war, 
 "Wasa," resisted the attempt of a British cruiser to visit a 
 merchantman under her protection. Thus attention was once 
 more drawn to this question. By Art. X of the treaty between 
 the United States and the States General it was agreed that the 
 ship's papers of vessels under convoy should not be demanded, 
 but that the word of the officer commanding the convoy should be 
 deemed sufficient.^ 
 
 Similar stipulations were contained in Art. XVI H of the treaty 
 between Russia and Denmark of 1782^; in Art. XII of the 
 treaty between the United States and Sweden of 1783^; in 
 Art. XIV of the treaty between the United States and Prussia 
 of 1785*; in Art. XXXI of the treaty between France and 
 Russia of 1 787 * ; in Art. XX of the treaty between Russia and 
 the Two Sicilies of 1787*; in Art. IV of the treaty between the 
 United States and Morocco of 1787 ^; in Art. XXV of the treaty 
 between Russia and Portugal of 1787^; in Art. V of the treaty 
 between the United States and Tunis of 1797'; in Art. XIX of 
 the treaty between the United States and France of 1800^"; and 
 more particularly in the convention of the Armed Neutrality of 
 1800. 
 
 Thus by the end of the eighteenth century the principle of 
 exemption had been recognized by all the principal maritime 
 powers except Great Britain, who, in fact, always protested 
 against the claim. In 1798, for instance, a fleet of Swedish 
 merchant vessels, sailing under convoy of a man-of-war, was 
 
 ^ De Martens, "Rec," III. 437. « Ibid., 475. ^ /^^v/., 571. 
 
 ♦ Ibid., IV. 43, renewed in 1799. ^ Ibid., 212. » Ibid., 238. 
 
 ' Ibid., 249. ' Ibid., 328, renewed in 1738. 
 
 9 U.S. Statutes at Large, Vol. VIII, 157. 10 Ibid., 178. 
 
RIGHT OF SEARCH 333 
 
 seized on resistance being made, and the captured vessels con- 
 demned by the English prize court. ^ 
 
 In the spring of 1800, a Danish frigate, convoying merchant- 
 men, resisted the search of some British frigates near Gibraltar, 
 which led to diplomatic correspondence between the two Powers. 
 Count BernstorflF contended that the right of search was merely 
 conventional, and thus could not be extended without express 
 agreement. Great Britain replied that the right of search was a 
 natural right, and the fact that stipulations were included in 
 numerous treaties since 1780 supported the validity of the old 
 rule, and proved the novelty of the exemption and its want of 
 legality. 
 
 Abandoning this line of argument. Count Bernstorff then main- 
 tained that the right of search was based upon the necessity of 
 ascertaining the nationality of merchant vessels, and of examining 
 their papers ; that if the latter were found in order no further 
 search could lawfully take place, and that consequently it was the 
 authority of the Government, in whose name the documents were 
 signed, which secured to a belligerent the required assurances. 
 Now a neutral Government, in causing her vessels to convoy 
 merchant vessels, offers to belligerents a much more positive and 
 authentic guarantee than that which is usually taken as sufficient 
 evidence — suspicion of fraud could not attach without injurious 
 reflection on the neutral Power. ^ 
 
 Shortly after this correspondence occurred the affair of the 
 "Freya," a Danish frigate in charge of six merchant vessels, which 
 was met in the Channel by six British cruisers. A demand for 
 search was refused, and after the exchange of shots a short action 
 ensued, in which the Danish frigate surrendered, and with the 
 convoy was carried as prize to the Downs. 
 
 By the treaty of 29 August, 1800, a compromise was arrived 
 at. The right to exemption was left for future discussion, and 
 meanwhile the King of Denmark agreed to suspend his convoys. 
 The Danish vessels were released, and the " Freya " repaired. 
 Meanwhile the convention of the Second Armed Neutrality of 
 ^ August, 1800, had been signed, whereby it was agreed that 
 the declaration of the officer commanding a convoy that the 
 merchantmen under his protection had no contraband on board 
 should suffice to prevent any visit taking place either to his ship 
 or to the ships convoyed. This convention was ratified by Sweden, 
 Denmark, and Prussia before the end of the year. 
 
 Upon the assassination of the Emperor Paul, amicable rela- 
 tions were renewed between Great Britain and Russia, and by 
 
 » The " Maria," i Rob., 340 ; ante, p. 328. 
 2 Manning, "Law of Nations," pp. 441-3- 
 
334 COMMERCE IN WAR 
 
 the treaty of 17 June, 1801,^ in return for the abandonment by 
 Russia of the principle that "free bottoms make free goods," 
 Great Britain recognized the principle that the presence of ships 
 of war should exempt merchant vessels under their protection 
 from visitation and search. 
 
 The following are the stipulations : — 
 
 " Art. I. That the right of visiting merchant vessels belonging to "the 
 subjects of one of the contracting Powers and sailing under the convoy of 
 a ship of war of the said Power, shall only be exercised by the ships of war 
 of the belligerent party, and shall never be extended to privateers, cruisers, 
 or other vessels not belonging to the Imperial or Royal Navy of their 
 majesties, but equipped by their subjects, 
 
 " Art. II. That the proprietors of all merchant vessels belonging to the 
 subjects of one of the contracting parties and intended to sail under the 
 convoy of a ship of war, shall be obliged, before they receive their sailing 
 orders, to produce to the commander of the convoy their passports and 
 certificates or sea-letters, in the form annexed to the present treaty. 
 
 " Art. III. That when such ship of war, having merchant vessels under 
 convoy, shall be met by a ship or ships of war of the other contracting 
 party, being then in a state of war, to avoid all disorder the ships shall 
 remain beyond cannon-shot distance, unless the state of the sea or the 
 place of meeting render a nearer approach necessary; and the commander 
 of the ships of the belligerent party shall send a boat to board the ship of 
 the convoy, when there shall take place a mutual verification of papers and 
 passports, which ought to state, on the one side, that the neutral ship of 
 war is authorized to take under her escort such and such merchant vessels 
 of her nation, laden with a specified cargo and proceeding to a specified 
 port; and on the other hand stating that the ship of war of the belligerent 
 belongs to the Imperial or Royal Navy of their majesties. 
 
 " Art. IV. This examination having been made, no further search shall 
 take place if the papers are found to be regular and if there exists no valid 
 ground for suspicion. In the contrary case, the commander of the neutral 
 ship of war, having been duly required to do so by the commander of 
 the ship or ships of the belligerent, shall bring to and detain his convoy 
 during the time necessary for the search of the vessels which compose it ; 
 and he shall have the power of naming and delegating one or more officers 
 to assist in the search of the merchant vessels, which search shall take 
 place in their presence on board such merchant ship conjointly with one 
 or more officers appointed by the commander of the ship of war of the 
 belligerent Power. 
 
 " Art. V. Should it happen that the commander of the belligerent ship 
 of war, having examined the papers found on board, and having ques- 
 tioned the master and crew of the vessel, shall perceive just and sufficient 
 reasons for detaining a merchant ship, in order to proceed to a further 
 examination, he shall notify this intention to the officer in command of 
 the convoy, who shall have the power of ordering an officer to remain on 
 board the vessel so detained and assist in the examination of the cause of 
 
 1 De Martens, " Rec," VII, 260. 
 
RIGHT OF SEARCH 335 
 
 her detention. The merchant vessel shall be immediately conducted to 
 the nearest and most convenient port belonging to the belligerent party ; 
 and the further examination shall take place with all the despatch 
 possible." 
 
 By Art. VI it was agreed that if any vessel under convoy be 
 detained unduly, the commander of the belligerent should be 
 obliged not only to recompense the proprietors of the ship and 
 cargo for all loss, charges, damages, and expenses, but also should 
 be Jiable to punishment for any act of violence or fraud. On the 
 other hand, the convoying ship was not, on any pretext whatever, 
 to oppose by force the detention of any suspected vessel by the 
 belligerent, although this obligation did not extend to the conduct 
 of a ship of convoy towards a privateer. 
 
 The convention was acceded to by Denmark^ and Sweden.^ 
 It was annulled in 1807. 
 
 Since the peace of 1815 the exemption from search of ships 
 under convoy has, except in the case of Great Britain, usually 
 been provided for by treaty. 
 
 France. — By her treaty with Peru of 9 March, 1861, it was 
 provided that a vessel under the convoy of an armed public ship 
 of the neutral State should not be subject to visitation if the 
 commander of the convoy verbally gave his word of honour that 
 she belonged to his country, and if destined to a hostile port 
 carried no contraband or property of the other belligerent, and 
 was not engaged in illicit intercourse.* 
 
 German Empire. — By the regulations issued to the German 
 navy, and contained in the Prussian Royal Decree of 20 June, 
 1864, neutral vessels under convoy of neutral men-of-war are not 
 to be subjected to visitation, and the declaration of the commander 
 of the convoy that the papers of the convoyed vessels are in 
 order, and that there is no contraband on board, is to be 
 accepted.* 
 
 United States. — In the case of the United States, both 
 before and after the peace, this exemption is generally to be found 
 in her treaties with the Powers, The simple declaration of the 
 officer commanding the convoy that the vessels under his protec- 
 tion belong to the nation whose flag he carries, and that when 
 bound to an enemy's port they carry no contraband, is deemed 
 sufficient. 
 
 Such stipulations are contained in the treaty with Sweden of 
 
 1 De Martens, "Rec," VII, 273. 
 
 2 Ibid., 276. 
 
 3 De Clerq, 20t, Art. XXIII. 
 
 * " Rev. de Droit Int.," X, 238. 
 
336 COMMERCE IN WAR 
 
 3 April, 1 783 ^ ; in the treaty with France of 30 September, 
 1800"; in the treaty with Columbia of 3 October, 1824; in the 
 treaty with Brazil of 12 December, 1828; in the treaty with 
 Mexico of 5 April, 1831 ; in the treaty with Chile of 16 May, 
 1832; in the treaty with the Peru-Bolivian Confederacy of 
 13 November, 1836 ; in the treaty with Venezuela of 20 January, 
 1836; in the treaty with Ecuador of 13 June, 1839*; in the 
 treaty with New Granada of 12 December, 1846*; in the treaty 
 with Guatemala of 3 March, 1849*; in the treaty with Peru of 
 26 July, 1851^; in the treaty with San Salvador of 2 January, 
 1850^ ; in the treaty with Bolivia of 13 May, 1858.^ 
 
 In the treaty with Venezuela of 27 August, i860, in addition 
 to the usual agreement that the verbal declaration of the com- 
 mander of the convoy should suffice, both parties agreed not to 
 admit under the protection of their convoys, ships which should 
 have on board contraband goods destined to an enemy.* In the 
 case of the slave trade in the treaty with Great Britain of 
 7 April, 1862, it was provided by Art. II, 3, that if any merchant 
 vessel under convoy should be suspected of carrying slaves, the 
 commander of the cruiser of the other Power should communicate 
 his suspicions to the commander of the convoy, and the two 
 commanders should make a joint visit and search, and if the sus- 
 picions appeared well founded, the suspected vessel should be 
 sent in for adjudication to the nearest mixed court. ^^ 
 
 In the treaty with the Dominican Republic of 8 February, 
 1867," the provision is precisely similar to that in the treaty with 
 Venezuela. 
 
 By the convention with Great Britain of 3 June, 1870," the 
 provisions of 1862 relating to mixed courts were annulled. The 
 usual provision only appears in the treaties with Italy of 
 26 February, 1871,^^ with the Republic of Peru of 6 September, 
 1870," and with the Republic of Salvador of 6 December, 1870." 
 
 Russia. — It has been seen how by her treaty of 5 June, 1801, 
 with Great Britain, Russia abandoned, so far as this Power was 
 concerned, her pretension to resist the exercise of the belligerent 
 right of search of merchant vessels under convoy, although this 
 abandonment was modified inasmuch as this right was limited to 
 public ships of war, and was prohibited to privateers. 
 
 In her numerous treaties with other States — for instance, with 
 
 1 De Martens, " Rec," VII, 52. 2 Ibid., 484. 
 
 3 See also Statutes at Large, U.S.A., Vol. VIII, 188, 316, 395, 420, 438, 478, 495, 544. 
 
 4 Ibid., Vol. IX, 893. 6 Ibid., Vol. X, 12. « Ibid., 42. 
 
 ' Ibid., 76. 8 Ibid., Vol. XII, 303. " Ibid., Vol. XII, 217. 
 
 w Ibid., 280. " Ibid., Vol. XV, 484. ^ Ibid., Vol. XVI, 777. 
 
 13 Ibid., Vol. XVII, 854. " Ibid., XVIII, 710. 16 Ibid., 736. 
 
RIGHT OF SEARCH 337 
 
 France and Portugal in 1787 — the same formalities of visit and 
 search have been uniformly stipulated. In the case of vessels 
 without a convoy, ships of war are not to approach merchant 
 vessels nearer than half a cannon's shot, and not more than two or 
 three men are to go on board to examine the passports and sea- 
 letters which disclose the property in the cargoes. And for the 
 better prevention of mistakes there are reciprocal undertakings to 
 transmit copies of the formal parts of such documents. 
 
 In the case of vessels under convoy of one or more ships of war, 
 the mere declaration of the officer in command that there is no 
 contraband on board the vessels is to be accepted as sufficient, 
 and the vessels are to be allowed to continue their course.^ 
 
 Italy. — By Art. 218 of the Mercantile Marine Code, neutral 
 vessels under convoy of ships of war are free from the exercise of 
 the rig^t of visit. The declaration of the commander of the visit- 
 ing cruiser is sufficient to authenticate the flag and the nature of 
 the cargo of the ships under convoy.* 
 
 1 "Rev. de Droit. Irif.,'' Vol. X, 614-615. 
 
 2 Raikes" "Maritime Codes of Italy," 180. 
 
CHAPTER VI 
 FORMALITIES OF VISIT AND SEARCH 
 
 THE right of visit and search has been recognized in nu- 
 merous treaties, and the formalities to be observed have 
 been frequently described. 
 
 The approach. — In the majority of the older treaties it is 
 provided that the visiting ship shall remain beyond cannon shot; 
 in others, at cannon shot ; whilst some permit approach to within 
 half a cannon shot. " One can see at once," says Ortolan, " that 
 these clauses have not been drawn by sailors. There are circum- 
 stances depending on the state of the wind and the sea in which it 
 would be unpardonable for a commander to risk a boat and its 
 complement of men for such a distance as a cannon shot, and still 
 more for a greater distance."^ 
 
 It is, however, quite as probable that this rule of a cannon shot 
 or more was fixed in the early times of artillery, when guns were 
 of a very short range. 
 
 To-day the general rule, as expressed by treaty, is that the 
 visiting ship shall approach not nearer than a cannon shot, and 
 shall send a boat with not more than two persons besides the 
 boat's crew, which two persons shall go on board and inspect the 
 ship's papers, of which the form is usually settled by the treaty. 
 
 It was alleged in the " Marianna Flora," ^ that by the law of 
 nations and the recognized custom of every maritime nation on 
 the continent of Europe that the visiting ship was bound to show 
 her national flag and to affirm it by firing a gun. To fly the flag 
 merely was not sufficient. As Azuni says, " The fear of meeting 
 with a pirate and being the dupe of deceitful appearances is the 
 reason why no credit is given to the flag of a vessel, though a 
 ship of war."* 
 
 This ceremony, called the semonce, coup de canon d' assurance, 
 or affirming gun, was no doubt the general practice in former 
 days.* 
 
 Lampredi, indeed, is of opinion that it is no longer a matter of 
 mere conventional law, but may be regarded as an established 
 
 ' Liv. Ill, c. vn. 2 II Wheat, i (1826). 
 
 3 2 Azuni, 304, 602, c. 3, sec. 3. « Hautefeuille, Liv. Ill, xi, 515. 
 
FORMALITIES OF VISIT AND SEARCH 339 
 
 usage, that after the flag of a belligerent cruiser has been hoisted 
 as a signal for a merchant vessel to shorten sail, it must be im- 
 mediately affirmed by a gun fired with blank cartridge, and that 
 the cruiser must not approach near enough to cause any appre- 
 hension of other than peaceful intentions on its part.^ 
 
 In delivering the judgment of the court in the " Marianna 
 Flora,"* Story J. declined to accept this as a universal rule. 
 
 " We are not disposed to admit," he observed, " that there exists any 
 such universal rule or obligation of an affirming gun as has been suggested 
 at the Bar. It may be the law of the maritime States of the European 
 continent already alluded to, founded in their own usages or positive 
 regulations. But it does not hence follow that it is binding upon all other 
 nations. It was admitted at the argument that the English practice is 
 otherwise; and surely, as a maritime Power, England deserves to be 
 listened to with as much respect, on such a point, as any other nation." 
 
 The States referred to in the argument were those of Spain and 
 Portugal. But although this ceremony is not considered to be a 
 rule of international law by the English or American courts, and 
 is not the municipal law in either of those countries, yet it appears 
 to be the usual custom in practice. 
 
 " The usual mode," says Halleck, " 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 It is undoubtedly the 
 duty of the neutral to obey such a summons ; but there is no positive 
 obligation on the belligerent to fire such an affirming gun ; for its use is 
 by no means universal. Moreover, any other method, as hailing by 
 signals, etc., of summoning a neutral to submit to an examination may be 
 equally as effective and binding as the affirming gun if the summons is 
 actually communicated 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 visiting vessel of all damages which may result 
 to the neutral disobeying it."* 
 
 The distance of approach is also not yet settled either by a rule 
 of international law or by custom. The stipulation of a cannon's 
 shot or half a cannon's shot still continues to appear in modern 
 treaties, but the long range of modern guns renders the stipula- 
 tion impracticable. Moreover, the natural distrust of armed ves- 
 sels when piracy was rife and privateering universal has almost 
 disappeared. 
 
 The visiting ship may sail under false colours whilst giving 
 chase, but must not fire until she has hoisted her national flag. 
 In the case of the " Peacock,"* an English privateer chased and 
 
 1 "Du Commerce des Neutres," sec. 12. 
 
 2 9 Wheat., 39. 
 
 3 « Int. Law," Vol. 11,287. 
 « 4 Rob., 185 (1802). 
 
340 COMMERCE IN WAR 
 
 fired upon an American ship under French colours, in consequence 
 of which letters directed to friends in London, which might have 
 betrayed the real destination to a French captor, and have led to 
 condemnation in a French court, were thrown overboard. 
 
 " To sail and chase under false colours," said Sir William Scott, " may 
 be an allowable stratagem of war, but firing under false colours is what 
 the maritime law of this country does not permit, for it may be attended 
 with very unjust consequences; it may occasion the loss of lives of 
 persons who, if they were apprised of the real character of the cruiser, 
 
 might, instead of resisting implore protection." 
 
 > 
 To assume the guise of a friend or an enemy in war is an act 
 
 of familiar and frequent occurrence. 
 
 " It is so ordinary a ruse de guerre" said Johnson J. in the " Eleanor," ^ 
 " that it ought rather to be expected than the display of real colours. 
 And innumerable cases that have come before this court prove that in the 
 actual state of things during the late war it became as necessary to 
 practise the deception upon our citizens as upon a neutral or an enemy. 
 We therefore see nothing reprehensible in this." 
 
 But as Hautefeuille points out, the neutral is entitled as of right 
 to know the nationality of the belligerent vessel before she submits 
 to a visit, and so no force must be used, such as firing a gun 
 blank or otherwise, before the belligerent has declared her 
 nationality.^ Lampredi* and Azuni* both emphasize this point. 
 The former writes : — 
 
 " D'apr^s I'usage et les diverses conventions dtablies i cet ^gard, il est 
 passd en loi g6ndral de guerre aujourd'hui que le pavilion arbor6 par les 
 belHg^rants ne doit inspirer aucune confiance quand il n'est pas assurd 
 d'un coup de canon 4 poudre, signe par lequel le capitaine assure que le 
 pavilion ou banni^re qu'il arbore est r^el." 
 
 Whilst the latter says : — 
 
 "Voila pourquoi on est gdndralement convenu de ne pas obeir 4 
 I'appel d'un vaisseau armd en guerre avant le coup d'assurance, c'est- 
 4-dire avant que, par un coup de canon a poudre le commandant n'ait 
 pas certifi6 la sinc^rit^ et la loyaut^ de son pavilion." 
 
 Great Britain. — The following rules are based upon those 
 prepared by the late Mr. Godfrey Lushington, and revised by 
 Professor Holland, for the use of naval officers in time of war. 
 They are not now issued to the public, but they may still be 
 taken as substantially representing the modern practice, and may 
 therefore be usefully reproduced here in a slightly altered form. 
 The original numbers to the rules have been retained, 
 
 1 2 Wheat.,' 245 (i8i7)- ^ Liv. III. XI, 516. 
 
 3 "Du Commerce des Neutres," sees. 12. 
 
 * "Droit Man. de I'Europe," Vol. II, c. ill, Art. IV, sees. 3, 4. 
 
FORMALITIES OF VISIT AND SEARCH 341 
 
 The approach. — 195. When a vessel suspected to be lawful prize is 
 sighted, the commander should, with a view to any claims of joint capture 
 that may be raised by himself or other captors, appoint an officer to 
 observe and note in writing from time to time the following particulars : — 
 
 1. At the time the vessel is sighted.— Where and when the vessel 
 was first sighted ; at what distance and in what direction she was from the 
 ship ; and what course the vessel was pursuing ; whether any other British 
 or allied ship-of-war was in sight, and if so, at what distance, and in what 
 direction from the vessel and what course such ship was pursuing. 
 
 2. During the continuance of the chase. — Whether any and what 
 alteration took place in the course of the vessel ; whether any other 
 British or allied ship-of-war came in sight, and if so, when and where, 
 and at what distance, and in what direction from the vessel, and what 
 course such ship was pursuing, and whether she joined in the chase, and 
 if so, to what extent. 
 
 3. At the capture. — When and where the vessel was brought to ; and 
 (a) If the commander is the actual captor ; whether any other British 
 
 or allied ship-of-war was in sight at the time, and if so, at what distance 
 and in what direction such ship-of-war was from the vessel, and what 
 course such ship was pursuing. 
 
 (d) If such other British or Allied cruiser is the actual captor, then at 
 what distance, and in what direction the commander's ship was from the 
 vessel, and what course his ship was pursuing.^ 
 
 The visit. — The usual modern practice is for the visiting ship 
 to send a boat with an officer in charge alongside the merchant 
 vessel. No one but the officer and an assistant- officer are to go 
 on board for the purpose of examining the ship's papers.^ 
 
 According to some jurists, the commander of the belligerent 
 vessel may content himself with summoning, or rather inviting, 
 the captain of the suspected vessel to come on board the belli- 
 gerent vessel and bring his papers with him for examination. 
 
 The decision of the Supreme Court of the United States in 
 the " Eleanor " ^ has been cited in support of this statement. In 
 this case the boarding officer ordered the master of the " Eleanor " 
 to go on board the belligerent cruiser with one of his mates. 
 
 " It was contended," said Johnson J., " that the master of the ' Eleanor ' 
 ought not to have been removed from his vessel ; that the right of search 
 only authorized the sending of an officer on board to examine her papers. 
 But we think otherwise. The modern usages of war authorize the bring- 
 ing of one of the principal officers on board the cruising vessel, with his 
 papers, for examination. To divest her of both her principal officers, 
 tvithout putting on board her, for the time, a competent officer and crew, 
 would certainly be irregular. But it is for the interest of the commercial 
 world that the investigation should be made by the commander himself, 
 and not left to any subordinate officer. In that case it would be absurd 
 to require of the commander of the commissioned vessel to quit his com- 
 mand for the purpose of making the necessary examinations." 
 
 1 Holland, "Manual of Naval Prize Law," 60 (1888). 
 
 2 Heffter, sec. 169. ^2 Wheat., 362 (18 17). 
 
342 COMMERCE IN WAR 
 
 In practice, however, the United States depart from this theory, 
 as following treaties bear evidence. These are, with Bolivia, 
 13 May, 1858^; with Venezuela, 27 August, 1860"; and with the 
 Dominican Republic, 8 February, 1867'; with the Republic of 
 Peru, 6 September, 1870*; with the Republic of Salvador, 
 6 December, 1870°; with Italy, 26 February, 1871,* in all of 
 which — 
 
 "It is expressly agreed that the neutral party shall in no case be re- 
 quired to go on board the examining vessel for the purpose of exhibiting 
 his papers or for any other purpose whatever." 
 
 In Denmark, by the law of 13 February, 1864, sec. 13, the com- 
 mander of a public armed ship may summon the master of a 
 merchant vessel, not under convoy, to come on board his ship 
 with his papers. If these are found en regie, then he is to be free 
 to continue his voyage.^ 
 
 Similar regulations are contained in the Royal Decree of 
 Prussia of 20 June, 1864, which are now in force in the German 
 navy. It is further provided that if upon inspection of the 
 papers any serious cause for suspicion arises, an officer should 
 be sent on board to make a full inquiry into all the circum- 
 stances.* 
 
 This practice is condemned by MM. de Pistoye and Duverdy, 
 inasmuch as it is open to objections both from the point of view 
 of the belligerent and the neutral. On the one hand, the former 
 may be deceived by false papers, which he is unable to verify, 
 and the latter is exposed to the possible retention of documents 
 without which he would run the risk of seizure at the hands of 
 another belligerent cruiser.® 
 
 In order to meet these objections, in the treaty between France 
 and the United States, 30 September 1800," it was expressly 
 agreed by Art. XVIII that the neutral vessel should not be 
 constrained to send an officer on board the belligerent cruiser for 
 the purpose of exhibiting his papers or for any other examination 
 whatever. 
 
 The following rule, which is to be found in so many treaties, is 
 contained in the Reglement des Prises Maritimes proposed by the 
 Institute of International Law : — 
 
 "Le navire arrdtd ne pourra jamais ^tre requis d'envoyer k bord du 
 navire de guerre son patron ou une personne quelconque, pour montrer 
 ses papiers ou pour tout autre cause." 
 
 > Statues at Large, U.S., Vol. XII, 302. ^ /j/^,^ 217. 
 
 3 Ibid., Vol. XV, 484. 4 Ibid., Vol. XVIII, 710. 
 
 6 Ibid., Vol. XVIII, 735. 8 Ibid, Vol. XVII, 85. 
 
 ' " Rev. de Droit Int.," X, 214. s /^^y;^ 238. 
 
 9 Vol. I, 237. w U.S. Statutes at Large, Vol. VIII, 188. 
 
FORMALITIES OF VISIT AND SEARCH 343 
 
 But if by reason of the state of the sea or some other cause 
 it is impracticable for the visiting ship to send a boat immediately, 
 it appears to be a universal practice for the commander to order 
 the vessel to lower her flag and steer according to his commands. 
 
 The " Edward and Mary,"^ for instance, an English vessel, was 
 ordered by a French privateer to lie to, as owing to the boisterous 
 state of the weather the latter was unable to send a boat. In this 
 case Sir William Scott refers to the case of a British vessel armed 
 with two swivels, but with only three men on board, which over- 
 awed a French privateer row-boat full of armed men, and com- 
 pelled it to proceed to Ostend, then the port of an ally, she 
 following at a safe distance astern. 
 
 So, too, upon the outbreak of hostilities between China and 
 Japan, the sinking of the "Kowsing," because she refused to obey 
 the directions of the commander of the Japanese cruiser "Naniwa," 
 was perfectly justifiable. The " Kowsing " was a neutral ship en- 
 gaged in transporting 1 200 Chinese troops with several generals. 
 The captain was asked whether he would peaceably follow the 
 " Naniwa " to Japan. He replied, " Yes ; I am powerless to 
 refuse, as you are a man-of-war." The Chinese officers, however, 
 declined to allow this to be done, and made preparations for 
 shooting the captain and his English officers should any attempt 
 be made to take the ship to Japan. With the large body of 
 troops on board it was, of course, impossible for the "Naniwa" to 
 place a prize crew on the " Kowsing," so after more attempts to 
 induce the latter to obey the directions, the Japanese vessel fired 
 a torpedo and a broadside, which resulted in the "Kowsing" 
 going to the bottom. 
 
 Great Britain. The visit. 
 
 " 196. In exercising the right of visit, the commander should be careful 
 not to occasion to the neutral any delay or deviation from her course that 
 can be avoided, and generally to cause as little annoyance as possible. 
 
 " 197. The commander may chase, but under no circumstances may fire, 
 under false colours. 
 
 " 198, The commander should not in any case require a boat to be sent 
 from the vessel, or any person or papers to be brought from her on board 
 his ship. 
 
 " 199. If the state of the wind and weather permit, the commander 
 should communicate his intention to visit by hailing, and then cause his 
 ship to go ahead of the suspected vessel and drop a boat alongside of her. 
 
 " 200. If the state of the wind and weather render such a course imprac- 
 ticable, the commander should require the vessel to be brought to. For 
 this purpose he should give warning by firing successively two blank guns, 
 
 ' 3 Rob. 305 (1801). 
 
544 COMMERCE IN WAR 
 
 and then, if necessary, a shot across her bows ; but before firing, the com- 
 mander, if he has chased under false colours, should be careful to hoist the 
 British flag and pendant. 
 
 " 20I. If these measures fail to cause the vessel to bring to, then, but not 
 till then, the commander will be justified in resorting to coercion. 
 
 " 202. When the vessel has been brought to, the commander should send 
 a boat alongside. 
 
 " 203. A second officer should (if convenient) accompany the visiting 
 officer, and should be instructed to observe carefully everything that occurs 
 durii^ the visit, in order that, if required, he may give evidence. 
 
 " 204, The visiting officer and the officer by whom he is accompanied 
 should be in uniform, and the boat should carry a British flag. 
 
 " 205. The only persons who should in the first instance go on board 
 the vessel, are the visiting officer and his subordinate ; none of the crew 
 should be allowed to quit the boat unless expressly ordered. If found 
 necessary, they should be ordered on board. 
 
 "206. If the visiting officer, upon boarding, is at once satisfied that the 
 vessel is not liable to detention, he should immediately quit her. 
 
 " 207. If not so satisfied, he should demand, but with all proper cour- 
 tesy, to see the vessel's papers. In case of refusal, be should insist upon 
 their production ; in the last resort he will be Justified in adopting coercive 
 measures ; but it is important so far as possible to avoid any exercise of 
 force. 
 
 " 208. The visiting officer should be careful to obtain the name of the 
 vessel correctly. He should not be content witii taking it from the mouths 
 of the master and crew, but should observe how the name is written in her 
 papers and painted on her stern and boats. 
 
 "209. If after examining the vessel's papers the visiting officer is satisfied 
 that she is not liable to detention, he should immediately quit her. 
 
 "210. Before quitting the vessel', the visiting officer should ask the 
 master whether he has any complaint to make of the manner in which the 
 visit has been conducted or on any other ground. If the master makes 
 any complaint, the visiting officer should request him to specify the par- 
 ticulars in writing. 
 
 "211. The visiting officer should enter on the log-book of the vessel a 
 memorandum of the visit. The memorandum should specify the date and 
 place of the visit and the name of His Majesty'is ship and of the com- 
 mander; and the visiting officer should sign the memorandum, adding his 
 rank in the Navy. 
 
 "212. A similar memorandum should be made on that document 
 amongst the vessel's papers which may be siipposed to determine her 
 nationality. 
 
 "2l3i Immediately on his return to his ship, the visiting- bfficer should 
 draw up a statement of his proceedings while the facts are fresh in his 
 memory, specifying whether any complaint was made by the master or 
 any other person on board the vessel, and if so, the nature of the com- 
 pletint. He should also deliver to the commander any complaint which 
 the master may have made in writing, a:nd the commander should there- 
 upon carefully investigate the case, and should lose no time in applying 
 such remedy as circumstances may demand. 
 
FORMALITIES OF VISIT AND SEARCH 345 
 
 " 214. The subordinate officer should also draw up in detail and deliver 
 to the commander a statement of all the facts which he witnessed. 
 
 "215. The commander should see that a proper entry of all the neces- 
 sary particulars is made in the boarding-book, and the log-book should be 
 signed by the officer by whom the visit was made. 
 
 "216. The commander should by the first opportunity forward a full 
 report of the case, together with his own remarks thereon, to the senior 
 officer on the station ; and a duplicate thereof to the Secretary of the 
 Admiralty."^ 
 
 Ship's papers. — Every merchant vessel is expected to carry 
 on board some official documents vouching for her nationality, 
 describing the nature of her cargo, and stating her port of depar- 
 ture and her destination. The official voucher of nationality of 
 a vessel belonging to a State which possesses a register of its 
 mercantile marine, is known as a certificate of registry. Where 
 there is no such register, the form of the document varies, and 
 is called a passport, sea-letter, or sea-brief. 
 
 The certificate of registry is signed by the Registrar of the 
 port to which the vessel belongs, and usually contains the name 
 of the vessel and of the port, her tonnage, etc., the name of her 
 master, particulars as to her origin, and the names and description 
 of her registered owner. 
 
 The passport is a document issued by a neutral State or by 
 the State to which the vessel belongs, granting a free passage to 
 the vessel with her crew, passengers, goods, and merchandise 
 without hindrance, molestation, or seizure at the hands of the 
 subjects of such State. It usually contains the name and residence 
 of the master, and the name, description, and destination of the 
 vessel. 
 
 The sea-letter or sea-brief is a document issued by the civil 
 authorities of the port at which the vessel is fitted out. It entitles 
 the master to sail under the flag and pass of the nation to which 
 he belongs. It also specifies the nature and quantity of the 
 cargo, its ownership, and destination. 
 
 The charter-party is a statement in writing of the contract 
 under which the vessel is hired for the current voyage. The hirer 
 is called the charterer. It is executed by the owner or master 
 and by the charterer. It usually contains the name of the master, 
 the name and description of the vessel, the port where she is lying 
 at the time of the charter, the name and residence of the charterer, 
 the nature of the cargo to be put on board, the port of lading, 
 the port of delivery, and the freight which is to be paid. This 
 document is almost invariably on board. 
 
 1 Holland, " Manual of Naval Prize Law," 61-64. 
 
346 COMMERCE IN WAR 
 
 The official log-book is the book which the master is com- 
 pelled to keep in the form prescribed by the municipal law of the 
 country to which the vessel belongs. 
 
 The ship's log is the book kept by the master in the interests 
 of the owner. 
 
 The builder's contract ought to be found on board a vessel 
 which has not changed hands since she was built. It is not a 
 necessary document, but it may serve, in the absence of a certifi- 
 cate of registry, passport, or sea-letter, to identify a vessel. 
 
 The bill of sale is the instrument by which the vessel is 
 transferred to a purchaser. It should be demanded wherever 
 a sale of the vessel is alleged to have been made either during 
 the war or just prior to its commencement, and there is any 
 reason to suspect that the vessel is liable to detention either as 
 an enemy vessel or as a British or allied vessel trading with the 
 enemy. 
 
 Bills of lading usually accompany each lot of goods. A bill 
 of lading on board a vessel is the duplicate of the document given 
 by the master to the shipper of the goods upon shipment. It 
 contains the name of the shipper, the date and place of shipment, 
 the name and destination of the vessel, the description, quantity, 
 and destination of the goods, and the freight which is to be paid. 
 
 The invoices should always accompany the cargo. They 
 contain the particulars and prices of each parcel of goods, with 
 the amount of the freight, duties, and other charges thereon, with 
 the names and addresses of the shippers and consignees. 
 
 The manifest is a list of the vessel's cargo containing the 
 mark and number of each separate package, the names of the 
 shippers and consignees, a specification of the quantity of the 
 goods contained in such package, e.g. rum, sugar, sail-cloth, etc. ; 
 and also an account of the freight corresponding with the bills of 
 lading. The manifest is usually signed by the ship-broker who 
 clears the vessel out at the custom-house, and by the master. 
 
 The clearance is the certificate of the custom-house authori- 
 ties of the last port from which the vessel sailed, to show that 
 the custom duties there had been paid. The clearance specifies 
 the cargo and its destination. 
 
 The muster roll contains the name, age, quality, place of 
 residence and of birth of every member of the crew. 
 
 Shipping articles are the agreements of hiring of the mem- 
 bers of the crew. They should be signed by each member, and 
 should describe accurately the voyage and the terms for which 
 each member ships. 
 
 Bill of health is the certificate issued by the civil authorities 
 of the last port from which the vessel sailed, that such port was 
 
FORMALITIES OF VISIT AND SEARCH 347 
 
 free from contagious disease, and that none of the crew at the 
 time of her departure were infected with such disease.^ 
 
 The following is a list of the papers carried by vessels of the 
 chief maritime Powers as evidence of their nationality, and other 
 papers which ought to be found on board. 
 
 Austria : — 
 
 Royal Licence (Patente sovrana). 
 
 Certificate of Registry (Scontrino ministeriale). 
 
 Other papers carried — 
 
 Official Log-book (Giornale di navigazione). 
 
 Ship's Log-book (Scartafaccio, giornale di navigazione 
 
 cotidiano). 
 Manifest of Cargo. 
 Bills of Lading. 
 
 Muster Roll (Ruolo dell' equipaggio). 
 Bill of Health. 
 Charter-party, if vessel is chartered. 
 
 Belgium : — 
 
 Sea-letter (Lettre de mer), available for four years. 
 
 Muster Roll (Role d'equipage). 
 
 Certificate of Registry (Rdgistre de certificat de jaugeage). 
 
 Log-book. 
 
 Manifest of Cargo. 
 
 Bills of Lading (Les connaissements). 
 
 Acte de Propri6t6. 
 
 Charter-party, if vessel is chartered. 
 
 Brazil : — 
 
 Certificate of Registry (Carta de Registro). 
 
 Special Pass (Passe especial), issued to vessels purchased 
 by Brazilians out of the Republic, by the Brazilian 
 Legation or Consulate of the place, and constituting 
 provisional proof of nationality. 
 
 Passport (Pasaporte). 
 
 Muster Roll (Roll de equipag^m). 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Log-book (?) 
 
 Denmark :— 
 
 Certificate of Registry (Registrerings certifikat). 
 
 1 Holland, " Manual of Naval Prize Law," 47-51. 
 
348 COMMERCE IN WAR 
 
 Denmark — continued. 
 
 Provisional Certificate of Registry (issued by the Govern- 
 ment of the Danish Antilles, by the Governor of Ice- 
 land, or by the Sheriff of the Faroe Islands). 
 
 Provisional Certificate of Registry (issued by a Danish 
 consul abroad). 
 
 Muster Roll (Liste). 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Log-book. 
 
 Charter-party, if vessel is chartered. 
 
 In addition to one of the above-mentioned documents, 
 every Danish vessel is required by law to have the 
 mark of nationality, D.E. (Dansk Eigndom), i.e. 
 Danish Property, the numerals indicating the tonnage 
 and the signal letters, distinctly marked on the main 
 beam or on some other conspicuous place in the ship. 
 
 France : — 
 
 Certificate of Nationality (Acte de Francisation), with 
 particulars from the Acte de Propridtd endorsed on il^ or 
 
 Provisional Certificate of Nationality (Acte de Francisation 
 Provisoire). 
 
 Sailing Licence (Cong6). 
 
 Muster Roll (R61e d'^quipage). 
 
 Inventory of ship's furniture, fittings, and stores. 
 
 Log-book. 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 " Acquits-a-caution " are only required of French vessels 
 arriving at one French port from another French port. 
 
 German Empire : — 
 
 Certificate of Nationality (Schiff's certifikat). 
 Provisional Certificate of Nationality (Flaggen attest). 
 Certificate of Measurement for decked steamers (Schiffs 
 
 messbrief). 
 Certificate of Measurement for decked sailing vessels. 
 Provisional Certificate of Measurement . for steamers and 
 
 sailing vessels. 
 Muster Roll (MusterroUe). 
 Log-book. 
 Manifest of Cargo, 
 Bills of Lading. 
 Charter-party, if vessel is chartered. 
 
FORMALITIES OF VISIT AND SEARCH 349 
 
 Great Britain :— 
 
 Certificate of Registry ; or 
 
 Provisional Certificate granted by a consul resident in a 
 foreign country to a vessel purchased there. This is 
 available for six months. A pass granted to a vessel 
 before registration, enabling her to go from one port 
 to another within the British dominions, has the force 
 of a certificate. 
 
 Muster Roll. 
 
 Official Log-book. 
 
 Ship's Log-book. 
 
 Shipping Articles. 
 
 Manifest of Carga 
 
 Bill of Health. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 Greece : — 
 
 Certificate of Nationality. 
 
 Congd or Passport. 
 
 Inventory of ship's furniture, fittings, and stores. 
 
 Certificate of Tonnage (Proces- verbal du jaugeage). 
 
 Muster Roll with Shipping Articles. 
 
 Description of visits to which ship has been subjected 
 
 (Proc^s-verbal). 
 Log-book. 
 Bill of Health. 
 
 Coasting Licence for vessels of five tons and under. 
 Livre des emprunts a la grosse. 
 
 Holland : — 
 
 ^-.5ea Letter (Zeebrief). 
 Provisional Sailing Licence (Voorloopige zeebrief). 
 Extraordinary Sailing Licence (Buitengewone zeebrief). 
 Certificate of Measurement (Meetbrief voor zeeschepen) 
 
 for interior and exterior measurement. 
 Proof of Ownership (Bijlbrief). 
 Muster Roll. 
 Log-book. 
 Manifest of Cargo, 
 Bills of Lading. 
 Charter-party, if vessel is chartered. 
 
 Italy :— 
 
 Certificate of Nationality (Atto di Nazionalitk). 
 Muster Roll (Ruolo d'Equipiggip). 
 
3S0 COMMERCE IN WAR 
 
 Italy — continued. 
 
 Certificate of Measurement (Certificate di Stanza) for 
 
 decked vessels. 
 Official Log-book. 
 Ship's Log-book. 
 Manifest of Cargo. 
 Bills of Lading. 
 Charter-party, if vessel is chartered. 
 
 Portugal :— 
 
 Proof of Ownership (de propriedade). 
 
 Ship's Passport (Pasaporte Real). 
 
 Muster Roll. 
 
 Log-book, 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 Norway : — 
 
 Certificate of Nationality (Nationalitets bevis). 
 
 Provisional Certificate of Nationality may be granted by a 
 consul of Sweden or Norway in a foreign port, for 
 a vessel brought there by a Norwegian subject, to 
 allow the ship to be taken direct to a Norwegian port. 
 The consul, by application to his Government, can 
 issue this document for a longer period. 
 
 Certificate of Registry, if built in Norway, 
 
 Certificate of Tonnage (Maalebrev). 
 
 Muster Roll (Bemandings Liste), 
 
 Log-book, 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 Russia and Finland : — 
 Russia — 
 
 Ship's Licence or Commission. 
 
 Certificate of Tonnage. 
 
 Temporary Certificate of Tonnage. 
 
 Passport. 
 
 Muster Roll or Shipping Articles. 
 
 Manifest of Cargo. 
 
 Charter-party, if vessel is chartered. 
 
FORMALITIES OF VISIT AND SEARCH 
 
 351 
 
 One 
 document. 
 
 Finland — 
 
 Certificate of Tonnage (Matebref). 
 
 Certificate of Build (Bilbref). 
 
 Muster Roll or Shipping Articles (Sjomansrulla). 
 
 Log-book (?) 
 
 Charter-party, if vessel is chartered. 
 
 Spain : — 
 
 Ship's Passport (Real Patente). 
 
 Certificate of Registry (Certifico). 
 
 Ship's Articles (Rol de Navegacion). 
 
 Log-book (Cuarderno de Vitacora). 
 
 Manifest of Cargo. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 Sweden : — 
 
 Certificate of Nationality (Fribref). 
 
 Provisional Certificate. 
 
 Certificate of Nationality (Fribref). 
 
 Certificate of Build (Bilbref). 
 
 Certificate of Measurement (Matbref). 
 
 Muster Roll (Sjomansrulla). 
 
 Ship's Log-book (Journalen). 
 
 Manifest of Cargo. 
 
 Passport from a Chief Magistrate or Commissioner of 
 
 Customs. 
 Bills of Lading. 
 Charter-party, if vessel is chartered. 
 
 Turkey :— 
 
 (i) Diary or Log-book. 
 
 (2) Navigating licence, with its annex. 
 
 (3) Licence for seamen, with its annex. 
 
 (4) Manifest, with its annex and the form of receipt of the 
 
 fees to be paid. 
 
 (5) Form of receipt for harbour fees to be paid at Con- 
 
 stantinople. 
 
 (6) Licence given by the harbour-master to ships of less 
 
 than five tons burden. 
 
 (7) Form of receipt for lighthouse dues. 
 
 (8) Form of receipt for the fees paid for lifeboat service 
 
 established at the entrance of the Black Sea. 
 
 (9) Bill of health. 
 
 (10) Form of receipt for sanitary fees. 
 
 Nos. 5, 7, 8, 9, and 10 are accompanied by French 
 translations. 
 
352 COMMERCE IN WAR 
 
 United States : — 
 
 Certificate of registry or 
 
 Provisional Certificate of Owniership issued by United 
 States consuls to citizens of the United States pur- 
 chasing vessels in a foreign port. 
 
 Sea Letter (occasional). 
 
 Shipping Articles. 
 
 Muster Roll. 
 
 Permit to touch and trade — issued to licensed fishing ves- 
 sels intending to touch at places out of the United 
 States. 
 
 Manifest of Cargo. 
 
 Log-book. 
 
 Bills of Lading. 
 
 Charter-party, if vessel is chartered. 
 
 In the treaties of the United States with the republics of Peru 
 (6 September, 1870) and Salvador (6 December, 1870) it is agreed 
 that when one of tne parties shall be engaged in war the vessels 
 of the other must be furnished with sea-letters, patents, or pass- 
 ports (letras de mar, patentes 6 pasaportes), in which shall be 
 expressed the name and burden of the vessel, and the name and 
 place of residence of the owner and master or captain thereof. It 
 is also agreed that, in addition to these documents, the vessels 
 shall be prorided with manifests or certificates containing the 
 particulars of the cargo and the place where it was taken on 
 board, in order that it may be known whether any part consists 
 of contraband or prohibited articles. This certificate is to be 
 made out in the accustomed form by the authorities of the port 
 from which the vessel has sailed. In the absence of these docu- 
 ments, the vessel may be detained and confiscated, unless such 
 omission or defect shall be proved to be accidental.^ 
 
 The following rule relating to the papers which ought by law to 
 be found on board is included in the " Reglement des Prises 
 Maritimes " proposed by the Institute of International Law : — 
 
 " I. Les documents relatifs a la propri^t^ du navire ; 
 
 " 2. Le connaissement ; 
 
 " 3. Le role d'^quipage, avec I'lndication de la nationalite du patron et 
 de I'equipage; 
 
 "4. Le certificate de nationality si les documents mentionnds sous le 
 
 chiffre 3 n'y suppl^ent ; 
 " S. Le journal de bord." ^ 
 
 » Statutes at Large, U.S., Vol. XVIII, 710, 735. 
 « "Ann. del'lnst.," 1883, 217. 
 
FORMALITIES OF VISIT AND SEARCH 353 
 
 If upon examination the ship's papers appear to bfe in order, 
 and there are no extraneous circumstances to arouse suspicion, 
 the visiting officer must immediately withdraw, and the vessel 
 must be allowed to proceed forthwith on her course. 
 
 The absence of due conformity to the formalities of visit and 
 of bbservance of the regulations issued by the State of the visiting 
 ship does not invalidate the capture, provided it is proved to the 
 satisfaction of the court that a sufficient cause for seizure did in 
 fact exist. ^ 
 
 The search. — But if, on the contrary, the ship's papers Upon 
 examination afford intrinsic evidence of viaia fides, or if from any 
 other circumstance, such as the failure of the vessel to shorten 
 sail when signalled to do so, any opposition to the visitation, any 
 attempted concealment, desti"uction, or jettison of papers, any 
 suspicious conduct of the master or of the crew, then the vessel 
 may be subjected to a more minute examination either of docu- 
 ments or of the officers or members of the crew, or other persons 
 on board, or of the cargo. 
 
 Some jurists, indeed, limit the right of examination to that of 
 the papers produced. Thus, for instance, Hautefeuille would 
 permit no further investigation even when the visiting officer 
 doubtSj or professes to doubt, the genuineness of the papers or 
 the truth of their contents. To search for further papers, to 
 interrogate the master and crew, or to investigate the nature of 
 the cargo, he considers an abuse of the right of visitation — acts 
 wholly unauthorized, and which neutrals are entitled to resist by 
 force. ^ 
 
 Lampredi,* Azuni,* and Ortolan^' are of opinion that an exam- 
 ination beyond that of the papers produced, can only take place 
 where there is suspicion of fraud. De Martens® and Mass6,^ 
 though in some respects differing in their views, limit the right of 
 search to the single case where the papers are incomplete or 
 irregular. 
 
 The right of search naturally implies the duty of subniissioh. 
 But the right of the neiitral to freedorh of trade, provided it does 
 not infringe the belligerent's right of war, is of equal value to the 
 right of search. Thus, although it is the duty of the neutral, 
 however innocent his pursuit may be, to submit to the lawful 
 visitation and search, and all acts rendered necessary in their 
 accomplishment, the belligerent must not abuse his right. This 
 right must not only be lawful, but it must also be exercised in a 
 
 > Dalloz, "Juris. Gen. Ann.," 1855, III, 73. 
 
 2 "Droits Des Nations Neutres," tit. XII. ^ " Commerce des Neutres," sec. 12. 
 « " Droit Marit.," c. ill, Art. IV. ^ « Djp. de la Mer," liv. Ill, c. Vlll. 
 
 « "Essai sur les Armateurs," c. II. ' "Droit Com.," liv. 11, tit. 11, c. 11. 
 
 2 A 
 
354 COMMERCE IN WAR 
 
 lawful and reasonable manner. The right, says Halleck, is limited 
 to such acts as are necessary to a thorough examination into 
 the real character of the vessel, the nature of her cargo, and her 
 destination, and all acts which transcend the limits of this necessity 
 are unlawful.^ 
 
 It was held in the " Rose " ^ that a neutral is justified in offering 
 forcible resistance to visit and search where extreme violence is 
 threatened by a cruiser grossly abusing its commission. 
 
 Great Britain. The search. 
 
 "217. If after an examination of the ship's papers the visiting officer 
 suspects that she may be liable to detention, he should proceed to 
 search her. 
 
 "218. When the search has been authorized, the boat's crew should be 
 called on board to assist, and if necessary further assistance should be 
 obtained from the cruiser. 
 
 "219. The visiting officer is entitled to make inquiries from the master 
 and crew, but must abstain from all threats and intimidation. 
 
 " 220. During the search, neither the master nor any other person should 
 be removed from the vessel without his consent. 
 
 "221. Care should be taken to prevent any irregularity or any damage 
 to the cargo. 
 
 " 222. If in the course of the search the visiting officer is satisfied that 
 the vessel is not liable to detention, the search should be immediately 
 discontinued ; everything which has been removed should be replaced as 
 quickly and carefully as possible, and the vessel allowed to pursue her 
 course without delay. 
 
 " 223. If the visiting officer finds on board any ship's papers relative to 
 another vessel already captured, but not adjudicated upon, he should take 
 possession of them and forward them to that port to which such vessel 
 has been sent in for adjudication. 
 
 " 224. Before quitting the vessel, the visiting officer should ask the 
 master whether he has any complaint to make of the manner in which 
 the search has been conducted, or on any other ground. If the master 
 makes any complaint, the visiting officer should request him to specify 
 the particulars in writing. 
 
 " 225. The visiting officer should enter on the log-book of the vessel a 
 memorandum of the search. The memorandum should specify the date 
 and place of the search, and the name of His Majesty's ship, and of the 
 commander. The visiting officer should sign the memorandum, adding 
 his rank in the navy. 
 
 "226. A similar memorandum should be made on that document amongst 
 the vessel's papers which may be supposed to determine her nationality. 
 
 "227. Immediately on his return to his ship, the visiting officer should 
 draw up a statement of his proceedings while the facts are fresh in his 
 memory, specifying whether any complaint was made by the master 
 
 1 "Int. Law," Vol. 11,286. 
 
 2 36 Ct. CI. 290. 
 
FORMALITIES OF VISIT AND SEARCH 355 
 
 or any other person on board the vessel, and if so, the nature of the com- 
 plaint. He should also deliver to the commander any complaint which 
 the master may have made in writing, and the commander should there- 
 upon carefully investigate the case, and should lose no time in applying 
 such remedy as circumstances may admit. 
 
 " 228. The officer who accompanied the visiting officer should also draw 
 up in detail and deliver to the commander a statement of all the facts he 
 witnessed. 
 
 " 229. The commander should see that a proper entry of all the neces- 
 sary particulars is made in the boarding book, and also in the log-book of 
 the ship. Both should be signed by the officers by whom the search was 
 conducted. 
 
 " 230. The commander should, at the first opportunity, forward a full 
 report of the case, together with his own remarks thereon, to the senior 
 officer on the station, and a duplicate thereof to the Secretary of the 
 Admiralty." ^ 
 
 Spain. — The following instructions, drawn in accordance with 
 Art. V of the Royal Decree of 23 April, 1898, were issued on the 
 following day to the President of the Council of the Fleet : — 
 
 Instructions for the exercise of the right to visit. 
 
 " I. Right of visit can only be exercised by belligerents ; hence it can 
 evidently be only resorted to during international conflicts by one or other 
 of the States at war, as also during internal, civil, or insurrectionary war, 
 when one or more foreign Powers have recognized the insurrectionary 
 party as belligerents. In such circumstances right of visit can be exercised 
 by the mother country, but it is restricted to the merchant vessels of the 
 nation or nations who have given this recognition, and who are for such 
 reason in the position of neutrals. 
 
 " 2. In accordance with the position laid down in the preceding article, 
 ships of war and merchant vessels of the belligerents, when legally armed 
 either as auxiliary cruisers of their navy or as privateers if and when 
 they are authorized, may, in their own territorial waters or those under the 
 jurisdiction of the enemy or in the open sea, detain such merchant vessels 
 as they meet with in order to verify the legitimacy of their flag, and if 
 neutrals and proceeding to a port of the other belligerent, the nature of 
 their cargo. 
 
 "3. Seas subject to the sovereign jurisdiction of neutral Powers are abso- 
 lutely inviolable ; right of visit may not, therefore, be resorted to within 
 them, even if it be alleged that it was attempted to exercise such right in 
 the open sea, and that on chase being given and without losing sight of 
 the vessel pursued, the latter penetrated into neutral waters. 
 
 " Neither may the violation of the rights attaching to such water be 
 justified under the pretext that the coast washed thereby was undefended 
 or uninhabited. 
 
 " 4. The following is the method of exercising right of visit : — 
 
 "{a) Notification to the vessel to be visited to lay to and state its 
 nationality is made by the visiting vessel hoisting her national flag and 
 
 1 Holland, " Manual of Naval Prize Law," 65-7. 
 
356 COMMERCE IN WAR 
 
 firing a blank charge, a signal upon which the merchant vessel is bound to 
 hoist the flag of the nation to which it belongs and lay to. 
 
 " (J?) If the merchant vessel does not obey this first intimation, and 
 either refuses to hoist her flag or does not lay to, a second gun will be 
 fired, this time loaded, care being taken that the shot does not strike the 
 vessel, though going sufficiently close to her bows for the vessel to be duly 
 warned ; and if this second intimation be disregarded, a third shot will be 
 fired at the vessel so as to damage her, if possible without sinking her. 
 Whatever be the damage caused to the merchant vessel by this third shot, 
 the commanding officer of the man-of-war or captain of the privateer can- 
 not be made responsible. Nevertheless, in view of special circumstances> 
 and in proportion to the suspicion excited by the merchantman, the 
 auxiliary vessel of war or privateer may delay resorting to the last ex- 
 tremity until some other measure has been taken, such as not aiming the 
 third discharge at the vessel, but approaching it and making a fresh notifi- 
 cation by word of mouth ; but if this last conciliatory measure prove fruit- 
 less, force will be immediately resorted to. 
 
 " (c) The visiting vessel will place herself at such distance as her com- 
 mander or captain may think convenient from the vessel to be visited, 
 according to circumstances of wind, sea, current, or the suspicion inspired 
 by the said vessel ; and if these circumstances make it advisable for the 
 boat about to make a visit to approach on the windward side and to go to 
 leeward on returning, there is no reason why she should not do so. 
 
 " But if by existing treaties between the rlations to which the vessels 
 respectively beloiig the distance to be kept is specified, such a clause of 
 conventional law shall be respected if the circumstances of wind, sea, or 
 current above mentionted permit. 
 
 " ((/) The visiting vessel will send to the merchant vessel a boat with an 
 officer, who will effect the visit in question under a verbal commission from 
 his commaiidihg officer; said officer may board the merchant vessel in 
 company with two or three of the crew of the boat, but it will be left to his 
 discretion whether he shall do so or go alone. 
 
 " (e) The visiting officer will inform the captain of the merchant vessel 
 that, under commission from the commander of the Spanish ship of war or 
 of the auxiliary cruiser [here follows the name of ship of war or auxiliary 
 cruiser] or from the captain of the privateer [here follows name of vessel], 
 he intends to effect a visit, and will request him to produce his sailing- 
 papers, or official document which takes their place, in proof of the nation- 
 ality of the vessel therein stated being that of the flag which he has hoisted, 
 and to show the port to which the vessel is proceeding. 
 
 " Should the first point be satisfactorily proved, and should the port of 
 destination prove to be a neutral one, the visit is thereby concluded. 
 
 " But should the vessel be proceeding to a port belonging to the enemy 
 of the nation to which the visiting vessel belongs, the officer will ask the 
 captain of the merchant vessel for the documents in which the nature of 
 the cargo is stated, in order to ascertain if there be contraband of war ; 
 should there be none, the visit is definitely concluded, and the neutral 
 vessel is at liberty to proceed on its voyage ; but should there be contra- 
 band, its capture is proceeded with ; but no search may in these circum- 
 stances be made. 
 
 " S- The visiting officer should have instructions from his commanding 
 officer authorizing the visited vessel to continue her voyage if the visit has 
 
FORMALITIES OF VISIT AND SEARCH 357 
 
 presented no difficulties, in order that the delay may not be longer than is 
 absolutely indispensable. 
 
 " 6. If the captain of the visited vessel asks to have the visit certified, the 
 visiting officer will accede to his request, and will insert a note in the sheet 
 for the day in the ship's books in the following form : — 
 
 " The undersigned [rank in the navy], sailing on the [gunboat, cruiser, 
 etc.] of His Catholic Majesty, named [or the auxiliary cruiser or 
 
 privateer], whose commanding officer is [rank and name], certifies that this 
 day, at [hour of morning or evening], under a verbal commission from the 
 said commanding officer, he has carried out the visit of the [class of vessel, 
 name and nationality of merchant service], captain [name of captain], and 
 ascertained from the papers shown to him the legitimacy of the flag which 
 she flies and the neutrality of her cargo. 
 
 "Date 
 
 "Signature of visiting officer 
 
 "Seal of visiting ship 
 
 " 7. The visit will likewise be recorded in the books of the visiting 
 vessel, the following circumstances being stated : — 
 
 "(a) Details of the intimation or intimations given to the visited 
 vessel. 
 
 " (^) Hour of its lying to. 
 
 " (c) Name and nationality of visited vessel and captain thereof. 
 
 " (d) Manner in which visit was effected and its result, stating name of 
 officer who executed it. 
 
 " (e) Hour at which vessel was authorized to proceed. 
 
 " 8. The record of the visit, which, as stated in Art. VI, can be made at 
 the wish of the captain of the visited vessel, will become an indispensable 
 formality should the vessel contain wounded or sick soldiers, subjects of 
 the enemy, for in such a case all such persons will, by the mere act of 
 yisit, be incapacitated from bearing arms again during the war, in accord- 
 ance with the first paragraph of the tenth additional article of the Geneva 
 Convention. 
 
 " The visiting officer will therefore in such a case make a notification of 
 the same to the chief of the expeditionary force, and will make a note in 
 the books of the visited vessel in the form prescribed in Art. VI, with the 
 following addition : — 
 
 " This vessel contains [number of sick and wounded] individuals [of the 
 army or navy, or both] sick and wounded, subjects of the enemy, all of 
 whom, by the fact of paragraph i of the tenth additional article of the 
 Geneva Convention, of which I have made notification to the commander 
 of the expeditionary force, who stated that he was [here follow rank and 
 name]. 
 
 " 9. The visit is not an act of jurisdiction on the part of the belligerent, 
 it is a natural means of legitimate defence allowed by international law, 
 lest fraud and bad faith should assist the enemy. This right should there- 
 fore be exercised with the greatest moderation by the belligerent, special 
 care being taken to avoid causing the neutral any extortion, damage, or 
 trouble, that is not absolutely justifiable. 
 
 " In consequence of this the detention of the ship visited should always 
 be as short as possible, and the proceedings restricted as far as they can 
 
358 COMMERCE IN WAR 
 
 be, their exclusive object being, as explained, for the belligerent to ascer- 
 tain the neutrality of the ship, and in case of neutrality (if bound for a 
 port of the enemy) the inoffensive and neutral description of its cargo. 
 
 " It is not necessary, therefore, to demand during the visit any other 
 documents than those proving these two conditions, for what the belligerent 
 requires is to prevent any damage, favouring or assisting the enemy ; to 
 prevent assistance and help being furnished to them that may contribute 
 directly to the prolongation of the war, and not to be assured that all 
 ships belonging to neutral Powers are provided with all the documents 
 required by the laws of their country." ^ 
 
 United States. — The following instructions were issued by 
 the Navy Department on 20 June, 1898, for the information and 
 guidance of the naval service : — 
 
 Right of Search. 
 " 12. The belligerent right of search may be exercised without previous 
 notice upon all neutral vessels after the beginning of the war to determine 
 their nationality, the character of their cargo, and the ports between which 
 they are trading. 
 
 " 13. This right should be exercised with tact and consideration, and in 
 strict conformity with treaty provisions wherever they exist. The follow- 
 ing directions are given, subject to any special treaty stipulations. After 
 firing a blank charge and causing the vessel to lie to, the cruiser should 
 cause a small boat, no larger than a whale boat, with an officer to conduct 
 the search. There may be arms in the boat but the men shall not wear 
 them on their persons. The officer wearing only his side arms, and 
 accompanied on board by not more than two men of his boat's crew, 
 unarmed, should first examine the vessel's papers to ascertain her nation- 
 ality, and her ports of departure and destination. If she is neutral and 
 trading between neutral ports, the examination goes no further. If she is 
 neutral and bound to an enemy's port not blockaded, the papers which 
 indicate the character of her cargo should be examined. If these show 
 contraband of war the vessel should be seized ; if not she should be set 
 free, unless by reason of strong grounds of suspicion a further search 
 should seem to be requisite. 
 
 " 14. Irrespective of the character of the cargo or of her purported 
 destination, a neutral vessel should be seized if she — 
 
 "(i) Attempts to avoid search by escape ; but this must be clearly evident. 
 " (2) Resists search with violence. 
 
 " (3) Presents fraudulent papers. [of search. 
 
 " (4) Is not supplied with the necessary papers to establish the objects 
 " (5) Destroys, defaces, or conceals papers. 
 
 " The papers generally to be expected on board of a vessel are — 
 
 "(i) The Register. 
 
 •' (2) The Crew List. 
 
 " (3) The Log-book. 
 
 "(4) A Bill of Health. 
 
 " (S) A Charter-party. 
 
 "(6) Invoices. 
 
 "(7) Bills of Lading. 
 
 1 Papers. Foreign Relations, U.S., 1898, 775. 
 
FORMALITIES OF VISIT AND SEARCH 359 
 
 "15. A neutral vessel carrying hostile despatches, when sailing as a 
 despatch vessel in the service of the enemy, is liable to seizure ; but not 
 when she is a mail packet and carries them in the regular and customary 
 manner, either as a part of the mail in her mail bags, or separately as a 
 matter of accommodation, and without special arrangement or remunera- 
 tion. The voyages of mail steamers are not to be interfered with except 
 on the clearest grounds of suspicion of a violation of law in respect of 
 contraband or blockade.^ 
 
 " 16. A neutral vessel in the service of the enemy in the transportation 
 of troops or military persons is liable to seizure." 
 
 Projet de Reglement des Prises Maritimes— L'Institut 
 de Droit International, 1882-1887 '• — ^ 
 
 1. DeTarrit. 
 
 Sec. 10. Les navires de guerre d'un ^tat belligdrant sont autoris6s i 
 arrSter, dans les cas pr^vus par le reglement, tout navire de commerce ou 
 priv6 qu'ils rencontrent dans les eaux de leur ^tat ou en haute mer, et 
 ailleurs qu'en des eaux neutres ou soustraites aux faits de guerre. 
 
 Sec. II. Le navire de guerre du belligdrant pour inviter le navire de 
 commerce a s'arr6ter, se servira comme signal d'un coup de canon de 
 semonce a boulet perdu ou ^ poudre. Avant ou en m6me temps, le navire 
 de guerre hissera son pavilion au-dessus duquel en temps de nuits, un 
 fanal sera placd. A ce signal, le navire arr6td hissera son pavilion et se 
 mettra en panne pour attendre la visite. Le navire de guerre enverra 
 alors au navire arrStd une chaloupe mont^e par un officier accompagn^ 
 d'un nombre d'hommes suffisant, dont deux ou trois seulement monteront 
 avec I'officier a bord du navire arrfitd. 
 
 Sec. 12. Le navire arrSt^ ne pourra jamais ^tre requis d'envoyer 4 bord 
 du navire de guerre son patron ou une personne quelconque, pour montrer 
 ses papiers ou pour tout autre cause. 
 
 Sec. 13. Le navire de, commerce est obligd de s'arreter ; il lui est interdit 
 de continuer sa route. S'il le fait ndanmoins, le navire de guerre a le 
 droit de la poursuivre et de I'arrSter de force. 
 
 2. De la visite. 
 
 Sec. 14. Le droit de visite s'exerce dans les eaux des belligdrant, en tant 
 qu'elles ne sont pas mises par traits ^ I'abri des faits de guerre, et en haute 
 mer ; il s'exerce 4 I'^gard des navires de commerce, mais non i I'dgard des 
 navires de guerre d'un dtat neutre, ni i regard d'autres navires appartenant 
 ostensiblement k un tel ^tat, ni 4 I'^gard des navires de commerce neutres 
 qui sont convoy^s par un navire de guerre de leur etat. 
 
 Sec. 15. Le droit de visite s'exerce, soit en vue de verifier la nationality 
 d'un navire arrSt^, soit pour constater s'il fait un transport interdit, soit 
 pour constater une violation de blocus. 
 
 Sec. 16. Lorsque des navires de commerce neutres sont convoy^s, ils ne 
 seront pas visites, si le commandant du convoi remet au navire du belli- 
 g6rant qui I'arr^te une liste des navires convoyds, et une declaration 
 
 * Instructions of Navy Department, 20 June, 1898. Foreign Relations of the United 
 States, 1898, 781. 
 
 2 « Revue de Droit Inter.," Vol. XIX, 147. 
 
36o COMMERCE IN WAR 
 
 ^ign6e par lui et portant qu'il ne se trouve a leur bord aucune contrebande 
 de guerre, et quelles sont la nationality et la destination des navires 
 convoy^s. 
 
 Sec. 17. Lorsque le navire a visiter est un paquebot-perte, il ne sera pas 
 visits si le commissaire du gouvernement dont il porte le pavilion, se 
 trouvant k son bord, declare par ^crit que le paquebot ne transporte ni 
 des ddp^ches ni des troupes pour I'ennemi, ni de la contrebande de guerre 
 pour le compte ou a destination de I'ennemi. 
 
 Sec. 18. La visite, k laquelle doit se soumettre tout navire qui n'en est 
 pas exempt en vertu des dispositions des Articles 16 et 17, commence par 
 I'examen des papiers de bord du navire arr^te. Si ces papiers sont trouves 
 en rfegle ou s'il ne se presente rien de suspect, le navire arrfetd peut con- 
 tinuer sa route. Pourront de mdme continuer leur route les navires neutres 
 destines k des expeditions scientifiques, k condition qu'ils observent les lois 
 de la neutrality. 
 
 3. De la recherche. 
 
 Sec. 19, Si les papiers de bord ne sont pas en or4)re, ou si la visite 
 opdrde a fait naitre un soupgon fonde, comme il est dit en I'article qui 
 suit, I'officier qui a op^rd la visite est autoris6 k proc6der a la recherche. 
 Le navire ne peut s'y opposer ; s'il s'y oppose n6anmoins, la recherche peut 
 etre op6r6e de force. 
 
 Sec. 20. II y a soupgon fond6 dans les cas suivants : — 
 
 1. Lorsque le navire arr6t6 n'a pas mis en panne sur I'invitation du 
 navire de guerre ; 
 
 2. Lorsque le navire arrStd s'est opposd k la visite de cachettes sup- 
 posdes rec^ler des papiers de bord ou de la contrebande de guerre ; 
 
 3. Lorsqu'il a des papiers doubles, ou fauX, ou falsifies ou secrets, ou 
 que ses papiers sont insuffigants, ou qu'il n'a point de papiers ; 
 
 4. Lorsque les papiers ont ete jet6s k la mer ou ddtruits de quelque 
 autre fagon, surtout si ces faits se sont passes apr^s que le navire a pu 
 s'aperceyoir de I'approche du navire de guerre ; 
 
 5. Lorsque le navire arrSte navigue sous un pavilion faux. 
 
 Sec. 21. II n'est pas permis aux personnes qui sont chargees d'op6rer la 
 recherche d'ouvrir ni de rompre des armoires, reduits, caisses, cassettes, 
 tonnes, futailles ou autres cachettes, pouvant renfermer une partie de la 
 cargaison, ni d'examiner arbitraireiiient les objets faisant partie de la 
 cargaison que se trouvent repandus a ddcouvert dans le navire. 
 
 Sec. 22. Dans les cas de soupgon mentionn^s au Sec. 20, s'il n'y a pas 
 de resistance k la recherche, I'officier qui y precede doit fajre ouvrir les 
 reduits par le patron, et faire faire la recherche dans la cargaison a 
 d^couvert sur le navire avec le concours du patron. 
 
CHAPTER VII 
 CAPTURE AND CONDEMNATION 
 
 THE right of capture arises — 
 I. Where resistance is made to visitation or search. 
 
 2. When it is either obvious or there is evidence giving rise 
 to the suspicion that the vessel is engaged in an illicit act, e.g. : 
 
 (a) Acting as enemy's transport or in the carriage of naval or 
 military officers and crews. 
 
 (d) Carrying enemy's despatches, 
 
 (c) Carrying contraband of war. 
 
 (a) Attempting to break a de facto blockade after official notifi- 
 cation or with knowledge. 
 
 {e) Engaging in the colonial or coasting or other close trade of 
 the enemy. 
 
 (/") Proceeding as a vessel equipped for war to a belligerent. 
 
 \^g) Equipping, furnishing, fitting out, or arming vessels, or 
 allowing the same to be so equipped, furnished, fitted out, or armed 
 for the use of belligerents. 
 
 3. Where the ship's papers are false, or are concealed, de- 
 spoiled, or destroyed with a view to deceive. 
 
 I. Resistance to visitation or search. — A neutral private 
 vessel is bound to submit to visit and search by a belligerent 
 cruiser, and the slightest resistance by force will only render it 
 liable to capture, and involve the ship and cargo in condemnation, 
 however innocent they may be in fact. 
 
 "I stand with confidence," said Sir William Scott in 1799, "upon all 
 fair principles of reason ; upon the distinct authority of Vattel, upon the 
 institutes of other maritime countries, as well as those of our own country, 
 when I venture to lay it down, that by the Law of Nations, as now under- 
 stood, a deliberate and continued resistance to search on the part of a 
 neutral vessel to a lawful cruiser, is followed by the legal consequence of 
 confiscation."^ 
 
 The " Maria " was one of the merchant vessels, sailing under 
 the convoy of a Swedish cruiser, which resisted the claim of the 
 British cruisers to visitation. In condemning the ship and cargo, 
 Sir William Scott directed all private adventures to be restored. 
 
 1 The " Maria," i Rob., 368. 
 
362 COMMERCE IN WAR 
 
 In the " Catherine Elizabeth,"^ Sir William Scott drew a dis- 
 tinction between resistance by a neutral master and an enemy 
 master. In this case a French vessel, carrying neutral goods 
 (American), had been recaptured by its French master. A prisoner 
 of war, unless under parole, said Sir William, 
 
 "had a perfect right to emancipate himself by seizing his own vessel. If 
 a neutral master attempts a rescue, he violates a duty which is imposed 
 upon him by the Law of Nations to submit to come in for inquiry as to the 
 property of the ship or cargo ; and if he violates that obligation by a 
 recurrence to force, the consequence will undoubtedly reach the property 
 of his owner ; and it would, I think, extend also to the confiscation of the 
 whole cargo entrusted to his care and thus fraudulently attempted to be 
 withdrawn from the rights of war. With an enemy master the case is 
 very different; no duty is violated by such an act on his part — lupum 
 auribus teneo, and if he can withdraw himself he has a right so to do." 
 
 The goods were ordered to be restored if they should prove to 
 be American. So far the English and American courts agree ; 
 but if a belligerent merchantman should be armed, a difference of 
 opinion has arisen, 
 
 The English view is clearly expressed by Sir William Scott in 
 the " Fanny. "^ In this case, during the war between Great 
 Britain and the United States in 1812-14, the " Fanny," having a 
 commission of war on board, but employed also for purposes of 
 commerce, sailed under a British convoy from Liverpool to Rio 
 de Janeiro, and there obtained leave from the admiral on the 
 station to return home without convoy. 
 
 Men and guns having been added for the express purpose of 
 enabling the ship to fight her way home, after a severe engage- 
 ment she was captured by the American schooner " General 
 Armstrong," but shortly afterwards recaptured by H.M.S. 
 " Sceptre." 
 
 Part of the cargo was owned by Portuguese merchants. Sir 
 William found as a fact that these merchants, when they put their 
 goods on board, must have known that the vessel was armed. 
 
 " A neutral subject," declared the learned judge, " is at liberty to put his 
 goods on board a merchant vessel, though belonging to a belligerent — 
 subject, nevertheless, to the rights of the enemy who may capture the 
 vessel, but who has no right, according to the modern practice of civilized 
 States, to condemn neutral property. Neither will the goods of the neutral 
 be subject to condemnation although a rescue should be attempted by the 
 crew of the captured vessel, for that is an event which the merchant could 
 not have foreseen. But if he puts his goods on board a ship of force, which 
 he has every reason to presume will be defended against the enemy by 
 that force, the case then becomes very different. He betrays an intention 
 to resist visitation and search, which he could not do by putting them on 
 
 1 S Rob., 232 (1804). 2 I Dod., 447-9 (1814). 
 
CAPTURE AND CONDEMNATION 363 
 
 board a mere merchant vessel ; and so far as he does this he adheres to 
 the belligerent; he withdraws himself from his protection of neutrality and 
 resorts to another mode of defence ; and I take it to be quite clear that if 
 a party acts in association with a hostile force, and relies upon that force 
 for protection, he is, pro hac vice, to be considered as an enemy. ... If 
 they (the Portuguese merchants) choose to take the protection of a hostile 
 force instead of their own neutral character, they must take the inconveni- 
 ence with the convenience; they must abide by the consequences resulting 
 from the course of conduct which, upon the whole knowlege of the matter, 
 they have thought proper to pursue." 
 
 On the other hand, the courts of the United States have held 
 that the fact of the vessel being armed does not incriminate the 
 property of neutrals. 
 
 The point first came up for decision in the case of the "Nereide,"^ 
 in 1815. This was an armed British ship chartered by a Spanish 
 subject named Pinto, and laden partly with British goods and 
 partly with neutral goods. She sailed from Liverpool under con- 
 voy, and upon separation from her convoy was captured after 
 resistance by an American privateer. 
 
 Marshall C. J., in delivering the judgment of the court upon this 
 point, relied upon the old rule of international law which estab- 
 lished 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." 
 
 The learned judge found as a fact that the vessel had not been 
 armed by Pinto, and that although the latter was on board, he 
 had no control of the ship, and did not direct or take any part in 
 the resistance. But was he entitled as a neutral to put his goods 
 on board an armed belligerent merchantman? This was answered 
 by the court in the affirmative. 
 
 "That a neutral may lawfully put his goods on board a belli- 
 gerent ship for conveyance on the ocean is universally recognized 
 as the original rule of the law of nations. It is, as has been stated, 
 founded on the plain and simple principle that the property of a 
 friend remains his property wherever it may be found. 
 
 " Since it is not," says Vattel, " the place where a thing is which deter- 
 mines the nature of that thing, but the character of the person to whom it 
 belongs, things belonging to neutral persons which happen to be in an 
 enemy's country or on board an enemy's ships are to be distinguished 
 from those which belong to the enemy. 
 
 "Bynkershoek lays down the same principles in terms equally explicit; 
 and in terms entitled to the more consideration because he enters into the 
 inquiry whether a knowledge of the hostile character of the vessel can 
 affect the owner of the goods, 
 
 " 9 Cranch, 388. 
 
364 COMMEI^CE IN WAR 
 
 " The same principle is laid down by other writers on the same subject, 
 and is believed to be contradicted by none. It is true there were some 
 old ordinances of France declaring that a hostile vessel or cargo should 
 expose both to condemnation. But these ordinances have never consti- 
 tuted a rule of public law. 
 
 " It is deemed of much importance that the rule is universally laid 
 down in terms which comprehend an armed as well as an unarmed vessel ; 
 and that armed vessels have never been excepted from it. Bynkershoek, 
 in discussing a question suggesting an exception, with his mind directed 
 to hostilities, does not hint that this privilege is confined to unarmed 
 merchantmen. 
 
 " The antiquity of the rule is certainly not unworthy of consideration. 
 It is to be traced back to the time when almost every merchantman was 
 in a condition of self-defence, and the implements of war were so light 
 and so cheap that scarcely any would sail without them. 
 
 "A belligerent has a perfect right to arni in his own defence; and a 
 neutral has a perfect right to transport his goods in a belligerent vessel. 
 These rights do not interfere with each other. The neutral has no 
 control over the belligerent right to arm — ought he to be accountable for 
 the exercise of it ? 
 
 " By placing property in a belligerent ship, that property according to 
 the positive rules of law does not cease to be neutral. Why should it be 
 changed by the exercise of a belligerent right, universally acknowledged 
 and in common use, when the rule was laid down, and over which the 
 neutral had no control ? 
 
 " The belligerent answers that by arming his rights are impaired. By 
 placing his goods under the guns of an enemy the neutral has taken part 
 with the enemy and assumed the hostile character. 
 
 " Previous to that examination which the Court has been able to make 
 of the reasoning by which this proposition is sustained, one remark will 
 be made which applies to a great part of it. The argument which, taken 
 in its fair sense, would prove that it is unlawful to deposit goods for 
 transportation in the vessel of an enemy generally, however imposing its 
 form, must be unsound, because it is in contradiction to acknowledged law. 
 
 " It is said that by depositing goods on board an armed belligerent the 
 right of search may be impaired, perhaps defeated. 
 
 " What is this right of search ? Is it a substantive and independent 
 right wantonly and in the pride of power, to vex and harass neutral 
 commerce because there is a capacity to do so ? or to indulge the idle and 
 mischievous curiosity of looking into neutral trade ? or the assumption of 
 a right to control it ? If it be such a substantive and independent right, 
 it would be better that cargoes should be inspected in port before the 
 sailing of the vessel, or that belligerent licences should be procured. But 
 this is not its character. 
 
 " Belligerents have a full and perfect right to capture enemy goods and 
 articles going to their enemy which are contraband of war. To the 
 exercise of that right the right of search is essential. It is a means 
 justified by the end. It has been truly denominated a right growing out 
 of and ancillary to the greater right of capture. Where this greater 
 right may be legally exercised without search, the right of search never 
 arises or comes into question. 
 
 "But it is said that the exercise of the right may be prevented by the 
 
CAPTURE AND CONDEMNATION 365 
 
 inability of the party claiming it to capture the belligerent carrier of 
 neutral property. 
 
 " And what injury results from this circumstance ? If the property be 
 neutral, what mischief is done by its escaping a search ? In so doing there 
 is no sin even as against the belligerent, if it can be effected by lawful 
 means. The neutral cannot justify the use of force or fraud, but if by 
 means lawful in themselves he can escape this vexatious procedure, he 
 may certainly employ them. 
 
 " To the argument that by placing his goods in the vessel of an armed 
 enemy he connects himself with that enemy and assumes the hostile 
 character, it is answered that no such connexion exists. 
 
 " The object of the neutral is the transportation of his goods. His 
 connexion with the vessel which transports them is the same whether that 
 vessel be armed or unarmed. The act of arming is not his — it is the act 
 of a party who has the right so to do. He mieddles not with the arma- 
 ment nor with the war. Whether his goods went on board or not, the 
 vessel would be armed and would sail. His goods do not contribute to 
 the armament further than the freight he pays and the freight he would 
 pay were the vessel unarmed. 
 
 " It is difficult to perceive in this argument anything which does not 
 also apply to an unarmed vessel. In both instances it is the right and 
 duty of the carrier to avoid capture and to prevent a search. There is no 
 difference except in the degree of capacity to carry this duty into effect. 
 The argument would operate against the rule which permits the neutral 
 merchant to employ a belligerent vessel without imparting to his goods 
 the belligerent character. 
 
 " The argument respecting resistance stands on the same ground with 
 that which respects arming. Both are lawful. Neither of them is charge- 
 able to the goods or their owner, where he has taken no part in it. They 
 are incidents to the character of the vessel, and may always occur where 
 the carrier is belligerent. 
 
 " It is remarkable that no express authority on either side of this ques- 
 tion can be found in the books. A few scanty materials, made up of 
 inferences from cases depending on other principles, have been gleaned 
 from the books and employed by both parties. They are certainly not 
 decisive for or against them. 
 
 " The celebrated case of the Swedish convoy has been pressed into the 
 service. But that case decided no more than this : that a neutral may 
 arm, but cannot by force resist a search. The reasoning of the judge on 
 that occasion would seem to indicate that the resistance condemned the 
 cargo, because it was unlawful. It has been inferred on the one side that 
 the goods would be infected by the resistance of the ship, and on the other, 
 that a resistance which is lawful and is not produced by the goods will 
 not change their character. 
 
 "The case of the 'Catherina Elizabeth' approaches more nearly to that 
 of the ' Nereide,' because in that case, as in this, there were neutral goods 
 and a belligerent vessel. It was certainly a case, not of resistance, but of 
 an attempt by a part of the crew to seize the capturing vessel. Between 
 such an attempt and an attempt to take the same vessel previous to 
 capture there does not seem to be a total dissimilitude. But it is the 
 reasoning of the judge, and not his decision, of which the claimants would 
 avail themselves. He distinguishes between the effect which the employ- 
 
366 COMMERCE IN WAR 
 
 merit of force by a belligerent owner or by a neutral owner would have 
 on neutral goods. The first is lawful, the last unlawful. The belligerent 
 owner violates no duty. He is held by force, and may escape if he can. 
 From the marginal note it appears that the reporter understood this case 
 to decide in principle that resistance by a belligerent vessel would not confis- 
 cate the cargo. It is only in a case without express authority that such 
 materials can be relied on. 
 
 " If the neutral character of the goods is forfeited by the resistance of 
 the belligerent vessel, why is not the neutral character of the passengers 
 forfeited by the same cause ? The master and crew are prisoners of war ; 
 why are not those passengers who did not engage in the conflict also 
 prisoners? That they are not would seem to the Court to afford a strong 
 argument in favour of the goods. The law would operate in the same 
 manner on both. 
 
 " It cannot escape observation that in argument the neutral freighter 
 has been continually represented as arming the ' Nereide ' and impelling 
 her to hostility. He is represented as drawing forth and guiding her war- 
 like energies. The Court does not so understand the case. The ' Nereide' 
 was armed, governed, and conducted by belligerents. With her force or 
 her conduct the neutral shippers had no concern. They deposited their 
 goods on board the vessel, and stipulated for their direct passage to 
 Buenos Ayres. It is true that on her passage she had a right to defend 
 herself, did defend herself, and might have captured an assailing vessel ; 
 but to search for the enemy would have been a violation of the charter- 
 party and of her duty. 
 
 " The ' Nereide ' has not the centaur-like appearance which has been 
 ascribed to her. She does not rove over the ocean hurling the thunders 
 of war while sheltered by the olive branch of peace. She is not com- 
 posed in part of the neutral character of Mr. Pinto and in part of the 
 hostile character of her owner. She is an open and declared belligerent ; 
 claiming all the rights and subject to all the dangers of the belligerent 
 character. She conveys neutral property, which does not engage in her 
 warlike equipments or in any employment she may make of them ; which 
 is put on board solely for the purpose of transportation, and which en- 
 counters the hazard incident to its situation — the hazard of being taken 
 into port and obliged to seek another conveyance should its carrier be 
 captured. 
 
 " In this, it is the opinion of the majority of the Court, there is nothing 
 unlawful. The characters of the vessel and cargo remain as distinct in 
 this as in any other case. The sentence, therefore, of the Circuit Court 
 must be reversed, and the property claimed by Mr. Pinto for himself and 
 his partners and for those other Spaniards for whom he has claimed, be 
 restored, and the libel as to that property be dismissed." 
 
 From this judgment Mr. Justice Story strongly dissented. He 
 found as a fact that the " Nereide " sailed under convoy, became 
 temporarily separated from it, and whilst endeavouring to regain it 
 was, after an unsuccessful resistance, captured and brought in for 
 adjudication. Upon this alone he found that Mr. Pinto, assuming 
 
CAPTURE AND CONDEMNATION 367 
 
 him to be a neutral, had so incorporated himself with the enemy 
 interests, as to forfeit that protection which the neutral character 
 would otherwise afford him. As his arguments on this head have 
 already been dealt with,^ we may proceed to the point immediately 
 before us. The learned judge considered that the proposition 
 that there is no difference, in point of law, whether the ship has 
 or has not a commission of war, or is or is not armed, required 
 a very full examination. 
 
 " In the first place," he said, " it is to be considered whether a neutral 
 shipper has a right to put his property on board an armed belligerent ship 
 without violating his neutral duties. If the doctrine already advanced on 
 the subject of convoy be correct, it is incontestable that he has no such 
 right. If he cannot take belligerent convoy, a fortiori he cannot put his 
 property on board of such convoy ; or what is equivalent, on board an 
 armed and commissioned ship of the belligerent. What would be the 
 consequences if neutrals might lawfully carry on all their commerce in 
 the frigates and ships of war of another belligerent sovereign ? That 
 there would be a perfect identity of interests and of objects, of 
 assistance and of immunity between the parties. The most gross frauds 
 and hostile enterprises would be carried on under neutral disguises, and 
 the right of search would become as utterly insignificant in practice as if 
 it were extinguished by the common consent of nations. The extravagant 
 premiums and freights which neutrals could well afford to pay for this 
 extraordinary protection would enable the belligerent to keep up arma- 
 ments of incalculable size, to the dismay and ruin of inferior maritime 
 Powers. Such false and hollow neutrality would be infinitely more 
 injurious than the most active warfare. It would strip from the conqueror 
 all the fruits of victory and lay them at the feet of those whose singular 
 merit would consist in evading his rights, if not in collusively aiding his 
 enemy. // is not, therefore, to be admitted that a neutral may lawfully place 
 his goods under armed protection on board an enemy ship. Nor can it be 
 at all material whether such ship be commissioned or not ; that is an 
 affair exclusively between a sovereign and his own subjects, but is utterly 
 unimportant to the neutral. For whether the armament be employed for 
 offence or defence in respect to third parties, the peril and the obstruction 
 to the right of search are equally complete. Nor is it true, as has been 
 asserted in argument, that a non-commissioned armed ship has no right 
 to capture an enemy ship except in her own defence. The act of capture 
 without such pretext, so far from being piracy would be strictly justifiable 
 upon the Law of Nations, however it might stand upon the municipal 
 law of the country of the capturing ship. Vattel has been quoted to the 
 contrary, but on a careful examination it will be found that his text does 
 not warrant the doctrine.^ 
 
 "Admitting, however (what to me seems utterly inadmissible), that a 
 neutral may lawfully ship his goods on board the armed ship of an 
 enemy, it will be of little avail unless he is exempted from the conse- 
 quences of all acts of such enemy. If the shipment be innocent, it will 
 
 ' See p. 324. 2 See p. 363. 
 
368 COMMERCE IN WAR 
 
 be of little avail in this case if the resistance of the enemy master will 
 compromit the neutral character of the cargo. To the establishment, 
 therefore, of such an exemption the exertions of counsel have been 
 strenuously directed. It has been inferred from the silence of elementary 
 writers, from the authority of analogous cases, and from the positive declara- 
 tions of the Court in the ' Catherina Elizabeth.' ^ 
 
 " The argument drawn from the silence of jurists has been already 
 sufficiently answered. It remains to consider that which is urged upon 
 the footing of authority. The reasoning from supposed analogous cases is 
 quite as unsatisfactory. It is not true as to neutrals, that the act of the 
 master never binds the owner of the cargo unless the master is proved to 
 be the actual agent of the owner. The act of the master may be, and 
 very often is, conclusive upon the cargo, although no general agency is 
 established. Siappose he violate a blockade, suppress and fraudulently 
 destroy the ship's papers, or mix up under the same cover enemy interests, 
 will not the cargo share the fate of the ship ? The cases cited are mere 
 exceptions to the general rule. They, in general, turn upon a settled dis- 
 tinction, that the act of the iriaster shall not bind the cargo where the act 
 under the circumstances could not have been within the scope or contem- 
 plation of the shipper at the time of shipment ; or where his ignorance of 
 the voyage and of the intended acts of the master is placed beyond the 
 possibility of doubt.^ The veiry case of resistance is a strong illustration 
 of the principle. The resistance of the neutral master has been deliber- 
 ately held to be conclusive on the neutral cargo.* What reasori can there 
 be for a different rule in respect to a belligerent master ? 
 
 " It must be admitted that the language of the Court in the case of the 
 ' Catherina Elizabeth ' would at first view seem to support the position of 
 theclaimant's counsel. On a close examination, however, it will not be 
 found to assert so broad a doctrine. The case was of a rescue attempted 
 by an enemy master, having on board a neutral cargo; and this rescue 
 attempted, not of the captured but of the capturing ^v^. It was argued 
 that this resistance of the master exposed the whole cargo entrusted to 
 his management to confiscation. The Court held that no such penalty 
 was incurred. That the resistance could only be the hostile act of a 
 hostile person, who was a prisoner of war, and who, unless under parole, 
 had a perfect right to emancipate himself by seizing his own vessel. That 
 the case of a neutral master differed from that of an enemy master. No 
 duty was violated by such an act on the part of the latter, lupum auribus 
 teneo, and if he could withdraw himself he had a right to do so. And 
 that a material fact in the case was, that the master did not attempt to 
 withdraw his property, but to rescue the ship of the captor and not his own 
 vessel. Such was the decision of the Court, upon which several observa- 
 tions arise. In the first place, the resistance was not made previous to the 
 capture ; and therefore whatever may be the extent of the language, it 
 must be restrained to the circumstances of the case in judgment, other- 
 wise it would be extra-judicial. In the next place, it would be impossible 
 to conceive how the fact, as to what vessel was seized, could be material, if 
 the argument of the present claimant be correct, for in all events the 
 resistance as to the cargo would be without any legal effects. In the last 
 
 1 5 Rob., 232 (1804). 
 
 2 The " Adonis," S Rob., 256. 
 
 3 The " Elzebe," 5 Rob., 174 ; the " Catherina Elizabeth," ibid., 232. 
 
CAPTURE AND CONDEMNATION 369 
 
 place, it is clear that the case is put by the Court upon the ground that the 
 master at the time of the act had been dispossessed of his vessel by capture, 
 and was a prisoner of war. He was therefore no longer acting as master 
 of the ship, and had no further management of her. His rights and 
 duties, as master, had entirely ceased by the capture, and there could be 
 no pretence to affect the ship or cargo with his subsequent acts, any more 
 than with the acts of any other stranger. The case would have been 
 entirely different with a neutral master, whose relation to his ship continues 
 notwithstanding a capture and carrying in for adjudication. The case, 
 therefore, admits of sound distinctions from that at bar, and cannot be 
 admitted to govern it. 
 
 " There is another text not cited in the argument which may be thought 
 to favour the doctrine of the claimant's counsel. It is the only passage 
 bearing on the subject in controversy which has fallen under my notice in 
 any elementary work. Casaregis, in his ' Commercial Discourses,' has the 
 following remarks : ' Verum tamen notandum est quod si navis inimica 
 onerata mercibus mercatorum amicorum aggressa fuerit alteram inimicam 
 et mercatores aut domini mercium operam ac industriam dedissent pro ea 
 aggredienda tunc merces dominorum cadunt etiam sub praeda, si navis 
 predicta onerata mercibus fuerit depraedata, etc. etc. Et regulariter bona 
 eorum qui auxilium inimices nostris praestant vel confederati cum iis 
 sunt, praedari possunt.' It is obvious that Casaregis is here considering 
 the case of an attack of an enemy merchant ship laden with neutral 
 cargo, upon the ship of its enemy, in which the former is unsuccessful and 
 is captured. Under such circumstances he holds that if the neutral 
 shippers, or the persons having the management of the cargo (domini 
 mercium) have aided in the attack, the cargo is forfeited upon the ground 
 that all who assist or confederate with an enemy are liable to be plundered 
 by the law of war. He does not touch the case where an enemy merchant 
 ship simply makes resistance in her own defence, or resists the right of 
 search; nor how far the master of such ship is the dominus mercium, or 
 can by his own acts bind the cargo. Much less has he discussed the ques- 
 tion as to what acts amount to an incorporation into the objects and 
 interests of the enemy so as to affix a hostile character. It does not seem 
 to me that his text can be an authority beyond the terms in which it is 
 expressed. It pronounces affirmatively that a co-operation in an attack 
 will induce confiscation of the cargo (which cannot be doubted), but it 
 does not pronounce negatively that the resistance of an enemy master 
 will not draw after it the same penalty. And if it were otherwise, it 
 would deserve consideration whether the opinion of a mere elementary 
 writer, respectable as he may be, delivered at a time when the prize law 
 was not well settled as it has been in the present age, should be permitted 
 to regulate the maritime rights of belligerent nations. 
 
 " The argument, then, on the footing of authority fails, for none is pro- 
 duced which directly points at circumstances like those in the case at bar. 
 And upon principle it seems quite as difficult to support it. I am unable 
 to perceive any solid foundation on which to rest a distinction between 
 the resistance of a neutral and of an enemy master. The injury to the 
 belligerent is in both cases equally great, for it equally withdraws the 
 neutral property from the right of search, unless acquired by superior 
 force. And until it is established that an enemy protection legally sus- 
 pends the right of search, it cannot be that resistance to such right should 
 
 2 B 
 
370 COMMERCE IN WAR 
 
 not be equally penal in each party. I have therefore no difficulty in hold- 
 ing that the resistance of the ship is in all cases the resistance of the cargo, 
 whether she be armed or unarmed, commissioned or uncommissioned. He 
 who puts his property on the issue of battle must stand or fall by the event 
 of the contest. The law of neutrality is silent when arms are appealed to 
 in order to decide rights ; and the captor is entitled to the whole prize 
 won by his gallantry and valour. This opinion is not the mere inference, 
 strong as it seems to me to be, of general reasoning. It is fortified by the 
 consideration that in the earliest rudiments of prize law in the great mari- 
 time countries of Great Britain and France, confiscation is applied by way 
 of penalty for resistance of search to all vessels, without any discrimina- 
 tion of the national character of the vessels or cargoes. The Black Book 
 of the Admiralty expressly articulates that any vessel making resistance 
 may be attacked and seized as enemies;^ and this rule is enforced in the 
 memorable instructions of Henry VIII.^ The ordinance of France of 
 1584 is equally broad, and declares all such vessels good prize; and this 
 has ever since remained a settled rule in the prize code of that nation. 
 
 " Valin informs us that it is also the rule of Spain, and that in France 
 it is applied as well to French vessels and cargoes as to those of neutrals 
 and allies.* There is not to be found in the maritime code of any nation, 
 or in any commentary thereon, the least glimmering of authority that 
 distinguishes, in cases of resistance, the fate of the cargo from that of the 
 ship. If such a distinction could have been sustained, it is almost incred- 
 ible that not a single ray of light should have beamed upon it during the 
 long lapse of ages in which maritime warfare has engaged the world. And 
 if any argument is to be drawn from the silence of authority, I know not 
 under what circumstances it can be more forcibly applied than against the 
 exception now contended for. 
 
 " But even if it were conceded that a neutral shipper in a general ship 
 might be protected, the concession would not assist the present claimant. 
 His interests were so completely mixed up and combined with the inter- 
 ests of the enemy — the master was so entirely his agent under the charter- 
 party — that it was impracticable to extract the case from the rule that 
 stamps Mr. Pinto with a hostile character. The whole commercial enter- 
 prise was radically tainted with a hostile leaven. In its very essence it 
 was a fraud upon belligerent rights. If for a moment it could be admitted 
 that a neutral might lawfully ship goods in an armed ship of an enemy, or 
 might charter such a ship and navigate her with a neutral crew, those 
 admissions would fall far short of succouring the claimant. He must suc- 
 cessfully contend for broader doctrines — ^for doctrines which, in my humble 
 judgment, are of infinitely more dangerous tendency than any which 
 Schlegel and Hubner, the champions of neutrality, have yet advanced into 
 the field of maritime controversy. I cannot bring my mind to believe that 
 a neutral can charter an armed enemy ship, and victual, and man her with 
 an enemy crew (for though furnished directly by the owner, they are in 
 effect paid and supported by the charterer), with the avowed knowledge 
 and necessary intent that she should resist every enemy; that he can take 
 on board hostile shipments on freight, commissions, and profits ; that he 
 
 ' Rolls Series, 55 A., Vol. I, 29-31. 
 
 2 Clerk's "Praxis," 164; Rob., "Collect. Marit," p. 10 and note, and p. 118. 
 
 3 Rob., "Collect. Marit.," p. 118 ; Valin, "Traits des Prizes," chap. 5, sec. V, p. 80. 
 
CAPTURE AND CONDEMNATION 371 
 
 can stipulate expressly for the benefit and use of enemy convoy and naviT 
 gate during the voyage under its guns and protection ; that he can be the 
 entire projector and conductor of the voyage and co-operate in all the 
 plans of the owner to render resistance to search secure and effectual ; 
 and that yet, notwithstanding all this conduct, by the law of nations he 
 may shelter his property from confiscation and claim the privileges of an 
 inoffensive neutral. On the contrary, it seems to me that such conduct is 
 utterly irreconcilable with the good faith of a friend, and unites all the 
 qualities of the most odious hostility. It wears the habiliments of neu- 
 trality only when the sword and armour of an enemy become useless for 
 defence. If it be, as it undoubtedly is, a violation of neutrality to engage 
 in the transport service of the enemy or to carry his despatches even on a 
 neutral voyage, how much more so must it be to enlist all our own inter- 
 ests in his service and hire his arms and crew in order to prevent the 
 exercise of those rights which as neutrals we are bound to submit to ? 
 The doctrine is founded in most perfect justice, that those who adhere to 
 an enemy connexion shall share the fate of the enemy. 
 
 " On the whole, in every view which I have been able to take of this 
 subject, I am satisfied that the claim of Mr. Pinto must be rejected, and 
 that his property is good prize to the captors. And in this opinion I am 
 authorized to state that I have the concurrence of one of my brethren. It 
 is a matter of regret that in this conclusion I have the misfortune to 
 differ from a majority of the Court, for whose superior learning and 
 ability I entertain the most entire respect. But I hold it an indispensable 
 duty not to surrender my own judgment because a great weight of 
 opinion is against me — a weight which no one can feel more sensibly than 
 myself Had this been an ordinary case, I should have contented myself 
 with silence; but believing that no more important or interesting question 
 ever came before a prize tribunal, and that the national rights suspended 
 on it are of infinite moment to the maritime world, I have thought it not 
 unfit to pronounce my own opinion, diffident, indeed, as to its fullness and 
 accuracy of illustration, but entirely satisfied of the rectitude of its 
 principles." 
 
 This point arose three years later, was again argued, and the 
 same decision repeated in the case of the "Atalanta,"^ and is 
 considered by Chancellor Kent to be the settled municipal law 
 of the United States.^ 
 
 Upon this point Marshall C.J. contented himself with observing 
 that the case did not essentially differ from that of the "Nereide," 
 and considered it unnecessary to repeat the reasoning upon which 
 the Court based its decision. We may remark here that the 
 majority was only three to two. 
 
 " The principle," says Marshall C.J., " of the law of nations, that the 
 goods of a friend are safe in the bottom of an enemy, may be, and prob- 
 ably will be, changed or so impaired as to leave no object to which it 
 is applicable; but so long as the principle shall be acknowledged, this 
 Court must reject constructions which render it totally inoperative."^ 
 
 1 3 Wheaton, 409. ^ "Commentaries," 12th ed., p. 13 1-2. 
 
 3 3 Wheat, 415. 
 
372 COMMERCE IN WAR 
 
 In delivering his judgment, Mr. Justice Johnson pointed out 
 that the cargo on the " Nereide," considered as Spanish 
 property, was liable to capture by the "Carthaginian" and other 
 privateers ; whilst considered as the property of a revolted colony, 
 it was liable to Spanish capture. In his opinion, therefore, the 
 neutral shipper 
 
 "could not be charged with evading our belligerent rights or putting 
 off his neutral character when placing himself under the protection of 
 an armed belligerent; when sailing, as that shipper was, between Scylla 
 and Charybdis, he might accept of the aid or protection of one belligerent 
 without giving just cause of offence to another." 
 
 But the "Atalanta" was a vessel at peace with the whole world. 
 It was a British armed vessel, non-commissioned, and not a 
 cruiser. 
 
 Upon these facts Mr. Justice Johnson proceeds to controvert 
 the views of Mr. Justice Story, expressed in the " Nereide." He 
 considered all the evils alluded to as visionary. 
 
 "No nation can be powerful on the ocean that does not possess an 
 extensive commerce; and if her armed ships are to be converted into carriers 
 (almost, I would say, an absurd proposition), her own commerce would 
 have the preference, so that the injury could never be of any real extent. 
 But should it be otherwise, what state of things ought one belligerent 
 more devoutly to desire than that the whole military marine of her 
 enemy should be so employed and bound down to designated voyages, 
 from which they were not at liberty to deviate ? It would be curious to 
 see a Government thus involving itself with merchant shippers in ques- 
 tions of affreightrnent, assurance, deviation, average, and so forth. The 
 possibility may be imagined, but the reality will never exist." 
 
 To prove this exception to the general rule, it is, argues Mr. 
 Justice Johnson, for the captor to prove that the acknowledged 
 right of the neutral to employ a belligerent carrier does not 
 include the right of employing an armed belligerent carrier. The 
 silence of the world upon the point is really evidence of its small 
 practical importance and of public opinion. And it is not true 
 that it has altogether escaped the notice of jurists. Casaregis 
 asserts :— 
 
 " That if a vessel laden with neutral merchandise attack another vessel 
 and be captured, her cargo shall not be made prize unless the owner of 
 the goods or his supercargo engage in the conflict." 
 
 Now if an actual attack shall not subject to forfeiture, much 
 less shall arming for defence ; and it is fairly inferable from this 
 passage that the author had in his mind the case of an armed 
 belligerent carrier or he would not have represented her as the 
 attacking vessel. 
 
 The learned judge next compares the case with that of a vessel 
 under neutral or hostile convoy. In the former the vessel puts off 
 
CAPTURE AND CONDEMNATION 373 
 
 her pacific character, and must be bound by the fate of the convoy. 
 If the carrier is neutral, resistance either real or constructive is 
 unlawful ; but not so with the hostile carrier, which is entitled to 
 resist, and in her case, therefore, no offence is committed so as to 
 communicate a taint to her cargo. 
 
 " But it is contended that the right to use a hostile armed carrier is 
 inconsistent with the belligerent's right of search or of capture or of adjudi- 
 cation ; for on this point the argument is not very distinct, though I 
 plainly perceive it must be the right of adjudication, if any, that is im- 
 paired. The right of capture applies only to enemy ships or goods ; the 
 right of search, to enemy goods on board a neutral carrier ; and therefore it 
 must be the right of adjudication that is supposed to be impaired, which 
 applies to the case of goods found either on board a neutral or belligerent, 
 and this mere scintilla juris is at last the real basis upon which the excep- 
 tion contended for must rest. But in what manner is this right of adjudi- 
 cation impaired ? The neutral does not deny the right of the belligerent 
 to decide the question of proprietary interest. If it be really neutral, of 
 what consequence is it to the belligerent who is the carrier ? He has no 
 right to capture it ; and if it be hostile covered as neutral, the belligerent is 
 only compelled to do that which he must do in all ordinary cases — subdue 
 the ship before he gets the cargo. It cannot be expected that the belli- 
 gerent will rest his complaint upon the humiliating ground of his inability 
 to subdue his enemy ; and if he should, the neutral may well reply it is his 
 affair or his misfortune, but ought not in any of its consequences to affect 
 the rights of the neutral. Nor is it at all certain that lading on board an 
 enemy carrier is done at all times with an intent to avoid, capture; it may be 
 to solicit it ; as in the case of the late war, when British goods, though neutral 
 owned, could only be brought into our market through the medium of 
 capture. There, instead of capture being a risk of the voyage, it was one 
 of the chances of profit. And the hostile carrier may have been preferred 
 to the neutral with the express view of increasing the chance of capture. 
 
 " The exception which exhausts the rule must be incorrect if the rule is 
 correct, since it is in fact an adverse proposition. 
 
 " If it be unlawful to employ an armed belligerent carrier, then what 
 proportion of armament or equipment will render it unlawful ? Between 
 one gun and one hundred the difference is only in degree, and not in 
 principle. 
 
 " Again, the proposition is that the neutral may employ a hostile carrier; 
 but the indispensable attributes of a state of hostility are the right of 
 armament, of defence, of attack, and of capture; if, then, you strip the 
 belligerent of any one or more of these characteristics, the proposition is 
 falsified, for he can no longer be called a hostile carrier ; he assumes an 
 amphibious, anomalous character, for which there is no epithet applicable 
 unless it be that of semi-hostile. And what becomes of the interest of the 
 neutral ? It is mockery to hold out to him the right of employing a hostile 
 carrier when you attach to the exercise of that right consequences which 
 would make it absurd for a belligerent to enter into a charter-party with 
 him. If resistance, arming, convoying, capturing, be the acknowledged 
 attributes and characteristics of the belligerent, then deprive him of those 
 attributes, and you reduce him to a state of neutrality— nay, worse than a 
 state of neutrality, for he continues liable to all the danger incident to the 
 
374 COMMERCE IN WAR 
 
 hostile character, without any of the rights which that character confers 
 upon him. What belligerent could ever be induced to engage in the trans- 
 portation of neutral goods if the consequences of such an undertaking be 
 that he puts off his own character and assumes that of the neutral — 
 relinquishes his right of arming or resisting without acquiring the immu- 
 nities or protections of the neutral character? It is holding out but a 
 shadow of a benefit to the neutral." 
 
 The argument that the neutral shipper is assisting in expediting 
 a naval hostile equipment when he employs an armed belligerent 
 carrier the learned judge dismisses as unfounded. On the con- 
 trary, he either embarrasses the belligerent in, or detaches him 
 from, the operations of war. 
 
 "What violation," asks the learned judge, "of belligerent right or 
 neutral obligation can result from the employment of a hostile carrier? 
 If employed to break a blockade, carry goods that are contraband of war, 
 or engage in other illicit trade, the goods are liable to condemnation on 
 principles having no relation to this case. But if employed in lawful 
 commerce, where is the injury done to the belligerent? There is no 
 partiality exhibited on the part of the neutral, for the belligerents are 
 necessarily excluded from each other's ports and cannot be employed 
 except each in the commerce of his own country ; and so far from viola- 
 ting any belligerent right, the neutral tempts the ship of the enemy from 
 a place of safety to expose her to hostile capture, or detaches her from 
 warlike operations and engages her in pursuits less detrimental to the 
 interest of her enemy than cruising or fighting. To the neutral the right 
 of employing a hostile carrier may be of vital importance. The port of 
 the enemy may be his granary; he may have no ships of his own, no 
 other carrier may be found there, no other permitted to be thus employed, 
 or no other serve him as faithfully or on as good terms. So also with 
 regard to the produce of his own industry, his only market may be in the 
 market of one of the belligerents, and his only means of access to it 
 through the use of the carriers of that port." 
 
 Upon the whole, the learned judge was 
 
 " fully satisfied that the decision in the case of the ' Nereide ' was 
 founded on the most correct principles, and recognized the rule that 
 lading on board an armed belligerent is not perse a cause of forfeiture ; as 
 not only the most correct on principle, but the most liberal and honour- 
 able to the jurisprudence of his country." 
 
 2. Where it is obvious, or even where there is some evidence 
 giving rise to a suspicion that the vessel is engaged in some illicit 
 act, she is liable to capture, e.g. when — 
 
 {a) Acting as the enemy's transport or carrying the enemy's 
 military or naval officers and crews. 
 {b) Carrying the enemy's despatches. 
 {c) Carrying contraband of war. 
 
CAPTURE AND CONDEMNATION 375 
 
 (d) Attempting to break a de facto blockade after official notifi- 
 cation or with knowledge. 
 
 (e) Engaging in the enemy's colonial or coasting trade. 
 
 (y) Proceeding as a vessel equipped for war to a belligerent. 
 
 {g) Equipping, furnishing, fitting out, or arming vessels, or 
 allowing the same to be so equipped, furnished, fitted out, or armed 
 for the use of belligerents. 
 
 The effect of condemnation or of acquittal upon the vessel and 
 the cargo in each case may also be considered. 
 
 [a) Acting as enemy's transport or carrying the enemy's 
 military or naval officers or crews. — Acting in the transport 
 service of a belligerent, whether voluntarily or under compulsion, 
 subject the ship and any property on board to confiscation. The 
 " Carolina," a Swedish vessel, had been used for the transport of 
 French troops to Alexandria, and had been captured by the 
 English on its return voyage. She was condemned by Sir 
 William Scott.^ 
 
 The "Friendship"^ was the case of a small American vessel 
 laden with fustic and some staves, which were frequently used as 
 ballast but very seldom as principal cargo. She carried about 
 eighty-four French military officers and mariners who were proved 
 to be still on active service. 
 
 In declaring the ship to be a French transport. Sir William 
 Scott said : — 
 
 " It would be a very difiFerent case if a vessel appeared to be carrying 
 only a few individual invalided soldiers or discharged sailors, taken on 
 board by chance and at their own charge. Looking at the description of 
 the men on board, I am satisfied that they are still as effective members of 
 the French marine as any can be. Shall it be said, then, that this is an 
 innoxious trade, or that it is an innocent occupation of the vessel ? What 
 are arms and ammunition in comparison with men who may be going to 
 be conveyed perhaps to renew their activity on our own shores? They 
 are persons in a military capacity who could not have made their escape in 
 a vessel of their own country. Can it be allowed that neutral vessels shall 
 be at liberty to step in and make themselves a vehicle for the liberation of 
 such persons whom the chance of war has made in some measure prisoners 
 in a distant port of their own colonies in the West Indies ? It is asked, 
 will you lay down a principle that may be carried to the length of prevent- 
 ing a military officer, in the service of the enemy, from finding his way home 
 in a neutral vessel from America to Europe ? If he were going merely as an 
 ordinary passenger, as other passengers do, and at his own expense, the 
 question would present itself in a different form. Neither this Court nor 
 any other British tribunal has ever laid down the principle to that extent. 
 This is a case differently composed. It is a case of a vessel letting herself 
 
 1 4 Rob., 256 (1802). = 6 Rob., 420 (1807). 
 
376 COMMERCE IN WAR 
 
 out in a distinct manner, under a contract with the enemy's Government, to 
 convey a number of persons described as being in the service of the 
 enemy, with their military character travelling with them, and to restore 
 them to their own country in that character." 
 
 The ship and cargo were both condemned. 
 
 The case of the "Orozembo"^ was similar, except as to the 
 number of passengers and the absence of cargo. The vessel was 
 found to have been chartered to take out three Dutch military 
 officers of distinction to Batavia. In condemning the ship. Sir 
 William Scott stated that the principle on which he determined 
 the case was — 
 
 "That the carrying military persons to the colony of an enemy 
 who are there to take on them the exercise of their military functions, will 
 lead to condemnation, and that the Court is not to scan with minute 
 arithmetic the number of persons that are so carried." 
 
 The learned judge had no hesitation in finding, either on 
 principle or on the facts, that the " Orozembo " was liable to be 
 considered as a transport let out in the service of the Government 
 of Holland, and as such liable to condemnation. 
 
 In these three cases, said Mr. Justice Story, in the " Com- 
 mercen " ^ — 
 
 " The fact that the voyage was to a neutral port was not thought to 
 change the character of the transaction. The principle of these deter- 
 minations was asserted to be that the party must be deemed to place 
 himself in the service of the hostile State, and assist in warding off 
 the pressure of the war, or in favouring its offensive projects." 
 
 {b) Carrying the enemy's despatches. — The effect of the 
 carriage of papers of a public nature was said by Sir William 
 Scott to be governed by the attendant circumstances. In some cases 
 the conveyance of despatches for the enemy affixed a hostile 
 character to the ship. In others the conveyance was not of a 
 criminal nature, and although the vessel was justly subject to the 
 inconvenience of seizure and detention, it was not liable to confis- 
 cation.* In the former the criminal act involves the confiscation 
 of the ship and of the cargo also, if it is the property of the 
 owner of the ship.* 
 
 In the latter, in addition to the inconvenience of seizure and 
 detention, the neutral carrier may have to pay the expenses of 
 the captor.^ 
 
 Where the circumstances involve a hostile character, the effect 
 has already been considered.® 
 
 1 6 Rob., 430 (1807). 2 I Wheaton, 382. 
 
 3 The "Madison," i Edw. Ad. Rep., 224 (1810). 
 * The " Atalanta," 6 Rob., 4. 
 6 The " Madison," i Edw. Ad. Rep., 224. 
 ■" See pp. 3©4-7. 
 
CAPTURE AND CONDEMNATION 377 
 
 {c) Carrying contraband of war. The ancient practice.— 
 
 Under the ancient practice, the carriage of contraband of war 
 subjected the ship and all the rest of the cargo, however innocent, 
 to confiscation. 
 
 This practice, in Sir William Scott's opinion, was entirely 
 defensible on every principle of justice. 
 
 " If to supply the enemy with such articles," he declared, " is a noxious 
 act with respect to the owner of the cargo, the vehicle which is instru- 
 mental in effecting that illegal purpose cannot be innocent. The policy of 
 modern times has, however, introduced a relaxation on this point ; and 
 the general rule now is that the vessel does not become confiscable for 
 that act. But this rule is liable to exceptions." ^ 
 
 The relaxation which has given rise to these exceptions has 
 been directed in its practical application, as well as in its origin, 
 only to such cases as afford a presumption that the owner of the 
 ship is innocent or that the master is deceived. Where the owner 
 is himself privy to the transaction, or where his agent interposes 
 so actively in the fraud as to consent to give additional cover to it 
 by sailing with false papers or under a false destination, or is guilty 
 of concealment or other misconduct, all pretence of ignorance or 
 innocence is precluded ; and there seems to be no further ground 
 consistent with equity and good sense in which the relaxation in 
 favour of the ship can any longer be supposed to exist. 
 
 Bynkershoek and Heineccius both agree that on principle the 
 penalty ought to attach to the ship as well as to the cargo. The 
 former writes : — 
 
 "Publicabam quoque naves amicas si scientibus dominis contrabanda 
 ad hostes deferrent, et nisi pacta impediant omnino publicandae sunt quia 
 earum domini operantur rei illicitae " ; ^ 
 
 whilst the latter maintains the same view in the following peis- 
 sage : — 
 
 " Quemadmodum ejusmodi pacta ad exceptionem pertinent ; ita facile 
 putet regulam istis non tolli adeoq. certi juris esse, ob merces illicitas 
 naves etiam in commissum cadere." * 
 
 So, too, Boerius : — 
 
 " Quare omnia tam prohibita quam licita sive sunt deferentis sive non 
 confiscantur, et etiam navis vel animal etiam, vel coffri sive bahuti, cum 
 quibus res deferuntur et ita habetur in ord. 
 
 "... Si res aut navis vel animal esset alterius ignorantis tunc non 
 confiscatur."* 
 
 1 The " Neutralitet," 3 Rob., 295 (1801). 
 
 2 Q, J. P., lib. I, c. II. 
 
 3 » De Nav. ob Vect. Merc. Vetit. Commiss.,'' c. 11, sec. 6. 
 * Boerius, "Decis. Burdegal.," 178 (1578). 
 
378 COMMERCE IN WAR 
 
 Grotius does not deal specially with this point, but he says 
 generally that the whole subject of contraband had been much 
 agitated before his time : — 
 
 "De ea re acriter certatim scimus, cum alii belli rigorem, alii com- 
 merciorum libertatem defenderent."^ 
 
 By the treaty between Great Britain and the United Provinces 
 of 17 September, 1625, directed against Spain, ships carrying con- 
 traband were declared to be good prize •,^ and by the treaty between 
 Great Britain and France of 3 November, 1653.^ 
 
 In France, by the Ordinance of 1584, contraband goods were 
 subject to pre-emption only;* but by the Ordinance of 1681 they 
 were liable to confiscation. By the Regulations of 26 July, 1778, 
 the penalty of confiscation was extended to the ship, if three- 
 fourths of the cargo consisted of contraband. 
 
 The Reglement of 1778 is regarded by Hautefeuille merely as a 
 municipal law, not binding on other nations unless they have con- 
 cluded treaties embodying its terms. Ortolan, on the contrary, 
 supposed it applicable to all those States with which France had 
 not conventions excluding it. 
 
 In Holland the penalty of confiscation attached to the contra- 
 band goods only. Freight, however, was refused. The principle 
 upon which these regulations were framed is vindicated by Byn- 
 kershoek in the following passage : — 
 
 " Idque longe verissimum est, nam mercedes non debentur, nisi itinere 
 perfecto, et, ne perficeretur, hostis jure prohibuit. Deinde publicantur 
 contrabanda velox delicto, et ita nihil commiserunt navarchi, quam ipsi 
 mercium vetitarum domini, vel quod magis est, ex re, ex ipsa nimirum 
 transvectione : quamvis enim amico nostro non possimus commercio 
 interdicere cum hoste nostro possumus tamen prohibere, ne in bello illi 
 prosit in necem nostram. Atque ita, quod publicatur, publicabitur citra 
 ullum ullius hominis respectum et habebitur, ac si divina periisset, extincto 
 sic jure pignoris."^ 
 
 Shortly after the death of Grotius the relaxation began to be 
 introduced into treaties. The first treaty in which an exception 
 was allowed in favour of the ship was that between Spain and 
 the United Provinces of 17 December, 1650,* in which the terms 
 are general and admit of no particular observation. The second 
 was the treaty between France and the Hanseatic Towns of 10 May, 
 1655,'^ in which the terms are more precise, and point distinctly to 
 the principle on which the relaxation is founded. By Art. 11 — 
 
 " S'il se trouvoit des dites contrebandes sur des vaisseaux des dits habi- 
 tans, charges a cueuillette en un ou plusieurs lieux, elles seront confisquees 
 
 1 Lib. III., c. I, sec. 5. 2 ^^t. 20. Dumont, Vol. V, 267. 
 
 3 Art. 15. * Art. 69. 
 
 ^ Quaest. Jur. Pub., I, c. 10. * Dumont, Vol. VI, part i, ccxxxv, 570. 
 ' Ibid., Vol. VI, part ii, xxx, 103. 
 
CAPTURE AND CONDEMNATION 379 
 
 purement et simplement, sans que les autres marchandises, ni le vaisseau 
 le puissent Stre et celui qui les aura charg^es sera tenu k tous les d^pens, 
 dommages et interests soufferts par raison de ce par les interess6s aux 
 vaisseaux." 
 
 This was evidently in its terms a relaxation for cases only in 
 which the owner of the vessel might be supposed to be a stranger 
 to the transaction. 
 
 In the latter part of the seventeenth century the stipulation in 
 treaties became more general, 
 
 A book published in the year 1706, which, although not of 
 direct legal authority, most probably contains a true account of 
 the general practice at that period, contains the following pas- 
 sage : — 
 
 "If part of a cargo taken by a privateer be prohibited goods, and the 
 other part not prohibited, but such as according to the necessity of the 
 war shall be so deemed, that may draw on a consequential condemnation 
 of the ship as well as the lading. If part of the lading is prohibited and 
 the other part is merely for pleasure, the former only shall be adjudged 
 prize, and the ship and the rest of the cargo be discharged ; but if all the 
 lading be contraband goods, both ship and goods may be made prize." ^ 
 
 By Art. VI of the treaty of commerce between the King of 
 Denmark and Norway and the Republic of Genoa, concluded in 
 1756 and confirmed in 1789, it was mutually agreed that contra- 
 band goods should be confiscated, but that the ship and the rest 
 of the cargo should be free.^ 
 
 By the treaty of 30 September, 1800, between France and the 
 United States — which was limited to eight years — in Art. XIII, 
 confining contraband to articles connected with war, it was pro- 
 vided that — 
 
 " The vessel in which they are laden and the residue of the cargo shall 
 be considered free and not in any manner infected by the prohibited 
 goods, whether belonging to the same or different owners."* 
 
 Russia appears still to adhere to the old practice whereby both 
 the ship and cargo are liable to confiscation. By her declaration 
 of 19 April, 1854, which provided that enemy's property in 
 neutral bottoms would be regarded as inviolable, and that neutral 
 property on enemy's ships, except contraband of war, would also 
 be free, it was declared that the neutral vessel carrying contraband 
 of war should be good prize.* 
 
 Modern practice. — In the following cases the ship and cargo, 
 whether contraband or innocent, are condemned : — 
 
 (i) Where the ship and cargo belong to the same person. 
 
 » "Sea Laws," 3rd ed., 472. 
 
 3 De Martens, "Rec," IV, 443. 
 
 s U.S. Statutes at Large, Vol. VIH, 184. 
 
 * " Annuaire des Deux Mondes," 1853-4, 928 ; Dana's "Wheaton," 534, note (1863). 
 
380 COMMERCE IN WAR 
 
 In the " Staadt Embden "^ Sir William Scott declared that by 
 the law of nations — 
 
 " to escape from the contagion of contraband, the innocent articles must 
 be the property of a different owner." 
 
 In the " Jonge Tobias,"^ a Mr. Schraeder, part owner of the 
 vessel, was also found to be the sole owner of the cargo. 
 
 In condemning the cargo as contraband, Sir William Scott also 
 declared his share in the vessel to be confiscated : — 
 
 " Where the owner of the cargo has any interest in the ship, the whole 
 of his property will be involved in the same sentence of condemnation ; 
 for where a man is concerned in an illegal transaction, the whole of his 
 property embarked in that transaction is liable to confiscation." 
 
 Upon the assumption that the other part owners of the vessel 
 had no knowledge of the contraband nature of the cargo, as they 
 were only part owners of the vessel, and not general partners of 
 Mr. Schraeder, Sir William held that they were not to be neces- 
 sarily affected by his criminal acts. 
 
 This principle is strongly maintained by Bynkershoek : — 
 
 "Sed omnino distinguendum putem an licitae et illicitae merces ad 
 eundem dominum pertineant, an ad diverses, si ad eundem omnes recte 
 publicabuntur, ob continentiam delicti."* 
 
 The case of the "Jonge Margaretha"* forms an exception to 
 this rule. Here the ship and cargo of provisions, belonging to the 
 same person, were ca.ptured on a voyage from Amsterdam to 
 Brest, a hostile port. The provisions were found by Sir William 
 Scott to be, under the circumstances of the case, contraband, and 
 were condemned as such. But as the owner had acted without 
 dissimulation, and might have been misled by an inattention to 
 circumstances to which in strictness he ought to have adverted, as 
 well as by something like an irregular indulgence on which he 
 had relied, Sir William contented himself with pronouncing the 
 cargo to be contraband, without enforcing the usual penalty of 
 the confiscation of the ship, belonging to the same proprietor. 
 
 (2) Where the cargo is carried with a false destination, false 
 papers, or other circumstances of fraud. 
 
 The " Franklin"® was a Prussian vessel with a cargo of hemp 
 and iron from Lubeck, ostensibly to a neutral port, Lisbon, but 
 really to a hostile port, Bilboa. If the destination was to a hostile 
 port, part of the cargo would have been contraband. Upon the 
 evidence, the vessel was found to be making for a hostile port 
 
 1 I Rob., 26 (1798). 2 i]jia_^ 329 (1799). 
 
 3 Quaest. Jur. Pub., I, c. 12. * i Rob., 189(1798). 
 
 ' 3 Rob., 217 (1801). 
 
CAPTURE AND CONDEMNATION 381 
 
 under a false destination, and Sir William Scott, after taking time 
 to consider his judgment, declared — 
 
 " that the carriage of contraband worked a condemnation of the ship as 
 well as the cargo." 
 
 " When the destination is dissembled," said Sir William Scott in the 
 "Edward,"^ " coniiscation is the clear and necessary consequence." 
 
 This was the case of a Prussian vessel and a cargo of wines, 
 captured on a voyage from Bordeaux, ostensibly to Emden, but 
 really Brest, a hostile port. Sir William therefore held that 
 although wines were not generally contraband per se, yet in con- 
 junction with all the circumstances of the voyage they were 
 unquestionably to be considered as naval stores. It was a voyage 
 to Brest, where there was notoriously a large armament lying 
 very much in want of an article of this kind, an article of an 
 indispensable nature. 
 
 In the "Richmond"^ there was, in addition to a false destina- 
 tion, actual concealment of part of the cargo, pitch and tar, which, 
 if going to a hostile port, was of a noxious character. The ship 
 and cargo were condemned. 
 
 The " Ranger"^ was an American ship with a cargo of biscuit 
 and flour, put on board from the public stores at Bordeaux, on a 
 voyage ostensibly to Ville Real, in Portugal, but really to Cadiz, a 
 hostile port. Sir William Scott not only condemned the cargo as 
 contraband and the vessel as employed in carrying sea stores to a 
 place of naval equipment under false papers, but he also con- 
 demned the claimant in the expenses of the claim, stigmatizing 
 the transaction as an act of ill faith. 
 
 (3) Where the owner of the ship is bound by the obligation of 
 treaties between his own State and that of the captors to refrain 
 from carrying contraband. 
 
 In the case of the " Ringende Jacob"* it was alleged that the 
 vessel was carrying contraband, and that by virtue of an ancient 
 treaty between Great Britain and Sweden which forbade the sub- 
 jects of either Power " to sell or lend their ships for the use and 
 advantage of the enemies of the other," and as this prohibition 
 was connected in the same clause with the subject of contraband, 
 the carriage of contraband was such a lending as came within the 
 meaning of the treaty. 
 
 Sir William Scott refused to listen to this argument. 
 
 « To let a ship," he said, " on freight to go to the ports of the enemy 
 cannot be termed lending but in a loose sense ; I apprehend the true 
 
 1 4 Rob., 68. 2 5 Rob., 325 (1804). 
 
 3 6 Rob., 125 (1805). * I Rob., 89 (1798). 
 
382 COMMERCE IN WAR 
 
 meaning to have been that they should not give up the use and manage- 
 ment of their ships directly to the enemy or put them under his absolute 
 power and direction. It is besides observable that there is no penalty 
 annexed to this prohibition. I cannot think that such a service as this 
 will make the vessel subject to confiscation." 
 
 The " Neutralitet "^ was a Danish ship taken with a cargo of 
 tar on a voyage from Archangel to Dordrecht. She had been a 
 Dutch vessel, and was asserted to have been purchased by Mr. 
 Schultz, of Altona. She then went from Holland to Altona, and 
 was from thence sent to Archangel to carry a cargo to Dordrecht, 
 under a charter-party made by the asserted owner. 
 
 This, said Sir William Scott, was a case of singular misconduct 
 on the part of the asserted shipowners. They were subjects of 
 Denmark, and as such were under the peculiar obligations of a 
 treaty not to carry goods of this nature for the use of the enemies 
 of Great Britain. 
 
 "In this instance the ship was freighted at Altona to go to Archangel 
 for the purpose of carrying a cargo of tar to Holland, which is a commerce 
 expressly prohibited by the Danish treaty. Tar is an article which a 
 Danish ship cannot lawfully carry to an enemy's port, even when it is the 
 produce and manufacture of Denmark. This ship goes to a foreign port 
 to effect that which she is prohibited from doing even for the produce of 
 her own country : in this respect throwing off the character of a Danish 
 ship by violating the treaties of her country ; and all this is done with the 
 full privity of the asserted owner, who is the person entering into the 
 charter-party." 
 
 The ship was condemned. 
 
 By the treaty between Great Britain and Sweden of 25 July, 
 1803, "all manufactured articles immediately serving for the 
 equipment of ships of war " were declared to be contraband. The 
 "Charlotte"" was a Swedish vessel carrying a quantity of copper 
 in sheets, of which one portion was said to be fit for sheathing of 
 ships, another was doubtful, and the remainder not fit for that 
 purpose. In condemning that part which was reported fit for 
 sheathing, Sir William Scott said : — 
 
 " In ordinary cases, the rule is that one article of contraband quality 
 will affect all parts of the cargo on board belonging to the same pro- 
 prietor ; but this is a new case, respecting the construction of a treaty, on 
 which a difference of opinion may have been entertained. I shall there- 
 fore not apply the old rule to this case, but direct the undisputed articles 
 to be restored. The other parcels of copper which are reputed to be of 
 doubtful quality must be reserved for further consideration." 
 
 Both Ortolan and Hautefeuille are opposed to the penalty of 
 confiscation for the carriage of contraband being extended to the 
 
 > 3 Rob., 29s (1801). 2 5 Rob.^ 27s (1804). 
 
CAPTURE AND CONDEMNATION 383 
 
 ship or innocent cargo, although they differ as to the principle on 
 which their opinions are based. 
 
 '' We believe firmly," says the former, " that in no case should the ship 
 which carries the contraband, nor the innocent merchandise be confiscated. 
 We must not overlook the fact that the subjects of neutral States, strangers 
 to the quarrels of belligerent Powers, preserve in principle the liberty of 
 carrying on commerce with each of those Powers when in this commerce 
 they carry to the one or the other, or both, articles of a nature directly 
 and exclusively for war, the act is not that of enemies but of merchants ; 
 neither of the belligerents, then, is authorized to treat them, on that account, 
 as enemies, and to declare, under that title, good prize the neutral ship and 
 the innocent portions of the cargo. However, it is true that in extending 
 their commerce to such objects they injure the interests of one or the 
 other of the Powers at war, and expose themselves to the exercise of the ac- 
 knowledged right of those Powers to interpose obstacles to the transporta- 
 tion of such articles. The consequence is, that their merchandise may be 
 stopped on its way, and the international reason adds, in order to give 
 more efficiency to the prohibition, it shall be subject to confiscation. This 
 confiscation is a logical punishment which flows from the very nature of 
 things, and is proportioned to the gravity of the infraction, since it 
 reaches all the prohibited objects whether the quantity is small or great. 
 To go further and confiscate the neutral vessel and the merchandise not 
 prohibited would be to apply a punishment variable and arbitrary in its 
 extent, falling often on the innocent, and unjustifiable even in the particular 
 cases mentioned." ^ 
 
 Hautefeuille, on the other hand, considered that the prohibition 
 of a trade in contraband arose not from right of the belligerent, 
 but from a duty imposed by the primitive law upon neutrals. 
 
 " The primitive law," he writes, " makes it a duty for neutrals not to 
 connect themselves with the hostilities ; and consequently not to furnish 
 to the belligerents the direct means of fighting ; but this duty stops there. 
 At the side of this duty exists a right likewise altogether sacred and 
 absolute, that of preserving the freedom of trading in all innocent objects 
 with all peoples, even with the belligerents. The seizing and taking of 
 contraband articles are in reality only the means of execution for a right ; 
 they never can be considered as a punishment applied to a guilty party. 
 If they had that character, it would be necessary to interdict them to a 
 belligerent, because he has no quality to pronounce a punishment against 
 a neutral, against the subject of a foreign sovereign. This right only 
 belongs to him who possesses the jurisdiction. As to a punishment, if one 
 is to be applied, the chief of the injured nation should address himself to 
 the neutral sovereign and ask that the guilty parties should be tried in 
 their own country and according to its laws. The power of the belligerent 
 is not to punish the author of the act which injures him, but to prevent 
 this act from being consummated, that the contraband should not be 
 carried into the country of his enemy ; to seize those articles when they 
 are destined to the ports of his adversary. The secondary law going 
 further than the primitive law, has authorized him to confiscate the contra- 
 band, which he should only have detained. But the innocent articles, 
 
 1 "Dipl. de la Mer," torn. II, liv. hi. c. 6, 187, 2nd. ed. 
 
384 COMMERCE IN WAR 
 
 whether in greater or less quantity, of greater or less value, the ship itself, 
 are not dangerous for the belligerent : he has not the right of taking 
 possession of them to prevent their going to the place of their destination. 
 He could only do that in order to punish the act of contraband, and not 
 to prevent it ; but his power does not extend so far, it is restricted as I 
 have just stated."^ 
 
 Freight and expenses. — By the modern practice the mere 
 carriage of contraband does not per se entail confiscation of the 
 ship, but only subjects the neutral owner to loss of freight and 
 expenses. But this is a relaxation of the ancient practice, 
 whereby the carriage of contraband usually affected the ship in 
 any event. The relaxation, however, was a relaxation, the benefit 
 of which could only be claimed by those who had acted in good 
 faith.* This alteration in the ancient practice of allowing a ship 
 to go free, subject to forfeiture of freight, only applies to those 
 cases where the owners of the ship and cargo are different 
 persons.* 
 
 Freight and expenses are almost always refused by British 
 prize courts to carriers of contraband. 
 
 The " Sarah Christina"* was a Swedish vessel laden with tar, 
 pitch, iron hoops and bars, bound ostensibly for a neutral port, 
 but really for a hostile French port. 
 
 In refusing freight and expenses. Sir William Scott said : — 
 
 " I am of opinion, then, that this cargo, consisting of some articles contra- 
 band in their own nature and going to the enemy's port, under a total 
 absence of that fair conduct which ought to have been maintained in order 
 to entitle it to the benefit of the more favourable rule, is subject to con- 
 demnation. With respect to the ship : if I was satisfied that the ship and 
 cargo belonged to the same person, I must condemn that also, upon the 
 ordinary rule, which extends the penalty of contraband to all the property 
 of the same owner involved in the same unlawful transaction. But I shall 
 restore it under the strong doubt which I entertain whether the cargo is 
 not in fact the property of other persons — I mean of French agents. . . . 
 In giving the owner of the ship any benefit from these doubts, I am prac- 
 tising a lenity which would require more apology than, on strict principle, 
 I might find easy to furnish; but I shall content myself with the restitution 
 of the ship, withholding, as usual in the carriage of contraband, the allow- 
 ance of freight and expenses." 
 
 The " Mercurius "" was a vessel belonging to some merchants 
 of Hamburg, captured on 13 November, 1796, on a voyage 
 from Archangel to Rotterdam with a cargo of tar, of which 200 
 barrels remained unclaimed. An application for an allowance of 
 
 1 "Droits des Nat. Neut.," torn. Ill, tit. xiii. c. I. 224-34. 
 
 2 The "Franklin," 3 Rob., 217 (1801). 
 
 ' The " Jonge Tobias," i Rob., 329 (1799). 
 
 ^ I Rob., 237 (1799)- * Ibid., 288. 
 
CAPTURE AND CONDEMNATION 385 
 
 freight was refused on the ground that the cargo contained articles 
 of contraband. 
 
 To this practice, however, there appears to be an exception in 
 those cases where the contraband is of a negligible amount. In 
 the case of the " Neptunus "^ it was said that the utmost rigour of 
 the rule would not be applied where the contraband articles were, 
 amongst a variety of other articles, small in quantity. Freight 
 and expenses were allowed. 
 
 Ignorance no excuse. — Where the master professed to be 
 ignorant of the true nature of part of his cargo, which was de- 
 scribed as linen, but was really sailcloth, and which was condemned 
 as contraband, it was held that he could not be permitted to aver 
 his ignorance. He was bound in time of war to know the contents 
 of his cargo. Freight for the goods condemned was accordingly 
 refused, whilst freight for the innocent goods restored was allowed. 
 If a different rule could be sustained, it might be applied to excuse 
 the carrying of all contraband.^ 
 
 In the " Richmond,"' the master alleged that he had been 
 deceived by the mate as to the quantity of tar on board. 
 
 " Here," said Sir William Scott, " is a noxious article on board, and it is 
 impossible that the master should not have known how much he had on 
 board when he left America. He was, indeed, bound to know it, and can- 
 not be heard to aver an ignorance of that fact ; since there would be an 
 end of the treaty if a master could be allowed to say, ' I am going to a 
 belligerent port, but I do not know what I carry,' and by that ignorance 
 could be admitted to justify the carrying of contraband." 
 
 The United States. — The American prize courts have simi- 
 larly held that freight is never due to the neutral carrier of contra- 
 band. The " Commercen,"* a Swedish vessel, laden with a cargo 
 of barley and oats, the property of British subjects, was on a 
 voyage from Limerick to Bilbao, the cargo being intended for the 
 use of the British forces in Spain. She was captured on 16 April, 
 1 8 14, by an American privateer. 
 
 " The general rule," said Mr. Justice Story, in delivering the opinion of 
 the Court, "that the neutral carrier of enemy's property is entitled to 
 freight is now too firmly established to admit of discussion. But to this 
 rule there are many exceptions. If the neutral be guilty of fraudulent or 
 unneutral conduct, or has interposed to assist the enemy in carrying on 
 the war, he is justly deemed to have forfeited his title to freight. Hence 
 the carrying of contraband goods to the enemy; the engaging in the 
 coasting or colonial trade of the enemy ; the spoliation of papers and the 
 fraudulent suppression of enemy interests, have been held to affect the 
 neutral with the forfeiture of freight ; and in cases of a more flagrant 
 
 1 3 Rob., 108 (1800). 2 "Oster Risoer," 4 Rob., 129 (1802). 
 
 3 5 Rob., 333 (1804). * The "Commercen," i Wheat., 387. 
 
 2 C 
 
386 COMMERCE IN WAR 
 
 character, such as carrying despatches or hostile military passengers, an 
 engagement in the transport service of the enemy, and a breach of blockade, 
 the penalty of confiscation of the vessel has also been inflicted." 
 
 The cargo, as the property of the enemy, was liable in any 
 event to condemnation. " But was the voyage lawful," asked Mr. 
 Justice Story, " and such as a neutral could with good faith and 
 without a forfeiture engage in ? " 
 
 Here was a cargo of provisions exported from the enemy's 
 country with the avowed intention of supplying the army of the 
 enemy. Freight was therefore denied. 
 
 " Can," asked the learned judge, "a more important or essential service 
 be performed in favour of the enemy ? In what does it differ from the 
 case of a transport in his service ? . . . Nor do we perceive how the desti- 
 nation to a neutral port can vary the application of this rule ; it is only 
 doing that indirectly which is prohibited in direct courses." 
 
 " The fact that the destination was to a neutral port formed no ground 
 for exemption from the general rule," declared Chief Justice Marshall, " that 
 a neutral carrying supplies to the army of the enemy does, under the 
 mildest interpretations of international law, expose himself to the loss of 
 freight, is a proposition too well settled to be controverted." 
 
 Penalty of confiscation attaches from the commence- 
 ment of the illicit voyage. — The offence of carrying contra- 
 band goods becomes complete, and the penalty of confiscation 
 consequently attaches from the moment the vessel leaves the port 
 on a hostile destination. 
 
 " From the moment of quitting port," said Sir William Scott, in the 
 " Imina,"^ " the offence is complete ; and it is not necessary to wait till the 
 goods are actually endeavouring to enter the enemy's port ; but beyond 
 that, if the goods are not taken in delicto and in the actual prosecution of 
 such a voyage, the penalty is not now generally held to attach." 
 
 In this case the original hostile destination had been altered by 
 the master, and the vessel was making for a neutral port at the 
 time of her capture. There was in consequence no corpus delicti 
 existing at the time of the capture. Here the cargo was taken on 
 a voyage to a neutral port. 
 
 "To say," said Sir William, "that it is nevertheless exposed to con- 
 demnation on account of the original destination as it stood in the minds 
 of the owners, would be carrying the penalty of contraband further than it 
 has ever been carried by this or the Superior Court. If the capture had 
 been made a day before, that is — before the alteration of the course — it 
 might have been different." 
 
 Restitution was ordered, and as it was incumbent on the captors 
 to bring the cause to adjudication in consequence of the apparent 
 original destination, they were allowed their expenses. 
 
 ' 3 Rob., 167 (1800). 
 
CAPTURE AND CONDEMNATION 387 
 
 The same view was maintained in the case of the " Trende 
 Sostre,"^ a Danish vessel captured on 14 May, 1806, at the Cape 
 of Good Hope, where she had touched, on an uherior destination 
 to Tranquebar with a cargo of cordage, tar, iron, gin, and wine, 
 and with despatches from Holland to the Dutch Governor at the 
 Cape. Before the arrival of the vessel the Cape Colony had 
 surrendered to the British. 
 
 "If," observed the Court, "the port had continued Dutch, a person 
 could not, I think, have been at liberty to carry thither articles of a con- 
 traband nature, under an intention of selling other innocent commodities 
 only, and of proceeding with the contraband articles to a port of ulterior 
 destination. But before the ship arrives, a circumstance takes place 
 which completely discharges the whole guilt. Because, from the moment 
 when the Cape became a British possession the goods lost their nature of 
 contraband. They were going into the possession of a British settlement, 
 and the consequence of any pre-emption that could be put upon them 
 would be British pre-emption. It has been said that this is a principle 
 which the Court has not applied to cases of contraband, and that the 
 Court, in applying it to cases of blockade, did it only in consideration of 
 the particular hardships consequent on that class of cases. But I am not 
 aware of any material distinction, because the principle on which the 
 Court proceeded was, that there must be a delictum existing at the 
 moment of the seizure to sustain the penalty. It is said that the offence 
 was consummated by the act of sailing, and so it might be with respect 
 to the design of the party, and if the seizure had been made whilst the 
 offence continued, the property would have been subject to condemnation. 
 But when the character of the goods is altered, and they are no longer 
 going to the port of an enemy, it is not enough to say that they were 
 going on an illegal intention. There may be the mens rea not accom- 
 panied by the act of going to an enemy's port. I am of opinion, therefore, 
 that the same rule does apply to cases of contraband, and upon the same 
 principle on which it has been applied in those of blockade. I am not 
 aware of any cases in which the penalty of contraband has been inflicted 
 on goods not in delicto, except in the recent class of cases respecting the 
 proceeds of contraband carried outward with false papers. But on what 
 principle have those decisions been founded ? On this, that the right of 
 capture having been defrauded in the original voyage, the opportunity 
 should be extended to the return voyage. Here the opportunity has 
 been afforded till the character of the port of destination became British. 
 Till that time the liability attached; after that, though the intention is 
 consummated, there is a material defect in the body and substance of the 
 offence, in fact, though not in intent. I am of opinion that it is a dis- 
 charge and a complete acquittal, that long before the time of the seizure 
 those goods had lost their noxious character of going as contraband to an 
 enemj?s port." 
 
 Right to continue voyage upon surrender of contra- 
 band goods. — It has been assumed by some writers that a 
 neutral vessel is entitled to purchase her freedom and continue 
 
 * 6 Rob., 390, note (1807), 
 
388 COMMERCE IN WAR 
 
 her voyage upon the surrender of whatever contraband goods 
 may be on board, provided they are not greater in bulk than the 
 captor is able to receive. 
 
 It may be at once stated that no such right is known to Inter- 
 national Law, and, indeed, could not exist upon any known 
 principle of law. Moreover, any such right is negatived by the 
 numerous treaties which establish this practice between the 
 respective parties. Where the alleged contraband is the property 
 of the owner of the ship, a voluntary surrender on his part would 
 not affect the rights of others, and if such surrender were accepted 
 by the captor, no further difficulty would arise. But this is a long 
 way from establishing any right to proceed as against the captor. 
 Moreover, where the ship and cargo are the property of several 
 owners, the neutral carrier, as Dana observes, could not prevent 
 the owner of the alleged contraband from claiming his property in 
 Court. The captor, therefore, for his own protection, is bound to 
 take the cargo into port and to submit it to adjudication. In 
 addition, there would be the impossibility, as a rule, of detaching 
 from the ship's papers the necessary documentary evidence and 
 the difficulty of procuring the oral evidence on oath at sea in the 
 manner required by law. In the face of these difficulties, he is 
 inclined to think that even treaties can only apply to cases in 
 which "there is a capacity in the neutral vessel to insure the 
 captor against a claim to the goods." ^ 
 
 In the Projet de Riglement International des Prises Maritimes 
 adopted by the Congress of International Law at Turin in 1882 
 and reaffirmed by the Congress at Heidelberg in 1887, it is pro- 
 vided by Sec. 33 that — 
 
 " Le navire arrdt6 pour cause de contrebande de guerre peut continuer 
 sa route, si sa cargaison ne se compose pas exclusivement, ou en majeure 
 partie, de contrebande de guerre, et que le patron soit pr^t ^ livre celle-ci, 
 au navire du belligerant et que le d6chargement puisse avoir lieu sans 
 obstacle selon I'avis du commandant du croisseur." ^ 
 
 The first conventional application of this practice appeared in 
 the treaty of commerce between Russia and Denmark of 8 October, 
 1782.* This was quickly succeeded by similar provisions con- 
 tained in the following treaties, viz., Sweden and the United 
 States in 1783,* Austria and Russia in 1785,® England and 
 France in 1786,^ France and Russia in 1787,'' Russia and the Two 
 Sicilies in 1787,^ Russia and Portugal in 1787,^ United States and 
 
 1 Dana's " Wheaton," note, No. 230. 
 
 2 "Ann. de I'lnst.," 1882-3, 218 ; ib. 1888, 225. 
 
 3 De Marten's " Rec," III, 476, Art. xx. 
 
 * Ibid., 571, Art. xiii. 5 /j/^.^ ly, 78, Art. xv. 
 
 6 Ibid., 172, Art. xxviii. 7 ji,i^^^ 212, Art. xxxiii. 
 
 8 Ibid., 238, Art. xxii.. 9 Ibid., 329, Art. xxvii. 
 
CAPTURE AND CONDEMNATION 389 
 
 France in 1800,^ Russia and Sweden in 1801,'' United States and 
 Central America in 1825,^ whereby it is enacted that "no vessel 
 of either of the two nations shall be detained on the high seas on 
 account of having on board articles of contraband, whenever the 
 master, captain, or supercargo of the said vessels will deliver up 
 the articles of contraband to the captor, unless the quantity of 
 such articles be so great and of so large a bulk that they cannot 
 be received on board the capturing ship without great incon- 
 venience " ; United States and Brazil in 1828,* United States 
 and Mexico in 1831,^ United States and Venezuela in 1836,^ 
 United States and Peru in 1836,'' United States and Ecuador in 
 1839,® France and Ecuador in 1843,* France and Guatemala in 
 1848,^" United States and New Grenada in 1848," United States 
 and San Salvador in 1850,^^ the Argentine Republic and Peru in 
 1874.1^ 
 
 {d) Attempting to break a de facto blockade after 
 official notification or with knowledge. 
 
 (i) Effect on the ship. 
 
 The penalty for breach of blockade after notification or with 
 knowledge is the condemnation of the vessel. Under the old 
 law the penalty was much more severe. Not only were the ship 
 and cargo confiscated, but the officers and crew were also im- 
 prisoned or subjected to some other personal punishment." 
 
 " The Court has frequently decided," declared Sir William Scott in the 
 " Neptunus,"^ "that neutral vessels breaking a blockade are liable to con- 
 fiscation . . . and that a blockade is broken as much by coming out as by 
 going in." 
 
 In the case of the " Frederick Molke " ^® the real destination was 
 to Havre. When off the latter port, the master was warned by an 
 English frigate not to go into Havre, as there were two or three 
 ships which would stop him, but he slipped in at night and 
 delivered his cargo. During the continuance of the blockade 
 the master came out with a fresh cargo and was captured. 
 
 Sir William Scott refused to admit that there was any analogy 
 between the return voyage of a blockade runner and that of a 
 carrier of contraband, to whom the penalty does not attach after 
 she has discharged her illicit cargo. 
 
 1 De Marten's "Rec," VII, 491, Art. xvii. ^ Ibid., 332, Art. xvi. 
 
 3 Nouv. " Rec," VI, 834, Art. xviii. * Ibid., IX, 61, Art. xviii. 
 
 6 Ibid., X, 339, Art. xx. « Ibid, XIII, 558, Art. xix. 
 
 ' Ibid, XV, 119, Art. xv. * Nouv. " Rec. Gen.," IV, 315, Art. xix. 
 
 9 Ibid., V, 410, Art. xviii. 1° Ibid., XII, 11, Art. xviii. 
 
 " Ibid., XIII, 653. 12 Ibid., XV, 74, Art. xix. 
 
 13 Ibid., 2nd ser., XII, 448, Art. xxiii. " Bynkershoek, "Quaest., J.P.," I, xi. 
 
 16 I Rob., 170 (1799)- '* Ibid, 86 (1798). 
 
390 COMMERCE IN WAR 
 
 " There is," he declared, " this essential difference, that in contraband 
 the offence is deposited with the cargo ; whilst in such a case as this, it is 
 continued and renewed in the subsequent conduct of the ship. For what 
 is the object of blockade ? Not merely to prevent an importation of sup- 
 plies, but to prevent export as well as import, and to cut off all com- 
 munication of commerce with the blockaded place. I must therefore 
 consider the act of egress to be as culpable as the act of ingress, and the 
 vessel on her return still liable to forfeiture and confiscation. There may 
 be cases of innocent egress, where vessels have gone in before blockade, 
 and under such circumstances it could not be maintained that they might 
 not be at liberty to retire. But even then a question might arise if it 
 were attempted to carry out a cargo, for that would, as I have before 
 stated, contravene one of the chief purposes of blockade." 
 
 In the case of Tottie v. Heathcote^ it was found by the Judicial 
 Committee of the Privy Council that the "Johanna Maria," 
 having entered the unblockaded port of Riga and discharged her 
 cargo, had taken on board a fresh cargo with a full knowledge of 
 the existence of the blockade at the time of loading, and in the 
 expectation, as it was said, that the worst that could happen 
 would be that she would be sent back by the blockading ships to 
 unload her cargo. 
 
 As there was clear proof of a de facto blockade, with a full 
 knowledge of it by the master, and nothing which could mislead 
 him as to its extent or effect, the ship was condemned, but with- 
 out costs of the appeal on account of some laxity in the blockade. 
 
 But when a ship has entered a blockaded port before the 
 blockade, and her cargo was taken on board before notice of the 
 blockade, she is entitled to bring it out.^ 
 
 The law and practice in Holland is similar. Bynkershoek, 
 commenting on the orders of the States General, 26 June, 1630, 
 says : — 
 
 "Scilicet commercii intercludendi ergo ordines generales portus 
 Flandriae navibus bellicis obsederant, adeoque omnes quorumcunque naves 
 eo destinatas, in deque exeuntes publicabant ; quem admodum ex ratione, 
 et gentium usu, urbibus obsessis nihil quicquam licet advehere vel ex his 
 evehere." * 
 
 The only exception to the rule that a blockade is broken by 
 egress as well as ingress is, says Sir William Scott in the 
 "Neptunus"* — 
 
 " that of a cargo shipped or delivered to the master, for the use of his 
 owner, before the commencement of the blockade." 
 
 1 10 Moore, P.C.C, 70 (1855). 
 
 2 Cremidiv. Powell, 11 Moore, P.C.C, at p. 116 (1857). 
 
 3 "Quest. J. P.," I, CIV. 
 * I Rob., 171 (1799). 
 
CAPTURE AND CONDEMNATION 391 
 
 Moreover, in conformity with the rule laid down, the offence of 
 breach of blockade attaches to the vessel until the end of the 
 voyage. 
 
 In the case of the " Welvart,"^ Sir William Scott held that if a 
 ship which has broken a blockade is taken on any part of that 
 voyage, she is taken in delicto, and is subject to confiscation ; and 
 in the case of the " Juffrow Maria Schrceder"^ the learned judge 
 held that — 
 
 " Where a ship has contracted the guilt by sailing with an intention of 
 entering a blockaded port or by sailing out, the offence is not purged 
 away till the end of the voyage." 
 
 By the municipal law of France, however, liability to confisca- 
 tion is limited to those cases only in which the vessel is captured 
 in the act of attempting a breach of blockade. 
 
 The liability to the penalty for breach of blockade 
 ceases from the moment the blockade is raised. — What- 
 ever the intention of the parties may have been, if the state of 
 affairs existing at the time of capture have so changed as not to 
 support the corpus delicti, the penalty does not attach. 
 
 In the " Lisette " ' the master had taken on board, out of lighters, 
 cargo which he knew had come from Hamburg in breach of the 
 blockade of that port, and was under an engagement to carry it 
 on to the ultimate port of illegal destination. The blockade had 
 been notified to be withdrawn on 25 September, 1806, and the 
 " Lisette" was captured on the 26th. 
 
 "It is said," declared Sir William Scott, "that the offence was con- 
 summated by the act of sailing ; so it is in a certain sense. But the ship 
 was not taken in delicto ... it is true, as has been observed, that the 
 offence incurred by a breach of blockade generally remains during the 
 voyage. But that must be understood as subject to the condition that 
 the blockade itself continues. When the blockade is raised, a veil is 
 thrown over everything that has been done, and the vessel is no longer 
 taken in delicto. The delictum may have been completed at one period, 
 but it is by subsequent events entirely done away." 
 
 (2) Effect on the cargo. 
 
 If the ship and cargo are the property of the same owner the 
 penalty of confiscation attaches to both.* But if they are the 
 property of different owners, the infliction of the penalty depends 
 upon the attendant circumstances. 
 
 " The general but not the universal rule," said Dr. Lushington 
 
 1 2 Rob., 128 (1799)- ^ 3 Rob., 147 (1800). 
 
 s 6 Rob., 387 (1807). * The "Frederick Molke," i Rob., 86 (1798). 
 
392 COMMERCE IN WAR 
 
 in Baltazzi v. Ryder ^ " is that when the ship is condemned for 
 breach of blockade the cargo must follow the same fate. 
 
 For instance, a vessel coming out of a blockaded port with a 
 cargo \s prima facie liable to seizure, "and to obtain release," said 
 Sir William Scott, " the claimant will be required to give a very 
 satisfactory proof of the innocency of his intention."^ Here the 
 cargo had been put on board after the commencement of the 
 blockade, and egress was made during its continuance, facts which 
 must have been within the knowledge of the shipper. 
 ; Where it is proved that there was a competent authority to 
 impose a blockade, that it was in fact imposed, and that it was 
 maintained in such a manner as to lay upon the parties affected 
 an obligation to attend to it, then, said Sir William Scott in the 
 "RoUa,"' if a ship comes out with a cargo taken on board sub- 
 sequently to the blockade, the onus probandi is thrown on the 
 party to prove that though the blockade might exist, there were 
 circumstances that would operate to release the vessel and exempt 
 her from the penalty of the law. 
 
 But where orders had been given for the goods prior to the 
 existence of a blockade, and it appeared that there was not time 
 for countermanding the shipment, the owner of the cargo is 
 not held responsible for the act of the shipper, who might have 
 an interest in sending off the goods in direct opposition to the 
 interest of his principal. So also where there was no knowledge 
 of the blockade until the ship had sailed, and the master, after 
 receiving information, obstinately persisted in going on to the 
 port of his original destination. 
 
 In both these cases there cannot be any imposition or fraud, 
 since the facts speak for themselves, and the Court has only to 
 look at the dates to satisfy itself of the innocence of the owner of 
 the cargo.* 
 
 And so, too, if the master deviates from the original destination 
 without the knowledge or consent of the owner of the cargo, in 
 order to enter a blockaded port, the owner will not be punished. 
 
 " To maintain that the conduct of the ship will affect the cargo," said 
 Sir William Scott in the " Mercurius,"^ " it will be necessary either to prove 
 that the owners were or might have been cognisant of the blockade before 
 they sent their cargoes, or to show that the act of the master personally 
 binds them. In America there could not have been any knowledge of 
 the blockade ; the cargo is innocent in its nature and sets out innocently. 
 The master certainly is the agent of the owner of the vessel, and can 
 
 1 12 Moore, P.C.C, 173 (1858). 
 
 2 I Rob., 88. 
 
 3 6 Rob., 364 (1807). 
 
 « The "Exchange," i Edw., 43. 
 6 I Rob., 84 (1798). 
 
CAPTURE AND CONDEMNATION 393 
 
 bind him by his contract or his misconduct ; but he is not the agent of 
 the owners of the cargo, unless expressly so constituted by them. 
 
 " It is argued," added the learned judge, " that to exempt the cargo 
 will open the door to fraud, if neutrals are allowed to trade to blockaded 
 ports with impunity, by throwing the blame upon the carrier master. But 
 if such an artifice could be proved, it would establish that mens rea in the 
 neutral merchant which would expose his property to confiscation, and it 
 would, at the same time, be sufficient to cause the master to be considered 
 in the character of agent as well for the cargo as for the ship. 
 
 " When a cargo is of a contraband nature, it will perhaps justify 
 greater severity ; but in cases of contraband it is held that innocent parts 
 of the cargo belonging to other owners shall not be infected. This is, I 
 think, a parallel case. There is misconduct on the part of the owner of 
 the vessel, but none in the owner of the cargo." 
 
 The cargo was restored, because, as the learned judge observed, 
 the shippers at the time of the shipment could not have known of 
 the blockade. 
 
 Deviation into a blockaded port will be presumed to 
 be in the service of the cargo. — In the case of the " Alex- 
 ander," ^ the vessel was on an ostensible voyage to Altona, and 
 was captured when entering Havre during the blockade, under 
 the pretence of being in want of provisions. 
 
 The ship was condemned for fraudulently attempting to enter a 
 blockaded port. In coming to this decision the inference in all 
 cases, said Sir William Scott, is — 
 
 "that a ship going into a blockaded port is going with an intention 
 of disposing of the cargo." 
 
 In condemning the cargo. Sir William added : — 
 
 " It would be impossible to maintain a blockade in cases of this nature, 
 which is directed more against the cargo than against ships, if the Court 
 did not draw the inference that a ship going in fraudulently is going in 
 the service of the cargo, with the knowledge and by the direction of the 
 owner. If any inconvenience arises to the claimants of the cargo, from 
 this necessary conclusion, the owners of the vessel or the master are the 
 persons to whom they must look for indemnification." 
 
 In the case of the " Adonis " ^ the vessel had been warned that 
 Havre was blockaded, but in spite of this warning, although her 
 ostensible destination was Nantes, she persisted in her course to 
 Havre under the excuse of the master that "he wanted to be 
 better acquainted with the French coast." 
 
 The ship having been condemned, it was contended that the 
 condemnation of the ship did not inure to the condemnation of 
 the cargo. 
 
 " This is a case," said Sir William Scott, " in which I have taken some 
 short time to deliberate, being unwilling to press with any degree of un- 
 
 1 4 Rob., 93 (1801). 2 5 Bob., 256 (1804). 
 
394 COMMERCE IN WAR 
 
 necessary severity the effect of presumption against this class of cases, 
 more especially because it is one in which the principle of law, though 
 unquestionably built upon the just rights of war, must be allowed to 
 operate with some hardship upon neutral commerce ; and because it is a 
 class of cases on which the Court has little authority to resort to, but has 
 to collect the law of nations from such sources as reason, supported in 
 some slight degree by the practice of nations, may appear to point out. 
 In the present case, it is now to be assumed that the ship was taken in a 
 course to Havre. I collect that from the strange and incredible account 
 of the master, which I have already said in my opinion cannot be true. 
 It is to be inferred also, I think, that the master was induced to make 
 this deviation from some sinister intention ; and I may be warranted to 
 presume that all this would not have been resorted to but in the service 
 of the cargo." 
 
 It will be observed here that the learned judge piles up pre- 
 sumption upon presumption, and says that these are presumptions 
 which must necessarily arise and by which he must be governed, 
 
 " It has happened," he goes on, " in other blockade cases, that excuses 
 have been set up from want of water and provisions or from other occa- 
 sions ; but when the Court pronounces these excuses to be not real, a 
 presumption necessarily arises that it was for the delivery of the cargo 
 that such a fraud had been attempted, since there is scarcely any other 
 adequate motive which can be supposed to induce a master to hazard the 
 interests of his vessel. There is a presumption also," he continues, " in 
 such cases, that this is done with the knowledge and at the instigation of 
 the owner of the cargo ; because although it is not an impossible thing 
 that masters may be guilty of barratry, it is not a natural conduct, nor 
 what is gratuitously to be supposed. These are, I think, just inferences, 
 and the only question can be as to the effect of the presumption arising 
 from them whether it shall exclude all contrary averment or whether it 
 shall operate only as matter of evidence, in concurrence with other proof, 
 as to the guilt of intention. It must undoubtedly bind the owner ; but 
 the question is, whether it shall do so presumptively or conclusively ; and 
 whether the party shall be let in to prove a contrary intention. I am of 
 opinion he cannot. I will not say that the fact may not exist, that a 
 master should commit barratry in a case of this kind, but I think myself 
 justified in holding that the owner cannot be admitted to go into proof on 
 this point, on account of the fraudulent abuse to which such a liberty 
 must inevitably lead, since it would be perfectly easy at any time to set 
 up the pretence and equally impossible on the other side to detect it. For 
 what would be the ordinary test ? Letters sent to correspondents else- 
 where and insurances — measures wholly in the power of the parties and 
 capable of being made, at their pleasure, a complete recipe for a safe 
 traffic with a blockaded place. When this consequence is duly weighed 
 on one side and when it is considered on the other, what few inducements 
 a master can have to go to any other port than that at which his charter- 
 party binds him to deliver his cargo, and particularly to a blockaded port, 
 it appears to me that less injustice will be done by adopting this rule than 
 by permitting the freighter to distinguish by external and collateral 
 evidence the destination of his cargo from that of the master. 
 
CAPTURE AND CONDEMNATION 395 
 
 " It has been argued that the master is not the representative of the 
 owner of the cargo. Certainly he is not, to that extent, and in the same 
 direct manner in which he is held to be the representative of the owner of 
 the ship. . . . Here the blockade was perfectly well known to all parties 
 at the time of the shipment, and therefore the question is raised whether 
 the owner was not consentient at first, and whether the conduct of the 
 master is not demonstrative evidence that he was so. In my opinion, the 
 effect of all just presumption is against him, since there could scarcely be 
 any inducement to lead the master to commit such a fraud, contrary to 
 the instructions and intention of the owner of the cargo. Considering the 
 infinite danger of admitting the shippers to distinguish their purpose from 
 that of the master, I feel myself obliged to hold that it is sufficiently 
 proved that the ship was going to a blockaded port and with the know- 
 ledge of the proprietor ; and that the cargo is legally involved in the same 
 penalty as the ship." 
 
 " If it was once admitted," said Sir William Scott in the case of the 
 " Exchange," 1 " that a ship may enter an interdicted port to supply herself 
 with water or on any other pretence, a door would be open to all sorts of 
 frauds without the possibility of preventing them." 
 
 In the case of the " James Cook," ^ the vessel with an ostensible 
 destination to Tonningen was captured at the entrance of the 
 Texel. 
 
 " The situation of the vessel," said Sir William Scott, " will justify the 
 legal conclusion that the master intended going into that port for the 
 purpose of disposing of his cargo, and throws the onus upon him of ex- 
 onerating himself by just and satisfactory explanations." 
 
 Upon the evidence, the learned judge found that it was the 
 master's intention to go into that port. 
 
 " With respect to the cargo," he said, " I do not see how it is to be 
 exempted from the fate of the ship ; the master, who is also the owner of 
 the ship, can hardly be supposed to have risked his vessel without the 
 privity of the owner of the cargo, and in its service ; but the fact is not 
 very material, as the owners of cargoes must at all events answer to the 
 country imposing the blockade for the acts of the persons employed by 
 them, whereas in this case the blockade is known at the port of shipment ; 
 otherwise, by sacrificing the ship, there would be a ready escape for the 
 cargo for the benefit of which the fraud was intended." 
 
 But supposing there was a bona fide change of intention on the 
 part of the master, how far would it exonerate the ship and cargo ? 
 
 " It is proper," answered the learned judge, " that there should be a 
 bcus penitentice, and if the case had been brought up to this, that the in- 
 tention of going to a Dutch port had been abandoned, and that the ship 
 had been captured while proceeding to some open port, the claimants 
 would have had the benefit of that fact. But what is the case here ? The 
 ship is captured in a place where the fact is conclusive against her, for it 
 
 > I Edw., 39 (i8o8). 2 /^/^.^ 261 (i8io). 
 
396 COMMERCE IN WAR 
 
 has been determined over and over again that a ship is not at liberty to 
 go up to the mouth of a blockaded port even to make inquiry. That in 
 itself is a consummation of the offence, and amounts to an actual breach 
 of the blockade. . . . The master had already broken the blockade j he 
 had come up to the ground which it was improper for him to tread, and 
 finding the impossibility of going in he turned away. Is that a locus 
 penitentuB? The matter was closed upon him; he had committed the 
 offence as much as in him lay, and having been defeated in his purpose 
 by a mere impossibility of effecting it, he cannot be heard to aver an 
 innocence of intention." 
 
 The ship and cargo were condemned. But with whatever in- 
 tention to break blockade the vessel may have sailed, yet if before 
 capture the blockade has been raised, the offence ceases ipso facto 
 in spite of the conflicting rule that the offence is committed at the 
 moment of sailing with a criminal intention. In the "Conferenz- 
 rath " ^ Sir William Scott said :— 
 
 " With respect to the intention of the parties, it does appear from the 
 charter-party that there was a design to violate the blockade ; but though 
 there may have been the mens rea, the parties have had the benefit of 
 extrinsic circumstances turning out in their favour. The blockade was 
 raised before the vessel sailed, so that there is not the corpus delicti exist- 
 ing that would be necessary also to draw upon them the penalties of the 
 law." 
 
 In Baltazziv. Ryder ^ the " Panaghia Rhomba" was captured 
 when making for Odessa, a blockaded port, under the excuse of 
 preserving the ship and cargo and the lives of those on board. 
 After granting further proof as to this to both parties (which the 
 learned judge did as a great concession, only justified by reason of 
 the latitude extended to Oriental merchants). Dr. Lushington con- 
 demned the ship and cargo. The question for the Court then to 
 determine is, he said — 
 
 " whether the excuse set up by the claimants for entering a blockaded 
 port is proved by clear and decisive evidence. The onus probandi is upon 
 the claimants, and they are bound to make out the affirmative to the 
 satisfaction of the Court ; for if there be any principle more important or 
 more firmly established than another, it is that the presumption is against 
 a vessel captured in entering a blockaded port, and that an imperative 
 and overruling necessity for so doing must be established. 
 
 " The question is not what was the opinion of the master as to there 
 being a necessity for going into a blockaded port, nor whether his conduct 
 was bona fide or not ; it is impossible for the Court to try a question of 
 that description ; the Court cannot try motives and convictions depend- 
 ing on the peculiar character and temperament of the master. The 
 true and only question for consideration is, whether the necessity is 
 proved by the evidence to have existed ; and the necessity being proved, 
 
 1 6 Rob., 362. 
 
 2 12 Moore, P.C.C, 168 (1858). 
 
CAPTURE AND CONDEMNATION 397 
 
 it excuses an attempt to enter a blockaded port ; the apprehension of 
 necessity not proved works no such effect." Does the conduct of the 
 ship, asked the learned judge, affect the cargo? "The general but not 
 the universal rule is," he answered, " that when the ship is condemned for 
 breach of blockade the cargo must follow the same fate." 
 
 After having examined the judgments of Sir William Scott 
 in the " Mercurius," the "Alexander," the "Adonis," and the 
 "James Cook," Dr. Lushington continued : — 
 
 " I can say with truth that I have exercised all my ingenuity to avoid, 
 if possible, applying the principles laid down in the cases I have cited to 
 that now under consideration, and I have done so because, looking at the 
 whole case, I have no reason to believe that the claimants of the cargo 
 had any intention of breaking the blockade. It is my duty, however, to 
 declare that according to past decisions that consideration is not open to 
 me, that I am forbidden to make an exception which, if once admitted, 
 would in all cases of blockade call on the Court to consider the guilt or 
 innocence of the owners of the cargo, a proposition which Lord Stowell 
 declared to be fraught with danger ; indeed, I believe it to be utterly im- 
 possible to enforce the belligerent rights of this country except upon 
 general principles, and that all attempts to go upon purely equitable 
 principles, particular decisions and particular cases, without regard to the 
 great principles, can only have the effect of destroying the right and 
 rendering it no longer worth the exertion which Great Britain used in 
 times past for the purpose of protecting it." 
 
 Upon appeal by the owner of the cargo from this decision, a 
 considered judgment of the Judicial Committee of the Privy 
 Council affirmed the judgment of Dr. Lushington upon every 
 point. The question raised was whether it was competent to the 
 claimants of the cargo to protect their property from condemna- 
 tion by showing their innocence in the transaction ; or whether, 
 under the circumstances of the case, the owners of the cargo were 
 concluded by the illegal act of the master, though it may have 
 been done without their privity and even contrary to their wishes. 
 
 Their lordships stated that if the law was to be collected from 
 the decision in the " Mercurius " they would have had great 
 difficulty in assenting to Dr. Lushington's judgment, but they 
 considered that the subsequent cases appeared to have carried the 
 rule there laid down much further, and to have established — 
 
 "That when the blockade was known or might have been known to 
 the owners of the cargo at the time when the shipment was made, and 
 they might therefore by possibility be privy to an intention of violating 
 the blockade, such privity shall be assumed as an irresistible inference of 
 law, and it shall not be competent to them to rebut it by evidence ; that 
 in cases of blockade, for the purpose of affecting the cargo with the rights 
 of the belligerent, the master shall be treated as the agent for the cargo 
 as well as for the ship. 
 
398 COMMERCE IN WAR 
 
 " The propriety, or rather the necessity, of acting upon these rules is 
 rested by Lord Stowell on the notoriety of the fact that in almost all cases 
 of breach of blockade the attempt is made for the benefit and with the 
 privity of the owners of the cargo ; that if they were at liberty to allege 
 their innocence of the act of the master it would be easy to manufacture 
 evidence for the purpose, which the captors would have no means of dis- 
 proving ■„ and that in order to make a blockade effectual, it is essential to 
 hold the cargo responsible to the blockading power for the act of the 
 master, to whom the control over it has been entrusted, leaving theowners 
 to seek their remedy against the master or the owners of the ship, if in 
 reality the penalty was incurred without any privity on their part" 
 
 Effect of a contingent destination.— When a vessel sails 
 conditionally for a blockaded port upon the supposition that 
 before her arrival the blockade may have been raised, and if not, 
 then for a free port, the ship and cargo will not be condemned. 
 
 In the case of the "Shepherdess,"^ an American ship and 
 cargo, captured in the act of breaking the blockade of Havre, Sir 
 William Scott, referring to American merchants, said : — 
 
 " At the same time, looking to the great distance at which they are 
 placed, and being unwilling to press with any degree of hardship on the 
 fair convenience of commerce, 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 uncertainty, the Court has always expected that the inquiry 
 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 this information, since everyone 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 inquiry ; 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 supercargo in their 
 instructions to obtain the information that might be necessary to fix the 
 destination at some of the British ports in the Channel." 
 
 (e) Engaging in the colonial or coasting trade of the 
 enemy. — Colonial trade of belligerent. — Neutrals cannot 
 carry on trade in time of war between a belligerent and its 
 colonies if they were excluded from such trade in time of peace. 
 
 This is known as the Rule of War of 1756, because, says 
 Manning — 
 
 " In the war of 1756, the French, finding themselves worsted at sea and 
 unable to carry on their colonial trade themselves, repealed their old ex- 
 clusive laws which restricted foreigners from prosecuting the trade 
 between France and the French colonies, and opened this trade to the 
 
 1 S Rob., 262 (1804). 
 
CAPTURE AND CONDEMNATION 399 
 
 ships of the neutral Powers. But Great Britain denied that neutrals 
 could have any right to enter upon such a traffic which was a direct inter- 
 ference with her maritime rights, as it might enable colonies to hold out 
 that would otherwise fall into her power, and might enable France to 
 withdraw seamen from her merchant service to man her fleet, which 
 would otherwise have been obliged to be engaged in the colonial trade, or 
 France would have risked the surrender of her colonies." ^ 
 
 The true foundation for the rule would appear to be that the 
 neutral is not merely trading with the enemy, but for the enemy, 
 and in thus identifying himself with the interests of the enemy he 
 comes within the common law, which subjects the property of the 
 enemy to seizure and confiscation. 
 
 " I understand the rule of law to be," declared Sir William Scott in the 
 " Nancy," ^ " that the trade between the colony and the mother country in 
 Europe, being opened by the enemy for his own relief under the pressure 
 of war, cannot innocently be undertaken by a neutral, nor without the 
 hazard of rendering him liable to be considered as giving immediate aid 
 and adherence to that belligerent to the unjust disadvantage of his 
 adversary." 
 
 It has been alleged that this rule had not been recognized prior 
 to 1756, but Baron de Cocceii, at the close of the seventeenth 
 century, expounded the right of a neutral to be the maintenance 
 of his accustomed trade during peace, thus inferentially excluding 
 the colonial trade from which foreigners were uniformly excluded. 
 The principle appears to be precisely the same as that by which 
 a neutral is declared disentitled to interpose and carry on for a 
 belligerent the coasting trade which the latter has been prevented 
 by his antagonist from doing himself* 
 
 France, for instance, herself recognized the justice of this 
 practice, since by her Riglements of July, 1704, and of October, 
 1744, the principle contained in the rule of 1756 was enforced in 
 the severest language.* 
 
 The " Immanuel "* was a Hamburg ship captured on a voyage 
 from Hamburg first to Bordeaux, where she discharged part of 
 her cargo, and having replaced it by other goods, then to the 
 French colony of St. Domingo. 
 
 After decreeing restitution of those goods which came from 
 Hamburg, Sir William Scott proceeded to deal with the proposi- 
 tion — 
 
 "Whether neutral property engaged in a direct traffic between the 
 enemy and his colonies is to be considered as liable to confiscation ? " 
 
 1 " Law of Nations,'' 196. 
 
 2 3 Rob., 82 (1800). 
 
 3 Reddie, "Maritime Inter. Law.," Vol. II, 446. 
 * Valin, "Ord. de la Marine," torn. II, 248-51. 
 
 5 The " Immanuel," 2 Rob., 186 (1800). 
 
400 COMMERCE IN WAR 
 
 The general rule is, he declared, that a neutral has a right to 
 carry on in time of war his accustomed trade to the utmost extent 
 of which that accustomed trade is capable. But this is very- 
 different from engaging in a trade in time of war which he has 
 never enjoyed, and which he holds by no title of use or habit in 
 time of peace, and which, in fact, he can obtain in war by no 
 other title than by the success of the one belligerent against the 
 other, and at the expense of that very belligerent under whose 
 success he set up his title. 
 
 " What is the colonial trade ? " asked the learned judge. " It is a 
 trade generally shut up to the exclusive use of the mother-country to 
 which the colony belongs, and this to a double use : that of supplying a 
 market for the consumption of native commodities, and the other of 
 furnishing to the mother-country the peculiar commodities of the colonial 
 regions." 
 
 Applying the principle of the rule of 1756, the learned judge 
 condemned that part of the cargo taken in at Bordeaux, and 
 ordered the remainder of the cargo and the ship to be restored, 
 but without freight or expenses. 
 
 The " Wilhelmina " ^ was a Danish vessel, taken July, 1798, on 
 a voyage from La Guayra to Leghorn, and carrying a cargo of 
 colonial produce, claimed for merchants at Bremen, i.e. on a 
 voyage from a Spanish colony to a European port, not being a 
 port of Great Britain nor of the country to which either the ship 
 or the cargo belonged. It had already been held, said Lord 
 Chancellor Loughborough in delivering the judgment of the 
 Court of Appeal — 
 
 "that by the general law of nations it is not competent in neutrals to 
 assume, in time of war, a trade with the colony of the enemy, which was 
 not permitted in time of peace." 
 
 Both ship and cargo were condemned. 
 
 In the earlier case of the " Minerva," ^ an American ship cap- 
 tured by a French privateer on a voyage from Languera, a 
 Spanish settlement, to Corunna, and afterwards recaptured by a 
 British cruiser as the captors were taking her to a French port. 
 Sir William Scott declined to condemn the ship, although the 
 ship and cargo both belonged to the same person. It was held 
 that the compulsory deviation did not defeat the illegality of the 
 original voyage. But even giving the owners the benefit of this 
 deviation, yet, said Sir William Scott — 
 
 " Being to a French port it would be a voyage from the colony of one 
 enemy to the mother-country of an allied enemy, which I have before 
 held is attended with undistinguishable consequences as to the cargo." 
 
 » 4 Rob., "Append.," p. 4 (1801). 
 2 3 Rob., 229 (March, 1801). 
 
CAPTURE AND CONDEMNATION 401 
 
 But the learned judge, in view of some fluctuation in the 
 practice, restored the ship subject to forfeiture of freight and 
 expenses. He admitted that the principle on which trade with 
 the enemy's colony was prohibited applied equally to the ship as 
 to the cargo. There were, however, cases in which the penalty 
 attached in practice more strongly on the delinquent cargo than 
 on the delinquent ship. For instance, in cases of contraband, the 
 offence of carrying the cargo was in its own nature as great as 
 the offence of sending it ; yet a relaxation had in ordinary cases 
 been introduced where the cargo was not the property of the 
 owner of the ship. 
 
 Here the ship and cargo belonged to the same person, and the 
 offence being equally known, it would be impossible to find any 
 distinction in principle why the same penalty would not attach to 
 both. 
 
 In the "Anna Dorothea"^ Sir William followed the same 
 course, although he declared himself by no means satisfied of the 
 correctness of the practice. 
 
 The " Jonge Thomas"^ was on a voyage from Amsterdam to 
 Surinam after having touched at Emden, and therefore not a case 
 of a ship going simply from a neutral country to the colonies of 
 the enemy. The Court of Appeal declared in general terms that 
 the illegality attached as strongly to the ship as to the cargo, and 
 pronounced the ship subject to condemnation on the ground of 
 the illegality of the trade between the mother-country and the 
 colony of the enemy. Owing to these circumstances, says the 
 late Mr. Tudor— 
 
 "In the 'Nancy Benjamin' (19 December, 1803), an American ship 
 going from La Guayra to Hamburg, it was for some time disputed 
 whether the Court had in any precedent pronounced the penalty of con- 
 fiscation on the ship in such a voyage, or whether the favourable distinc- 
 tion admitted by the Court of Admiralty in the ' Minerva ' was not to be 
 applied. The Court was strongly impressed with a notion that the 
 penalty had been enforced, holding it clearly to be within the same 
 principle. In adverting to other cases ("Volant," Bessom, Dec, 1801), 
 determined after the 'Wilhelmina' on the authority of that case, it 
 appeared that several had been condemned. The principle was accord- 
 ingly understood to extend to the ship as well as to the cargo." 
 
 So, too, the Rule of War of 1756 applies to the case of a neutral 
 going on a direct voyage from the mother-country of one enemy 
 to the colony of another enemy allied in the war. The " Rose " * 
 was an American ship on a voyage from Amsterdam to Guade- 
 loupe, Holland and France being then at war in alliance against 
 
 1 3 Rob., 233 (August, 1801). 2 /5/^_^ 233 (Nov., 1801). 
 
 3 2 Rob., 206 (1799)- 
 2 D 
 
402 COMMERCE IN WAR 
 
 Great Britain, and the rule equally applies to the case of a neutral 
 carrying on a trade between the settlement of one enemy and the 
 colonial possession of an allied enemy. The " New Adventure " ^ 
 was the case of an American vessel with a cargo of slaves, taken 
 on a voyage from the French settlement of Gor^e to the Spanish 
 colony of Havana, France and Spain being then at war as allies 
 against Great Britain. 
 
 By an extension of the rule of 1756, the carrying on of a trade 
 by a neutral from a port of his own country to a port of the colony 
 of a belligerent was prohibited. In the French Revolutionary 
 war the rule was applied both in the case of the vessel returning 
 to the country of the ship and to the country of the owner of the 
 cargo. But in the Napoleonic wars the rule was restricted to the 
 vessel returning to the country of the ship. 
 
 Thus in the case of the " Conferenzrath,"* a Danish vessel 
 captured on a return voyage from Montevideo (a Spanish colony) 
 to Hamburg, the cargo was restored, since it was a return not to 
 the country of the ship, but merely to the country of the owners 
 of the cargo, who resided at Hamburg. 
 
 If the return had been, for instance, to Copenhagen, then the 
 ship and cargo might have been liable to confiscation. 
 
 This is certainly an extension of the principle laid down by Sir 
 William Scott himself in the " Immanuel " * and in the " Juliana," * 
 where the cargo which had been taken on board at the port of 
 the country of the neutral to be delivered at a port in a colony of 
 a belligerent was restored. 
 
 It is doubtful how far this alleged extension was really recog- 
 nized or enforced in the British Court of Admiralty. 
 
 Forfeiture of Freight. — The " Rebecca"^ was an American 
 ship with a cargo of colonial produce, captured on a voyage 
 between the colonies and the mother-country of the enemy. The 
 ship had been restored by consent, and upon application for an 
 allowance of freight Sir William Scott flatly refused to accede, 
 declaring that in no case of this kind of direct trade between the 
 colony and the mother-country would he give freight. 
 
 Coasting trade of belligerent. — The Rule of War of 1756 
 applies equally to the coasting trade of a belligerent, of which he 
 has retained a monopoly in times of peace, and which he throws 
 open only in time of war. See the notes to the "J. Tholen " and 
 the " Ebenezer," 6 Rob., pp. 72, 250. 
 
 1 4 Rob., "Append.," p. 4 (1801). 2 6 Rob., 362 (1803). 
 
 3 2 Rob., 186 (1799). * 4 Rob., 328 (1803). 
 
 ^ 2 Rob., loi (1799). 
 
CAPTURE AND CONDEMNATION 403 
 
 The " Emanuel " ^ was a neutral (Danish) ship carrying on the 
 coasting trade of the enemy by carrying salt from one Spanish 
 port to another. In refusing the claim of the owners of the ship 
 for freight and expenses, the ship having been restored and the 
 cargo condemned as enemy's property, Sir William Scott inferred 
 that this vessel was carrying on a commerce which, according to 
 the general trading system of Spain, this Power could not pursue 
 owing to the pressure to which her commerce had been reduced 
 by Great Britain. On what ground, he asked, could the 
 claimants ask for freight — 
 
 "on a voyage undertaken for the peculiar accommodation and relief 
 of the enemy, under the distress to which the successful hostilities of the 
 captor's country had reduced him? Is there nothing like a departure 
 from the strict duties imposed by a neutral character and situation in 
 stepping in to the aid of the depressed party, and taking up a commerce 
 which so peculiarly belonged to himself, and to extinguish which was one 
 of the principal objects and proposed fruits of victory? Is not this, by a 
 new act, and by an interposition neither known nor permitted by that 
 enemy in the ordinary state of his affairs, to give a direct opposition to 
 the efforts of the conqueror, and to take off that pressure which it is the 
 very purpose of war to inflict, in order to compel the conquered to a due 
 sense and observance of justice ? Is this so clearly within the limits of 
 impartial and indifferent conduct, that if a neutral ship is taken in an 
 offence of this kind she is entitled to a claim against the captor whom she 
 is thus counteracting and almost defrauding, the very same rights which 
 she possessed against the claimant, to whom she is giving this extra- 
 ordinary and irregular assistance ? 
 
 "Can there be described," continued the learned judge, "a more 
 effective accommodation that can be given to an enemy during a war 
 than to undertake it for him during his own disability? Is it nothing 
 that the commodities of an extensive empire are conveyed from the parts 
 where they grow and are manufactured to other parts when they are 
 wanted for use ? It is said that this is not importing anything new into 
 the country, and it certainly is not ; but has it not all the effects of such 
 importation ? Suppose that the French navy had a decided ascendant 
 and had cut off all British communication between the northern and 
 southern parts of this island, and that neutrals interposed to bring the 
 coals of the north for the supply of the manufactures and for the 
 necessities of domestic life in this metropolis ; is it possible to describe a 
 more direct and a more effectual opposition to the success of French 
 hostility, short of actual military assistance in the war ? " 
 
 Three cases having been cited in argument in which freight 
 had been allowed to vessels so employed. Sir William Scott re- 
 ferred to the case of the " Mercurius,"^ in which freight was 
 refused by the Lords of Appeal. This was a Danish vessel 
 carrying a cargo of wheat from Dunkirk to Bordeaux, 
 
 1 I Rob., 296 (1799). ' Lords, 7 March, 1795. 
 
404 COMMERCE IN WAR 
 
 " The cargo," said Sir William Scott, " was lawful under the Danish 
 treaty, to the benefit of which the party was entitled as bona fide domiciled 
 in Denmark, although a native subject of Great Britain. I am not able 
 to say precisely how far the circumstance of his birth was an ingredient 
 in the determination of the case ; but the general rule is, that a person 
 living bona fide in a neutral country is fully entitled to carry on a trade to 
 the same extent as the native merchants of the country in which he 
 resides, provided it is not inconsistent with his native allegiance. It is 
 conformable to more ancient judgments upon the subject, which have 
 pronounced that ' Neutrals are not to trade on freight between the ports 
 of the enemy.' To this principle I shall adhere in the present case." 
 
 The " Atlas "^ viras an American ship claimed for merchants in 
 America. The cargo was sent from America to Vigo, or a 
 market, consigned to the master for sale. It was sold at Vigo to 
 the Spanish Government, and went thence to Seville as Spanish 
 property. In condemning the cargo and restoring the ship, 
 freight was refused, on the ground that the ship was engaged in 
 the coasting trade of the enemy. 
 
 It has been stated that the policy of Free Trade adopted by 
 Great Britain, which afforded an opportunity to all the world to 
 participate in her colonial and coasting trade, has rendered the 
 Rule of War of 1756 obsolete,^ and it has also been observed by 
 a more recent writer that its practical importance will probably 
 hereafter be much diminished by the revolutioii which has taken 
 place in the colonial system of Europe.^ 
 
 It is true, as Mr. Tudor justly observes, that as Great Britain 
 has thrown open her colonial and coasting trade, any neutrals 
 engaging in such trade in time of war as they had engaged in in 
 time of peace, would only be carrying on their accustomed trade, 
 and would commit no offence against the Rule of War of 1756. 
 And so likewise with other nations, who have abandoned the 
 monopoly of their colonial or coasting trade. But in the case of 
 those nations who have retained such monopoly the Rule of War 
 of 1756 is still operative, and an enemy has no right to complain 
 that property engaged in such trade should be liable to confisca- 
 tion. Nor is the neutral entitled to complain. What right has a 
 neutral to apply to his own use the beneficial consequences of the 
 superiority of the belligerent ? 
 
 " It cannot be contended," exclaimed Sir William Scott in the " Im- 
 manuel," * " to be a right of neutrals to intrude into a commerce which 
 has been uniformly shut against them, and which is forced open merely 
 by the pressure of war ; for when an enemy under an entire inability to 
 supply his colonies and to export their products affects to open them to 
 
 ' 3 Rob., 299 (1801). 2 Wheaton's "Elements," p. 819 «. 
 
 3 Atla/s " Wheaton," sec. 508. * 2 Rob., 186 (i799). 
 
CAPTURE AND CONDEMNATION 40S 
 
 neutrals, it is not his will, but his necessity that changes his system ; that 
 change is the direct and unavoidable consequence of the compulsion of 
 war ; it is a measure not of French councils, but of British force." 
 
 The American view of the Rule of War of 1756. — The 
 
 legality of the Rule of War of 1756 has always been questioned 
 by the Government of the United States. American jurists agree 
 that the Dutch ships which carried on during that war the trade 
 between France and her colonies under special licences or passes, 
 which were granted to them only, all other neutrals being ex- 
 cluded, were legally liable to confiscation with their cargoes upon 
 the ground that by such employment they were in effect in- 
 corporated into the French marine, having adopted the character 
 and trade of the enemy and identified themselves with his in- 
 terests and purposes. So also they are agreed that where a 
 neutral is engaged in a trade which is exclusively confined to the 
 subjects of a country in peace and in war, and is interdicted to all 
 others, and cannot be avowedly carried on in the name of a 
 foreigner, such a trade is to be considered so entirely national 
 that it must follow the hostile situation of the country. 
 
 " But," says Wheaton, " there is all the difference between this principle 
 and the modern British doctrine, which interdicts to neutrals during war 
 all trade not open to them in time of peace, that there is between the 
 granting by the enemy of special licences to the subjects of the belligerent 
 State protecting their property from capture in a particular trade, which 
 the policy of the enemy induces him to tolerate, and a general exemption 
 from capture. The former is clearly cause of confiscation, whilst the 
 latter has no such effect. The Rule of War of 1756 was founded upon 
 the former principle, and likewise upon a construction of the treaties 
 between Great Britain and Holland, in which, the former Power con- 
 tended, was conceded to the latter a freedom of commerce only as to her 
 accustomed trade in time of peace. The rule lay dormant through the 
 war of the American Revolution, but was afterwards revived during the 
 war of the French Revolution, and extended to the prohibition of all 
 neutral traffic whatsoever with the colonies and upon the coasts of an 
 enemy." ^ 
 
 It was, indeed, contended in the case of the " Emanuel"^ that 
 this principle had been largely abandoned by the Lords Com- 
 missioners of Appeal during the war of American Independence. 
 In this case Sir William Scott declared that he was not acquainted 
 with any decision to this effect, and he very much doubted 
 whether any decision had given even an indirect countenance to 
 this supposed dereliction of a principle apparently rational in itself 
 and conformable to all general reasoning on the subject. 
 
 1 2 Wheaton's " Rep. Append.," 506. 
 
 2 I Rob., 299 (1799). 
 
4o6 COMMERCE IN WAR 
 
 "It is certainly true," he admitted, "that in the last war many de- 
 cisions took place which then pronounced that such a trade between 
 France and her colonies was not considered an unneutral commerce; but 
 under what circumstances ? It was understood that France, in opening 
 her colonies during the war, had declared that this was not done with a 
 temporary view relative to the war, but on a general and permanent pur- 
 pose of altering her colonial system and of admitting foreign vessels 
 universally and at all times to a participation of that commerce. Taking 
 that to be the fact (however suspicious its commencement might be 
 during the actual existence of a war), there was no ground to say that 
 neutrals were not carrying on a commerce as ordinary as any other in 
 which they could be engaged ; and, therefore, in the case of the ' Ver- 
 wagtig ' ^ and in many other succeeding cases, the Lords decreed payment 
 of freight to the neutral shipowner. It is fit to be remembered on this 
 occasion that the conduct of France evinced how little dependence can 
 be placed upon explanations of measures adopted during the pressure of 
 a war, for hardly was the ratification of peace signed, when she returned 
 to her ancient system of colonial monopoly. In the present war I am not 
 aware that any judgments of the Supreme Court yet pronounced have 
 receded from the principle, except in cases and under circumstances in 
 which a respect to public stipulations and treaties require that the appli- 
 cation should be limited ; the general principle I take to be entire and 
 untouched, as far as it relates to that trade of the colonies." 
 
 From the simple rule which prohibits neutrals from interposing 
 in the trade between the mother-country and her colonies, or in 
 the coasting trade of the belligerent from which they were 
 excluded in time of peace, a series of innovations, contends 
 Wheaton, have sprung. First, the prohibition of trade between 
 neutrals from a port in their own country and the colonies of a 
 belligerent ; secondly, the prohibition of trade by neutrals from 
 the port of an enemy to the port of another ; and, lastly, the pro- 
 hibition of all trade whatever by a neutral between the ports of a 
 belligerent, but with a cargo from the neutral's own country. 
 
 And, indeed, some writers attacked the rule itself The 
 Government of the United States in its diplomatic correspondence 
 constantly protested in the most emphatic manner against its 
 legality, and insisted that it was an attempt to establish "a new 
 principle of the Law of Nations," and one which subverted 
 
 " many other principles of great importance which have heretofore been 
 held sacred among nations." Neutrals were entitled "to trade, with the 
 exception of blockades and contraband, to and between all ports of the 
 enemy and in all articles, although the trade should not have been opened 
 to them in time of peace." * 
 
 1 Lords, 28 February, 1786. This was a Danish vessel bound from Marseilles to 
 Martinique and back to Europe, captured on the outward voyage. 
 
 2 Mr. Monroe's letter to Lord Mulgrave 23 September, 1805, and Mr. Madison's 
 letter to Messrs. Monroe and Pinckney, 17 May, 1806; Phillimore, "Inter. Law," 2nd 
 ed.. Vol. Ill, 378. 
 
CAPTURE AND CONDEMNATION 407 
 
 That such views are inconsistent with any known principle of 
 International Law must be clear from the enunciation of the law 
 by Sir William Scott, but the same remark may not be so applic- 
 able to the extensions of the rule of which Mr. Wheaton com- 
 plained. 
 
 In a letter to that learned jurist in 18 16, Mr. Justice Story 
 gives his views on the matter in dispute : — 
 
 " My own private opinion certainly is, that the coasting trade of a 
 nation, in its strict character, is so exclusively a national trade, that neutrals 
 can never be permitted to engage in it during war without being affected 
 with the penalty of confiscation. The British have unjustly extended the 
 doctrine to cases where a neutral has traded between the ports of the 
 enemy with a cargo taken in at a neutral country. I am as clearly 
 satisfied that the colonial trade between the mother-country and the 
 colony where that trade is thrown open merely in war, is liable in most 
 instances to the same penalty. But the British have extended this 
 doctrine to all intercourse with the colony, even from or to a neutral 
 country, and herein, it seems to me, they have abused the rule. This at 
 present appears to me to be the proper limits of the rule, as to the 
 colonial and coasting trade, and the rule of 1756 (as it was at that time 
 applied) seems to me to be well founded, but its late extension is repre- 
 hensible." ^ 
 
 During the Russo-Japan war the German ship "Thea" was 
 captured by Russia on the ground that she was engaged in the 
 Japanese coasting trade, and that this had been thrown open on 
 the outbreak of war. 
 
 (/) Proceeding as a vessel equipped for war to a bel- 
 ligerent. — When a vessel is equipped for war and is sent to a 
 hostile port with the intention of selling her to a belligerent, she 
 will be condemned as contraband. 
 
 The "Brutus"^ was a vessel then recently built at Salisbury, in 
 the State of Massachusetts, pierced for fourteen guns, but with 
 only two mounted for defence, as it was alleged, against French 
 privateers. She had been sent to Havana with instructions to the 
 master "that he should sell her or take goods or freight at his 
 discretion, but that the owners should prefer the sale rather than 
 freighting her, as she was not calculated for such employ unless 
 necessitated." The survey taken at Halifax showed 
 
 " that her hull, masts, yards, rigging, and sails appeared in every respect 
 as fitted for a ship of war ; that she had shot lockers fitted to each port 
 and netting stanchions for stowing hammocks for quarters with nettings 
 fixed fore and aft; that she was pierced for fourteen guns, with ports 
 
 1 " Life and Letters of Joseph Story," Vol. I, 287. 
 
 2 5 Rob., "Append." (27 July, 1804). 
 
408 COMMERCE IN WAR 
 
 calculated for guns of four pounds, with rings and eyebolts, and that 
 her sides were regularly built for quarters agreeably to the established 
 way of building with bow and stern chase ports and a capstan complete 
 for heaving up the anchor instead of a windlass." 
 
 The Court of first instance declared that the vessel was built 
 for purposes of war and not of peace, and condemned her as con- 
 traband of war. 
 
 This sentence was affirmed by the Lords of Appeal. In three 
 previous cases their lordships restored the vessels. The " Fanny " 
 and the " Neptune " were vessels of a more ambiguous construc- 
 tion, but were going to Havana with directions to be sold 
 there. They were condemned as contraband by the Vice- 
 Admiralty Court of the Bahamas. Upon appeal, the Lords of 
 Appeal, in consideration of the equivocal nature of their character 
 and the employment in trade in which they had been actually en- 
 gaged, and of the occasion for selling arising out of the attendant 
 circumstances, reversed the sentence and ordered restitution. The 
 " Raven " was a French privateer, which had been condemned as 
 such at New York. It appeared that the purchaser had bought 
 for purposes of trade, and had used his best endeavours to make 
 her fit for that service. Finding her still unsuitable, he was on that 
 account intending to re-sell her. Restitution was decreed by the 
 Court of Appeal. From these decisions Dr. Christopher Robinson, 
 the learned reporter, formulated the rule — 
 
 " That though the principle of considering the sale of ships of war to 
 the enemy as contraband is strictly held by the decisions of the Court of 
 Appeal, the application of the principle has been restricted to cases in 
 which no doubt existed as to the character of the vessel or the purpose for 
 which it was intended to be sold." ^ 
 
 In the case of the " Richmond," ^ Sir William Scott said : — 
 
 " Here was an avowed intention of going to sell a ship to a belligerent, 
 which, in time of war, is at least a very suspicious act — and to do a great 
 deal more, to sell a ship which the neutral owner knew to be peculiarly 
 adapted for the purposes of war, and with a declared expectation that it 
 would be hostilely employed against this country. It cannot surely, under 
 any point of view, but be considered as a very hostile act to be carrying a 
 supply of a most powerful instrument of mischief, of contraband ready 
 made up, to the enemy for hostile use, and intended for that use by the 
 seller, and with an avowed knowledge that it would be so applied." 
 
 And it would seem to be unnecessary to constitute this offence, 
 that the ship should be actually equipped for war, if she is capable 
 of being adapted, or readily adapted, for warlike purposes. If, 
 
 1 S Rot., "Append." 2 Ibid., 325 (7 Dec, 1804). 
 
CAPTURE AND CONDEMNATION 409 
 
 for instance, she was capable of or adaptable for the transport of 
 troops, or even perhaps of military stores.^ 
 
 Although it is an offence against International Law to furnish 
 a belligerent with a ship of war, or with a vessel capable of being 
 converted into a ship of war (which is par excellence contraband 
 in its most aggravated form), yet such an act is not a violation of 
 national neutrality, unless the subject of some convention, nor is 
 it an offence against the municipal law of the offender, unless 
 specially prohibited by some special enactment. 
 
 It was held by the Supreme Court of the United States in the 
 case of the "Santissima Trinidad,"^ that the sending of armed 
 vessels or of munitions of war from a neutral port, Baltimore, to 
 a belligerent port, Buenos Ayres, a colony which had revolted 
 from, and was at war with, Spain, for sale as articles of commerce, 
 was illegal only in so far as it rendered the property if captured 
 liable to confiscation. 
 
 In delivering the judgment of the Court, Mr. Justice Story 
 said : — 
 
 " It is apparent 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- 
 demned as good prize and 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 well 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 persons 
 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 bona fide sale (and there is nothing in the evidence 
 before us to contradict it), there is no pretence to say that the original 
 outfit on the voyage was illegal, or that a capture made after sale was for 
 that cause alone invalid." 
 
 This view was expressly followed by Lord Westbury in 
 ex parte Chevasse, in re Grazebrook^ where he said : — 
 
 " I take this passage to be a very correct representation of the present 
 state of the law in England also. For if a British shipbuilder builds a 
 vessel of war in an English port, and arms and equips her for war bona 
 fide on his own account as an article of merchandise and not under or by 
 virtue of any agreement, understanding, or cbncert with a belligerent 
 Power, he may lawfully, if acting bona fide, send the ship so armed and 
 equipped for sale as merchandise in a belligerent country, and will not in 
 so doing violate the provisions or incur the penalties of the Foreign 
 Enlistment Act." 
 
 1 Atlay's " Wheaton," sec. 501 /. 
 
 2 7 Wheaton, 283 (1822). 
 
 3 34 L. J. Bank, 17 (1865). 
 
410 COMMERCE IN WAR 
 
 In the same judgment the Lord Chancellor gives the following 
 admirable summary of the general principles of the law : — 
 
 " In the view of international law," said Lord Westbury, " the com- 
 merce of nations is perfectly free and unrestricted. The subjects of each 
 nation have a right to interchange the products of labour with the in- 
 habitants of every other country. If hostilities occur between two 
 nations and they become belligerents, neither belligerent has a right to 
 impose or to require a neutral Government to impose any restrictions on 
 the commerce of its subjects. The belligerent Power certainly acquires 
 certain rights which are given to it by international law. One of these 
 is the right to arrest and capture when found on the sea, the high road of 
 nations, any munitions of war which are destined and in the act of being 
 transported in a neutral ship to its enemy. This right, which the laws of 
 war give to a belligerent for his protection, does not involve as a con- 
 sequence that the act of the neutral subject in so transporting munitions 
 of war to a belligerent country is either a personal offence against the 
 belligerent captor or an act which gives him any ground of complaint 
 either against the neutral trader personally or against the Government of 
 which he is a subject. The title of the belligerent is limited entirely to 
 the right of seizing and condemning as lawful prize the contraband 
 articles. He has no right to inflict any punishment on the neutral trader, 
 or to make his act a ground of representation or complaint against the 
 neutral State of which he is a subject. In fact, the act of the neutral 
 trader in transporting munitions of war to the belligerent country is quite 
 lawful, and the act of the other belligerent in seizing and appropriating 
 the contraband articles is equally lawful. Their conflicting rights are co- 
 existent, and the right of the one party does not render the act of the 
 other party wrongful or illegal. There is, however, much incorrectness of 
 expression in some writers on the subject, who, in consequence of this 
 right of the belligerent to seize in transitu munitions of war while being 
 conveyed by a neutral to his enemy, speak of this act of transport by the 
 neutral as unlawful and prohibited commerce. 
 
 "But this commerce which was perfectly lawful for the neutral with 
 either belligerent before the war, is not made by the war unlawful or 
 capable of being prohibited by both or either of the belligerents ; and all 
 that international law does is to subject the neutral merchant who trans- 
 ports the contraband of war to the risk of having his ship and cargo 
 captured and condemned by the belligerent Power for whose enemy the 
 contraband is destined. That the act of the neutral merchant is in itself 
 innocent is plain from the circumstance that the belligerent captor cannot 
 visit it with any penal consequences beyond his judicial condemnation of 
 the ship and cargo, nor can he make it the subject of complaint." 
 
 In support of these views, the learned Chancellor referred to 
 the following passage from Vattel, in which, speaking as a 
 belligerent, he said : — 
 
 " Let us now discuss another case — that of neutral nations resorting to 
 my enemy's country for commercial purposes. It is certain that as they 
 have no part in any quarrel they are under no obligation to renounce 
 their commerce for the sake of avoiding to supply my enemy with the 
 
CAPTURE AND CONDEMNATION 41 1 
 
 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 
 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 not under any obligation to sacrifice to me. On the 
 other hand, whenever I am at war with a nation, both my own safety and 
 welfare prompt me to deprive her as far as possible of everything which 
 may enable her to resist or injure me. In this instance the law of 
 necessity exerts its full force. If that law warrants me on occasion to 
 seize what belongs to other people, will it not likewise warrant me to 
 intercept everything belonging to war which neutral nations are carrying 
 to my enemy ? Even if I should, by taking such measure, render all those 
 neutral nations my enemies, I had better hazard that than suffer him who 
 is actually at war with me thus freely to receive supplies and collect 
 additional strength to oppose me. It is therefore very proper and per- 
 fectly conformable to the Law of Nations (which disapproves of multiply- 
 ing the causes of war) not to consider those seizures of the goods of 
 neutral nations as acts of hostility. 
 
 " When I have notified to them my declaration of war against such or 
 such a nation, if they will afterwards expose themselves to risk in supply- 
 ing her with things which serve to carry on war, they will have no reason 
 to complain if their goods fall into my possession ; and I, on the other 
 hand, do not declare war against them for having attempted to convey 
 such goods. They suffer indeed by a war in which they have no concern ; 
 but they suffer accidentally. I do not oppose their right ; I only exert 
 my own ; and if our rights clash with and reciprocally injure each other, 
 that circumstance is the effect of inevitable necessity. Such collisions 
 daily happen in war." ^ 
 
 Vattel must here be considered, observed Lord Westbury, as 
 speaking of the acts of the subjects of a neutral Power, and not of 
 a neutral Government itself, for the supplying of warlike stores to 
 a belligerent by a neutral State would clearly be a breach of 
 neutrality. 
 
 The same doctrine as to the freedom of commerce to be enjoyed 
 by the subjects of a neutral State has been more explicitly stated 
 by Chancellor Kent. 
 
 " It is a general understanding," says this jurist, " grounded on true 
 principles, that the Powers at war may seize and confiscate all contraband 
 goods, without any complaint on the part of the neutral merchant and 
 without any imputation of a breach of neutrality in the neutral sovereign 
 himself.^ 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 belligerent Powers. 
 But it was successfully shown on the part of the United States, that 
 neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, 
 
 ' Liv. Ill, VII, sec. 3. 
 
 2 See Vattel, liv. Ill, vii, sec. 113. 
 
412 COMMERCE IN WAR 
 
 themselves, to the belligerent Powers contraband articles subject to the 
 right of seizure in transitu} This right has since been explicity declared 
 by the judicial authorities of this country.^ The right of the neutral to 
 transport and of the hostile Power to seize are conflicting rights, and 
 neither party can charge the other with a criminal act." ^ 
 
 As a consequence of this doctrine, it follows that all contracts 
 relating to such transactions are valid and may be enforced in the 
 country of the neutral by the parties thereto. In ex parte Chavasse, 
 in re Grazebrook already referred to, Lord Westbury held that 
 a contract to share in a joint adventure to carry contraband goods 
 to a port of a belligerent, and then to dispose of the goods and 
 convert them into others to be re-exported from the belligerent 
 port, though it was blockaded, was not an illegal contract, but 
 constituted a valid partnership in the adventure, and that the 
 Courts of this country were bound to entertain proceedings for an 
 account between the partners or their assignees if so required by 
 either partner or his assignee. 
 
 The same view was taken in Hobbs v. Henning,^ which was a 
 claim for the amount covering a policy of insurance upon articles 
 which had been condemned as contraband of war by the Courts 
 of the United States upon the doctrine of continuous voyage. 
 
 The " Helen "® was a case in which the master sued for wages 
 upon an agreement between himself and the owners of the ship — 
 an agreement which had for its object the breaking of the 
 blockade instituted by the Federal Government of the United 
 States of the ports of the Confederate States. The defendants, 
 in their answer, pleaded that such an agreement was an illegal 
 contract. 
 
 In the course of his judgment. Dr. Lushington referred to the 
 case of ex parte Chavasse, in re Grazebrook, in which Lord 
 Westbury had decided a contract of partnership in blockade 
 running was not contrary to the municipal law of England. But 
 he held that a decision of the Lord Chancellor, although it was to 
 be treated with the greatest respect, was not absolutely binding 
 upon the Court of Admiralty, which is only bound to obey the 
 rulings of the House of Lords, the Privy Council, and the Courts 
 of Common Law upon the construction of a statute. In con- 
 sidering the interpretation of the word " illegal," Dr. Lushington 
 said : — 
 
 " The true meaning, I think, is that all such contracts are illegal so far 
 
 1 M. Adet's letter to Mr. Pickering, ii March, 1796; Mr. Pickering's letters to 
 M. Adet, 20 January and 25 May, 1796 ; circular letter of the Secretary of the Navy to 
 the Collectors, 4 August, 1793. 
 
 ^Richardson v. Maine Ins. Co., 6 Mass. 113; the "Santissima Trinidad," 7 
 Wheaton, 283. 3 " Commentaries," Vol. I, 142. 
 
 « 17 C. B., 791 (1864). 6 L. R., I, Adm. and Ecc, i (1865). 
 
CAPTURE AND CONDEMNATION 413 
 
 that if carried out they would lead to acts which might, under certain 
 circumstances, expose the parties concerned to such penal consequences 
 as are sanctioned by international law for breach of blockade or for the 
 carrying of contraband. If so, the illegality is of a limited character. For 
 instance, suppose a vessel after breaking the blockade completes her 
 voyage home, and is afterwards seized on another voyage, the original 
 taint of illegality — whatever it may have been — is purged, and the ship 
 cannot be condemned ; yet if the voyage was ab initio wholly and abso- 
 lutely illegal, both by the Law of Nations and the municipal law, why 
 should its successful termination purge the offence ? Let me consider the 
 relative situation of the parties. A neutral country has a right to trade 
 with all other countries in time of peace. One of these countries becomes 
 a belligerent and is blockaded. Why should the right of the neutral be 
 affected by the acts of the other belligerent? The answer of the 
 blockading Power is : ' Mine is a just and necessary war,' a matter which, 
 in ordinary cases, a neutral cannot question ; ' I must seize contraband, 
 I must enforce blockade, to carry on the war.' In this state of things 
 there has been a long and admitted usage on the part of all civilized 
 States — a concession by both parties, the belligerent and the neutral — a 
 universal usage which constitutes the Law of Nations. Suppose no 
 question of blockade or contraband, no belligerent could claim a right of 
 seizure on the high seas of a neutral vessel going to the port of another 
 belligerent, however essential to his interest it might be so to do. . . . 
 When all the necessary conditions [of blockade] are satisfied, then by the 
 usage of nations the belligerent is allowed to capture and condemn 
 neutral vessels without remonstrance from the neutral State. It has 
 never been a part of admitted usage that such voyage should be deemed 
 illegal by the neutral State, still less that the neutral State should be 
 bound to prevent them ; the belligerent has not a shadow of right to 
 require more than universal usage has given him, and has no pretence to 
 say to the neutral, " You shall help me to enforce my belligerent right by 
 curtailing your own freedom of commerce, and making that illegal by 
 your own law which was not so before. This doctrine is not inconsistent 
 with the maxim that the Law of Nations is part of the law of the land. 
 The fact is, the Law of Nations has never declared that a neutral State is 
 bound to impede or diminish its own trade by municipal restriction. Our 
 own Foreign Enlistment Act is itself a proof that to constitute transac- 
 tions between British subjects when neutral and belligerents, a municipal 
 offence by the law of Great Britain, a statute was necessary. If the acts 
 mentioned in that statute were in themselves a violation of municipal law, 
 why any statute at all ? " 
 
 The learned judge, after passing in review the American 
 authorities, found that principle, authority, and usage united in 
 calling him to reject the alleged doctrine that to carry on trade 
 with a blockaded port was, or ought to be, a municipal offence by 
 the Law of Nations, thus agreeing with the Lord Chancellor. 
 And since the attempt to introduce this novel doctrine came 
 from an avowed particeps criminis, who sought to benefit himself 
 by it, he ordered him to pay the costs of his experiment. 
 
 Two writers on insurance, Phillips and Duer, maintain a con- 
 
414 COMMERCE IN WAR 
 
 trary opinion to the one here pronounced. The former intimates 
 that the trading in articles contraband of war is illegal by the 
 Law of Nations, which forms part of the municipal law of every 
 State, and that the property cannot therefore be the lawful subject 
 of insurance even in a neutral State.^ The latter, whilst contend- 
 ing with much ability and acuteness against the view taken here, 
 admits, however, that an insurance of a contraband voyage is no 
 offence against municipal law of a neutral country, according to 
 the practice of all the principal States of Continental Europe, and, 
 he might have added, of America." 
 
 It is obvious that all insurances on articles contraband of war 
 are wholly void and incapable of being enforced in the Courts of 
 the belligerent country whose prohibition has been disregarded.' 
 
 In Gibson v. Service* an English vessel, the "Croydon," took 
 on board at Liverpool a cargo of gunpowder and arms, under a 
 bond and a licence to trade them only on the coast of Africa. 
 The "Washington" was an American ship, also lying at Liver- 
 pool, and before the two ships sailed their respective owners 
 made an agreement whereby the "Washington" was to take 
 over part of the cargo of the " Croydon " off the coast of Africa, 
 Before leaving Liverpool the "Washington" was insured on her 
 voyage from the coast of Africa to Charleston. This was an 
 action upon the policy of insurance. This agreement, said Gibbs 
 C.J., was illegal. It was in effect an illegal exportation by the 
 " Washington," which had given no security that the goods 
 should be trafificked in on the African coast. If such an agree- 
 ment could take effect on the coast of Africa, so might it at the 
 mouth of the Thames, and the consequence would be that an 
 American vessel would get a full loading of arms and gunpowder 
 at the mouth of the river and go off insured by English under- 
 writers. 
 
 The American view. — The American doctrine is precisely 
 similar. In considering how far a contract of insurance became 
 void in consequence of the nature of the voyage. Chief Justice 
 Parsons, in Richardson v. Maine Insurance Company,^ said : — 
 
 " When the sovereign of the country to which the ship belongs shall 
 prohibit his subjects from trading with a foreign country or port, whether 
 the prohibition be a consequence of his declaring war against the foreign 
 country or be made by an express ordinance for any cause at the will of 
 the sovereign, a voyage to that country for the purpose of trade is illicit, 
 
 1 " Insurance," 2nd ed.. Vol. I, loi, 429. 
 
 2 " Marine Insurance," Vol. I, Act. vii. 
 
 3 Arnould's " Insurance," 2nd ed.. Vol. I, 765. 
 
 * 5 Taunt, 133 (1814). 
 
 * 6 Mass., 102 (1809). 
 
CAPTURE AND CONDEMNATION 415 
 
 and all insurance on such voyages by his subjects are void, whether the 
 assurers had or had not knowledge of the prohibition. For the law will 
 not allow any effect to a contract made to protect a traffic which it has 
 prohibited. 
 
 " Another class of illicit voyages are those which are prohibited by the 
 trade laws of a foreign State, whether those laws wholly exclude the 
 merchant ships of other States from its ports, or only prohibit the im- 
 portation or exportation of particular species of goods. Because the 
 niuiiicipal laws of any State have not the force of laws without its juris- 
 diction ; voyages prohibited in one State are not in other States deemed 
 for that reason illegal. These voyages may therefore be the subject of 
 insurance in any State in which they are not prohibited. And if the 
 assurer will expressly insure against seizure for illicit trade, or if, with a full 
 knowledge of the nature of the voyage, he will insure it without making 
 any exception, he will be bound to indemnify the assured for the losses 
 arising from the breaches of the trade laws of foreign States. But 
 although he may not take upon himself these losses, and thus be irre- 
 sponsible for them, yet he is answerable for any other losses insured 
 against, because the policy is not void. 
 
 " The last class we shall mention is the transportation by a neutral of 
 goods contraband of war to the country of either of the belligerent Powers. 
 And here, it is said, that these voyages are prohibited by the Law of 
 Nations, which forms a part of the municipal law of every State ; and 
 consequently that an insurance on such voyages, made in a neutral State, 
 is prohibited by the laws of that State ; and, therefore, as in the case of 
 an insurance or interdicted commerce, is void. 
 
 " That there are certain laws which form part of the municipal laws of 
 all civilized States regulating their mutual intercourse and duties, and 
 thence called the Law of Nations, must be admitted ; as, for instance, the 
 Law of Nations affecting the rights and the security of ambassadors. 
 But we do not consider the Law of Nations, ascertaining what voyages 
 or merchandise are contraband of war, as having the same extent and 
 effect. It is agreed by every civilized State that if the subject of a 
 neutral Power shall attempt to furnish either of the belligerent sovereigns 
 with goods contraband of war, the others may rightfully seize and con- 
 demn them as prize. But we do not know of any rule established by the 
 Law of Nations that the neutral shipper of goods contraband of war is an 
 offender against his own sovereign, and liable to be punished by the 
 municipal laws of his own country. 
 
 " When a neutral sovereign is notified of a declaration of war, he may, 
 and usually does, notify his subjects of it, with orders to decline all con- 
 traband trade with the nations at war, declaring that if they are taken in 
 it he cannot protect them, but not announcing the trade as a violation of 
 his own laws. Should their sovereign offer to protect them, his conduct 
 would be incompatible with his neutrality. And as, on the one hand, he 
 cannot complain of the confiscation of his subjects' goods, so, on the 
 other, the Power at war does not impute to him these practices of his 
 subjects. A neutral merchant is not obliged to regard the state of war 
 between other nations, but if he ships goods prohibited _/«^g belli they may 
 be rightfully seized and condemned. It is one of the cases where two con- 
 flicting rights may exist, which either party may exercise, without charging 
 the other with doing wrong. As the transportation is not prohibited by the 
 
4i6 COMMERCE IN WAR 
 
 laws of the neutral sovereign, his subjects may lawfully be concerned in it ; 
 and as the right of war authorizes a belligerent Power to seize and con- 
 demn the goods, he may rightfully do it. . . . 
 
 " But we know of no case where the neutral merchant has been punished 
 by his own sovereign for his contraband shipments. If he will adventure 
 on the trade, and his effects are seized and condemned as prize, to this 
 penalty he must submit, for his sovereign will not interfere, because the 
 capture was lawful. And it may be further observed, that if the exportation 
 of contraband goods from a neutral country to a port of either of the 
 Powers at war is a trade, which from its nature is prohibited by the laws of 
 the neutral sovereign, then the policy on such goods would be void, and the 
 assurer would be exempted from any loss or damage arising even from the 
 danger of the sea. But an exemption of this kind is not founded on any 
 sound principle, nor is it supported by any usage." 
 
 Upon the question of knowledge by the assurer, the learned 
 judge said : — 
 
 " But if the goods contraband of war are on cargo, the assurer is not 
 responsible for their capture and condemnation on that account, unless 
 either with a full knowledge of the nature of the goods and of the voyage, 
 or by an express undertaking he shall insure them against such capture." 
 
 In the case of goods bound to a blockaded port, if, said the 
 learned judge — 
 
 " before the commencement of the risk the port is known to be block- 
 aded, and the assurer does not insure against condemnation for con- 
 traband trade, the policy is good as to all the risks insured against, but 
 the assurer is not responsible for any loss arising from such condemna- 
 tion. So if the port is not known to be blockaded until the ship is on her 
 passage, the assurer is not answerable for such condemnation if, after 
 notice, the ship continues her voyage and is captured. But if the assurer 
 has insured against a condemnation for contraband trade, the policy is 
 good, and he must answer for any loss arising from a condemnation for 
 that cause, whether the trade be contraband because the goods are 
 munitions of war, or because they are destined or bound to a port known 
 to be blockaded." 
 
 We have already referred to the " Santissima Trinidad," where 
 Mr. Justice Story came to the same general conclusion. 
 
 {g) Equipping, furnishing, fitting out, or arming vessels, 
 or allowing the same to be so equipped, furnished, fitted 
 out, or armed for the use of belligerents. — This is an offence 
 not only by International Law, but by the municipal law of those 
 States which have passed enactments for its prohibition. 
 
 The general principle upon which it is based is that of neutrality. 
 Neutrals are those who do not take any part in the contest, and 
 who remain the common friends of both parties without favouring 
 the arms of the one to the prejudice of the other. 
 
CAPTURE AND CONDEMNATION 417 
 
 " As long," says Vattel, " 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 Powers ; for should she favour one of 
 the parties to the prejudice of the other, she cannot complain of being 
 treated by him as an adherent and confederate of his enemy. Her 
 neutrality would be a fraudulent neutrality of which no nation will consent 
 to be the dupe." 
 
 The impartiaJity to be observed, explains Vattel, includes two 
 duties, viz.: (i) To give no assistance — not any assistance, but no 
 assistance — when there is no obligation to give it, by furnishing 
 troops, arms, munitions of war, or anything of direct use in war. 
 (2) In whatever does not relate to war, not to refuse to one 
 belligerent, on account of the quarrel, that which she grants to 
 the other. 1 
 
 But even in articles relating to war the same principle is 
 involved. The rights of neutrals to carry on their trade cannot 
 be altogether abrogated. 
 
 " If a nation," says Vattel, by which he means its subjects, " trades in 
 arms, timber for shipbuilding, ships and warlike stores, I cannot take it 
 amiss that it sells such things to my enemy, provided 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."^ 
 
 United States of America. — Since the earliest legislative 
 prohibition of this offence is furnished by the United States of 
 America, and since our own legislation is based upon this example, 
 it is more convenient to deal with the American law first. 
 
 This measure, which was passed by Congress on 5 June, 1794, 
 was the result of the attempt on the part of M. Genet, the 
 Minister of France, by taking advantage of the intense sympathies 
 of the people of the United States with the revolutionary party in 
 France, to involve the United States in the war then proceeding 
 between France and Great Britain and her allies.* 
 
 The object of the statute was to preserve the neutrality of the 
 United States as enjoined by the law of nations, and the mischief 
 aimed at was the arming and equipping vessels in the ports of the 
 States, and the sallying out thence in warlike array to cruise and 
 commit hostilities upon foreign nations with which the States were 
 at peace. 
 
 The keynote to this legislation is to be found in President 
 
 1 "Law of Nations," Book III, sec. 104. 
 
 " Ibid., Book III, sec. no. 
 
 3 Marshall's " Life of Washington," Vol. V, 409-41 1, 427-433, 441-3- The President's 
 message 3 December, 1793, i U.S. State Papers, 39, 40; Proclamation of Neutrality, 
 Ibid., 44-6. 
 2 E 
 
4i8 COMMERCE IN WAR 
 
 Washington's Annual Address to Congress on 3 December, i793» 
 in which he said : — 
 
 "The original arming and equipping of vessels in the ports of the 
 United States by any of the belligerent parties for military services, 
 offensive or defensive, is deemed unlawful." 
 
 This recommendation was passed into law by the Senate by 
 the casting vote of Vice-President Adams, and was the first 
 instance as stated of municipal legislation in support of this 
 obligation of neutrality, and forms a remarkable advance in Inter- 
 national Law. And although this international obligation had 
 been declared by Chief Justice Jay in his charge to the jury at 
 Richmond, 22 May, 1793,^ and by Mr. Justice Wilson, Mr. Justice 
 Iredell and Judge Peters, on the trial of Henfield in July of that 
 year,^ to be capable of being enforced in the courts of the 
 United States, criminally as well as civilly, without further 
 legislation, yet it was deemed advisable to pass the Act in view 
 of the controversy over that position, and moreover in order to 
 provide a comprehensive code in prevention of acts by individuals 
 within the jurisdiction inconsistent with the authority of the 
 Government, as well as hostile to friendly Powers. 
 
 By section 3 of the Act of Congress of 5 June, 1794, it is 
 enacted :-— 
 
 " That if any person shall within any of the ports, harbours, bays, 
 rivers, or other waters of the United States, fit out and arm, or attemipt to 
 fit out and arm, or procure to be fitted out and armed, or shall know- 
 ingly be concerned in the furnishing, fitting out, or arming of any ship 
 or vessel with intent that such ship or vessel shall be employed in the 
 service of any foreign prince or State to cruise or commit hostilities 
 upon the subjects, citizens, or property of another foreign prince or State 
 wil;h whom the United States are at peace, or shall issue or deliver a 
 commission within the territory or jurisdiction of the United States for 
 any ship or vessel to the intent that she may be employed as aforesaid, 
 every such person so offending shall, upon conviction, be adjudged guilty 
 of a high misdemeanour, and shall be fined and imprisoned at the dis- 
 cretion of the court in wiiich the conviction shall be had, so as the fine to 
 be imposed shall in no case be more than five thousand dollars, and 
 the term of imprisonment shall not exceed three years, and every such 
 ship or vessel with her tackle, apparel, and furniture, together with all 
 materials, arms, ammunition, and stores which may havfe been procured 
 for the building and equipment thereof, shall be forfeited, one half to 
 the use of any person who shall give information of the offence, and the 
 other half to the use of the United States." 
 
 And by section 4 it is further enacted : — 
 
 " That if any person shall within the territory or jurisdiction of the 
 United States increase or augment, or procure to be increased or aug- 
 mented, or shall be knowingly concerned in increasing or augmenting 
 
 1 Wharton's " State Trials," 49, 56. ^ Ibid., 66, sec. 4. 
 
CAPTURE AND CONDEMNATION 419 
 
 the force of any ship of war, cruiser, or other armed vessel which at the 
 time of her arrival within the United States was a ship of war, cruiser, 
 or armed vessel in the service of a foreign prince or State, or belonging 
 to the subjects or citizens of such prince or State, the same being at war 
 with another foreign prince or State with whom the United States are 
 at peace, by adding to the number or size of the guns of such vessel 
 prepared for use, or by the addition thereto of any equipment solely 
 applicable to war, every such person so offending shall, upon conviction, 
 be adjudged guilty of a misdemeanour, and shall be fined and imprisoned 
 at the discretion of the court in which the conviction shall be had, so 
 as that such fine shall not exceed one thousand dollars, nor the term 
 of imprisonment be more than one year."^ 
 
 This statute was limited to two years, but was made perpetual 
 by the Act of Congress of 24 April, 1800. 
 
 The immediate occasion of the enactment of the Act of 1817 
 appears to have been a communication dated 20 December, 
 1 8 16, from the Portuguese minister to Mr. Monroe, then Secre- 
 tary of State, informing him of the fitting out of privateers at 
 Baltimore in the service of the Buenos Ayres insurgents to act 
 against Portugal, and soliciting "the proposition to Congress of 
 such provisions of law as will prevent such attempts for the 
 future." On 26 December, President Madison sent a special 
 message to Congress in which he referred to the inefficacy of 
 existing laws "to prevent violations of the obligations of the 
 United States as a nation at peace towards belligerents, and other 
 unlawful acts on the high seas by armed vessels equipped within 
 the waters of the United States," and "with a view to maintain 
 more effectually the respect due to the laws, to the character, and 
 to the neutral and pacific relations of the United States," recom- 
 mended further legislation. 
 
 Thus on March 3, 1817,^ an Act of Congress was passed 
 which substantially re-enacted that of 1794. 
 
 This statute increased the maximum penalty to ten thousand 
 dollars and ten years' imprisonment in the case of fitting out 
 and arming, and contained provisions requiring owners of armed 
 vessels quitting the ports of the United States — such owners 
 being wholly or partly citizens of the United States — to enter 
 into bonds that such vessels should not be employed against 
 countries with whom the United States were at peace. The 
 statute also contained provisions giving powers to the collectors 
 of Customs to detain any such vessels. To the words "em- 
 ployed in the service of any foreign prince or State " in sections 
 2, 3, and 4 of the Act of 1794 were added "or of any colony, 
 district, or people." 
 
 1 Statutes at Large, U.S.A., Vol. I, 383, chap. L. 
 
 2 Ibid., Vol. Ill, p. 370, chap. XLVIII. 
 
420 COMMERCE IN WAR 
 
 These words, according to Mr. Dana, were inserted on the 
 suggestion of the Spanish minister that the South American 
 provinces in revolt and not recognized as independent might not 
 be included in the word " State." 
 
 Numerous complaints of the inefficiency of these statutes 
 were repeatedly made by the representatives of the Spanish and 
 Portuguese Governments. The Spanish Secretary of State, 
 writing on 2 November, 18 17, declares that the Act of 18 17 
 has in nowise lessened the abuses by which the laws are evaded, 
 and render entirely illusory the laudable purposes for which they 
 were enacted. Privateers issued from all the ports of the Union, 
 especially from New Orleans and Baltimore, with the intention 
 of attacking Spanish commerce, and with their armaments 
 concealed in the hold. On the other hand, armed insurgent 
 vessels were allowed entry into the ports of the Union and 
 supplied with all necessaries, enjoying greater privileges than 
 vessels of independent powers.^ 
 
 These continual complaints led to fresh legislation. The 
 statute of 1 81 7 was repealed by the Act of Congress of 20 April, 
 1818,^ which re-enacted section 3 of the Act of 1794, with the 
 exception that the maximum penalty of five thousand dollars was 
 altered to ten, and the penalty of ten years' imprisonment reduced 
 to three. By section 4 the same offence committed outside the 
 limits of the United States by any of its citizens was punished 
 by a maximum penalty of ten thousand dollars and ten years' 
 imprisonment. 
 
 By section 5 the provisions as to augmenting remained the 
 same as in section 4 of the Act of 1794. 
 
 It was enacted by section 10 — 
 
 " That the owners or consigners of every armed ship or vessel sailing 
 out of the ports of the United States belonging wholly or in part 
 to citizens thereof, shall enter into bond to the United States with 
 sufficient sureties, prior to clearing out the same, in double the amount 
 of the value of the vessel and cargo on board, including her armament, 
 that the said ship or vessel shall not be employed by such owners to 
 cruise or commit hostilities against the subjects, citizens, or property 
 of any foreign prince or State, or of any colony, district, or people with 
 whom the United States are at peace," 
 
 By section 1 1 the collectors of Customs are 
 
 " required to detain any vessel manifestly built for warlike purposes and 
 about to depart the United States, of which the cargo shall principally 
 consist of arms and munitions of war, when the number of men shipped 
 on board or other circumstances shall render it probable that such vessel 
 
 1 American State Papers, Vol. V, p. igg. 
 
 ^ Statutes at Large, U.S.A., chap. Lxxxviii, Vol. Ill, p. 447- 
 
CAPTURE AND CONDEMNATION 421 
 
 is intended to be employed by the owner or owners to cruise or commit 
 hostilities upon the subjects, citizens, or property of any foreign prince 
 or State, or of any colony, district, or people with whom the United 
 States are at peace, until the decision of the President be had thereon, 
 or until the owner or owners shall give such bond and security as is 
 required of the owners of armed ships by the preceding section of this 
 Act." 
 
 Almost immediately after the enactment of the Act of 1794 a 
 prosecution was instituted against one Guinet, who had been 
 concerned in fitting out and arming " Les Jumeaux "^ as a 
 privateer at Philadelphia. This vessel was originally a British 
 vessel, but when she entered Philadelphia with a cargo of sugar 
 and coffee in 1794 she was entirely owned by French subjects. 
 At this date she had only four out of twenty portholes open, 
 but whilst at Philadelphia the remainder were opened, and she 
 was fitted up as a ship of war. 
 
 In considering the effect of the cases upon the statutes, it must 
 be observed that by the treaties between the United States and 
 the French Republic the latter was granted the privilege of taking 
 her prizes captured on the high seas into the port of the former 
 for adjudication by her own consular courts established within the 
 United States. And this right of adjudication was entirely 
 exclusive of any jurisdiction exercisable by the Government of the 
 United States. In the United States v. Richard Peters,^ when a 
 French vessel, the " Cassius," had captured the "William Lindsay" 
 and brought her into Port de Paix, a prohibition was granted 
 against the district judge forbidding him to proceed further, and 
 ordering him to release the " Cassius " and her captain. 
 
 In this case the vessel and cargo were claimed as the property 
 of an American citizen, and it was alleged that the captain of the 
 " Cassius " was an American citizen, and that the vessel was 
 originally equipped and fitted out for war in the port of Phila- 
 delphia, contrary to the laws of the United States and the laws 
 and usages of nations. 
 
 The principal question here was whether the courts of the 
 United States could sustain a claim for compensation in rem 
 against the capturing vessel for an asserted illegal capture as 
 prize on the high seas, when the prize was not brought into the 
 ports of the United States, but was carried into a port infra 
 praesidia of the captors. 
 
 It is apparent, said Mr. Justice Story in the " Santissima 
 Trinidad,"* that the jurisdiction in cases of this nature exclusively 
 belongs to the courts of the capturing Power, and that neither the 
 
 > U. S. V. Guinet, " Les Jumeaux," 2 Dall., p. 328. 
 2 3 Dall., 121 (I79S)- ' 7 Wheat., p. 350. 
 
422 COMMERCE IN WAR 
 
 public ships of a nation nor the officers of such ships are liable 
 to be arrested to answer for such captures in any neutral court. 
 
 It was laid down in the case of the "L'lnvincible"^ that a public 
 ship belonging to a foreign State was exempt from proceedings 
 in rem for damages in the courts of the United States for illegal 
 captures on the high seas, in violation of the neutrality of that 
 Power, but that this in no way exempted her prizes in the ports of 
 the United States from the full exercise of the jurisdiction of the 
 United States. 
 
 The principles of the general rule were clearly stated in Talbot v. 
 Jansen.^ France was then at war with the United Netherlands, 
 and both were in treaty with the United States. On i6 May, 
 1794, the "Magdalena," a Dutch vessel bound from Cura9oa to 
 Amsterdam, was captured by a French privateer, " L'Ami de la 
 Libert^," commanded by Ballard. Next day another French 
 privateer, " L'Ami de la Point i Petre," under Captain Talbot, 
 turns up, and both having put prize crews on board the " Magda- 
 lena " brought her into Charleston. It was held by the Court that 
 both capturing vessels were the property of American citizens, 
 that Ballard was an American citizen and had no lawful com- 
 mission ; that Talbot was also an American citizen, and although 
 he had a commission from the French Admiral, he had no com- 
 mission for the purpose of such a capture ; that there was fraud 
 and collusion between Ballard and Talbot ; that the " Ami de la 
 Libert^ " was fitted out and armed in the United States, and that 
 consequently the capture was unlawful, and the district court 
 entitled to hold inquiry, 
 
 " Shall not property," asked Mr. Justice Gushing, " which he has thus 
 taken from a nation at peace with the United States and brought within 
 our jurisdiction be restored to its owners? Every principle of justice, 
 law, and policy unite in decreeing the affirmative, and there is no positive 
 compact with any Power to prevent it. . . ." 
 
 The Court unmistakably held the acts of Ballard and Talbot 
 an offence both in Municipal and International Law quite apart 
 from the statute. 
 
 " This is so palpable a violation," said Mr. Justice Iredell, " of our own 
 law (I mean the common law of which the law of nations is a part as it 
 subsisted either before the Act in Congress on the subject, or since that 
 has provided a particular manner of enforcing it), as well as of the law 
 of nations generally, that I cannot entertain the slightest doubt that 
 primd facie the district court had jurisdiction." 
 
 Thus the proposition was laid down that the capture of a 
 vessel belonging to a belligerent Power by an American citizen 
 
 1 I Wheat, 238 (1816) 2 3 Dall., 133 (1795). 
 
CAPTURE AND CONDEMNATION 423 
 
 under a foreign commission, though he set up an Act of expatria- 
 tion, is unlawful, and the Court will decree restitution of any 
 property captured by him and brought infra praesidia of the 
 Court. 
 
 The following cases upon augmentation may be shortly referred 
 to: — 
 
 The British Consul v. the ship "Mermaid"^ was a case of 
 claim for restitution on the ground that the capturing ship had 
 been fitted out or had had her force augmented within the United 
 States unlawfully and in violation of neutral rights. Her quarter- 
 deck had been taken away, all decayed timbers and planks 
 repaired, and her ports opened, but it was found as a fact that it 
 was done without any intent to violate the law. 
 
 In the British Consul v. schooner " Nancy," ^ where a privateer 
 had increased her crew from ten to thirty or more, and there was 
 the strongest presumption that she had taken her guns on board 
 at Charleston, restitution of the prize " Nancy " and her cargo 
 was decreed on the ground that such augmentation of force was 
 a breach of neutrality and of the law of nations. 
 
 In Benjamin Moodie v. the ship "Brothers,"* the question was 
 whether any addition of equipment solely applicable to war had 
 been made within the fifth section of the statute. The vessel was 
 a privateer, and when she was repaired two of her ports were 
 altered. It was held that such alteration was not an additional 
 equipment, the statute only prohibiting such additions as amounted 
 to an augmentation of her warlike force. 
 
 In Geyer v. Michel,* the " Den Onzekern," a Dutch vessel, was 
 captured by the " Citizen of Marseilles," which was alleged to 
 have been fitted out, armed and equipped for war in the port of 
 Philadelphia, and put to sea without a lawful commission, and 
 whilst in the river of Delaware her force was augmented by 
 opening certain other portholes and mounting other guns and 
 providing herself with other stores. Upon the ground of aug- 
 mentation, restitution was ordered by the judge of the District 
 Court, but upon appeal with further evidence to the Supreme 
 Court of the United States this was reversed for reasons not 
 stated, though apparently upon the grounds that there was no 
 evidence of real augmentation, and that the augmentation of a 
 French ship of war within the jurisdiction of the United States 
 was not sufficient either by municipal or international law to alter 
 her warlike character and to destroy the conventional right of 
 asylum for herself and her prizes. 
 
 1 Bee's Amer. Adm. Rep., 69 (i79S)- ^ ^^^^-i 73 (i795)- 
 
 3 Ibid., 76 (I79S)- * 3 Dall., 285 (1796). 
 
424 COMMERCE IN WAR 
 
 The case of Moodie v. the "Betsey"^ was a claim for the 
 restitution of a prize owned by British subjects, captured by the 
 same privateer, and proceeded upon the same facts as were 
 proved in the District Court in Geyer v. Michel. In decreeing 
 restitution, the learned judge said that if a prosecution had been 
 instituted against the captain of the " Citizen of Marseilles," or 
 against any of the persons concerned in increasing, augmenting, 
 or procuring to be increased or augmented the force of the 
 vessel, a conviction must have followed under the Act of i794- 
 Under that Act a penalty of fine and imprisonment was declared 
 as a punishment for a breach of the sovereignty and neutrality 
 of the United States. 
 
 " In the case of Janson v. Talbot," continued the learned judge, " I 
 stated that this Court, by the law of nations, has jurisdiction over 
 captures made by foreign vessels of war, of the vessels of any other 
 nation with whom they are at war, provided such vessels were equipped 
 here in breach of our sovereignty and neutrality, and the prizes are 
 brought infra praesidia of this country. By the law of nations, no 
 foreign Power, its subjects, or citizens has any right to erect castles, 
 enlist troops, or equip vessels of war in the territory or ports of another. 
 Such acts are breaches of neutrality, and may be punished by seizing 
 the persons and property of the offenders. Vessels of war so equipped 
 are illegal ab origine, and no prizes they make will be legal as to the 
 offended Power if brought infra praesidia. The seizure and restitution 
 of such prizes are what the laws of neutrality justly claim. You must 
 either permit both parties to equip in your ports, or neither. Should 
 either equip without your consent, the least you can do is to divest them 
 of the prizes they may have thus illegally taken, and restore them to 
 the other party, or else permit them to equip also." 
 
 In the cases of Moodie v. the "Alfred"^ and Moodie v. the 
 " Phoebe Anne,"^ the Supreme Court refused to order restitution 
 of two British vessels captured by French privateers ; in the first, 
 apparently on the ground that although some of her equipments 
 were calculated for war, they were also frequently used by 
 nierchantmen ; and in the second, that by Article XIX of the 
 Treaty of 1782 with France, French vessels — whether public or 
 private, warships or merchantmen — were entitled, on any urgent 
 necessity, to enter the ports of the United States and to be 
 supplied with all things needful for repair. In this case, the 
 privateer only underwent a repair. 
 
 "The mere replacement of her force," said Chief Justice Elsworth, 
 "cannot be a material augmentation, even if an augmentation of force 
 could be deemed (which we do not decide) a sufficient cause for restitu- 
 tion." 
 
 1 3 Dall., 288 (1796). 2 Ibid., lorj (1796). 
 
 3 Ibid., 319 (1796)- 
 
CAPTURE AND CONDEMNATION 425 
 
 The "Alerta"^ was the case of a Spanish vessel captured 
 by a French privateer in June, 18 10, which had been armed and 
 equipped and manned by sundry American citizens and in- 
 habitants of New Orleans, I n decreeing restitution, Washington J . 
 laid down the general proposition that if the capture be made 
 within the territorial limits of a neutral country into which the 
 prize is brought which had been illegally equipped in such neutral 
 country, the Prize Courts of such neutral country not only 
 possess the power, but it was their duty to restore the property 
 so illegally captured to the owner. This was necessary for the 
 vindication of their own neutrality. A neutral might, admitted 
 the learned judge, if so disposed, without a 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 belligerent Powers have no right to equip vessels 
 of war, or to augment their force either with arms or with men 
 within the territory of such neutral nation. Such unauthorized 
 acts violate her sovereignty and her rights as a neutral. All 
 captures 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 her are brought infra 
 praesidia, to order them to be restored. 
 
 "These principles," declared the learned judge, "are believed to be 
 fully warranted by the general law of nations, by the decisions of the 
 courts of this country, and by the laws of the United States. 
 
 "By tie Act of June, 1794, the enlisting within the territory of the 
 United States persons to serve as soldiers and marines on board any 
 vessel of war or privateer in the service of any foreign State, with the 
 exception of the subjects of such foreign State transiently within the 
 United States ; the fitting out and arming any vessel in the service of 
 a foreign prince or State at war with any other nation which is at peace 
 with the United States, and the increasing or augmenting the force of 
 any armed yessel of war in such foreign service by adding to the number 
 of her guna and the like, are declared to be offences against the United 
 States, and ire punishable by fine and imprisonment ; and the ninth section 
 of the law provides for the detention of all such vessels as have been 
 so fitted oui, or as have so increased or augmented their force, together 
 with such prizes as they may have made, in order to the execution of the 
 prohibitions and penalties prescribed by that Act, and to the restoring 
 of such prizes in cases where restoration shall have been adjudged." 
 
 In the case of the " Divina Pastora"^ it was held that the 
 Government, having recognized the insurgent Spanish colonies 
 as belligere|its, was bound to treat captures made under their 
 commissions like any other captures, and that their legality could 
 not be questioned in the courts of the United States. But it 
 
 1 9 Cranch, 359 (1815). 2 ^ Curtis, 345 (1819). 
 
426 COMMERCE IN WAR 
 
 was declared in the case of the " Estrella "^ that, apart from any 
 Act of Congress, the Courts had authority under the law of 
 nations to decree restitution of any property captured in violation 
 of their neutrality if brought tn/ra praesidia. This principle 
 was again applied in the case of " La Amistad de Rues,"^ In 
 delivering judgment. Story C.J. observed: — 
 
 " We entirely disclaim any right to inflict such damages, and consider 
 it no part of the duty of a neutral nation to interfere 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. Each has an undoubted right 
 to exercise all the rights of war against the other, and it cannot be 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 cognizance of the 
 prize tribunals of neutral nations. The captors are amenable to their 
 own Government exclusively for any excess or irregularity in their pro- 
 ceedings, and a neutral nation ought no otherwise to interfere than to 
 prevent captors from obtaining any unjust advantage by a violation of its 
 neutral jurisdiction. Neutral nations may, indeed, inflict pecuniary or 
 other penalties on the parties for any such violation ; but it thus does it 
 professedly in vindication of its own rights, and not by way of compensa- 
 tion to the captured. When called upon by either of the belligerents to 
 act in such cases, all that justice seems to require is that the neutral 
 nation should fairly execute its own laws, and give no asylum to the 
 property unjustly captured. It is bound, therefore, to restore the property 
 if found within its own ports ; but beyond that it is not obliged, to 
 interpose between the belligerents. If indeed it were otherwise, there 
 would be no end to 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 foreign witnesses, and thus they would draw 
 within their jurisdiction almost every incident of prize. Such a course of 
 things would necessarily create irritations and animosities, and very soon 
 embark neutral nations in all the controversies and hostilities of the 
 conflicting parties. Considerations of public policy, therefore, come in 
 aid of what we consider the law of nations in this subject, and we may 
 add that Congress in this legislation has never passed the liaiit which is 
 here marked out." 
 
 The case of the " Santissima Trinidad "^ has been already 
 referred to on other points. Two grounds were relied on for 
 restitution : first, that the capturing vessels, the " Indspendencia " 
 and " Altravida," were originally equipped, armed, and manned as 
 vessels of war in the ports of the United States ; secondly, that 
 there was an illegal augmentation of the force of the " Inde- 
 pendencia" within those ports. We have already seen that, 
 
 1 4 Curtis, 406 (1819). 
 
 2 H. Curtis, 673 (1820). 
 
 ^ 7 Wheat., 284. See ante, pp. 409, 421. 
 
CAPTURE AND CONDEMNATION 427 
 
 since the municipal laws of the United States did not prohibit 
 a bona fide trade in vessels or munitions of war to a belligerent, 
 these articles were merely subject by the law of nations to the 
 penalty of confiscation as contraband if captured. 
 
 After the sale, however, the " Independencia " returned to 
 Baltimore, where she was received as a public ship, and under- 
 went considerable repairs. Her bottom was new coppered, some 
 parts of her hull were recaulked, part of the water-ways were 
 replaced, a new head was put on, some new sails and rigging to a 
 small amount and a new mainyard was obtained, some bolts were 
 driven into the hull, and the mainmast, which had been shivered 
 by lightning, was taken out, reduced in length, and replaced in its 
 former position. In order to make these repairs, her guns, 
 ammunition, and cargo were discharged under the inspection of 
 an officer of the customs, and when the repairs were made the 
 armament was replaced, and a report made by a proper officer to 
 the collector that there was no addition to her armament. 
 
 She thus sailed with a crew of 1 1 2 men, about thirty of whom 
 were enlisted at Baltimore, accompanied by the " Altravida " as a 
 tender. 
 
 This enlistment, said Mr. Justice Story, was a clear augmenta- 
 tion of force within the territory of the United States, by a 
 substantial increase in the crew of the " Independencia," which 
 rendered it unnecessary to determine whether there had not also 
 been an illegal increase of her armament. Some of the general 
 repairs, said the learned judge, could hardly be deemed of great 
 necessity, and must have been induced by the consideration that 
 Baltimore was a port peculiarly fitted for naval equipment. 
 
 The circumstances surrounding the "Altravida" were very 
 similar. Part of her armament was mounted, and a crew of 
 about twenty -five men were put on board at Baltimore. It was 
 held here that there was both illegal augmentation of force in 
 the enlistment of the crew and the unlawful equipment of the 
 vessel. 
 
 A further point to be noticed in this case is that an augmenta- 
 tion of force or illegal outfit only affects captures made during 
 the same cruise for which such augmentation or outfit was made. 
 
 " It has never been held," said Mr. Justice Story, " that an augmenta- 
 tion of force or illegal outfit affected any captures made after the original 
 cruise was terminated. 
 
 " By analogy to other cases of violation of public law, the offence may 
 well be deemed to be deposited at the termination of the voyage, and not 
 to affect future transactions. But as to captures made during the same 
 cruise, the doctrine of this Court has long established that such illegal 
 augmentation is a violation of the law of nations, and as a violation of our 
 
428 COMMERCE IN WAR 
 
 neutrality by analogy to other cases, it infects the captures subsequently 
 made with the character of tests, and justifies and requires a restitution to 
 the parties who have been injured by such misconduct" 
 
 In the case of the " Grand Para,"^ the distinction between the 
 sale of an armed vessel to a belligerent, and the fitting out, arming, 
 and manning a vessel with intent to cruise in the service of a 
 belligerent, was clearly drawn by Marshall C.J. the following day : 
 
 " That the ' Irresistible ' (the capturing ship) was purchased, and that 
 she sailed out of the port of Baltimore, armed and manned as a vessel 
 of wax, for the purpose of being employed as a cruiser against a nation with 
 whom the United States were at peace, was," said the learned judge, " too 
 clear for controversy. That the arms and ammunition were cleared out 
 as cargo cannot vary the case. Nor is it thought to be material that the 
 men were enlisted in form as for a commercial voyage. There is nothing 
 resembling a commercial adventure in any part of the transaction. The 
 vessel was constructed for war, and not for commerce. There was no 
 cargo on board but what was adapted for the purposes of war. The crew 
 were too numerous for a merchantman, and was sufficient for a privateer. 
 These circumstances demonstrate tke intent with which the ' Irresistible ' 
 sailed out of the port of Baltimore." 
 
 It was accordingly held that the " Irresistible " came within 
 the section of the Act of 1818, which made it penal for any person 
 within the jurisdiction of the United States to be 
 
 "knowingly concerned in the furnishing, fitting out, or arming of any 
 ship or vessel with intent that such ship or vessel shall be employed in 
 the service of any foreign prince or State to cruise'' 
 
 It was also held that a bona fide termination of the cruise for 
 which the illegal armament was obtained put an end to the 
 disability growing out of the violation of the municipal law, 
 which did not attach indefinitely. If, however, the termination 
 was only colourable, the disability still continued. 
 
 The " Nereyda "'' was a Spanish man-of-war which had been 
 captured in 18 18 by the privateer "Irresistible," of which John 
 Daniels was the commander and Henry Childs lieutenant, and 
 which had been illegally equipped at Baltimore. The "Nereyda" 
 was carried to the island of Margarita under Childs as prize- 
 master. It was alleged that she was here condemned and sold. 
 Childs obtained a commission from the Venezuelan Government 
 and returned with her to Baltimore. Upon a claim by the Spanish 
 consul, Childs failed to produce any evidence of the alleged 
 decree of condemnation or of the sale, and the vessel was ordered 
 to be restored. 
 
 > 7 Wheat., 471 (1822). 
 2 8 Wheat., 108 (1823). 
 
CAPTURE AND CONDEMNATION 429 
 
 An objection was taken in the case of the " Palmyra,"^ that in 
 order to maintain a Ubel in rem, there must have been a due con- 
 viction upon a prosecution and indictment for the offence in 
 personam. 
 
 "This doctrine," said Story J., "never was applied to seizures and 
 forfeitures created by statute in rem, cognizable on the revenue side of the 
 Exchequer. The thing is here primarily considered as the offender, or 
 rather the offence is attached primarily to the thing ; and this whether 
 the offence be vtalum prohibitum or malum in se. The same principle 
 applies to proceedings in rem on seizures in the Admiralty. Many cases 
 exist where the forfeiture for acts done attaches solely in rem, and there 
 is no accompanying penalty in personam. Many cases exist where there 
 is both a forfeiture in rem and a personal penalty. But in neither class 
 of cases has it ever been decided that the prosecutions were dependent 
 upon each other. But the practice has been, and so this Court understands 
 the law to be, that the proceeding in rem stands independent of and wholly 
 unaffected by any criminal proceedings in personam. This doctrine is 
 deduced from a fair interpretation of the legislative intention apparent 
 upon its enactments. Both in England and America the jurisdiction over 
 proceedings in rem. is usually vested in different courts from those exer- 
 cising criminal jurisdiction. ... In the judgment of this Court, no 
 personal conviction of the offender is necessary to enforce a forfeiture 
 in rem in cases of this nature." 
 
 In the United States v. " Quincey,"^ the indictment under 
 section 3 of the Act of 18 18 charged the defendant with being 
 knowingly concerned in the fitting out, in the port of Baltimore, 
 of the " Bolivar " with intent to employ her in the service of a 
 foreign " people," the United Provinces of Buenos Ayres, against 
 the subjects of the Emperor of Brazil, with whom the United 
 States were at peace. 
 
 At Baltimore the vessel was fitted with sails and masts larger 
 than those required for a merchant vessel, and was altered in a 
 manner to suit her carrying passengers and with a port for a gun. 
 She also had on board one gun-carriage and slide, a box of 
 muskets, and thirteen kegs of gunpowder. 
 
 The vessel then sailed to St. Thomas, where she was fully 
 armed, and afterwards cruised under the Buenos Ayres flag. It 
 was held that to bring the defendant within the section it was 
 not necessary to charge him with being concerned in fitting out 
 and arming the vessel; the words being "fitting out. or arming." 
 Either would constitute the offence. It was sufficient if the 
 indictment charged the offence in the words of the section. It is 
 true that the chief actors should be charged with fitting out anal 
 arming. The section may require that both acts shall concur, and 
 
 » 12 Wheat, I (1827). 
 2 6 Peters, 44S (1832). 
 
430 COMMERCE IN WAR 
 
 the vessel be put in a condition to commit hostilities in order to 
 bring her within the law ; but an attempt to fit out or arm is made 
 an ofifence. 
 
 " This is certainly doing something," said Mr. Justice Thompson, " short 
 of a complete fitting out and arming. To attempt to do an act does not, 
 either in law or in common parlance, imply a completion of the act, or any 
 definite progress towards it. Any support or endeavour to effect it will 
 satisfy the terms of the law." 
 
 It was not necessary, in the opinion of the Court, that the 
 " Bolivar," when she left Baltimore, should be armed, or in a 
 condition to commit hostilities, in order to find the defendant 
 guilty of the offence. 
 
 "The offence," declared Mr. Justice Johnson, "consists principally 
 in the intention with which the preparations were made. These 
 preparations, according to the very terms of the Act, must be made 
 within the limits of the United States ; and it is equally necessary that 
 the intention with respect to the employment of the vessel should he 
 formed before she leaves the United States. And this must be a fixed 
 intention ; not conditional or contingent, depending on some future 
 arrangements. This intention is a question belonging exclusively to 
 the jury to decide. It is a material point on which the legality or 
 criminality of the act must turn, and decides whether the adventure 
 is of a commercial or warlike character. The law does not prohibit 
 armed vessels belonging to citizens of the United States from sailing 
 out of our ports ; it only requires the owners to give security (as was 
 done in the present case) that such vessels shall not be employed ty 
 them to commit hostilities against foreign Powers at peace with the 
 United States. 
 
 "The collectors are not authorized to detain vessels, although mani- 
 festly built for warlike purposes and about to depart from the United 
 States, unless circumstances shall render it probable that such vessels are 
 intended to be employed by the owners to commit hostilities against some 
 foreign Power at peace with the United States. 
 
 " All the latitude, therefore, necessary for commercial purposes is given 
 to our citizens ; and they are restrained only from such acts as are 
 calculated to involve the country in war." 
 
 In the case of the "Meteor,"^ this vessel was built in the 
 United States in 1865 during the war between Chile and Spain, 
 and sold to the Chilian Government without armament, and then, 
 it was alleged, commissioned within the United States as a 
 Chilian privateer. The following reasons for liberating the ship 
 were given by Mr. Justice Nelson : — 
 
 "(i) Although negotiations were commenced and carried on between 
 the owners of the 'Meteor' and agents of the Government of Chile for 
 the sale of her to the latter with the knowledge that she would be 
 employed against the Government of Spain, with which Chile was at 
 
 1 17 Fed. Cas. 178 ; 26 Fed. Cas. 1241 ; Scott's " Cases on Inter. Law," p. 711 (1866). 
 
CAPTURE AND CONDEMNATION 431 
 
 war, yet these negotiations failed, and came to an end from the inability 
 of the agents to raise the amount of the purchase money ; and if the 
 sale of the vessel in its then condition and equipment to the Chilian 
 Government would have been a violation of our neutrality laws, of which 
 it is unnecessary to express any opinion, the termination of the negotia- 
 tion put an end to this ground of complaint. 
 
 " (2) The furnishing of the vessel with coal and provisions for a voyage 
 to Panama or some other port of South America, and the purpose of the 
 owners to send her thither, in our judgment was not in pursuance of an 
 agreement or understanding with the agents of the Chilian Government, 
 but for the purpose and design of finding a market for her, and that the 
 owners were free to sell her on her arrival there to the Government of 
 Chile or of Spain, or of any other Government or person with whom they 
 might be able to negotiate a sale. 
 
 "(3) The witnesses chiefly relied on to implicate the owners in the 
 negotiations with the agents of the Chilian Government with a view and 
 intent of fitting out and equipping the vessels to be employed in the war 
 with Spain are persons who had volunteered to negotiate on behalf of 
 the agents with the owners in expectation of large commissions in the 
 event of a sale, or persons in the expectation of employment in some 
 situation in the command of the vessel, and very clearly manifest their 
 disappointment and chagrin at the failure of the negotiations, and whose 
 testimony is to be examined with considerable distrust and suspicion." 
 
 The " Florida "^ was charged with the violation of section 3 
 of the Act of 18 18, in that she was fitted out to commit hostilities 
 against the Government of Spain. It was alleged that the vessel 
 with her cargo, consisting of arms and munitions of war, was 
 really owned by Cuban insurgents ; that she was to proceed to 
 Vera Cruz, and to be there transferred to agents of the insurgents, 
 and thence to carry the cargo to some point off the coast of 
 Cuba and land it by means of rafts made out of lumber on 
 board, and towed by a steam launch also on board. 
 
 In holding that such facts, even if proved, did not establish 
 a violation of the third section, Mr. Justice Blatchford found that 
 there was no satisfactory evidence that the vessel was furnished 
 or fitted out or armed, or attempted to be furnished or fitted 
 out or armed, with intent that she should be employed to cruise 
 or commit hostilities in the service of the Cuban insurgents 
 against the Government of Spain. There was no evidence that 
 she was intended to do anything more than transport her cargo 
 to the coast of Cuba and to land it there as described. The 
 landing of a cargo of contraband on the shore of one belligerent, 
 at a point not blockaded, is not an act of hostility against the 
 other belligerent within the statute. 
 
 An attempt was made to show that the doctrine had been 
 confined to cases of captures made by privateers, and that it had 
 
 1 4 Ben., 452 (1871)- 
 
432 COMMERCE IN WAR 
 
 never been applied to captures by public ships. The Court refused 
 to admit any such distinction. 
 
 "In cases of violation of neutral territorial jurisdiction," said Mr. 
 Justice Story, " no distinction has ever been made between the capture of 
 public and private armed ships." 
 
 " As to the restitution of prizes made in violation of neutrality," said 
 Mr. Justice Johnson, in " L' Invincible,"^ "there could be no reason sug- 
 gested for creating a distinction between the national and the private 
 armed vessels of a belligerent. Whilst a neutral yields to other nations 
 the unobstructed exercise of their sovereign or belligerent rights, her own 
 dignity and security require of her the vindication of her own neutrality 
 and of her sovereign right to remain the peaceable and impartial spectator 
 of the war. As to her, it is immaterial in whom the property of the 
 offending vessel is vested ; the commission under which the captor acts is 
 the same, and that alone communicates the right of capture even to a 
 vessel which is national property." 
 
 Finally, the grounds for the exemption of foreign public ships 
 from local jurisdiction were examined, and it was shown that no 
 absolute right to such exemption existed, but that it stood upon 
 principles of public comity and convenience, and arose from the 
 presumed consent or licence of nations, such consent or licence 
 being liable to be withdrawn at any time upon notice. 
 
 " It may therefore," said Mr. Justice Story, " be justly laid down as a 
 general proposition that all persons and property within the territorial 
 jurisdiction of a sovereign are amenable to the jurisdiction of himself or 
 his courts ; and that the exceptions to this rule are such only as by 
 common usage and public policy have been allowed, in order to preserve 
 the peace and harmony of nations and to regulate their intercourse in a 
 manner best suited to their dignity and rights. It would indeed be 
 strange if a licence implied by law from the general practice of nations, 
 for the purposes of peace, should be construed as a licence to do wrong to 
 the nation itself, and justify the breach of all those obligations which 
 good faith and friendship, by the same implication, impose upon those 
 who seek an asylum in our ports. We are of opinion that the objection 
 cannot be sustained ; and that whatever may be the exemption of the 
 public ship herself, and of her armament and munitions of war, the prize 
 property which she brings into our ports is liable to the jurisdiction of our 
 Courts for the purpose of examination and inquiry, and if a proper case be 
 made out for restitution to those whose possession has been devested 
 by a violation of our neutrality ; and if the goods are landed from the 
 public ship in our ports by the express permission of our own Government, 
 that does not vary the case, since it involves no pledge that if illegally 
 captured they shall be exempted from the ordinary operation of our laws." ^ 
 
 These decisions prove decisively, said Sir William Harcourt, 
 that the American statute 
 
 " was not intended to, and did not in fact, operate so as in any way to 
 
 1 I Wheat, 238 (1816). 
 
 2 The " Santissima Trinidad," 7 Wheat., at p. 354. 
 
CAPTURE AND CONDEMNATION 433 
 
 limit or control the absolute freedom of commerce. The Enlistment 
 Act is directed not against the animus vendendi, but the animus belliger- 
 endt. It prohibits warlike enterprises, but it does not interfere with 
 commercial adventure. A subject of the Crown may sell a ship of war, 
 as he may sell a musket, to either belligerent with impunity ; nay, he 
 may even despatch it for sale to the belligerent port. But he may not 
 take part in the overt act of making war upon a people with whom his 
 sovereign is at peace. The purview of the Foreign Enlistment Act is 
 to prohibit a breach of allegiance on the part of the subject against his 
 own sovereign, not to prevent transactions in contraband with the 
 belligerent. Its object is to prohibit private war, and not to restrain 
 private commerce."^ 
 
 _ A few years later Mr. James Speed, the Attorney-General, in 
 his opinion for Mr. Seward, Secretary of State, said : — 
 
 " I know of no law or regulation which forbids any person or Govern- 
 ment, whether the political designation be real or assumed, from pur- 
 chasing arms from the citizens of the United States and shipping them 
 at the risk of the purchaser."* ^ 
 
 Throughout these cases the intent of the parties concerned 
 in the fitting out, arming, and equipping was the determining 
 element in the decisions — the animus vendendi being innocent, 
 the animus belligerendi guilty. 
 
 " As to the preparing of vessels within our jurisdiction," wrote Dana in 
 1866, " for subsequent hostile operations, the test we have applied has not 
 been the extent and character of the preparations, but the intent with 
 which the particular acts are done. If any person does any act, or 
 attempts to do any act, towards such preparation, with the intent that 
 the vessel shall be employed in hostile operations, he is guilty, without 
 reference to the completion of the preparations or the extent to which 
 they may have gone, and though his attempt may have resulted in no 
 definite progress towards the completion of the preparations. The 
 procuring of the materials to be used, knowingly and with intent, etc., is 
 an offence. Accordingly it is not necessary to show that the vessel was 
 armed, or was in any way or at any time, before or after the act charged, 
 in a condition to commit acts of hostility. 
 
 " On the point of intent more nicety and discrimination are necessary. 
 If the person charged has himself the control of the vessel, to put her 
 into foreign belligerent service, the question of the intent to employ her is 
 siinple. If he has not, he is still chargeable with doing acts or being 
 knowingly concerned in the doing of acts of or towards the preparation 
 with the intent that the vessel shall be so employed, though others may 
 control her during the preparations. But the intent must be that she 
 shall be so employed ; and the intent must be a fixed and present intent, 
 and not a wish or desire merely that she may be. If there is a contingency 
 it must, to exculpate the party, be one which forms a condition precedent 
 to the intent, and not merely a condition precedent to the employment or 
 
 1 " Historicus," 168. See Abdy's " Kent," 291, 321 ; Gibbs' " Foreign Enlistment Act." 
 
 2 II Op. Att.-Gen. U.S. 452 (1865). 
 
 2 F 
 
434 COMMERCE IN WAR 
 
 a condition subsequent which may defeat the intent. Thus if the owner 
 sends a vessel not completely ready for hostilities, with instructions to her 
 commander to complete her preparation and obtain letters of marque in 
 the port of her destination, and in case of failure in obtaining the 
 commission and equipment to take a cargo and return, he would doubtless 
 be guilty ; for he entered on the execution of his purpose, and those are 
 the ordinary contingencies of all employments by which they may be 
 defeated. But the purpose to which he shall put his vessel after her 
 arrival may depend on circumstances so contingent and fortuitous, as to 
 relieve him from the charge of a fixed intent at the time he sent her out. 
 
 " It will be seen at once by these abstract definitions that our rules do 
 not interfere with bona fide commercial dealingfs in contraband of war. 
 An American merchant may build and fully arm a vessel and supply her 
 with stores and offer her for sale in our own market. If he does any 
 acts as an agent or servant of a belligerent, or in pursuance of an 
 arrangement or understanding with a belligerent, that she shall be 
 employed in hostilities when sold, he is guilty. He may, without 
 violating our law, send out such a vessel so equipped under the flag and 
 papers of his own country, with no more force of crew than is suitable 
 for navigation, with no right to resist search and seizure, and to take the 
 chances of capture as contraband merchandise, of blockade, and of a 
 market in a belligerent port. In such case the extent and character 
 of the equipments is as immaterial as in the other class of cases. The 
 intent is all. The act is open to great suspicion and abuse, and the line 
 may often be scarcely traceable, yet the principle is clear enough. Is the 
 intent one to prepare an article of contraband merchandise to be sent 
 to the market of a belligerent, subject to the chances of capture and of 
 the market ? Or, on the other hand, is it to fit out a vessel which 
 shall leave our port to cruise immediately or ultimately against the 
 commerce of a friendly nation? The latter we are bound to prevent. 
 The former the belligerent must prevent. In the former case the ship 
 is merchandise, under bona fide neutral flag and papers, with a port of 
 destination, subject to search and capture as contraband merchandise 
 by the other belligerent, to the risks of blockade, and with no right to 
 resist search and seizure, and liable to be treated as a pirate by any 
 nation if she does any act of hostility to the property of a belligerent 
 as much as if she did it to that of a neutral. Such a trade in contra- 
 band a belligerent may cut off by cruising the seas and blockading 
 his enemy's ports. But to protect himself against vessels sailing out of 
 a neutral port to commit hostilities, it would be necessary for him to 
 hover off the ports of the neutral, and to do that effectually he must 
 maintain a kind of blockade of the neutral coast which, as neutrals will 
 not permit, they ought not to give occasion for. 
 
 "No cases have arisen as to the combination of materials which, 
 separated, cannot do acts of hostility, but united constitute a hostile 
 instrumentality, for the intent covers all cases and furnishes the test. It 
 must be immaterial where the combination is to take place, whether here 
 or elsewhere, if the acts done in our territory — whether acts of building, 
 fitting, arming, or procuring materials for these acts — be done as part 
 of a plan by which a vessel is to be sent out with intent that she shall 
 be employed to cruise."^ 
 
 ' Dana's " Wheaton," note 215. 
 
CAPTURE AND CONDEMNATION 435 
 
 Professor T. J. Lawrence, however, doubts whether the principle 
 of intent alone furnishes a sufficiently workable rule in the com- 
 plications which arise. 
 
 A line which may often be " scarcely traceable " is not a very 
 practicable division between the forbidden and the permissible. 
 He points how in the United States v. Quincy the Court care- 
 fully distinguished between a fixed and present intent and a 
 contingent or conditional intent to go to the West Indies and 
 endeavour to procure funds for a belligerent cruise. The latter 
 was a contingent intent, and therefore innocent, whereas an intent 
 to go on a belligerent cruise that was liable to be defeated by 
 failure to obtain the necessary funds in the West Indies was a 
 fixed and present intent, and therefore guilty. ^ 
 
 For the analogous offence of fitting out vessels within the 
 jurisdiction of the United States with intent to employ such 
 vessels in the transport of slaves contrary to the Slave Trade Acts 
 of 1794,* 1800,' 1803,* -807,® and 1818,^ the following cases 
 should be consulted: The "Mary Ann," 8 Wheat. 380; the 
 "Merino," 9 Wheat. 391 ; the "Emily and Caroline," 9 Wheat. 
 381 ; the " Margaret," 9 Wheat. 421 ; the "Antelope," 10 Wheat. 
 66; the " Plattsburg," 10 Wheat. 133; the "Josefa Segunda," 
 10 Wheat. 312; the "Alexander," 3 Mason, 175; the United 
 States V. Gooding, 1 2 Wheat. 460. 
 
 In 1837 the Canadian rebellion broke out, but the belligerency 
 of the rebels was never recognized by the Government. Never- 
 theless the existing laws, as President Van Buren pointed out in 
 his special message to Congress, 5 January, 1838, were insuffi- 
 cient to guard against hostile expeditions from the United States 
 against friendly Powers on the northern and southern boundaries. 
 The laws were, he admitted, sufficient for the punishment of 
 such' offences after they had been committed, and provided the 
 parties could be found ; but the Executive was powerless in 
 many cases to prevent their commission, even when in possession 
 of ample evidence of an intention on the part of evil-disposed 
 persons to violate the laws of the Union.'' 
 
 As a result of this message, the Neutrality Act of 10 March, 
 1838, was passed, which was declared to be supplementary to 
 the Act of 1818.^ By section i, the authorities were authorized 
 
 1 " Principles of Inter. Law," 548. 
 
 2 Ch. X. Statutes at Large, Vol. I, 347- 
 
 3 Ch. LI. ibid., Vol. II, 70. 
 
 4 Ch. X. ibid., Vol. II, 205. 
 
 6 Ch. XXII. ibid, Vol. II, 426. 
 
 6 Ch. XCI. ibid. Vol. Ill, 450. 
 
 ' "Statesman's Manual," Vol. II, 1199. 
 
 8 Statutes at Large,, U.S.A., Vol. V, 212. 
 
436 COMMERCE IN WAR 
 
 to seize and detain any vessel or any arms or munitions of war 
 which might be provided or prepared for any military expedition 
 or enterprise against the territory or dominion of any foreign 
 prince or State, or of any colony, district, or people conterminous 
 with the United States, and with whom they were at peace, 
 contrary to section 6 of the Act of 1818, and to retain possession 
 until the decision of the President, or until otherwise released. 
 Section 2 provided for the seizure of any vessel or vehicle, arms 
 or munitions about to pass the frontier where there was probable 
 cause to believe that they were intended to be employed in 
 carrying on a military expedition. Mode of seizure and pro- 
 cedure are provided for by sections 3, 4, 5, 6, and 7, whilst 
 section 8 provides — 
 
 " That it shall be lawful for the President of the United States, or 
 such person as he may empower for that purpose, to employ such part 
 of the land or naval forces of the United States or of the militia as shall 
 be necessary to prevent the violation, and to enforce the due execution 
 of this Act and the Act hereby amended." 
 
 By section 9, the Act was limited to two years. 
 
 Notwithstanding the President's message and a strong military 
 force sent to the frontier, an expedition, openly organized at 
 Detroit, seized the arsenal and steamboats and ships lying off the 
 wharves, and succeeded in getting off to Canada. The Bill for 
 the prevention of such expeditions introduced into Congress was, 
 as we have seen, not passed till 10 March, by which time the 
 rebellion had been nearly subdued. 
 
 The next occasion when the Foreign Enlistment Act was called 
 into requisition was in 1848, when the Government prohibited a 
 ship of war, purchased for the German fleet during the war with 
 Denmark, from leaving New York without entering into the bond 
 required by the Act of 1818. 
 
 In 1850 took place the expedition under Lopez for the invasion 
 of Cuba. The first attempt was a failure, and on his return 
 Lopez was arrested, but — 
 
 " No delay being granted by the district judge to procure evidence, he 
 was discharged amid the cheers of a large crowd." ^ 
 
 Charged a second time, a true bill was found against Lopez and 
 fifteen others, but the Government failed to make out a case and 
 finally abandoned the prosecution. 
 
 Encouraged probably by these failures of the law, Lopez 
 organized another expedition, which left New Orleans on 
 3 August, 1 85 1, with 400 armed men on board the "Pampero." 
 
 1 "Chronicle," 23 Sept., 1851. 
 
CAPTURE AND CONDEMNATION 437 
 
 The expedition landed in Cuba and proved an entire failure. 
 Fifty of the invaders were shot, and Lopez was publicly 
 executed at Havana. 
 
 In 1855 the "Maury" was detained at New York. The 
 evidence, however, failed, although there was little doubt that she 
 was intended to serve as a Russian privateer in the China seas. 
 
 During the years 1857-59, filibustering expeditions were 
 organized by one Walker against Nicaragua. In spite of the 
 efforts of the Government, Walker managed to evade their 
 vigilance. His career was eventually closed by his execution at 
 Truxillo in September, i860. 
 
 In 1866 took place the "Fenian Raids" into Canada. The 
 President issued a Proclamation of Neutrality, and some prose- 
 cutions followed which, however, proved abortive. Eight or nine 
 hundred men had crossed into Canada, and being defeated by a 
 force of volunteers recrossed the frontier, and were arrested by 
 the United States forces on their return. 
 
 In 1870 two more expeditions of a similar character met with a 
 similar fate, the men being disarmed on their return by the United 
 States troops. Some of the leaders were fined and imprisoned, 
 but were released after two or three months' incarceration. 
 
 Great Britain.— Numerous statutes had been passed pro- 
 hibiting British subjects from enlisting or engaging to enlist 
 or serve in foreign service, military or naval, without the licence of 
 the Crown, ^ when the Foreign Enlistment Act of 18 19' was enacted 
 to more effectually achieve this object and also to prevent the 
 fitting out, equipping, and arming vessels intended for warlike 
 operations against any foreign State or Government with which 
 Great Britain was at peace. 
 
 This statute was avowedly based upon the Act of Congress of 
 1794, and the object of the English legislature was to follow as 
 closely as possible the course of American legislation. 
 
 On the motion of Lord Al thorp, on 16 April, 1823, for leave to 
 bring in a Bill to repeal the Act of 18 19, Mr. Canning said : — 
 
 " If I wished for a guide in the system of neutrality, I should take that 
 laid down by America in the days of the Presidency of Washington and 
 the secretaryship of Jefferson. In 1793, complaints were made to the 
 American Government that French ships were allowed to fit out and arm 
 in American ports for the purpose of attacking British vessels, in direct 
 opposition to the laws of neutrality. Immediately upon this representa- 
 tion the American Government held that such a fitting out was contrary 
 to the laws of neutrality, and orders were issued prohibiting the arming of 
 any French vessels in American ports. At New York a French vessel, fitting 
 
 1 9 Geo. II. c. XXX ; 29 Geo. 11. c. xvii ; 11 Geo. II. (Ir.) ; 19 Geo. II. (In). 
 
 2 59 Geo. III. c. LXix. 
 
438 COMMERCE IN WAR 
 
 out, was seized, delivered over to the tribunals, and condemned. Upon that 
 occasion the Government held that such fitting out of French ships in 
 American ports for the purpose of cruising against English vessels was 
 incompatible with the sovereignty of the United States, and tended 
 to interrupt the peace and good understanding which subsisted between 
 that country and Great Britain. Here, sir, I contend is the principle 
 of neutrality upon which we ought to act. It was upon this principle that 
 the Bill in question was enacted."^ 
 
 The circumstances under which the Act of George III was 
 passed are described as follows : — 
 
 " Ever since the contest between the splendid colonies of Spain and 
 the mother-country had begun in 1810, it had been regarded with warm 
 interest in Great Britain ; partly in consequence of the strong and 
 instinctive attachment of its inhabitants to the cause of freedom, and 
 sympathy with all who are engaged in asserting it ; partly in consequence 
 of extravagant expectations formed and fomented by interested parties, 
 as to the vast field that, by the independence of those colonies, would be 
 opened to British commerce and enterprise. . . . 
 
 " Not only did great numbers of the peninsular veterans, ofificers, and 
 men go over in small bodies and carry to the insurgents the benefit of 
 their experience and the prestige of their fame, but a British adventurer, 
 who assumed the title of Sir M'Gregor M'Gregor, collected a considerable 
 expedition in the harbours of this country, with which, in British vessels 
 and under the British flag, he took possession of Porto Bello in South 
 America, then in the undisturbed possession of a Spanish force, a country 
 at peace with Great Britain. This violent aggression led to a strong 
 remonstrance on the part of the Spanish Government, in consequence of 
 which the Government brought in a Foreign Enlistment Act, which led 
 to violent debates in both Houses of Parliament."^ 
 
 In introducing the Bill, Sir S. Shepherd, Attorney-General, 
 said : — 
 
 " It was extremely important for the preservation of neutrality that the 
 subjects of this country should be prevented from fitting out any equip- 
 ments not only in the ports of Great Britain and Ireland, but also in the 
 other ports of the British Dominions, to be employed in foreign service. 
 The principle in this case was the same as in the other, because by fitting 
 out armed vessels, or by supplying the vessels of other countries with war- 
 like stores, as effectual assistance might be rendered to a foreign power as 
 by enlistment in their service. In this second provision of the Bill two 
 objects were intended to be embraced : to prevent the fitting out of armtd 
 vessels, and also to prevent the fitting out or supplying other ships with 
 warlike stores in any of His Majesty's ports. Not that such vessels might 
 not receive provisions in any port in the British Dominions ; but the 
 object of the enactment was to prevent them from shipping warlike 
 stores, such as guns and other things obviously and manifestly intended 
 for no other purpose than war."* 
 
 1 Canning's Speeches, Vol. V, 50 ; see also Vol. IV, 150. 
 ^ Alison's " History of Europe," Vol. I, c. iv, sec. 95. 
 3 Hansard, Vol. XL, 364 (1819). 
 
CAPTURE AND CONDEMNATION 439 
 
 The sections of the Act dealing with the fitting out and 
 equipment of vessels are obviously drafted from the corresponding 
 clauses in the American statutes. For this reason and also 
 because they have been discussed in several important cases, 
 no apology is made for reproducing them here. 
 
 By section 7 it is enacted, — 
 
 " That if any person, within any part of the United Kingdom or in 
 any part of His Majesty's Dominions beyond the seas, shall, without the 
 leave or licence of His Majesty for that purpose first had and 
 obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or 
 endeavour to aid, assist, or be concerned in the equipping, furnishing, 
 fitting out, or arming of any ship or vessel with intent or in order that 
 such ship or vessel shall be employed in the service of any foreign prince. 
 State, or potentate, or of any foreign colony, province, or a part of any 
 province or people or of any person or persons exercising or assuming to 
 exercise any powers of government in or over any foreign State, colony, 
 province, or part of any province or people as a transport or store-ship, or 
 with intent to cruise or commit hostilities against any prince. State, or 
 potentate, or against the subjects or citizens of any prince. State, or poten- 
 tate or against the persons exercising or assuming to exercise the powers 
 of government in any colony, province, or part of any province or 
 country with whom His Majesty shall not then be at war ; or shall 
 within the United Kingdom or any of His Majesty's Dominions or in any 
 settlement, colony, territory, island, or place belonging or subject to His 
 Majesty, issue or deliver any commission for any ship or vessel, to the 
 intent that such ship or vessel shall be employed as aforesaid ; every such 
 person so offending shall be deemed guilty of a misdemeanour, and shall, 
 upon conviction thereof, upon any information or indictment, be punished 
 by fine and imprisonment, or either of them, at the discretion of the 
 Court in which such offender shall be convicted ; and every such ship and 
 vessel, with the tackle, apparel, and furniture, together with all materials, 
 arms, ammunition, and stores which may belong to or be on board of any 
 such ship or vessel, shall be forfeited ; and it shall be lawful for any officer 
 of His Majesty's Customs or Excise, or any officer of His Majesty's navy 
 who is by law empowered to make seizures for any forfeiture incurred 
 under any of the laws of Customs or Excise or the laws of trade and 
 navigation, to seize such ships and vessels aforesaid and in such places 
 and in such manner in which the officers of His Majesty's Customs or 
 Excise and the officers of His Majesty's navy are empowered respectively 
 to make seizures under the laws of Customs and Excise or under the laws 
 of trade and navigation ; and that every such ship and vessel with the 
 tackle, apparel, and furniture, together with all the materials, arms, 
 ammunition, and stores which may belong to or be on board of such ship 
 or vessel, may be prosecuted and condemned in the like manner, and 
 in such Courts as ships or vessels may be prosecuted and condemned for 
 any breach of the laws made for the protection of the Revenue of 
 Customs and Excise, or of the laws of trade and navigation." 
 
 By section 8, which deals with augmentation, it is enacted, — 
 
 " That if any person in any part of the United Kingdom of Great 
 Britain and Ireland, or in any part of His Majesty's Dominions beyond 
 
440 COMMERCE IN WAR 
 
 the seas, without the leave or licence of His Majesty for that purpose 
 first had and obtained as aforesaid, shall by adding to the number of the 
 guns of such vessel, or by changing those on board for other guns or 
 by the addition of any equipment for war, increase or augment or procure 
 to be increased or augmented, or shall be knowingly concerned in increas- 
 ing or augmenting the warlike force of any ship or vessel of war or 
 cruiser or other armed vessel, which at the time of her arrival in any part 
 of the United Kingdom or any of His Majesty's Dominions, was a ship of 
 war, cruiser, or armed vessel in the service of any foreign prince, State, or 
 potentate or of any person or persons exercising or assuming to exercise 
 any powers of government in or over any colony, province, or part of any 
 province or people belonging to the subjects of any such prince, State, or 
 potentate, or to the inhabitants of any colony, province, or part of any 
 province or country under the control of any person or persons so 
 exercising or assuming to exercise the powers of government, every such 
 person so offending shall be deemed guilty of a misdemeanour, or shall 
 upon being convicted thereof upon any information or indictment, be 
 punished by fine and imprisonment, or either of them, at the discretion 
 of the Court before which such offender shall be convicted." 
 
 By section 9, these offences, if committed out of the United 
 Kingdom, might be prosecuted and tried in the King's Bench at 
 Westminster. 
 
 The statute was discussed at great length in the celebrated case 
 of the " Alexandra," reported under the name of Attorney- 
 General V. Sillem.-' The vessel was built at Liverpool for some 
 Liverpool merchants, who were agents for the Confederate States 
 of America. It was clearly established by the evidence for the 
 Crown that the vessel had been constructed for warlike purposes, 
 and that at the time of her seizure workmen were engaged 
 attaching warlike fittings. According to the evidence of Captain 
 Inglefield, r.n., she certainly was not intended for mercantile 
 purposes, and although she might be used as a yacht, was easily 
 convertible into a man-of-war. 
 
 On 6 April, 1863, the "Alexandra" was seized by an officer of 
 the Customs in the Toxteth Dock, Liverpool, and an information 
 laid charging the defendants and others with a violation of the 
 statute. The defendants claimed the vessel, and pleaded that it 
 was not forfeited. 
 
 Every possible violation of the Act by fitting out, equipping, 
 and furnishing, and the attempt, but not that of arming, was 
 included in the information. 
 
 The cause came on before Pollock C.B., on 22 June, who 
 declared — 
 
 "That the Foreign Enlistment Act did not prohibit the building of 
 ships for a belligerent Power ; that the sale by any person in this kingdom 
 to a belligerent Power of any quantity of arms, ammunition, or destructive 
 
 1 2 H.L.C., 431-641 (1863). 
 
CAPTURE AND CONDEMNATION 441 
 
 material, was not forbidden by international or municipal law ; and if so, 
 why should ships be an exception ? which, in his opinion, they were not. 
 That if it was lawful for a person to build a ship easily convertible into a 
 man-of-war, and offer it for sale to either of the belligerents, it was lawful 
 for the Confederate States to employ a builder to build a ship of the same 
 description and send it to them. That the object of the statute was not 
 the protection of belligerents, otherwise the Legislature would have pro- 
 hibited the sale of gunpowder ; but to prevent the equipment for war, in 
 the ports of this country, of vessels which might possibly come into 
 hostile communication before they passed the neutral line." 
 
 The following question was left to the jury : — 
 
 " Was there any intention that in the port of Liverpool, or any other 
 port, she should be either equipped, furnished, fitted out, or armed with 
 the intention of taking part in any contest ? If you think the object was 
 to equip, furnish, fit out, or arm that vessel at Liverpool, then that is a 
 sufficient matter. But if you think the object really was to build a ship 
 in obedience to an order and in compliance with a contract, leaving it to 
 those who bought it to make what use they thought fit, then it appears to 
 me that the Foreign Enlistment Act has not been in any degree broken." 
 
 The jury found a verdict for the defendants. The Chief 
 Baron's direction to the jury was upheld by the Exchequer 
 Chamber. 
 
 Barton v. Pinkerton^ was an action brought by a mariner for 
 the breach of a contract under which he was engaged to serve 
 the defendant for twelve months on board the "Thames." This 
 vessel was in the service of the Peruvian Government with a 
 cargo of coals and ammunition, and in the course of her voyage 
 to Rio she met and supplied with these stores two Peruvian ships 
 of war. Before leaving Rio for another Peruvian port, war 
 broke out between Spain and Peru. The plaintiff objected* to 
 serve any further, and accordingly left the ship. 
 
 It was held that the plaintiff was entitled to recover damages 
 for the breach of contract, inasmuch as the continuance of the 
 voyage would have exposed him to greater danger than he had 
 bargained for. 
 
 "By the seventh section," said Kelly C.B., "it is made an offence to fit out 
 a ship to be used in aid of a belligerent as a store-ship, but the offence must 
 be committed within the British dominions. This ship was so fitted out 
 in London, but before the declaration of war, and therefore the offence 
 was incomplete. But it was actually used as a store-ship after the declara- 
 tion of war, and continued to be so used, under the order of Borras (a 
 Peruvian agent), after the plaintiff had quitted the ship and the ship had 
 quitted Rio. If then it were necessary to decide the question, I should hold 
 that to serve on board a vessel used as a store-ship in aid of a belligerent, 
 
 ^ 2 Ex. 340 (1867). See Sibery v. Connelly, 22 T.L.R., 174 (1905); Sivewright v. 
 Mlen-ibid., 482 (1906) ; [1906] 2 K.B., 51 ; Austin Friars Steam Shipping Co. v. Strack, 
 [1905] 2 K.B., 315. 
 
442 COMMERCE IN WAR 
 
 the fitting out of which to be so used is an offence within the seventh 
 section, is ' a serving on board a vessel for a warlike purpose in aid of a 
 foreign State' within the second section. But if this were doubtful, I am of 
 opinion that so to employ this vessel was a breach of that which I held 
 to be the contract with the plaintiff, to employ him with the rest of the 
 crew for a specified period on board this vessel upon an ordinary com- 
 mercial voyage. It is impossible not to see that by adventures like these 
 this country has been brought to the very verge of war — first with the 
 United States, and latterly with Spain ; and I think we ought not to permit 
 a doubt to be entertained, whether to engage and employ the crew of a 
 British ship in such an adventure is within the terms of a lawful contract 
 like that which has been entered into between the defendant and the 
 plaintiff." 
 
 The status of insurgents in relation to the seventh section of the 
 Act was raised and decided in the case of the " Salvador."^ This 
 was a British vessel employed as a transport or store-ship in the 
 service of the Cuban insurgents, who, though not recognized as 
 belligerents, had formed themselves into a body of people, forming 
 part of the province or people of Cuba, to act together and 
 undertake and conduct hostilities. 
 
 In delivering the judgment of the Judicial Committee of the 
 Privy Council, and in condemning the ship. Lord Cairns set out 
 the five propositions to be established in bringing a case within 
 the seventh section of the Act. First, the ship must be found 
 acting without the leave and licence of the Crown ; secondly, the 
 ship must be equipped, furnished, fitted out, or armed, or there 
 must be a procuring, etc. : thirdly, the equipping, etc., must be 
 done with intent, or in order that the ship shall be employed in 
 the service of some 
 
 "foreign prince. State, or potentate, or some foreign colony, province, 
 or part of any province or people or of any person or persons exercising 
 or assuming to exercise any powers of government in or over any 
 foreign State, colony, province, or part of any province or people. " 
 
 Fourthly, there must be intent to employ the ship in one of 
 two capacities, either 
 
 " as a transport, or store-ship, against any prince. State, or potentate, or 
 with intent to cruise or commit hostilities against any prince. State, or 
 potentate, etc." 
 
 Fifthly, such prince, etc., must be one with whom this country 
 should not then be at war. 
 
 It was upon the third proposition alone that the Court below 
 had felt any doubt. 
 
 " It is to be observed," said Lord Cairns, " that this part of the section 
 is in the alternative. The ship may be employed in the service of a 
 
 1 L.R., 3 P.C. 2i8 (1870). 
 
CAPTURE AND CONDEMNATION 443 
 
 foreign prince, State, or potentate, or foreign State, colony, province, 
 or part of any province or people; that is to say, if you find any 
 consolidated body in the foreign State, whether it be the potentate who 
 has the absolute dominion, or the government or a part of the province or 
 of the people or the whole of the province or the people acting for 
 themselves, that is sufficient. 
 
 " But by way of alternative, it is suggested that there may be a case 
 where, although you cannot say that the province or the people or a part 
 of the province or people are employing the ship, there yet may be some 
 person or persons, who may be exercising or assuming to exercise powers of 
 government in the foreign colony or State, drawing the whole of the 
 material aid for the hostile proceedings from abroad ; and therefore, 
 by way of alternative, it is stated to be sufficient if you find the ship 
 prepared or acting in the service of ' any person or persons exercising or 
 assuming to exercise any powers of government in or over any foreign 
 State, colony, province or part of any province or people,' but that 
 alternative need not be resorted to if you find the ship is fitted out 
 and armed for the purpose of being ' employed in the service of any 
 foreign State or people or part of any province or people.' " 
 
 Upon that the observation of the learned judge was this : — 
 
 " We have no evidence of the object of the insurrection, who are the 
 leaders, what portion of Cuba they have possession of, in what manner 
 this insurrection is controlled or supported, or in what manner they govern 
 themselves. How, therefore, can I say that they are assuming the powers 
 of government in or over any part of the Island of Cuba ? 
 
 " Now it appears to their lordships that the error into which the learned 
 judge below fell was in confining his attention to what I have termed the 
 second alternative of this part of the section, and in disregarding the first 
 part of the alternative. It may be (it is not necessary to decide whether 
 it is so or not) that you could not state who were the person or persons 
 exercising or assuming to exercise power of government in Cuba in 
 opposition to the Spanish authorities. That may be so : their lordships 
 express no opinion upon that subject, but they will assume that there 
 might be a difficulty in bringing the case within the second alternative of 
 the section ; but their lordships are clearly of opinion that there is no 
 difficulty in bringing the case under the first alternative of the section, 
 because their lordships find these propositions established beyond all 
 doubt : there was an insurrection in the Island of Cuba ; there were 
 insurgents who had formed themselves into a body of people acting 
 together, undertaking and conducting hostilities ; those insurgents beyond 
 all doubt formed part of the province or people of Cuba ; and beyond all 
 doubt the ship in question was to be employed, and was employed, in 
 connexion with and in the service of this body of insurgents." 
 
 During the War of Secession in the United States, numerous 
 complaints had been addressed to the British Government of its 
 failure to perform its neutral duty by the prevention of the building 
 and selling in its ports of vessels intended to be employed in the 
 service of the Confederate States against the United States with 
 whom Great Britain was at peace. 
 
444 COMMERCE IN WAR 
 
 No doubt a large proportion of the British public sympathized 
 with the Secessionists, and where this sentiment was combined 
 with good business, sympathy was only too naturally translated 
 into action. 
 
 But the wholesale accusations of " a consistent course of par- 
 tiality towards the insurgents," and "a want of diligence border- 
 ing on wilful negligence " against the British Government are 
 scarcely warranted. The complaint that Great Britain had 
 become "the navy yard of the insurgents" was an exaggeration. 
 Blockade-runners innumerable were built and supplied, but there 
 was nothing illegal in this. 
 
 Fourvessels only— the "Florida," the"Alabama," the "Georgia," 
 and the "Shenandoah," built and equipped in British waters — 
 found their way into the hands of the Confederates. The two 
 latter vessels were not ships of war, and after the escape of the 
 two former, no vessel of war to which the notice of the authorities 
 was directed, and which was proved to be intended for war, was 
 allowed to depart. 
 
 The first intimation of any attempt on the part of the Con- 
 federate States to fit out or procure a vessel of war within the 
 jurisdiction of Great Britain was the complaint lodged by Mr. 
 Adams against the "Bermuda," on i6 August, 1861, which 
 turned out to be a blockade-runner. 
 
 The next were those against the "Florida," 19 February, and 
 the "Alabama," 23 June, 1862. The "Alexandra" was seized 
 5 April, 1863, and the proceedings instituted against her failed, as 
 already related. She was seized again at Nassau, and again 
 liberated ; the cost and damages incurred by the Government 
 amounting to over ^4006. 
 
 On 9 October, 1863, two ironclads at Liverpool, which had 
 clearly been bought for the Confederate States, were seized, and 
 ultimately purchased by the Government, to prevent them passing 
 into their hands. The " Canton," built at Glasgow, also for the 
 Confederates, was seized on 10 December and detained. A 
 number of other vessels were also placed under surveillance. 
 
 To sum up, during the whole war two ships of war only were 
 built in Great Britain for and employed in the service of the 
 Confederates. Four others were intended to be built and 
 equipped, but were arrested whilst in course of construction. 
 Four merchant vessels, though not adapted for warlike purposes, 
 were converted into vessels of war by having guns put on board 
 outside the jurisdiction of Great Britain — two of them in Con- 
 federate ports. 
 
 The "Florida." — On 19 February, 1862, a complaint was 
 lodged against the " Florida." There was in this communication 
 
CAPTURE AND CONDEMNATION 445 
 
 from the American consul no evidence whatever of the intended 
 employment or true ownership of the vessel, and no circumstance 
 stated which, if verified, could have produced more than a mere 
 su^icion. 
 
 An inquiry was, however, instantly directed by the British 
 Government, but no information could be obtained tending to 
 connect the vessel in any way with the Confederate States. She 
 was declared by the builder to be ordered for a firm at Palermo, 
 and it was not until two days after she had sailed that the British 
 Government ascertained that its alleged construction for the 
 Italian Government was fraudulent. On clearing from Liverpool 
 for Palermo and Jamaica, 23 March, 1862, she had no troops, 
 arms, or military supplies on board. Her destination was false, 
 and on arrival at Nassau most of her crew insisted on being dis- 
 charged. After considerable discussion she was seized at the 
 Bahamas on a charge of a violation of the Foreign Enlistment 
 Act. Proceedings were instituted in the Vice-Admiralty Court, 
 but the judge, being of opinion that although she had been fitted 
 out in British territory, yet as she had not armed in the colony 
 nor been transferred to a belligerent, she must be released. 
 She then, after enlisting some men, left for Green Cay, a desert 
 island sixty miles south of Nassau, where she was met by the 
 " Prince Alfred," which had cleared from Hartlepool with her 
 armaments, but which it was unknown in England were intended 
 for the " Florida." 
 
 From Green Cay she proceeded to Cardenas, in Cuba, where 
 she endeavoured, without success, to enlist more men, and, 
 eluding the blockading cruisers, entered the Confederate port 
 of Mobile. Here she remained four months, to issue as a Con- 
 federate ship of war, in which capacity she was admitted into 
 several British ports, where she was treated as a belligerent 
 public vessel. 
 
 The " Alabama." — This vessel, undoubtedly intended for war 
 and constructed and adapted accordingly, was from the first — 
 although this was unknown at the time to the British authorities 
 — expressly built for the Confederate States. 
 
 The English Government was warned as early as 23 June, 
 1862, by Mr. Adams, the American Minister in London, that the 
 vessel was about to depart and enter the service of the Con- 
 federate States. A great deal of correspondence then ensued 
 between Mr. Adams and Mr. Dudley, the American Consul at 
 Liverpool, and the Department of Customs, but the solicitor to the 
 latter advised that the evidence was insufficient to bring the vessel 
 within the provisions of the Foreign Enlistment Act, and in this 
 he was supported by the opinion of the Commissioners of Customs. 
 
446 COMMERCE IN WAR 
 
 Eventually affidavits were obtained from some of the men who 
 had been engaged to serve on the vessel, and who were informed 
 by the captain who engaged them that "the vessel was going out 
 to the Government of the Confederate States ... to fight for 
 the Southern Government." 
 
 On 1 6 July, and again on the 23rd, Mr. Collier, Q.c, was 
 consulted on behalf of the American Government, and his 
 opinion was as follows : — 
 
 " I have perused the above affidavits, and I am of opinion that the 
 Collector of Customs would be justified in detaining the vessel. Indeed, 
 I should think it his duty to detain her ; and that if after the application 
 which has been made to him, supported by the evidence which has been 
 laid before me, he allows the vessel to leave Liverpool, he will incur a 
 heavy responsibility — a responsibility of which the Board of Customs, 
 under whose directions he appears to be acting, must take their share. 
 
 " It appears difficult to make out a stronger case of infringement of the 
 Foreign Enlistment Act, which, if not enforced on this occasion, is little 
 better than a dead letter. 
 
 "It well deserves consideration whether if the vessel is allowed to 
 escape, the Federal Government would not have serious grounds of 
 remonstrance." 
 
 In spite of this opinion and of the additional evidence, the 
 solicitor to the Customs remained unshaken in his opinion, and 
 that of the law officers of the Crown was then taken by Lord 
 Russell. 
 
 Their opinion was given on the 29th, and was as follows: — 
 
 " In our opinion the evidence of the witnesses (William Passmore, 
 Edward Roberts, John Taylor, and Henry Redden), coupled with the 
 character and structure of the vessel, makes it reasonably clear that such 
 vessel is intended for warlike use against the citizens of the United 
 States and in the interest of the Confederate States. It is not and 
 cannot be denied that the vessel is constructed and adapted as a vessel 
 of war; being pierced for guns, the sockets for the belts for which, 
 Passmore states, are already laid down, and having a magazine, and shot, 
 and canister racks on the deck, and a certain number of canisters being 
 actually on board. It is also stated in the report of the Commissioners 
 of Customs of I July, that Messrs. Laird, the builders, do not deny that 
 the vessel has been built for some 'foreign Government,' although they 
 maintain apparently a strict reserve as to her actual destination and as to 
 the 'foreign Government' in particular for whose service she is intended. 
 We do not overlook the facts that neither guns nor ammunition have as 
 yet been shipped ; that the cargo (though of the nature of naval stores in 
 connexion with war steamers) may yet be classed as a mercantile cargo ; 
 and that the crew do not appear to have been, in terms and form at least, 
 recruited or enrolled as a military crew. It is to be expected that great 
 stress will be laid upon these circumstances by their owners and others 
 who may oppose the condemnation of the vessel if seized by the officers 
 of the Customs; and an argument may be raised as to the proper 
 
CAPTURE AND CONDEMNATION 447 
 
 construction of the words which occur in the seventh section of the 
 Foreign Enlistment Act, ' equip, furnish, fit out or arm,' which words, it 
 may be suggested, point only to the rendering a vessel, whatever may be 
 the character of its structure, presently fit to engage in hostilities. We 
 think, however, that such a narrow construction ought not to be adopted, 
 and if allowed would fritter away the Act, and give impunity to open 
 and flagrant violations of its provisions. We therefore recommend that 
 without loss of time the vessel be seized by the proper authorities, after 
 which an opportunity will be afforded to those interested previous to 
 condemnation to alter the facts if it may be, and to show an innocent 
 destination of the ship. In the absence of any such countervailing case, 
 it appears to us that the vessel, cargo, and stores may be properly 
 condemned." 
 
 This opinion, however, arrived too late. Before the necessary 
 orders for seizure could be issued, a wire from Liverpool an- 
 nounced that the " Alabama " had gone out of dock on the 
 evening of the 28th and sailed on the morning of the 29th. She 
 left under the pretence of a trial trip. 
 
 The charge of delay against the law officers may be shortly 
 dismissed. The case was submitted in the first place, as was 
 usual, to Sir John Harding, the Queen's Advocate, and owing 
 to his illness — an illness affecting his mental faculties — did not 
 reach the Attorney-General, Sir W. Atherton, and the Solicitor- 
 General, Sir Roundell Palmer, till the 28th. 
 
 On leaving the Mersey the " Alabama " proceeded to Moelfra 
 Bay, in Anglesey, about fifty miles from Liverpool, where she 
 waited for a tug with thirty to forty men on board, who were 
 to form part of her crew, and which had left Liverpool on the 30th. 
 On the morning of the 31st the "Alabama" proceeded on her 
 way to the Azores, where she met two vessels, the " Bahama " 
 and the " Agrippina." 
 
 The "Georgia." — The "Georgia" was built on the Clyde, 
 ostensibly for the Chinese Government, and was launched on 
 10 January, 1863, the ceremony of christening being performed 
 by the daughter of Captain North, an insurgent, and who, in 
 October previously, had been shown by an intercepted letter to 
 be in communication with the secretary of the Confederate navy. 
 A copy of this letter was sent to Earl Russell. It is true that 
 steps were being taken to provide the Chinese Government with 
 vessels of war built in England, and that emissaries of the Con- 
 federate States used these as a cover for their transactions. But 
 it would have been quite easy for the British authorities to have 
 ascertained exactly what ships were being constructed for neutral 
 Powers, 
 
 It is also true that until the "Georgia" left the Clyde on 
 I April for Hong-Kong, no complaint had been lodged by the 
 
448 COMMERCE IN WAR 
 
 representatives of the United States against this particular ship. 
 Upon her departure she was complete and ready for service as a 
 vessel of war. She needed nothing but arms and ammunition. 
 
 On 4 April the " Alar " cleared from Newhaven for Alderney 
 and St. Malo with men and armaments, under circumstances 
 which excited the suspicions of the collector, who communicated 
 the intelligence to the Commissioners of Customs. On the 8th, 
 Mr. Adams addressed a note of complaint to Earl Russell, who 
 the same day sent instructions to Major-General Slade, Governor 
 of Guernsey, to take such steps as he might be advised. General 
 Slade immediately despatched a cruiser to Alderney. 
 
 The "Alar," however, met the "Georgia" off Brest, and the 
 transfer of men and armaments was completed on the 9th. The 
 " Georgia " made for Bahia, and ultimately reached Simon's Bay, 
 where she received "coals, provisions, and caulking," At Tene- 
 riffe she again coaled, and making Cherbourg, was admitted into 
 the Government docks for repairs. Proving unsuccessful as a 
 cruiser she returned to Liverpool, where she was dismantled and 
 sold. 
 
 The "Shenandoah." — This vessel, originally known as the 
 " Sea King," was a screw steamer, built at Glasgow in 1863, and 
 intended for the China trade. She was in no sense adapted for 
 warlike purposes, although from the first she carried two 1 2-poun- 
 der cannonades, such as merchant vessels are in the habit of 
 carrying as signal guns. 
 
 After her return from a voyage to New Zealand, partly on 
 Governmental business, she was sold in the ordinary way to Mr. 
 Richard Wright, a Liverpool shipowner. Mr. Wright was, how- 
 ever, the father-in-law of Mr. Prioleau, the managing partner of 
 Fraser, Trenholm and Co., the well-known agents of the Con- 
 federate States in Liverpool. 
 
 On 7 October, 1864, Wright granted to Corbett, the master of 
 the ship, a certificate of sale, empowering him to sell the vessel 
 within six months from the date thereof, at any port outside the 
 United Kingdom, for not less than ;!f45,ooo. 
 
 The "Sea King" left London on 9 October, and arrived at 
 Madeira on the i8th, where she met a small vessel, the " Laurel," 
 which had cleared from Liverpool about the same time, with guns, 
 arms, and ammunition. Both vessels then proceeded to the ad- 
 joining islands, the Desertas, where the armaments were trans- 
 ferred, and the "Sea King" sold to the Confederate States 
 Government. Of her crew of forty-two, only two or three con- 
 sented to serve. The Confederate flag having been hoisted, she 
 thenceforth cruised under the name of the "Shenandoah." 
 Nothing further was heard of the " Shenandoah " till her arrival 
 
CAPTURE AND CONDEMNATION 449 
 
 at Melbourne on 25 January, 1865, when her captain, Waddell, 
 requested permission to repair machinery, take in coal, and land 
 his prisoners. The law officers of the colony having advised that 
 the " Shenandoah " was entitled to be treated as a ship of war 
 duly commissioned, the required permission was granted. 
 
 These repairs were, however, interrupted by a controversy 
 between the authorities and Captain Waddell upon an alleged 
 enlistment. The latter, whilst refusing to allow his ship to be 
 searched, solemnly declared that no one had been enlisted, and 
 that he had not in any way violated the neutrality of the port. 
 
 Nevertheless, the police took possession of the slip in which the 
 " Shenandoah " was docked, and clearing the yard of all workmen, 
 effectually put a stop to the repairs. The immediate effect of this 
 action was that four men were seen to leave the ship, who when 
 seized declared that they were on board unknown to the captain, 
 and that when discovered he had ordered them ashore. After 
 further declarations from the captain, the repairs were allowed to 
 be continued and the vessel to depart. 
 
 As it subsequently transpired, however, Captain Waddell did 
 augment his crew from the colony, in spite of his repeated assur- 
 ances as an officer and a gentleman. Upon the receipt of this 
 intelligence, the Governor announced his intention of refusing the 
 hospitality of the port to Captain Waddell or any of the officers 
 of the " Shenandoah," and wrote to the Governors of the other 
 colonies and to the Commodore of the station warning them of 
 the breach of neutrality which he had discovered. 
 
 The grounds of complaint put forward by the United States 
 Government were summarized by Sir Alexander Cockburn, one 
 of the members of the Tribunal of Arbitration, as follows : — 
 
 (i) That by reason of want of due diligence on the part of the 
 British Government, vessels were allowed to be fitted out and 
 equipped in the ports of the United Kingdom, in order to their 
 being employed in making war against the United States, and 
 having been so equipped were allowed to quit such ports for that 
 purpose, 
 
 (2) That vessels fitted out and equipped for the before-men- 
 tioned purpose in contravention of the Foreign Enlistment Act, 
 and being therefore liable to seizure under that Act, having gone 
 forth from British ports, but having afterwards returned to them, 
 were not seized as they ought to have been, but having been 
 allowed hospitality in such ports, were suffered to go forth again 
 to resume their warfare against the commerce of the United 
 States, 
 
 2 G 
 
450 COMMERCE IN WAR 
 
 (3) That undue favour was shown in British ports to ships of 
 war of the Confederate States in respect of the time those ships 
 were permitted to remain in such ports, or of the amount of coal 
 with which they were permitted to be supplied. 
 
 (4) That vessels of the Confederate States were allowed to 
 make British ports the base of naval operations against the ships 
 and commerce of the United States. 
 
 Accordingly, by reason of one or other of these causes, whereby 
 vessels belonging to the Confederate States were enabled, so it 
 was alleged, to inflict injuries upon the commerce of the United 
 States, compensation was claimed in respect of the injuries and 
 their resulting damages so committed. 
 
 The claims here made could only be supported by stretching 
 the liability of the neutral State so as to make it responsible for 
 the ultimate effect of two or more independent acts committed 
 within its own jurisdiction, each in itself innocent, but committed 
 with the intent of forming a combination whereby the expedition 
 may assume a warlike character at some spot outside the juris- 
 diction of the neutral State. 
 
 " The intent," argues Dana, " covers all cases and furnishes the test. It 
 must be immaterial where the combination is to take place, whether here 
 or elsewhere, if the acts done in our territory — whether acts of building, 
 fitting, arming, or of procuring materials for those acts — be done as part 
 of a plan by which a vessel is to be sent out with intent that she shall be 
 employed to cruise."^ 
 
 It was accordingly argued before the Tribunal of Arbitration at 
 Geneva, on behalf of the United States, that those vessels were in 
 effect "armed within British jurisdiction." 
 
 Such a contention, it need scarcely be said, is entirely at variance 
 with the law of nations, and directly in conflict with the decisions 
 of the courts of the United States, as well as of Great Britain. 
 
 " The true theory," writes Mr. Hall, " is that the neutral sovereign has 
 only to do with such overt acts as are performed within his own terri- 
 tory, and to them he can only apply the test of their immediate quality. 
 If these are such in themselves as to violate neutrality or to raise a 
 violent presumption of fraud, he steps in to prevent their consequences ; 
 but if they are presumably innocent, he is not justified in interfering with 
 them. If a vessel, in other respects perfectly ready for immediate warfare, 
 were to sail with a crew insufficient for fighting purposes, the neutral 
 sovereign may reasonably believe that it is intended secretly to fill up 
 the complement just outside his waters. Any such completion involves 
 a fraudulent use of his territory, and an expectation that it is intended 
 gives him the right of taking precautions against it. But no fraudulent 
 use takes place when a belligerent says : I will not compromise your 
 
 ' Dana's "Wheaton," note 215. 
 
CAPTURE AND CONDEMNATION 451 
 
 neutrality. I will make a voyage of a hundred miles in a helpless state ; I 
 will take my chance of meeting my enemy during that time, and I will 
 organize my expedition when I am so far off that the use of your territory 
 is no longer the condition of its being."^ 
 
 Upon the recognized principles of international law, therefore, 
 whilst a citizen of a neutral State may build and send for sale 
 vessels of war to a belligerent, just as he may send any other 
 contraband articles, it is the duty of a neutral State to prevent a 
 vessel provided with a belligerent commission, or belonging to a 
 belligerent and able to inflict damage on his enemy, from issuing 
 from its ports. 
 
 Whatever may be the real merits of the dispute, it is quite 
 clear that the " Alabama " claims were settled by ex post facto 
 legislation. By Article VI of the Treaty of Washington, 187 1, it 
 was agreed that the arbitrators should be bound by the following 
 three rules : — 
 
 "A neutral Government is bound — first, to use due diligence to pre- 
 vent the fitting out, arming, or equipping within its jurisdiction, of any 
 vessel which it has reasonable ground to believe is intended to cruise or 
 to carry on war against a Power with which it is at peace ; and also to 
 use like diligence to prevent the departure from its jurisdiction of any 
 vessel intended to cruise or carry on war as above, such vessel having 
 been specially adapted, in whole or in part within such jurisdiction, to 
 warlike use. 
 
 " Secondly, not to permit or suffer either belligerent to make use of its 
 ports or waters as the base of naval operations against the other, or for 
 the purpose of the renewal or augmentation of military supplies or arms 
 or the recruitment of men. 
 
 " Thirdly, to exercise due diligence in its own ports and waters and as 
 to all persons within its jurisdiction, to prevent any violation of the fore- 
 going obligations and duties," 
 
 It was expressly declared, however, that the British Govern- 
 ment could not assent to the above rules as a statement of the 
 principles of international law in force at the time of the alleged 
 offences, but that in order to evince its desire of strengthening 
 the friendly relations between the two countries, and of making 
 satisfactory provision for the future, it had agreed to the above 
 rules. 
 
 This is scarcely the place to discuss the political aspects of this 
 treaty, but since some text-writers have gone out of their way to 
 attack Mr, Gladstone for submitting to the imposition of the 
 rules, it is desirable to state the facts. As early as 1863 popular 
 feeling in England had been rising in favour of the Northern 
 cause, and the desire to remove causes of difference between 
 
 1 Atlay's " Hall," p. 609. 
 
452 COMMERCE IN WAR 
 
 ourselves and the United States had grown at a remarkable 
 speed. Unfortunately, with the growth of this benevolent feel- 
 ing the American claims became more extravagant. Mr. Sum- 
 ner, discussing in the Senate the Clarendon Convention of 1869, 
 assessed the claim at four hundred million pounds sterling. In 
 the official demand of 1869, in addition to compensation for the 
 depredations, we were asked to pay for the cost to America of 
 chasing the Confederate cruisers ; for the transfer of most of the 
 American commercial marine to the British flag, for enhanced 
 insurance, and generally for the increased difficulty of putting 
 down the rebellion. 
 
 The expediency of an accommodation was obvious. There was 
 the possibility of trouble with Russia over the Black Sea, and, as 
 Mr. Childers pointed out, however unprepared the United States 
 might be at the moment, we should undoubtedly have them on 
 our hands sooner or later. But apart from this, Mr. Gladstone 
 was alive to the extent to which England's power in Europe was 
 reduced by the smothered quarrel with America, and his moral 
 nature shrank from a vast and fratricidal struggle. 
 
 On 8 May, 1871, the treaty was signed at Washington, but 
 when the American case was put in at the end of the year, 
 Mr. Gladstone experienced a severe shock. It was found to 
 contain a demand for the indirect and consequential remote 
 damages first propounded by Mr. Sumner. A storm at once 
 arose in England, and no one was more incensed than the Prime 
 Minister ; and when Mr, Disraeli spoke of them in the House of 
 Commons as preposterous and wild, as nothing less than the 
 exacting of a tribute from a conquered people, Mr. Gladstone 
 declared that such words were in truth rather under the mark 
 than an exaggeration, and went on to say — 
 
 " We must be insane to accede to demands which no nation with a 
 spark of honour or spirit left could submit to, even at the point of death." 
 
 Upon this question the treaty was nearly wrecked. It was 
 saved by Mr. Adams, the American arbitrator. To have form- 
 ally abandoned the claim, owing to the temper of the American 
 people, was impossible. He persuaded his colleagues to make a 
 spontaneous declaration that on the principles of international law 
 the indirect claims ought to be excluded from their consideration. 
 
 Upon the question of agreeing to the admission of the ex post 
 
 facto " rules " there was a complete and even violent difference of 
 
 opinion in the Cabinet. We learn from Mr. Morley^ that eager 
 
 as Mr. Gladstone was for a settlement, he agreed to the " rules " 
 
 " with reluctance," although their rejection would have meant the 
 
 ^ "Life of Gladstone," Vol. II, p. 403. 
 
CAPTURE AND CONDEMNATION 453 
 
 loss of the treaty. It was the opinion of Sir Roundell Palmer 
 (afterwards Lord Chancellor Selborne) which decided the 
 Cabinet. 
 
 " The risk," argued Palmer, " whether greater or less, before the arbi- 
 trators would be caused by translating retrospectively into the form of a 
 hypothetical international convention which did not exist when the 
 events happened, a duty which we had recognized as incumbent upon us 
 under our own laws, and which we had always professed and endeavoured 
 to perform with as much diligence as was reasonably practicable in affairs 
 of domestic government."^ 
 
 These " rules," as understood by both parties, coincided in sub- 
 stance, in Palmer's opinion, with the prohibitions of the Act of 
 1 819, according to the interpretation placed upon it, on which 
 Lord Palmerston's Government had acted during the Civil War. 
 These prohibitions required the exercise of "due diligence" to 
 prevent a violation of neutrality, whenever the Government had 
 reasonable grounds to believe that any such violation was in- 
 tended. Moreover, the acceptance of the "rules" secured to us 
 for the future a definite and beneficial rule binding by express 
 international engagement upon the United States also. 
 
 " Feeling satisfied," he writes to Lord Russell, " that there is nothing in 
 the principle of such an arrangement which ought to be understood as 
 admitting any view different from that which you and I have always 
 maintained, either of the duties of neutrality or of the manner in which 
 our Government fulfilled those duties, I have held in my confidential 
 communications on the subject with the present Government — and should 
 doubtless, if necessary, hold in Parliament-^the same language in which I 
 now express myself to you." 
 
 And this was the opinion, it must be observed, of the man who 
 was selected to defend the interests of Great Britain before the 
 Tribunal of Arbitration. 
 
 The arbitrators (Charles Francis Adams, Count Frederic 
 Sclopis, M. Jacques Staempfli, Viscount d'ltajubd, and Sir 
 Alexander Cockburn) met in the H6tel de Ville at Geneva on 
 15 December, 1871, and gave their decision on 15 September, 
 1872. The conduct of Great Britain with regard to the 
 "Alabama" and its tender, the "Tuscaloosa," was unanimously 
 condemned by the four first-named arbitrators, on the grounds 
 that in view of all the facts relative to the construction of the 
 vessel at Liverpool and its equipment and armament off Terceira 
 through the agency of vessels despatched from Great Britain 
 for that purpose, the British Government had failed to use due 
 diligence in the performance of its neutral obligations, and 
 especially omitted, notwithstanding the warnings and official 
 
 1 Selborne, " Personal and Political Memorials," Vol. I, p. 224. 
 
454 COMMERCE IN WAR 
 
 representations of the diplomatic agents of the United States 
 during the construction, to take in due time any effective measures 
 of prevention, and that the orders which at last were given for the 
 detention of the vessel were issued so late that their execution 
 was impracticable; that after the escape of the vessel, the 
 measures taken for its pursuit and arrest were so imperfect as 
 to lead to no result; that the vessel was subsequently freely 
 admitted into the colonial ports of Great Britain without any 
 proceedings being taken as they ought to have been, and that 
 the insufficiency of legal means was no justification of the failure 
 in exercising due diligence. 
 
 Sir Alexander Cockburn was clearly of opinion that the treaty 
 had created a liability in respect of the equipment of ships which 
 did not previously exist under international law. Equipping a 
 ship for sale to a belligerent in the way of trade was at the time 
 in question no offence against the law of nations, nor a violation 
 of neutrality, though it was an offence against the municipal law 
 of Great Britain. For such equipment the British Government 
 was not responsible, though by the treaty it was bound to use 
 due diligence to prevent the equipment as a matter of neutral 
 obligation and not as a matter of municipal law. 
 
 But the diligence to be observed by the State had never yet 
 been defined by international law. In determining the question of 
 negligence, according to the municipal law of most civilized States, 
 the true test to be applied is whether there has been, with refer- 
 ence to the particular subject-matter, that reasonable degree of 
 diligence and care which a man of ordinary prudence and capacity 
 might be expected to exercise in the same circumstances. 
 
 Upon this analogy Sir Alexander considered that the principle 
 which prevails with men in their conduct of affairs might well be ap- 
 plied to the discharge of its duties by a government. Applying this 
 standard, one nation has a right to expect from another, in the 
 fulfilment of its international obligations, the amount of diligence 
 which may reasonably be expected from a well-regulated, wise, 
 and conscientious government, according to its institutions and its 
 ordinary mode of conducting its affairs ; but it has no right to 
 expect more. 
 
 Before the opinion of the law officers had been taken. Sir 
 Alexander held that there was abundant evidence making out a 
 prima facie case for the detention of the "Alabama," and that the 
 Collector of Customs, in failing to seize the vessel on 2^ July, 
 was guilty of a want of due diligence. Sir Alexander also con- 
 sidered that the authorities showed a want of official activity in 
 not seizing the tug which followed the "Alabama" with her 
 fighting crew. To the argument that whether the armament was 
 
CAPTURE AND CONDEMNATION 455 
 
 sent from the same port as the ship, or from a different port and 
 by the same or different persons, was immaterial. Sir Alexander 
 replied that the armament, at any rate, was prepared in England, 
 
 "and it was part of the same scheme that the vessel, having been 
 ' equipped,' i.e. prepared to receive her armament, in England, should have 
 her armament sent out and put on board out of the Queen's dominions 
 for the purpose of immediate warfare. It is fairly open to contention 
 that under such circumstances the whole should be regarded as one 
 armed hostile expedition issuing from a British port, or at all events 
 that the ulterior purpose of arming, though out of the British jurisdiction, 
 gives to such equipment of the vessel within the jurisdiction the character 
 of an equipment with intent to carry on the war," 
 
 Sir Alexander therefore concurred with his colleagues in think- 
 ing that the liability of Great Britain in respect of want of due 
 diligence was established by the facts. 
 
 Apart altogether from the Rules, it is quite clear that the 
 " Alabama " would have been condemned under the Foreign 
 Enlistment Act, 1819. 
 
 Even Lord Russell, after many years of obdurate self-defence, 
 at last confessed in so many words : — 
 
 " I assent entirely to the opinion of the Lord Chief Justice that the 
 'Alabama' ought to have been detained during the four days I was wait- 
 ing for the opinion of the law officers. But I think that the fault was not 
 that of the Commissioners of Customs ; it was my fault as Secretary of 
 State for Foreign Affairs."^ 
 
 With respect to the subsequent conduct of the vessel. Sir 
 Alexander agreed with the opinion of our law officers (Sir R. 
 Palmer, Sir R. Collier, and Sir R. Phillimore) that whatever her 
 previous history, once commissioned, the British authorities were 
 bound to treat her as a ship of war belonging to a belligerent 
 power. 
 
 By a majority of four to one the Tribunal found that in the 
 case of the " Florida," the facts relating to its construction in, and 
 departure from, Liverpool ought to have induced the British 
 authorities to resort to adequate measures to prevent the violation 
 of neutrality, and that they failed to use due diligence ; that there 
 was negligence on the part of the British colonial authorities at 
 Nassau in allowing the "Florida" to co-operate with the 
 " Prince Alfred " at Green Cay ; that the " Florida " was freely 
 admitted into the British colonial ports ; that the judicial inquiry 
 at Nassau did not relieve Great Britain of her responsibility as a 
 neutral, and that the stay of the " Florida " at Mobile did not 
 extinguish such original responsibility. Consequently, Great 
 
 1 Walpole's "Russell," II., 373 n. 
 
456 COMMERCE IN WAR 
 
 Britain failed by omission to fulfil the duties prescribed in the 
 three Rules. 
 
 The dissentient minority again consisted of Sir Alexander 
 Cockburn. He declared that upon the existing state of facts 
 and upon the then available evidence, the British Government 
 were not guilty of any want of due diligence in allowing the 
 " Florida " to leave Liverpool, nor in failing to procure the evi- 
 dence necessary to ensure condemnation, since there were no 
 means in their power of obtaining it. 
 
 The equipment, in his opinion, was not a violation of neu- 
 trality, but merely a breach of the Act of 1819, and there was not 
 sufficient evidence on which to seize the vessel and ask for con- 
 demnation under this Act. 
 
 At Nassau the " Florida " ought to have been condemned, and 
 but for a mistaken view of the law by the judge, she would have 
 suffered condemnation. But Great Britain was not to be held 
 responsible for this. Sir Alexander dissented from the finding of 
 negligence against the authorities at Nassau in allowing the 
 " Florida " to enlist forty men from that port. 
 
 Upon the larger question of the effect of the entry into Mobile, 
 Sir Alexander said that although the original equipment was an 
 offence against the municipal law of Great Britain, it was not, 
 there being at the time she reached the Bahamas no present 
 intention of war, an offence against international law. And so 
 far as the offence against the Act of 18 19 was concerned, after 
 the acquittal the matter was res judicata. Upon this point Sir 
 Alexander cited the authority of the United States v. Quincey. 
 The distinction there made was a sound one. 
 
 "A present intention does not the less exist because an unexpected 
 event may afterwards change it ; but an intention which is to depend on 
 uncertain contingencies cannot be said to be a present one. It is the 
 present intention of the immediate employment of the vessel for hostile 
 purposes which makes the sending out an armed ship an offence against 
 the law of nations, as a violation of neutrality, as distinguished from 
 merely making it contraband of war. Assuredly there must be a distinc- 
 tion between the two things, and I am at a loss to see where the line can 
 otherwise be drawn." 
 
 To the contention that Great Britain was entitled and was 
 bound to seize vessels fitted out in violation of her neutrality 
 on entry into her port after the receipt of a commission. Sir 
 Alexander replied that (i) Great Britain had no right, accord- 
 ing to international law, to seize such vessels, since they were 
 admitted as commissioned ships of war of a belligerent state ; 
 (2) that independently of the foregoing ground, Great Britain 
 could not, as a neutral Government, seize a ship of war of a 
 
CAPTURE AND CONDEMNATION 45; 
 
 belligerent State for that which was not a violation of neutrality, 
 but only of its own municipal law, and (3) that even if the British 
 Government had the right, it was under no obligation to exer- 
 cise it. 
 
 The American contention rested upon the assumption (i) That 
 the privileges accorded to foreign public ships are revocable at 
 will ; (2) that a belligerent State not recognized as a nation does 
 not possess the same belligerent privileges as a recognized State. 
 The immunities now extended to public vessels, however they 
 may have originated, undoubtedly now form part of international 
 usage. They have no right to enter foreign ports, but if ad- 
 mitted, are entitled to all the usual privileges. 
 
 Mr. W. E. Hall considered that neither of these assumptions is 
 correct,^ but Professor Lawrence asserts that the American view 
 that a commission from a belligerent State not recognized as a 
 nation is invalid, although not law, might be made law with 
 advantage.'' 
 
 The wide view adopted by the Tribunal would, he admits, add 
 enormously to the burdens of neutrality, and would probably 
 bring about serious conflicts between neutral States and belli- 
 gerents whose vessels were seized. But he contends that the 
 practical immunity enjoyed under the narrower view is obviously 
 unfair, since unrecognized States cannot be held responsible for 
 offences committed by their cruisers, and if the cruisers themselves 
 cannot be touched when once they have completed their offence 
 and become fully commissioned, absolute immunity is secured to 
 them and their principals, and no remedy exists for a grave inter- 
 national wrong. 
 
 To deny to commissions granted by a de facto Government 
 validity, would, said Sir Alexander Cockburn, be to deprive the 
 recognition of belligerency of all the effects it was intended to 
 have. It is admitted among nations that such a recognition may 
 be made by a neutral State. Its purpose is to invest the de facto 
 Government with the character of a belligerent power, for the 
 common benefit of both belligerent and neutral, without any re- 
 cognition of independence or sovereignty. The recognition would 
 plainly be idle if it did not carry with it one of the most important 
 rights incidental to a belligerent Government, that of commission- 
 ing and employing vessels of war, and of having those vessels, 
 when sailing under its flag and armed with its commission, in- 
 vested with the privileges conceded to ships of war, and therefore 
 exempted from the jurisdiction of any neutral country in whose 
 waters they may be. 
 
 1 Atlay's " Hall," p. 623. 2 « principles," p. 553. 
 
458 COMMERCE IN WAR 
 
 In time of peace, by the universal comity of nations, the ports 
 and waters of every nation are open to all comers. But in time 
 of war the neutral sovereign may make what restrictions he 
 pleases upon his hospitality, provided he treats both belligerents 
 alike and gives them due notice. 
 
 This power would appear to meet Professor Lawrence's objec- 
 tion that a neutral had no remedy. He has only to publish his 
 intention to refuse hospitality, facilities for repairs, coals, provi- 
 sions, or to impose other restrictions, and he is then entitled, if 
 these are violated, to exact the necessary reparation, even to the 
 extent of declaring himself at war with the offender. 
 
 The tenders to the " Florida " followed her fate, the Tribunal 
 being unanimously of opinion that they were properly to be 
 regarded as accessories. They were the " Clarence," the 
 "Tacony," and the "Archer." 
 
 The Tribunal was unanimous in the case of the " Shenandoah " 
 that, prior to her entry into the port of Melbourne, Great Britain 
 was not chargeable with any failure in the use of due diligence to 
 fulfil the duties of neutrality. 
 
 But by a majority of three to two it was declared that by the 
 clandestine augmentation of her force, by the enlistment of men 
 during her stay at that port, Great Britain had failed to fulfil the 
 duties prescribed by two and three of the Rules. 
 
 In dissenting from the decision of the majority. Sir Alexander 
 Cockburn said : — 
 
 " Looking to the Regulations and the distance of the vessel from her 
 nearest port, I cannot agree with the President that too much coal was 
 allowed. I cannot agree that repairing or taking in coal at a particular 
 port on the way to some ulterior operation makes the port a base of naval 
 operations ; still less that the neutral can be affected thereby when he is 
 ignorant of the ulterior operation so contemplated. I cannot agree that 
 where the government of a colony is honestly desirous of doing its duty 
 and maintaining neutrality, the fact that men anxious to ship on board a 
 belligerent vessel elude the vigilance of the police in the night time is to 
 make the parent State liable for all the damages such vessel may after- 
 wards do. And I protest respectfully, but emphatically, against a decision 
 based on grounds, to my mind, so wholly untenable."^ 
 
 The most serious question here was coaling and refitment 
 whereby "the main operation of the naval warfare" of the 
 " Shenandoah " had been accomplished. But a port is not made 
 the base of naval operations by an isolated instance. Continued 
 use is the test. If an act otherwise innocent is repeated then the 
 neutral may infer that it is intended to assist in warlike operations. 
 When a vessel, therefore, whilst carrying on hostilities, uses 
 
 1 Parliamentary Papers, 1873 > North America (No. 2), 226. 
 
CAPTURE AND CONDEMNATION 459 
 
 neutral ports for these purposes without revisiting her own, a 
 neutral, both then and now, is bound to prevent such acts within 
 his own jurisdiction. At this period ships of war were, by the 
 English regulations, only allowed to receive sufficient coal to take 
 them to the nearest port of their own country, and they were not 
 allowed to receive a second supply, in the same or any other port, 
 without special permission within three months. 
 
 The regulations of the United States were, in 1870, similar. 
 To furnish supplies in excess of the necessities of the case is to 
 assist the belligerent in his warlike operations, and consequently 
 to violate the essential principles of neutrality. 
 
 The " Georgia." — In the case of the " Georgia," the Tribunal 
 was unanimously of opinion that Great Britain had not failed by 
 act or omission to fulfil any of the duties prescribed by the 
 Rules, or by the principles of international law. The "Sumter," 
 the " Nashville," the " Tallahassee," and the " Chickamanga " 
 were similarly acquitted, and it was also unanimously decided 
 that the cases of the "Sallie," the "Jefferson Davis," the "Music," 
 the " Boston," and the " V. H. Joy " ought to be excluded from 
 consideration for want of evidence. 
 
 Effect of the Decree. — ^Just as the arbitrators failed to agree 
 amongst themselves upon the general principles which they 
 sought to establish, so the jurists are not agreed upon the practical 
 value of their decisions. 
 
 Due Diligence. — The arbitrators laid down that due diligence 
 
 " ought to be exercised by neutral Governments in exact proportion to 
 the risks to which either of the belligerents may be exposed from a failure 
 to fulfil the obligations of neutrality on their part." 
 
 This definition, says Professor Lawrence, accepts the principle of 
 a shifting standard. It imposes different degrees of responsibility 
 upon different neutrals in the same war, and even upon the same 
 neutral in respect of different belligerents in the same war, and 
 thus destroys that impartiality which is the essence of neutral 
 duty. 
 
 The analogy adopted by Sir Alexander Cockburn of the dili- 
 gence required of the bonus et diligens pater faniilias of the 
 civilians appears to be the true one. The offence most clearly 
 analogous to the one under discussion is that of smuggling, and 
 Professor Lawrence suggests that the kind and amount of diligence 
 exercised by the " well-regulated, wise, and conscientious Govern- 
 ment" of Sir Alexander in suppressing smuggling ought to be 
 the standard which mutual States should seek to maintain in fulfill- 
 ing these obligations of neutrality." 
 
46o COMMERCE IN WAR 
 
 Another analogy is suggested by M. Tetens, who says : — 
 
 " The maximum of precaution in this case is to maintain and enforce 
 the observance of neutrality in vessels and cargoes with the same dili- 
 gence and exactness as are exercised in inquiries and other proceedings 
 relative to taxes or imposts and customs. He who does as much to pre- 
 vent a wrong meditated against another as he does for his own protection 
 satisfies every just and reasonable expectation on the part of that other." ^ 
 
 Intent as the Test of Guilt.— It has already been shown 
 how in the American view the intent of the parties concerned in 
 the equipment and armament of a vessel in neutral waters is the 
 cardinal principle upon which the Courts acted. The difficulty is 
 to determine in each particular case whether it is a case of sale of 
 a contraband article or whether it is, in fact, a hostile expedition. 
 When the determination rests upon intention, the practical diffi- 
 culty, and often impossibility, of establishing such proof as would 
 establish a prima facie case, as distinct from mere suspicion, is 
 enormous. 
 
 Instead of intent being regarded as the crucial test, Mr. Hall 
 stiggests that the character of the ship should form the criterion 
 of the offence. Experts, he argues, are perfectly well able 
 to distinguish vessels built primarily for warlike purposes from 
 those constructed primarily for commercial use. But since every 
 fast merchant vessel with but a small armament is capable of 
 inflicting a maximum of damage upon its enemy's trade so long 
 as it escapes encounter with a more heavily-armed cruiser, this 
 suggested rule breaks down. 
 
 Indeed, Mr. Hall admits as much when he says : — - 
 
 " Mail steamers of large size are fitted by their strength and build to 
 receive, without much special adaptation, one or two guns of sufficient 
 calibre to render the ships carrying them dangerous cruisers against 
 merchantmen. These vessels, though of distinct character in their more 
 marked forms, melt insensibly into other types, and it would be impossible 
 to lay down a rule under which they could be prevented from being sold 
 to a belligerent and transformed into constituent parts of an expedition 
 outside neutral waters without paralysing the whole shipbuilding and 
 ship-selling trade of the neutral country." ^ 
 
 Such restrictions would be intolerable, and thus we are thrown 
 back upon the test of intent. One method by which proof of 
 intent can be obtained is that adopted in the Foreign Enlistment 
 Act, 1870, to which reference will shortly be made. 
 
 Professor Lawrence adopts the test of character as explained 
 by Professor Hall. He thinks if the construction and equipment 
 of ships unequivocally adapted for war were ruled out, belligerents 
 
 1 Reddie's "Mar. and Int. Law," Vol. II, 203. 
 
 2 Atlay's " Hall," 6i6.' 
 
CAPTURE AND CONDEMNATION 461 
 
 would be wise in submitting to the free sale of purely commercial 
 vessels. But as already stated, a fast merchantship with a few 
 powerful guns is just as dangerous to trade, within certain limits, 
 as a fully-armed ship of war. No belligerent could be expected 
 to submit to having its trade driven off the seas, as would in- 
 fallibly be the case under such a rule. Even with two or three 
 such cruisers as the "Alabama," the commerce of the United 
 States was practically wiped out. 
 
 The following resolutions, based upon the "Rules," were adopted 
 by the Institute of International Law at the Hague in 1875 : — 
 
 " I. L'Etat neutre d^sireux de demeurer en paix et amiti^ avec les 
 belHgerants et de jouir des droits de la neutrality, a le devoir de s'abstenir 
 de prendrfe a la guerre une part quelconque par la prestation de secours 
 militaire a I'un des bellig6rants ou k tous les deux, et de veiller a ce que 
 son territoire ne serve de centre d'organisation ou de point de depart a 
 des expeditions hostiles contre I'un d'eux ou contre tous les deux. 
 
 " 2. En consequence I'Etat neutre ne peut mettre, d'une maniere quel- 
 conque, a la disposition d'aucun des Etats bellig6rants, ni leur vendre ses 
 vaisseaux de guerre ou vaisseaux de transport militaire, en vue de I'aider a 
 
 poursuivre la guerre. En outre I'Etat neutre est tenu de veiller k ce que 
 d'autres personnes ne raettent des vaisseaux de guerre a la disposition 
 
 d'aucun des Etats belligdrants dans ses ports ou dans les parties de mer qui 
 dependent de sa juridiction. 
 
 "3. Lorsque I'Etat neutre a connaissance d'entreprises ou d'actes de 
 ce genre, incompatibles avec la neutrality, il est tenu de prendre les mesures 
 ndcessaires pour les empScher et de pour suivre comme responsables les 
 individus qui violent les devoirs de la neutrality. 
 
 "4. De m^me I'Etat neutre ne doit ni permettre ni souffrir que I'un 
 des belHgerants fasse de ses ports ou de ses eaux, la base d'oplrations 
 navale contre I'autre, ou que les vaisseaux de transport militaire se 
 servent de ses ports ou de ses eaux, pour renouveler ou augmenter leurs 
 approvisionnements militaires ou leur armes, ou pour recruter des hommes. 
 
 "5. Le seul fait materiel d'un acte hostile commis sur le territoire neutre, 
 
 ne sufRt pas pour rendre responsable I'Etat neutre. Pour qu'on puisse 
 admettre qu'il a vio\6 son devoir, il faut la preuve soit d'une intention 
 hostile (Dolus), soit d'une negligence manifeste (Culpa). 
 
 "6, La puissance l^s^e par une violation des devoirs de neutrality n'a 
 le droit de consid^rer la neutrality comme ^teinte, et de recourir aux 
 
 armes pour se defendre contre, I'Etat qui I'a violde, que dans les cas graves 
 et urgents, et seulement pendant la dur^e de la guerre. Dans les cas 
 peu graves ou non urgents, ou lorsque la guerre est terminde, des con- 
 testations de ce genre appartiennent exclusivement d la procedure arbitrale. 
 
 "7. Le tribunal arbitral prononce ex bono et cequo sur dommages inter^ts 
 que I'Etat neutre doit, par suite de sa responsabilit^ payer a I'Etat 16s6, soit 
 pour lui-m6me, soit pour ses ressortissants." ^ 
 
 1 " Annuaire de I'lnst. de Droit Int.," 1877, p. 139. 
 
462 COMMERCE IN WAR 
 
 Validity of Commission. — It is unnecessary to say more on 
 this point, except that the Tribunal, whilst leaving undisturbed the 
 established rule that a commission granted by an independent 
 State entitled the vessel to be treated as a public ship, left 
 unsettled the question of its validity when granted by a belligerent 
 State not yet recognized as independent. The Tribunal majority 
 decision of its invalidity is quite impracticable, and there appears 
 to be little chance of its acceptance by other nations. It was one of 
 the terms of the Treaty of Washington that the parties thereto 
 should observe for the future, as between themselves, the " Rules," 
 bring them to the knowledge of other Maritime Powers, and 
 invite such Powers to accede to them. But the two Powers have 
 never been able to come to any agreement as to the construction 
 to be placed upon the " Rules," and consequently have been 
 unable to settle a joint note of invitation, and, since 1876, have 
 given up any attempt to do so. It is even a matter of doubt 
 whether, under these circumstances, the parties to the treaty are 
 bound by " rules " which they have found it impossible to inter- 
 pret to their mutual satisfaction. 
 
 Instead of settling disputed points, fresh difficulties have been 
 created. At the same time it must not be forgotten that a higher 
 standard of international morality has been set up, to which it 
 behoves other nations to endeavour to respond, under the penalty 
 of being held responsible by the injured belligerent. 
 
 The outcome of the Royal Commission appointed in 1868 to 
 inquire into the effect of the Foreign Enlistment Act, 18 19, was 
 the Act of 1870 bearing the same title. In recommending several 
 alterations in the law, the Commissioners declared that they had 
 not felt themselves bound to consider whether they were exceed- 
 ing the existing requirements of international law, but they felt 
 that if their recommendations were adopted the municipal law 
 available for the enforcement of neutrality would derive increased 
 efficiency, and would be brought into fuller conformity with Great 
 Britain's international obligations.^ 
 
 The Act passed in accordance with these recommendations 
 has, no doubt, greatly strengthened the hands of the authorities, 
 but it has gone far beyond the duties hitherto imposed upon 
 neutrals by international law or usage. It has created an offence 
 entirely new, and whilst removing the difficulty created by the 
 old doctrine of intent, it has reversed the principle, hitherto a 
 marked feature in English law, of compelling the claimant to 
 prove his case. In the case of illegal shipbuilding the onus of 
 proof of innocent intent is thrown upon the shipbuilder. 
 
 1 Report of Neutrality Laws Commission, 1868, p. 7. 
 
CAPTURE AND CONDEMNATION 463 
 
 It is interesting to recall that Sir William Vernon Harcourt, 
 who was a member of the Commission, presented a strongly 
 worded minority report against the new departure. His objections 
 may be summarized as follows : (i) A new duty would be created 
 which it would be difficult, and probably impossible, to execute. 
 (2) In creating such a duty, this country would incur a new 
 responsibility for its non-performance. (3) The attempt to 
 execute it would be odious to our own subjects, since a new crime 
 was thereby created, and the failure to punish it would be a just 
 ground of complaint to foreign States. (4) The trade of the 
 country (Great Britain being the dockyard of the world) would 
 be placed at an uncalled-for disadvantage as compared with that 
 of the rest of the world. ^ 
 
 It is foreign to our purpose to deal here with the provisions of 
 the Act relating to illegal enlistments. 
 
 The following are the provisions relating to illegal shipbuilding 
 and illegal expeditions contained in the Foreign Enlistment Act, 
 1870." 
 
 " 8. If any person within Her Majesty's dominions, without the licence 
 of Her Majesty, does any of the following acts, that is to say — 
 
 "(i) Builds or agrees to build or causes to be built 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 
 
 "(2) 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 a 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 allows to be despatched 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 ; such person shall be deemed to have com- 
 mitted an offence against this Act, and the following consequences shall 
 ensue : — 
 
 "(i) The offender 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) The ship in respect of which any such offence is committed shall 
 be forfeited to Her Majesty : Provided that a person building or 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, 
 
 1 Pari. Pa., 1868, Report Neut. Com., App. 7. 
 
 2 33 & 34 Vict. c. 90. 
 
464 COMMERCE IN WAR 
 
 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 follow- 
 ing ; (that is to say)^ 
 
 "(i) If forthwith upon a proclamation of neutrality being issued by 
 Her Majesty he give notice to the Secretary of State that he is so build- 
 ing, causing to be built, or equipping such ship, and furnishes such 
 particulars of the contract and of any matters 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 such other 
 measures, if any, as the Secretary of State may prescribe for ensuring 
 that such ship shall not be despatched, delivered, or removed without the 
 licence of Her Majesty until the termination of such war as aforesaid.^ 
 
 "9. When any ship is built by order of or on behalf of any foreign State 
 when at war with a friendly State, or is delivered to or to the order of such 
 foreign State, or any person who to the knowledge of the person building 
 is an agent of such foreign State or is paid 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. 
 
 " 10. If any person within the dominions of Her Majesty and without 
 the licence of Her Majesty — 
 
 " By adding to the number of guns, or by changing those 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 con- 
 cerned in increasing or augmenting 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 punish- 
 ments at the discretion of the Court before which the offender is con- 
 victed ; and imprisonment if awarded may either be with or without hard 
 labour. 
 
 " II. If any person within the limits of Her Majesty's dominions and 
 without the licence of Her Majesty — 
 
 "Prepares or fits out any naval or military expedition to proceed 
 against the dominions of any friendly State, the following consequences 
 shall ensue : — 
 
 "(i) Every person engaged in such preparation or fitting out or assist- 
 ing 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 the imprisonment, if awarded, 
 may be either with or without hard labour. 
 
 1 Qu., whether this sub-section is not limited to an original eqmpment, leaving 
 section 10 to deal with equipments of vessels already in belligerent service. See "Coal 
 for Russia," in " Monthly Magazine," February, 1905. Otherwise a belligerent warship 
 could not take in a gallon of water without the royal licence under the sign-manual. 
 
CAPTURE AND CONDEMNATION 465 
 
 " (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. 
 
 "12. Any person who aids, abets, counsels, or procures the com- 
 mission 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 any offence 
 against this Act shall not exceed two years. 
 
 "ILLEGAL PRIZE 
 
 " 14. If, during the continuance of the war in which Her Majesty may 
 be neutral, any ship, goods, or merchandise captured as prize of war within 
 the territorial jurisdiction of Her Majesty, in violation of the neutrality of 
 this realm, or captured by any ship, which may have been built, equipped, 
 commissioned or despatched or the force of which may have been aug- 
 mented 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 know- 
 ledge 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 
 authorized 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 the case of any 
 order made in the exercise of the ordinary jurisdiction of such Court ; and 
 in the meantime and until a final order has been made on such applica- 
 tion the Court shall have power to make all such provisional and other 
 orders as to the care and custody of such captured ship, goods, or 
 merchandise and (if the same be of perishable nature or incurring risk of 
 deterioration) for the sale thereof and with respect to the deposit or invest- 
 ment of the proceeds of any such sale as may be made by such Court in 
 the exercise of its ordinary jurisdiction." 
 
 In view of the fact that the Act of 1870, like the similar Acts 
 of the United States, is in advance upon international law and 
 usage, the question has been discussed how far is a State bound 
 in the interests or at the request of a belligerent to administer its 
 municipal law. In dealing with the claim put forward in the 
 American case that whether the Foreign Enlistment Act, 18 19, 
 was or was not more than co-extensive with international obliga- 
 tions, the United States were entitled irrespectively of the rules of 
 the Treaty of Washington to have it put in force in all its rigour 
 for their protection, Sir Alexander Cockburn said : — 
 
 "When a Government makes its municipal law more stringent than 
 the obligations of international law would require, it does so, not for the 
 benefit of foreign States,.but for its own protection, lest the acts of its sub- 
 jects in overstepping the confines, oftentimes doubtful, of strict right, in 
 2 H 
 
466 COMMERCE IN WAR 
 
 transaction of which a few circumstances, more or less, may alter the 
 character, should compromise its relations with other nations. It was in 
 this spirit that the Foreign Enlistment Act was passed, as is shown by its 
 preamble. . . . Now it is quite clear that the obligations of the neutral 
 State spring out of and are determined by the principles and rules of 
 international law, independently of the municipal law of the neutral. They 
 would exist exactly the same, though the neutral State had no municipal 
 law to enable it to enforce the duties of neutrality on its subjects. It 
 would obviously afford no answer on the part of a neutral Government to 
 a complaint of a belligerent of an infraction of neutrality, that its muni- 
 cipal law was insufficient to enable it to ensure the observance of neutrality 
 on its subjects. The reason being that international law, not the muni- 
 cipal law of that particular country, gives the only measure of inter- 
 national rights and obligations. While, therefore, on the one hand, the 
 municipal law, if not co-extensive with the international law, will afford no 
 excuse to the neutral, so neither, on the other, if in excess of what inter- 
 national obligations exact, will it afford any right to the belligerent which 
 international law would fail to give to him. In one respect, and in one 
 respect only, does the municipal law, when in excess of international law, 
 give a right to the belligerent. Equality being of the essence of neutrality, 
 he has a right to insist that the neutral subject shall equally be compelled 
 to keep within the municipal law in dealing with the adversary as when 
 dealing with himself A belligerent is also beyond question perfectly at 
 liberty to urge upon the neutral Government, in the way of solicitation or 
 even of remonstrance, to enforce the municipal law ; but so long as it is 
 not enforced against himself, he has no right to redress, because it is not 
 put in force against his enemy." ^ 
 
 This is undoubtedly a correct statement of the law, but as 
 Mr. Hall points out, municipal laws may develop into a course 
 of conduct of which foreign States will expect to receive the 
 benefit. The repeated enforcement of a law or continued acqui- 
 escence in its requirements creates in the minds of the people 
 the measure of their duties. As long as this standard is main- 
 tained all foreign States are justified in expecting to reap the full 
 benefit, and if any State is disappointed in this expectation, it may 
 justly expect the offending State to harbour unfriendliness. There 
 will therefore always exist a danger in enacting or retaining 
 municipal provisions of this character which are in excess of 
 international usage. 
 
 Decisions on the Foreign Enlistment Act, 1870.— The 
 
 first application under the Act to the Court of Admiralty was that 
 of the *' International."^ In this case an English telegraph com- 
 pany during the Franco-German war entered into an agreement 
 with the French Government to lay certain submarine cables 
 between places on the French coast, in such a manner that they 
 
 1 Pari. Pa., 1873, N. America (No. 2), p. 29. 
 
 2 L. R., 3 Ad. and Ecc, 321 (1871). 
 
CAPTURE AND CONDEMNATION 467 
 
 could be connected by land wires and so form a single line of 
 telegraphic communication between Dunkirk and Verdon, on the 
 mouth of the Garonne. In pursuance of this agreement, dated 
 28 November, 1870, the cables were shipped on the company's 
 steamship " International," which on the point of departure was, 
 by order of Earl Granville, Secretary of State for Foreign Affairs, 
 seized and detained upon the ground that she was about to be 
 despatched contrary to the Foreign Enlistment Act, 1870. On 
 motion for the release of the vessel, it was proved to the satisfac- 
 tion of the Court that the undertaking was of a commercial 
 character ; that the object of the contract was to furnish ordinary 
 postal telegraphy, and that the company were not parties, directly 
 or indirectly, to any project for adapting the line to military 
 purposes. In ordering the release of the ship. Sir Robert 
 Phillimore said : — 
 
 " The company is formed to furnish ordinary postal telegraphy, and the 
 contract with the French Government is to furnish telegraphy of this kind 
 only; no other kind is to be furnished. It is inapt, per se, for land 
 telegraphy, much more for military telegraphy ; it is credibly sworn, I think, 
 that the applicants are no parties, directly or indirectly, to any intention 
 or project of adapting this, so to speak, civil telegraphy to military purposes ; 
 no such adaptation is within the letter or spirit of this contract. The pre- 
 sent circumstances of France are certainly such as to make the means of 
 communication between her armies and her Government of the utmost 
 value to her. It is probable that this telegraphic line from Dunkerque to 
 Verdon will be partially used for effecting or endeavouring to effect such 
 communication. But neither does this appear to be the main object of 
 the line, nor could it, without additions and adaptations, with which this 
 company has no concern, be made even partially to subserve this end. 
 On the other hand, there is nothing incredible in the statement that com- 
 mercial interests are largely concerned in the establishment of a postal 
 telegraphic line between Dunkerque and Verdon, due regard being had to 
 the great and increasing commercial importance of Bordeaux. It is, 
 however, probable, as I have said, that the line may be occasionally used 
 for military purposes ; but such probability is not sufficient to divest the 
 line of its primary and paramount commercial character, and to subject 
 this company to the very severe penalties imposed by the statute." 
 
 In view of the "reasonable and probable cause" for detention 
 and for putting the applicants on their defence, no order was 
 made as to costs. 
 
 The " Gauntlet "^ was a case in which a French ship of war 
 during the same war captured in the English Channel a Prussian 
 vessel, and put a prize crew on board. The prize was driven by 
 stress of weather into the Downs, anchored within British waters, 
 and after lying there for two days the French Consul at Folk- 
 stone engaged the British steam-tug "Gauntlet" to tow the prize 
 
 1 L. R., 4P. C, 184(1872). 
 
468 COMMERCE IN WAR 
 
 to Dunkirk. On 26 November, 1870, the "Gauntlet" accord- 
 ingly towed the prize as agreed, and on her return a suit was com- 
 menced on behalf of the Crown for the condemnation of the tug 
 for violation of the Act. It was held by Sir Robert Phillimore 
 in the Court of First Instance that the circumstances of the case 
 did not warrant him in pronouncing that the " Gauntlet " was for- 
 feited, on the ground of her having been despatched with reason- 
 able cause of belief that she was employed in the naval service of 
 France. He accordingly dismissed the petition with costs against 
 the Crown. 
 
 Upon appeal to the Judicial Committee of the Privy Council, 
 this decree was reversed. The Court had no doubt 
 
 "that sending an English steam-tug for the express purpose of taking 
 the detached prize crew, its prisoners and booty, speedily and safely to 
 French waters, where the prisoners, prize, and booty would be taken 
 charge of by the French authorities, and the prize crew set free to rejoin 
 and strengthen their own ship, was despatching a ship for the purpose of 
 taking part in the naval service of the belligerent, within the plain mean- 
 ing, the words and the spirit of the Act." 
 
 In the case of Reg. v. SandovaP the defendant, a foreigner re- 
 siding in this country, was indicted, together with Sir William 
 Call and one Baird, under the eighth and eleventh sections of the 
 Act. Sandoval was convicted under section 1 1 ; the jury dis- 
 agreed in regard to Sir William, and the prosecution was with- 
 drawn against Baird. 
 
 The facts were as follows : — 
 
 Whilst in England, Sandoval bought two Krupp guns at 
 Sheffield and a quantity of ammunition at Birmingham. He 
 sent the guns to Woolwich to be fitted with carriages suitable 
 for use at sea. This armament was sent to Antwerp and trans- 
 ferred to the " Justitia," which had been purchased in England by 
 Sir William in the name of his valet. 
 
 Sandoval assumed the command of the " Justitia," which cleared 
 for Trinidad with " machinery for mines." On board were three 
 generals. She carried no cargo except coal and the armaments. 
 Off Trinidad she was transferred to General Pulgar, and a foreign 
 flag hoisted in place of the English. She then made for the main- 
 land of Venezuela, where she took in tow a flotilla of boats filled 
 with armed men, and after harmlessly shelling a custom house, 
 engaged with a Venezuelan man-of-war and was worsted, one of 
 the generals being killed. She retired to San Domingo, where 
 she was seized by the authorities and the crew sent back to 
 England. 
 
 » 56 L. T. R., 526 ; 16 Cox, C. C, 206 ; 3 T. L. R., 411, 436, 498. 
 
CAPTURE AND CONDEMNATION 469 
 
 Upon an application for a new trial, Day, J., said : — 
 
 " It is said that this expedition represented a bona fide commercial 
 transaction ; that the ship's papers were thoroughly regular (which one 
 might expect in a transaction which was not bona fide), and that there 
 was nothing inconsistent with a mercantile adventure ; but that was for 
 the jury to judge of. Again, it was said that there was no evidence that 
 the defendant did ' prepare or iit out ' an expedition within the Queen's 
 dominions. But 1 am clearly of opinion (if we are to make use of our 
 common sense) that there was abundant evidence of preparation and 
 fitting out of an expedition. Mr. Grain has urged that there is no offence 
 unless there has been a complete fitting-out and equipment ; that the ship 
 must take her last biscuit on board. But the Act was passed to prevent 
 such mischief as the present, and I am of opinion that the moment any 
 overt act of preparation is done the statutory offence is committed, so that 
 such attempts may be defeated and the mischievous consequences likely 
 to ensue to this country may be prevented." 
 
 It is sufficient to merely notice here that Dr. Jameson and 
 other officers acting with him in the outrageous Raid were con- 
 victed under section 1 1 of the Act. It was held in Reg. v. Jameson^ 
 that if there be an unlawful preparation of an expedition by some 
 person within Her Majesty's dominions, any British subject who 
 assists in such preparation will be guilty of an offence, even though 
 he renders the assistance from a place outside Her Majesty's 
 dominions. 
 
 Before the actual outbreak of the war between China and 
 Japan, an armed vessel, the " Tatsuta," built in the Tyne for 
 Japan, left our shores ; but from the declaration of war, so close'a 
 watch was kept by our customs officials upon all building yards, 
 that no accession of strength from that quarter was received by 
 either combatant. Thus when the " Diogenes," built at Black- 
 wall, and evidently fitted for war, was about to proceed to the 
 mouth of the Thames for her trial trip, the Foreign Office, which 
 had been kept informed of the progress of the ship, communicated 
 with the Admiralty, in consequence of which a force of blue- 
 jackets and marines were sent on board to see that she did not 
 leave British waters. 
 
 In the Royal Proclamation^ of 11 February, 1904, in the war 
 between Russia and Japan, in addition to the provisions relating 
 to Illegal Enlistment, Illegal Shipbuilding, and Illegal Expedi- 
 tions being set forth according to the usual practice, British sub- 
 jects and all persons under British protection are warned to 
 observe the laws of neutrality, and not to act in violation of the 
 law of nations, under the penalties declared by such law. 
 
 1 [1896] 2 Q. B., 425. 
 
 2 "Lond. Gaz.," 12 February, 1904. 
 
470 COMMERCE IN WAR 
 
 The Three Rules. — M. Charles Calvo argues with consider- 
 able force that the three Rules do not constitute any innovation 
 in international law. It must be remembered that both parties 
 to the treaty admitted that they were creating an alteration in in- 
 ternational practice, and that it is so expressed in the treaty. After 
 having cited the enactments of various maritime powers dealing 
 with the offence under discussion, M. Calvo declares : — 
 
 "Que les trois regies, loin de constituer une obligation nouvelle et 
 inconnue a I'epoque de la signature du traitd de Washington, ^taient 
 ant^rieurement et depuis longtemps consacr6es par la legislation de la 
 plupart des Etats, par au grand nombre de leurs documents officiel et de 
 leurs trait^s internationaux, qui sans en reproduire la lettre textuelle et 
 expresse, en renfermaient ou impliquaient I'esprit ou la port^e, il nous 
 reste k rechercher si ces m^mes regies sont d6ja passers dans le domaine 
 des faits, et dans ce cas, de quelle maniere et en quelles circonstances elles 
 ont 6t6 appliqu6es, dans quelle mesure elles sont entrees dans la pratique 
 des nations." ^ 
 
 Although M. Calvo produces much authority for his contention 
 that the three Rules do not constitute any innovation upon 
 international law, we have seen that the framers of the treaty 
 were clearly of the opinion that they did. If not, why did they 
 provide that "the general principles" of public law should not be 
 construed in any sense inconsistent with the Rules, instead of 
 providing that the Rules should not be construed in any sense 
 inconsistent with " the general principles " of public law .'' Whilst, 
 however, approving the Rules, M. Calvo considers them to be in- 
 sufficient for the purpose for which they were framed, unless they 
 are supplemented by the principles of the inviolability of private 
 property at sea. 
 
 " Nous croyons done que le moyen le plus efficace pour porter remade 
 au mal, serait de faire entrer dans la pratique unanime et definitive des 
 nations I'abolition de la course, et I'interdiction du commerce de la contre- 
 bande de guerre — mesures qu'avaient deja recommand^es, a la suite de la 
 guerre d'Orient, les pl6nipotentiaires des grandes puissances r^unis en 
 Congres a Paris, — mais en les compldtant par I'adoption d'un principe qui 
 en est, a nos yeux, le fondement en m^me temps que la guarantie, et que les 
 Etats-Unis avatent pos6 comme condition de leur acquiescement a la 
 declaration du i6 Avril 1856 Nous voulons parler du principe de I'inviola- 
 bilit6 de la propri6t6 priv6e sur mer en temps de guerre. ..." 
 
 After tracing the history of the principle of the inviolability of 
 private property except contraband at sea in time of war contained 
 in various treaties and declarations, M. Calvo submits a model form 
 of treaty designed to carry out these provisions for exempting 
 
 1 Examen des Trois Rfegles de Droit International proposdes dans le Traits de 
 Washington (1874). 
 
CAPTURE AND CONDEMNATION 471 
 
 private property from injury, except it prove to be contraband of 
 war or is carried in breach of the law relating to blockade. 
 
 Foreign Enlistment Laws of Other Nations. — Prior to the 
 American War of Secession, with the exception of Great Britain 
 and the United States, none of the leading maritime Powers 
 prohibited the equipment or armament of vessels intended for the 
 use of belligerents, except under circumstances which rendered 
 such action a violation of neutrality, according to the law of 
 nations. 
 
 France. — The only provisions relating to such violation of the 
 laws of neutrality by a French subject are to be found in the 
 Penal Code, which render liable to punishment all persons expos- 
 ing the State to declarations of war or reprisals : — 
 
 "Article LXXXIV. Quiconque aura, par des actions hostiles non 
 approuvees par le Gouvernement, expos6 1'Etat k une declaration de guerre, 
 sera puni du bannissement, et si la guerre s'en est suivie, de la deportation. 
 
 " Article LXXXV. Quiconque aura par des actes non approuvdes par le 
 Gouvernement expos6 des Frangais a 6prouver des repr^sailles s^ra puni 
 du bannissement." 
 
 In the application of these Articles, said M. Treitt, counsel to 
 the British Embassy in Paris, three conditions are essential : — 
 
 1. Que Taction soit hostile. 
 
 2. Que Taction n'ait pas 6t6 approuv^e par le Gouvernement. 
 
 3. Que la France a it6 exposde a une declaration de guerre ou 
 des Fran9ais exposes a des reprdsailles. 
 
 " Je precis," he writes, '" ces trois circonstances, parceque c'est le pouvoir 
 judiciare seul qui est appeie k les resoudre et k decider de la culpability si 
 les juges d6cident que telle action n'est point une action hostile, et par 
 consequent non violatrice de la neutrality, le Gouvernement devra respecter 
 cette decision et pourra I'opposer au belligerant qui se plaindrait si devant 
 les juges Taccuse excipiat d'une approbation, soit tacite, soit expresse par 
 le Gouvernement, Taction incriminee ne pourrait plus 6tre punie. 
 
 " Enfin, si Taction hostile n'avait pas pour consequence des represailles 
 ou une eventualite de guerre elle cesse d'etre criminille." 
 
 Under the Civil Code, by Article XXI all Frenchmen were 
 prohibited from taking foreign service without licence, and by 
 Article LXVII of the Decree, "disciplinaire sur la marine mar- 
 chand" of 24 March, 1852, all French sailors were forbidden to 
 serve without licence upon a foreign vessel. 
 
 Although the sale of armed vessels was not an offence against 
 neutrality, and was thus not within Articles LXXXIV and 
 LXXXV, yet the Government had the power of preventing the 
 arming of vessels, since the exportation of powder and arms was 
 
472 COMMERCE IN WAR 
 
 prohibited under heavy penalties, not, indeed, with the motive of 
 preventing breaches of neutrality, but from motives of internal 
 policy. As M. Treitt observed : — 
 
 " Les poudres et les armes de guerre ne jouissent point de la liberty 
 commerciale et industrielle du droit commun, ces deux objets sont sous 
 la surveillance rigoureuse du Gouvernement et il est fort difficile que Ton 
 puisse armer des navires ou bien faire voyage ou effectuer des d^pdts de 
 poudre et d'armes de guerre sans que le Gouvernement ne soit averti et ne 
 puisse les erapdcher." ^ 
 
 Of course, if the construction, equipment, or arming of the 
 vessel was with hostile intent, then it would form a breach of 
 neutrality, and fall within Articles LXXXIV and LXXXV, Upon 
 the outbreak of the American Civil War, by Article III of the 
 Imperial Decree of lo June, 1861, 
 
 " II est interdit k tout Frangais de prendre commission de I'une des deux 
 parties pour armer des vaisseaux en guerre, ou d'accepter des lettres de 
 marque ; pour faire la course maritime, ou de concourir dune mani^re quel- 
 conque a V Equipment ou dune navire de guerre ou corsaire de I'une des deux 
 parties" 
 
 Articles LXXXIV and LXXXV were specially referred to as 
 applicable to contraventions of this proclamation. 
 
 Thus the law was placed upon the same footing as that of 
 Great Britain and the United States, and the attempts made by 
 Confederate agents, who had failed in England, were frustrated. 
 Six vessels in the course of construction for the Confederate 
 States were seized. 
 
 By the proclamation of neutrality of 6 May, 1877, in the war 
 between Russia and Turkey, in calling attention to the municipal 
 law and the law of nations on the subject, taking service by land 
 or sea with the belligerents, or conspiring in the equipment or 
 armament of a vessel of war for the use of the belligerents was 
 prohibited.'' 
 
 This proclamation was repeated in the war between the United 
 States and Spain by the Notification of Neutrality of 27 April, 
 1898.^ 
 
 Belgium. — Under the adopted French codes, Belgium enjoys 
 the same provisions as those just mentioned, and with the excep- 
 tion of severe laws against privateering or the reception of 
 privateers contained in the Proclamation of Neutrality during the 
 Crimea War, the prohibition and preventive power of the law 
 depends on the above provisions. 
 
 1 Pari. Pa., Neut. Laws Com. Rep., App., 45. 
 
 2 State Papers, Vol. LXVIII, p. 782. 
 
 3 Ibid., Vol. XC, p. 364. 
 
CAPTURE AND CONDEMNATION 473 
 
 In its Proclamation of Neutrality, 8 May, 1859, on the occasion 
 of the Italian War, the Government notified that — 
 
 " Toute personne soumise aux lois du royaume qui ferait des armaments 
 en course ou y prendait part, ou bien qui poserait des actes contraires aux 
 devoirs de la neutrality, s'exposerait d'un c6t6 k 6tre traits comme pirate 
 a I'dtranger, et de I'autre poursuivie devant les tribuneaux Beiges suivant 
 tout la rigueur des lois." 
 
 This proclamation was repeated 22 June, 1 861, on the outbreak 
 of the American Civil War; 11 July, 1865, in the war between 
 Brazil and Paraguay; 18 February, 1866, in the war between 
 Spain and Chili ; 14 March, 1866, in the war between Spain and 
 Peru. 
 
 In the Proclamation of Neutrality of 6 May, 1877, on the 
 occasion of the Russo-Turkish War, the Government took the 
 opportunity of reminding its subjects of the permanent neutrality 
 of Belgium. At the same time it directed attention to Article 
 CXXIII of the new Penal Code :— 
 
 " Quiconque par des acttons hostiles non approuv^es par le Gouverne- 
 ment, aura expos^ I'etat k des hostilitds de la part d'une Puissance 6tran- 
 g^re sera puni de la detention de 5 ans a 10 ans, et si des hostilit^s s'en 
 sont suivies, de la detention de 10 ans ^15 ans." 
 
 This was repeated in the war between the United States and 
 Spain by the Notification of 26 April, 1898.^ 
 
 The Netherlands. — Under the adopted French Codes, the 
 Netherlands are subject to the same provisions. In the Proclama- 
 tion of Neutrality, 17 March, 1866, there is no reference to the 
 sale or equipment of sMps of war, but all inhabitants are warned 
 not to meddle with privateering and not to accept letters of 
 marque. Any such conduct was declared to be hostile and within 
 Articles LXXXIV and LXXXV of the Penal Code. By 
 Article VI of the Proclamation, it was forbidden to furnish to the 
 ships of war of either of the belligerents weapons or ammuni- 
 tion, as well as to aid in any way to the increase of their weapons 
 or accoutrements. 
 
 And the Government further declared its intention of keeping 
 strict watch against the fitting out of armed ships on behalf of 
 belligerents and against any such participation by Dutch subjects. 
 
 In the Proclamation of Neutrality of 3 May, 1898, in the war 
 between the United States and Spain, Dutch subjects are warned 
 to refrain from acts which may be at variance with neutrality, from 
 engaging in the service of the belligerents, or in the fitting out of 
 privateers, and from breaking blockade or supplying war stores 
 
 1 State Papers, Vol. XC, p. 378. 
 
474 COMMERCE IN WAR 
 
 and other contraband articles, and especially to observe the follow- 
 ing articles of the Penal Code : — 
 
 " Article C. ( i ) All persons who, in case of war in which the Netherlands 
 is not engaged, wilfully do any act by which the neutrality of the State is 
 imperilled, or who wilfully violate any particular order for maintaining 
 neutrality issued and published by the Government, shall be punished with 
 imprisonment not exceeding six years. 
 
 " Article CCCLXXXVIII. All Netherland subjects who, without per- 
 mission from the Netherland Government, accept a letter of marque or 
 take service as captains on vessels knowing that they are intended for 
 privateering, without permission of the Netherland Government, shall be 
 punished with imprisonment not exceeding four years. 
 
 "Article CCCLXXXIX. All Netherland subjects who take service 
 as sailors on a vessel knowing that, without permission of the Netherland 
 Government, it is intended to be used for privateering, or of their free will 
 continue in service after they have found out its destination or intended 
 use, shall be punished with imprisonment not exceeding three years." 
 
 By Notification i of this Proclamation, Article VI of the Pro- 
 clamation of 1866 is repeated and extended as follows : — 
 
 " Article I. It is prohibited to furnish to the warships or privateers of 
 the belligerents arms or ammunition, as also to help them in any way to 
 increase their crews, arms or equipment. 
 
 "Article II. Furthermore are prohibited: {a) The fitting out in this 
 country of warships or other vessels destined for military purposes for the 
 use of the belligerents, as also the procuring or selling of the aforesaid 
 vessels to the parties aforesaid. {V) The exportation of arms, ammuni- 
 tion, or other war material to the belligerents. In this must be included 
 the exportation of everything ready for immediate use in war, but not that 
 of unmanufactured materials, unless these are chiefly made up for warlike 
 purpose, (t) The enrolment within the territory of the State of soldiers 
 for the belligerents, {d) The organization, in a military sense, of volunteers 
 in the territory of the State with the object of joining the army of one of 
 the belligerent parties."^ 
 
 Italy. — Beyond certain differences in the character and applica- 
 tions of penalties, the provisions of Italian law are similar to those 
 of France. Under the Naval Code, chapter vii, and the 
 Proclamation of 6 April, 1864, in no case is a belligerent ship of 
 war to avail itself of an Italian port for the purposes of war 
 or of obtaining arms and ammunition ; and it is not, under the 
 pretence of repairs, to execute any alterations or other works 
 designed to augment its warlike force. Nothing is to be furnished 
 to vessels of war or to belligerent privateers beyond articles of 
 food and commodities, and the actual means of repair necessary 
 to the sustenance of the crews and the safety of navigation. 
 
 By Article IV of the Proclamation, no Italian subject may 
 
 1 State Papers, Vol. XC, 370. 
 
CAPTURE AND CONDEMNATION 475 
 
 take a commission from either belligerent to arm ships for war or 
 to accept letters of marque to cruise or to assist in any way in 
 fitting out, arming, or preparing for war vessels or privateers of 
 belligerents. And by Article V, no Italian subject may be enrolled 
 or take service on any ship of war or privateer belonging to 
 belligerents. Upon the outbreak of the war between Russia and 
 Turkey, the Government contented itself in its Proclamation of 
 Neutrality of 28 April, 1877, with warning its subjects to 
 scrupulously observe the duties of neutrality in accordance with the 
 laws in force and with the general principles of international law. 
 The same course was pursued in the war between the United 
 States and Spain by the Proclamation of Neutrality of 25 April, 
 
 Spain:— Article CXLVIII of the Penal Code, and Article 
 CCLVIII of the Statute of 1822, correspond to Articles LXXXIV 
 and LXXXV of the French Code. 
 
 " Article CXLVIII. Whosoever shall, without having been permitted to 
 do so by competent authority, have provoked or given motive to a 
 declaration of war against Spain on the part of another Power, or shall 
 have exposed Spanish subjects to suffer vexations or reprisals against 
 their persons or properties, shall be punished with imprisonment ; and if 
 such person be a public functionary, he shall be punished with temporary 
 seclusion. 
 
 " Article CCLVI 1 1. Whosoever shall, without the knowledge, authority, 
 or permission of the Government, have committed hostilities against any 
 allied or neutral Power, or shall have exposed the State to suffer for that 
 cause a declaration of war, or if such hostilities shall have been the 
 ground for reprisals against Spaniards, he shall be condemned to give 
 public satisfaction for such offence, and to seclusion or imprisonment for 
 a term of from two to six years, and shall pay a fine equal to one quarter 
 of the amount of damages he shall have occasioned without prejudice to 
 any further punishment which he may be liable to incur for the violence 
 committed. If said hostilities shall have brought on an immediate 
 declaration of war, or if such declaration shall have preceded the time of 
 the trial, the offender shall be punished with transportation.^ 
 
 Under the Proclamation of Neutrality of 17 June, 1861 : — ^ 
 
 " Article I. The fitting out, supplying, and equipment of any privateer 
 in any of the ports of the monarchy is prohibited, whatever may be the 
 flag which she may hoist. 
 
 "Article II. The proprietors, masters, or captains of merchant 
 vessels are also prohibited from receiving Letters of Marque, and from 
 contributing in any way to the armament and equipment of vessels 
 of war or privateers. 
 
 » State Papers, Vol. XC, 377. 
 
 2 Pari. Pa. App. to U.S. Counter-Case, p. 1062. 
 
 3 Foreign Relations, 1872, U.S. Counter-Case, p. 91. 
 
476 COMMERCE IN WAR 
 
 "Article III. Ships of war or privateers with prizes are prohibited 
 from entering and remaining for more than twenty-four hours in the ports 
 of the monarchy except in the case of forced arrival. 
 
 " When the latter shall occur, the authorities shall watch the ship and 
 shall oblige her to put to sea as soon as possible, without permitting her 
 to supply herself with anything more than that which is necessary for 
 the moment, but under no circumstances with arms or with munitions 
 of war. 
 
 " Article V. . . . The carrying of effects of war and of papers or commu- 
 nications for the belligerents is prohibited. Contraveners will be respon- 
 sible for their own acts, and will have no right to the protection of my 
 Government. 
 
 " Article VI. All Spaniards are prohibited from enlisting in the 
 belligerent armies and from engaging themselves for service in vessels of 
 war or privateers."^ 
 
 It will be observed that there is no reference to the sale, con- 
 struction, or equipment of vessels of war. Fitting out and 
 equipment is confined to the case of privateers. 
 
 In the Notification of Neutrality of 12 May, 1877, in the war 
 between Russia and Turkey, Spanish subjects were warned not to 
 perform any hostile act which might be considered contrary to the 
 most perfect neutrality, and national and foreign agents were 
 threatened with the penalties prescribed by Article CL of the 
 Penal Code if they carried out or promoted the recruiting of 
 soldiers for either of the belligerent armies or navies." 
 
 Portugal. — Article CXLVIII of the Penal Code of 10 Decem- 
 ber, 1852, embraces the provisions of Articles LXXXIV and 
 LXXXV of the French Code. 
 
 By Article CLVI the procuring of arms, vessels, or munitions of 
 war is prohibited.^ 
 
 By the Proclamation of Neutrality of 5 May, 1854, Portuguese 
 subjects and foreigners residing in Portugal were, by Article II, 
 prohibited from constructing or arming vessels to be employed as 
 privateers, and letters of marque to such persons were refused. 
 By Article III, privateers and their prizes and belligerent vessels 
 of war were refused admission into Portuguese ports except 
 in case of distress.* 
 
 By the Proclamation of Neutrality of 2 July, 1856, on the 
 outbreak of the war between Austria and Italy, similar provisions 
 were decreed. 
 
 1 Pari. Pa., Neut. Law. Com. Rep. App. 66. 
 ^ State Papers, V, 68, 662. 
 3 Pari. Pa. Penal Code of Portugal, 1854, p. 76. 
 * State Papers, XLIV, in. 
 
CAPTURE AND CONDEMNATION 477 
 
 The Proclamation of Neutrality of 29 July, 186 1, issued during 
 the American Civil War, contained the following provisions : — 
 
 " Article I. In all the ports and waters of this kingdom as well as on 
 the continent, and in the adjacent islands as in the ultramarine provinces, 
 Portuguese subjects and foreigners are prohibited from fitting out vessels 
 destined for privateering. 
 
 "Article II. In the same ports and waters referred to in the preceding 
 Article, is, in like manner, prohibited the entrance of privateers and of the 
 prizes made by privateers or by armed vessels. 
 
 "Sec. I. The cases of overruling necessity (/(7^fa:»2a?(7r) in which, accord- 
 ing to the law of nations, hospitality is indispensable, are excepted from 
 this regulation, without permission, however, being allowed in any manner 
 for the sale of any objects proceeding from prizes." ^ 
 
 The same provisions were by the Decree of 29 July, 1861, 
 promulgated in the American War of Secession.^ 
 
 Upon the outbreak of war between Russia and Turkey, by a 
 Decree of Neutrality of 14 June, 1877, in view of section 15 of 
 Article LXXV of the Constitutional Charter and of the several 
 Decrees dated 30 August, 1780; 3 June, 1803; 5 May, 1854; 
 29 July, 1861 ; and 2 July, 1866, as well as of Articles CXLVIII, 
 CL, CLIV. CLV, CLVI, and CLXII of the Penal Code, and 
 also in view of the principles of the Declaration of Paris, 1856, 
 and of the general principles of the rights and duties of neutrals, 
 the following provisions were decreed : — 
 
 " Article I. All Portuguese and foreign subjects are forbidden to equip 
 any privateers in the ports or waters of this kingdom or of any of the 
 adjacent islands or of the transmarine provinces. 
 
 "Article II. The entrance of any privateers, as well as of any prizes 
 captured by them or by any vessels of war of the belligerent Powers, into 
 the ports and waters mentioned in the foregoing Article, is likewise 
 prohibited. 
 
 " Sec. I, Any cases of force majeure, in which hospitality becomes 
 absolutely necessary in accordance with the law of nations, are excepted 
 from the rule laid down in this Article, but nevertheless it shall not be 
 lawful to effect the sale of any articles forming part of the prizes, and no 
 vessels accompanying prizes shall remain in port for any longer time than 
 that which may be absolutely required for receiving the proper supplies. 
 
 "Article III. Vessels of war belonging to the belligerent Powers, 
 bringing no prizes, will be allowed to enter the ports and waters mentioned 
 in Article I, and to stay therein provided they comply with the regulations 
 laid down in the following sections : — 
 
 " Sec. I. The ships of war of the belligerent Powers shall not commit 
 within the ports and waters of Portugal any acts of hostility against the 
 ships or subjects of any other Power, even of that with which the Power 
 to which they belong shall be at war. 
 
 * State Papers, LI, 130. 
 
 « Alabama Claims (U.S.), Vol. IV, p. 167. 
 
478 COMMERCE IN WAR 
 
 " Sec. 2. In the said ports and waters the ships above mentioned shall not 
 increase the number of their crews by enlisting any sailors, whether they 
 be the subjects of the nation to which they belong or of any other 
 country. 
 
 " Sec. 3. The said vessels are likewise forbidden to increase within the 
 said ports and waters the number or weight of their guns, as well as to 
 ship any portable arms or warlike stores. 
 
 " Sec. 4. The said vessels shall not sail out of port within twenty-four 
 hours reckoned from the time of the departure of any ship of another 
 Power with which that to which they belong shall be at war, unless they 
 obtain a dispensation from the proper authority as to the period above- 
 mentioned, after giving the necessary guarantee that they will not avail 
 themselves of the circumstances to commit any acts of hostility against 
 the enemy's vessel. 
 
 " Article IV. It is lawful to carry under the Portuguese flag any articles 
 of lawful trade belonging to the subjects of the belligerent Powers ; and 
 it is likewise lawful to ship any articles of lawful trade belonging to 
 Portuguese subjects under the flag of any of the belligerent Powers. 
 
 "Sec. I. All articles which may be considered contraband of war are 
 expressly excluded from the provision laid down in this Article. 
 
 " Sec. 2. The provision laid down in this Article is also inapplicable to 
 any ports of the belligerent Powers that may be placed in a state of 
 effective blockade. 
 
 " Article V. All Portuguese subjects, as well as all foreigners residing 
 in Portugal and its dominions, are bound to abstain from any acts that 
 may be considered by law to be contrary to the external safety and to the 
 interests of the State in regard to foreign nations." 
 
 The Decree of 28 April, 1898, issued in the war between the 
 United States and Spain, is a mere repetition of the above.^ 
 
 Russia.— With the exception of Article CCLIX of the Penal 
 Code, there does not appear to have existed any law or regulation 
 whereby the Government were enabled to prevent the commission 
 of breaches of neutrality committed within Russian territories. 
 
 " Article CCLIX. If any Russian subject in time of peace shall by 
 open force attack the inhabitants of a neighbouring State or those of any 
 other foreign country, and shall thereby subject his own country to the 
 danger of a rupture with a friendly Power, or even to an attack by such 
 foreign subjects on the territory of Russia, for such a crime against inter- 
 national law the offender, and all those who participate voluntarily in his 
 enterprise, with a knowledge of its objects and illegality, shall be sen- 
 tenced to lose all civil rights and be condemned to hard labour in a 
 fortress for a term of eight to ten years." ^ 
 
 In the Declaration of Neutrality of 3 May, 1898, in the war 
 between the United States and Spain, the Government, after the 
 
 1 State Papers, Vol. XC, 374. 
 
 2 Pari. Pa., Neut. Law Com. Rep., App. 65. 
 
CAPTURE AND CONDEMNATION 479 
 
 expression of various amiable figures of speech, enjoins its 
 subjects to observe the duties of neutrality.^ 
 
 Prussia — Up to the Franco-German War there was little legis- 
 lation, either direct or indirect, dealing with this offence, and 
 nothing whatever prohibiting the building or saje of vessels of 
 war. By section III of the Penal Code, 1851, whoever enlisted 
 or caused to be enlisted a Prussian subject in a foreign military 
 service was liable to the imprisonment of from three months to 
 three years. Under the head of indirect preventative measures 
 against breaches of neutrality, came all those laws which enabled 
 the Government generally to oppose the maturing of acts of 
 violence within its territories. 
 
 Upon the outbreak of the American Civil War the Government, 
 by its Proclamation of Neutrality, warned the mercantile classes 
 to abstain from all those enterprises forbidden by the general 
 principle of the Convention and Declaration of Paris, 1856. 
 To those who took letters of marque or who shared in priva- 
 teering adventures, carried contraband of war or despatches, was 
 denied the protection of the Government. 
 
 The equipment of privateers in Prussian ports was declared to 
 be illegal.* 
 
 Sweden, — By Article VIII of the Ordinance of Neutrality of 
 8 April, 1854, the subjects of Sweden were forbidden 
 ■'d'armer ou d'equiper des navires pour etre employes en course contre 
 quelqu'une des Puissance bellig^rantes, leurs sujets et propridtes ; ou de 
 prendre part a 1 'equipment de navires ay ant une pareille destination. II 
 leur est egalement ddfendu de prendre service a bord de corsaires 
 Strangers." * 
 
 In the war between Russia and Turkey, the Ordinance of 
 Neutrality of 11 May, 1877, merely enjoined conformity to the 
 previous ordinance, adding lead to the list of articles contraband 
 of war.* 
 
 By the Ordinance of Neutrality of 25 April, 1898, in the war 
 between the United States and Spain, it was declared that instead 
 of the rescript affixed to a note to section i of the Ordinance of 
 1854, the Decrees of 27 November, 1891, 31 December, 1891, 
 and 24 February, 1893, should be substituted.* 
 
 Denmark. — In the " Rules for the Guidance of Merchants and 
 Shipmasters in the time of Hostilities between Maritime Powers," 
 issued 20 May, 1803, the subjects of Denmark were prohibited 
 from carrying contraband of war destined for belligerent use. In 
 the list of contraband articles, ships are not enumerated.* By 
 
 1 State Papers, Vol. XC, 377. 2 jf^^., LI, 70. 
 
 3 Ibid., Vol. XLVI, p. 833. * Ibid., Vol. LXVIII, p. 490. 
 
 6 lUd., XC, p. 378. " Article 13. 
 
48o COMMERCE IN WAR 
 
 Article XVI all subjects are forbidden to serve on board priva- 
 teers, to arm or to be interested in arming such vessels, or to 
 allow their ships to be used for the transport of troops, weapons, 
 or contraband of war of any description. By the Royal Resolu- 
 tions of 20 May, 1823, privateers were denied entrance into the 
 Danish ports except in case of distress, and they were not per- 
 mitted to send in their prizes for sale or any other purpose. They 
 were also forbidden to unload their prizes in Danish waters, or to 
 sell their cargoes in Danish ports.^ 
 
 By Article LXXVI of the Penal Code of 1866, enlistment of 
 subjects in the service of a foreign Power at peace with Denmark, 
 or the engagement or service of subjects, is punishable with im- 
 prisonment with or without hard labour. 
 
 The procuring of arms, vessels, or munitions of war are also 
 prohibited. 
 
 By the Proclamation of Neutrality of 18 May, 1877, in the war 
 between Russia and Turkey, the resolutions of the Declaration of 
 Paris, 1856, were adopted, and to the list of contraband men- 
 tioned in the Rules of 1803 were added, "all such manufactured 
 articles as could be directly used in warfare." 
 
 The Declarations and Law of the Government of Denmark of 
 29 April, 1898, in the war between the United States and Spain, 
 contains in the " Provisional Law forbidding Danish subjects to 
 assist belligerent Powers," the following provisions : — 
 
 "Sec. I. In the case of war breaking out in which the Danish State 
 is neutral, its subjects are forbidden : — 
 
 (i) To take service in any capacity in the army of the belli- 
 gerent Powers, or on board the ships of their Government in which 
 is comprised piloting their war or transport ships outside Danish 
 pilotage waters, or except in cases of danger at sea to assist them 
 in sailing. 
 
 (2) To build or rebuild, sell, or in any way hand over, indirectly 
 or directly, to any of the belligerent Powers, ships which appear to 
 be or are presumed to be intended for use in war, or to assist in 
 any way in fitting out or accommodating such ships for war pur- 
 poses either on or from Danish territory. 
 
 (3) To assist either on or from Danish territory any of the belli- 
 gerent Powers in their warlike operations as well as to supply their 
 ships with objects which can be classed as contraband of war, or to 
 undertake work for any of the belligerent Powers which may ap- 
 pear to increase their ships' armaments or to give them greater 
 strength or mobility for war. 
 
 (4) To transport contraband of war for any of the belligerent 
 Powers, or to hire or charter the ships which appear to be intended 
 or could be turned to such usage. 
 
 I State Papers, Vol. LXVIII, p. 615. 
 
CAPTURE AND CONDEMNATION 481 
 
 (5) To openly solicit admission into the land or sea forces of the 
 belligerent Powers, or in any way to give them help in war as well 
 as openly to offer to raise a State loan for either of the belligerents 
 if the Government has issued a special prohibition against it." 
 
 Austria. — Prior to 1867 there existed no law in Austria apply- 
 ing to violations of neutrality by Austrian subjects, apart from the 
 principles which formed the basis of the Declaration of Paris, 
 which had been rendered part of the law of the land. By the 
 Proclamation of Neutrality of 28 May, 1854, the acceptance or 
 employment of letters of marque and any participation in privateer- 
 ing was prohibited. Foreign privateers were, except in case of 
 distress, denied entrance into Austrian ports, and vessels under 
 Austrian colours were forbidden to carry troops for belligerents or 
 to import into belligerent ports contraband of war. Enemy's 
 goods in neutral ships and neutral goods in enemy's ships, except 
 contraband of war and enemy's despatches, were declared free, 
 in accordance with the assent of the belligerent powers officially 
 expressed. 
 
 Belligerent prizes might be admitted into the port of Trieste 
 subject to the control and judicial authority of the local adminis- 
 tration. 
 
 These provisions were repeated in the Proclamation of Neutral- 
 ity of 1 1 May, 1877, on the occasion of the Russo-Turkish war. 
 
 By Article LXXVII of the Penal Code, the procuring of arms, 
 vessels, or munitions of war for the service of a foreign Power is 
 prohibited. 
 
 Bavaria. — By Article XXXVI of the Penal Code, the procur- 
 ing of arms, vessels, or munitions of war is prohibited. 
 
 Brazil. — Upon the outbreak of the American Civil War, the 
 only municipal law relating to breach of neutrality was contained 
 in Article LXXXIII of the Penal Code. The offence consisted 
 in " committing, without the order or the authorization of the 
 Government, hostile acts against the subjects of another nation so 
 as to endanger peace or provoke reprisals." 
 
 By an Imperial Circular of i August, 1861, the presidents of 
 the provinces were instructed as follows : — 
 
 " The Confederate States have no recognized existence ; but having 
 constituted a distinct Government de facto, the Imperial Government can- 
 not consider their naval armaments as acts of piracy nor refuse them, with 
 the necessary restrictions, the character of belligerents which they have 
 assumed. 
 
 " In conformity with this, Brazilian subjects are to abstain from all 
 participation and aid in favour of one of the belligerents, and they must 
 not take part in any acts which can be considered as hostile to one of the 
 two parties and contrary to the obligations of neutrality. 
 2 I 
 
482 COMMERCE IN WAR 
 
 " The exportation of warlike articles from the ports of the Empire for the 
 new Confederate States is absolutely prohibited, whether it is intended to 
 be done under the Brazilian flag or that of another nation. 
 
 " The same trade in contraband of war must be forbidden to Brazilian 
 ships, although they may be destined for the ports subject to the Government 
 of the North American Union. 
 
 " No ship with the flag of one of the belligerents, and which may be 
 employed in this war or intended for it, can be provisioned, equipped, or 
 armed in the ports of the Empire ; the furnishing of victuals and naval 
 provisions indispensable for the continuation of the voyage not being 
 included in this prohibition. 
 
 " No ship of war or privateer shall be allowed to enter and remain with 
 prizes in our ports or bays more than twenty-four hours, except in case of 
 forced arrival, and they shall in no way be allowed to dispose of the said 
 prizes or of the objects coming from them." 
 
 These provisions were repeated in the President's Circular of 
 29 April, 1898, in the war between the United States and Spain. 
 It was further provided by Article XIII that belligerents should 
 not be allowed in Brazilian ports — 
 
 (i) To augment their crews by enlisting sailors of any nation 
 whatever, including their own countrymen. 
 
 (2) To increase the numbers and calibre of their artillery or 
 perfect it in any way, or purchase or take on board small arms and 
 ammunitions of war.^ 
 
 Japan. — By an Imperial Ordinance, No. 86, contained in the 
 Proclamation of Neutrality of 30 April, 1898, in the war between 
 the United States and Spain, all Japanese subjects and foreigners 
 within the dominions were forbidden — 
 
 (i) To accept from either of the belligerents a letter of marque 
 or commission for capturing merchant vessels by means of 
 privateers. 
 
 (2) To take service in the army or navy, or to engage in any 
 military operations of either of the belligerents, or to enlist as a 
 member of the crew, or to take service on board of a vessel used 
 for warlike purposes or privateering by either of the belligerents. 
 
 (3) To make contracts with other persons or to send such 
 persons beyond the dominions of the empire, with the object of 
 enabling such persons to enter into the military or naval service of 
 either of the belligerents, or for the purpose of enabling them to 
 enlist as members of the crews, or to accept service on board ships 
 used for warlike purposes or privateers. 
 
 (4) To sell, purchase, charter, arm or equip ships with the object 
 of supplying them to either of the belligerents for use in war or 
 
 1 State Papers, Vol. XC, 354. 
 
CAPTURE AND CONDEMNATION 483 
 
 privateering ; or to assist in any such sale, purchase, chartering, 
 arming or equipping. 
 
 (5) To supply arms, ammunition, or other material of direct use 
 in the hostilities to the men-of-war and other ships used for war- 
 like purposes, or to privateers belonging to either of the 
 belligerents.^ 
 
 United States. — The law relating to foreign enlistment is 
 now contained in Title LXVII of the Revised Statutes, 1873-4, 
 and is entitled "Neutrality."^ The Act of 1818 is reproduced 
 without any material alteration, although one might have expected 
 after the violent attack at the Geneva Arbitration made by the 
 American representatives upon the English statute that advantage 
 would have been taken to at any rate have brought the Act up 
 to the same standard as the English statute by making the offence 
 of fitting-out and arming disjunctive instead of allowing it to 
 remain conjunctive. 
 
 This Title embraces eleven sections, from 5281 to 5291 inclu- 
 sive. Section 5281 prohibits the acceptance of commissions from 
 a foreign Power by citizens of the United States within its terri- 
 tory to serve against any sovereign with whom the Union is at 
 peace. It corresponds to section i of the Act of 18 18. 
 
 Section 5282 prohibits any person from enlisting in the United 
 States as a soldier or sailor in the service of any foreign Power, 
 and from hiring or retaining any other person to enlist or to 
 go abroad for the purpose of enlisting. It corresponds to 
 section 2 of the Act of 18 18. 
 
 Section 5283 prohibits any person from fitting-out and arming or 
 attempting to fit out and arm or procuring to be fitted-out and 
 armed or knowingly to be concerned in the furnishing, fitting-out, 
 or arming of any vessel with intent that such vessel should be 
 employed in the service of any foreign State, to cruise against the 
 subjects or property of any other foreign State with which the 
 United States is at peace. It corresponds with section 3 of the 
 Act of 1818. 
 
 Section 5284 prohibits citizens from similarly fitting-out and 
 arming vessels outside the limits of the United States with intent 
 to cruise against citizens or property of the United States. It 
 corresponds with section 4 of the Act of 1818- 
 
 Section 5285 prohibits the augmentation of the force of foreign 
 vessels of war serving against a friendly State. It corresponds 
 with section 5 of the Act of 18 18. 
 
 Section 5286 prohibits the initiation, provision, or preparation 
 
 1 State Papers, Vol. C, 366. 
 
 2 I Revised Statutes, United States, p. 1029. 
 
484 COMMERCE IN WAR 
 
 of any military expedition or enterprise against the territory or 
 dominions of any foreign sovereign. It corresponds with section 5 
 of the Act of 1794 and section 6 of the Act of 1818. 
 
 Sections 5287 to 5290 provide for the enforcement of the 
 preceding sections, and correspond with sections 8, 9, 10, and 1 1 
 respectively of the Act of 18 18. 
 
 Section 5291 provides that the provisions set forth shall not be 
 continued to prevent the enlistment of certain foreign citizens who 
 happen to be within the jurisdiction of the United States. It 
 corresponds with sections 2 and 13 of the Act of 18 18. 
 
 The United States v. Rand^ was a prosecution of Rand and 
 Pender, captain and mate of the "Tropic," for violation of 
 section 5286 of the Revised Statutes. On 15 March, 1883, the 
 "Tropic" sailed from Philadelphia with a cargo of arms and 
 military stores to Inagua, where she embarked a large number^ of 
 men, who put on uniforms, drilled, and prepared for active 
 military service. She then proceeded to Miragoane, Hayti, 
 where the men landed and captured the town from the Haytian 
 Government. During the attack the vessel rode outside the 
 harbour, and immediately after the capture of the town ran in and 
 landed her stores. On the return of the ship to the United States 
 the defendants were arrested and put on their trial. 
 
 In charging the jury, Butler, J., said: — 
 
 " That the attack upon and capture of Miragoane was the result of a 
 military expedition is clear. Was it begun or set on foot within the 
 territory of the United States, to be carried on from thence, or the means 
 here provided for such expedition ? As we have seen, the arms, military 
 stores, and means for the transportation of them and of the men subse- 
 quently taken on board were here provided and started out. That the 
 men were not taken on board until the vessel reached Inagua is not in the 
 judgment of the Court material. The expedition, as it left this port, 
 viewed in the light of subsequent events (the shipping of the men at 
 Inagua and the attack upon Miragoane) was in the judgment of the Court 
 a military enterprise, within the terms and spirit of the statute — a military 
 enterprise begun or set on foot within the territory of the United States, 
 to be carried on from thence." 
 
 The only question remaining was the question of interest. The 
 defendants were found to be connected with the expedition, with 
 knowledge of the circumstances and with designs to promote it. 
 
 In the United States v. the "Mary N. Hogan"^ it was held 
 that an expedition organized and despatched from the ports of the 
 United States in separate parts, to be united at a common 
 rendezvous on the high seas, and to proceed thence to Hayti in 
 completion of the original hostile purpose against a friendly 
 
 1 17 Fed. Rep., 142 (1883). 
 
 2 i8 Fed. Rep., 529 (1883). 
 
CAPTURE AND CONDEMNATION 485 
 
 Power, was within the prohibition of section 5283 of the Revised 
 Statutes. 
 
 The " Mary N. Hogan" was on 20 July, 1883, seized on the 
 ground of being concerned in an illegal expedition. At the time 
 of her seizure there were no arms, ammunition, or warlike appli- 
 ances on board, and she was wholly unadapted for effective naval 
 operations against any considerable organized opposition. But 
 on the other hand, it was proved that the vessel was purchased in 
 New York by persons interested in the Haytian insurrection, and 
 there fitted out for sea, and that simultaneously a large quantity of 
 arms and ammunition were bought by the same persons and des- 
 patched on board the schooner "Erwin" with instructions and 
 preconcerted signals for transferring them near Hampton Roads 
 to the " Mary N. Hogan." 
 
 The evidence, said Brown, J., left no doubt in his mind that the 
 vessel was fitted out for the purpose of receiving near the 
 Hampton Roads the $7000 worth of arms and ammunition which 
 had been despatched by the "Erwin" to that rendezvous two days 
 before, and of proceeding thence to Hayti in aid of the insurgents 
 there in the various ways for which she was suited. 
 
 The sequel to this case was the United States v. Two Hundred 
 and Fourteen Boxes of Arms, Ammunition, and Munitions of War 
 and United States v. One Hundred and Forty Kegs of Gun- 
 powder.^ The " Mary N. Hogan " having failed to meet the 
 " Erwin," the latter proceeded on her voyage to Richmond, where 
 she discharged her legitimate cargo, but was arrested with the 
 munitions of war under section 5283 of the Revised Statutes. 
 The goods were condemned in both cases. 
 
 The " Carondelet "^ was seized on 6 February, 1889, and 
 charged with violation of section 5283 of the Revised Statutes, 
 inasmuch as she was loaded with cannon, arms, and ammunition 
 and other material of war with intent to enter into the service of 
 a certain district and people of Hayti, to wit, certain rebels in 
 insurrection against the organized and recognized Government of 
 Hayti, and to commit hostilities against the subjects, citizens, and 
 property of that Republic, and fitted out and armed within this 
 district with that intent. 
 
 This vessel had been chartered by the Consul of the Dominican 
 Government to carry a cargo of arms to Samana in the Dominican 
 Republic, deliverable as per bill of lading to the representatives of 
 that Government. The allegation was that the vessel and arms 
 were designed to aid Hippolyte as against Legitime in the struggle 
 for supremacy in Hayti. 
 
 > 20 Fed. Rep., 50 (1884). 
 2 37 Fed. Rep., 799(1"" " 
 
486 COMMERCE IN WAR 
 
 " This," said Brown, J., " was not a case even of insurrection against a 
 recognized Power. In August, 1888, the existing Government in Hayti 
 was overthrown, the President being deposed and banished. As stated in 
 President Cleveland's message of 3 December, 1888, the country has since 
 then been in a state of anarchy, in which there is a struggle of warring 
 factions, neither of which is recognized by the United States as constitut- 
 ing any responsible Government. Section 5283 is designed in general to 
 secure our neutrality between belligerent Powers, But there can be no 
 obligation of neutrality except towards some recognized State and Power 
 de jure or de facto. Neutrality presupposes at least two belligerents, and 
 as respects any recognition of belligerency, i.e. of belligerent rights, the 
 judiciary must follow the executive. To fall within the statute, the vessel 
 must be intended to be employed in the service of one foreign prince. 
 State, colony, district, or people to cruize or commit hostilities against the 
 subjects, citizens, or property of another with which the United States are 
 at peace. The United States can hardly be said to be ' at peace,' in the 
 sense of the statute, with a faction which they are unwilling to recognize 
 as a Government ; nor could the cruizing or committing hostilities against 
 such a mere faction well be said to be committing hostilities against the 
 ' subjects, citizens, or property of a district or people ' within the meaning 
 of the statute. So, on the other hand, a vessel in entering the service of 
 the opposite faction of Hippolyte could hardly be said to enter the service 
 of a foreign ' prince, or State, or of a colony, district, or people ' unless our 
 Government had recognized Hippolyte's faction as at least constituting a 
 belligerent, which it does not appear to have done. In view of the Presi- 
 dent's message, neither the party of Hippolyte nor that of Legitime con- 
 stitutes the ' Republic of Hayti,' or represents the Government or a district 
 or the people of Hayti." 
 
 Moreover, the learned judge was satisfied upon the evidence 
 that the " Carondelet" was designed only to transport arms to the 
 order of the Dominican Government in the ordinary course of 
 their trade. 
 
 " When it appears," said Mr. Justice Brown, " that the transaction is an 
 official one in behalf of an independent Government with which our own 
 Government is at peace, and that Government is the bona fide consignee 
 at one of its own ports, it must require a very clear case to justify arrest 
 and condemnation, even if it could be lawfully done at all, whatever the 
 ulterior purpose of that Government might be. It is no part of the design of 
 our statute to enforce neutrality upon other States. There is no need of any 
 statute of neutrality for such a purpose nor appropriateness in an applica- 
 tion of it, since every recognized Power is presumed to be responsible for 
 what it does and for what it permits to be done within its own jurisdic- 
 tion. When the arming is on the high seas through another vessel, proof 
 that both were despatched from our ports as parts of a concerted scheme m.ade 
 here is justly held proof of ' an attempt within the limits of our jurisdic- 
 tion to fit out and arm ' the vessel with intent to commit hostilities, and 
 hence within the statute. That construction is necessary to avoid easy 
 and manifest evasions of neutrality ; for arming on the high seas is not 
 an act within the limits of any other jurisdiction. No other State has any 
 power, control, or responsibility in the matter ; but our own ports become 
 
CAPTURE AND CONDEMNATION 487 
 
 in such cases the real base of hostile operations. It is otherwise when the 
 arming is designed to be in a foreign port, and under the observation, the 
 control, and the responsibility of another Government. That is not an 
 attempt here to fit out and arm the vessel, but only an attempt to send her 
 to a foreign port for arming. The statute does not include that, and ought 
 not to be extended to such a case. There is no precedent and no 
 sufficient reason for it. Still more should a bona fide delivery to an 
 independent Government be deemed to end the adventure so far as our 
 merchants are concerned. Subsequent acts under the authority or per- 
 mission of that Government are too remote for the operation of our 
 statute. And when such a bona fide delivery alone is the design of the 
 owner and shipper, the adventure is commercial only, and there is no 
 violation of section 5283, whether the articles are contraband or the vessels 
 are armed or unarmed." 
 
 The "Conserva"^ was libelled for a violation of the neutrality 
 laws under section 5283 of the Revised Statutes. It was held by 
 Judge Benedict that the fact must be established that the Govern- 
 ment against which it was alleged that the vessel was intended to 
 commit hostilities had been recognized by the United States, and 
 that the words of the section did not include factions engaged in 
 insurrection who were not so recognized as belligerents. 
 
 " This prosecution," said the learned judge, " must fall for want of 
 proof that either Hippolyte or Legitime has been recognized by our own 
 Government as belligerent Powers. In the absence of proof of that fact, 
 the fitting out of a vessel with intent to enter the service of one to 
 commit hostilities against the other is not brought within the scope of the 
 statute." 
 
 In the United States v. Trumbull,^ Trumbull and Burt were 
 indicted for violation of the neutrality laws under sections 5283, 
 5285, and 5286 of the Revised Statutes. 
 
 In January, 1891, the " Itata," a merchant vessel, was captured 
 at Valparaiso, Chile, by the "Congressional Party," which was 
 engaged in attempting to overthrow the Government of Chile, of 
 which Balmaceda was head. The " Itata " was converted into a 
 transport, armed with four small cannon, and despatched to San 
 Francisco for arms and munitions of war. She was accompanied 
 by the Congressional warship " Esmeralda," and at one of the 
 Chilian ports took on board some soldiers with their arms. At 
 San Diego the " Itata " hauled down her jack and pennant ; the 
 cannon and the soldiers' arms were stowed in the hold, the soldiers 
 removed their uniforms and appeared in civilian dress, and coal 
 and provisions were laid in. Meanwhile, the arms and ammunition 
 were brought from San Francisco to Catalina Island to meet the 
 " Itata." Suspicions having been aroused, the latter was ordered 
 
 1 38 Fed. Rep., 431 (1889). 
 
 2 48 Fed. Rep., 99 (189 1.) 
 
488 COMMERCE IN WAR 
 
 to be detained, but on 6 May, having learned that the arms were 
 waiting, the " Itata " steamed out of San Diego without obtaining 
 clearance papers and with the marshal's officer on board, and on 
 the 9th the arms and ammunition were transferred to her near 
 San Clement's Island and carried to Chile. 
 
 " There is nothing in the evidence," said Ross, J., " tending to show that 
 any of the arms or ammunition were intended for use by the ' Itata.' On 
 the contrary, the whole case shows that the defendants caused them to be 
 put on board of her with the intention that she should transport them to 
 Chile for the use of the insurrectionary party there. This does not con- 
 stitute the fitting out, arming, or furnishing of the ' Itata ' with intent that 
 she should be employed to cruise or commit hostilities in the service of the 
 insurrectionary party against the then Government of Chile. In principle 
 the case is, I think, like that of the ' Florida.'" 
 
 The case does not therefore fall within section 5283. Neither 
 does it fall within sections 5285 and 5286. Counsel for the 
 United States had admitted that the case did not come within 
 section 5285. 
 
 " If the evidence," said the learned judge, " shows that in this case there 
 ever was any military expedition begun or set on foot or provided or pre- 
 pared for within the sense of this statute, it was begun, set on foot, 
 provided, and prepared for in Chile, and was to be carried on from Chile and 
 not from the United States. But I think it perfectly clear that the sending 
 of a ship from Chile to the United States, to take on board arms and am- 
 munition purchased in this country and carry them back to Chile is not the 
 beginning, setting on foot, providing, or preparing the means for any 
 military expedition or enterprise within the meaning of section 5286." 
 
 Hendricks v. Gonzalez^ was an action by Gonzalez against 
 Hendricks, collector of the port of New York, to recover damages 
 for detaining the steamer " South Portland," of which the plaintiff 
 was charterer. Upon the information of the Minister of Venezuela 
 that the vessel was to leave with arms for the rebels in that 
 country, the collector, acting upon the instructions of the Secretary 
 of the United States Treasury, had detained the vessel. It 
 appeared that the " South Portland " was an ordinary merchant- 
 man ; that her cargo consisted entirely of arms and munitions of 
 war, that the charterer was in sympathy with the rebels, and that 
 she was bound for a port near the seat of hostilities, but that she 
 was not at the time manned or in a state of preparation for warlike 
 operations. 
 
 It was held first, that the collector was not justified in refusing 
 a clearance, although he acted under instructions from the 
 Secretary of the Treasury, unless such instructions were authorized 
 by law. Secondly, that the vessel was not " manifestly built for 
 
 1 67 Fed. Rep., 351 (1895). 
 
CAPTURE AND CONDEMNATION 489 
 
 warlike purposes," was not manned for warlike operations, and 
 was not intended " to cruise or commit hostilities," or engage 
 m naval warfare against the subjects or property of a friendly 
 Power. 
 
 " It is not enough," said Wallace, J., " that it was the purpose of her 
 intended voyage to transport arms and munitions of war for the use of 
 the insurrectionary party in Venezuela." 
 
 During the disturbances in Cuba in 1895, a Proclamation of 
 Neutrality was published 12 June warning citizens of the United 
 States from accepting or exercising commissions for warlike 
 service against the Spanish Government by enlistment, or pro- 
 curing others to enlist for such service, by fitting out or arming or 
 procuring to be fitted out any armed ships of war for such service, 
 by augmenting the force of any ship of war engaged in such 
 service and arriving in a port of the United States, and by setting 
 on foot or providing or preparing the means for military enter- 
 prises to be carried on from the United States.^ 
 
 And in his annual message of 2 December, the President 
 said : — 
 
 "Cuba is again gravely disturbed. An insurrection, in some respects 
 more active than the last preceding revolt, which continued from 1868 to 
 1878, now exists in a large part of the eastern interior of the island, 
 menacing some populations on the coast. Besides deranging the com- 
 mercial exchanges of the island, of which our country takes the 
 predominant share, this flagrant condition of hostilities, by arousing 
 sentimental sympathy and inciting adventurous support among our 
 people, has entailed earnest effort on the part of this Government to 
 enforce obedience to our neutrality laws and to prevent the territory of 
 the United States from being abused as a vantage ground from which to 
 aid those in arms against Spanish sovereignty. 
 
 "Whatever may be the traditional sympathy of our countrymen as 
 individuals with a people who seem to be struggling for larger autonomy 
 and greater freedom, deepened as such sympathy naturally must be in 
 behalf of our neighbours, yet the plain duty of their Government is to 
 observe in good faith the recognized obligations of international relation- 
 ship. The performance of such duty should not be made more difficult 
 by a disregard on the part of our citizens of the obligations growing out 
 of their allegiance to their country, which should restrain them from 
 violating as individuals the neutrality which the nation of which they are 
 members is bound to observe in its relation to friendly sovereign States. 
 Though neither the warmth of our people's sympathy with the Cuban in- 
 surgents, nor our loss and material damage consequent upon the futile 
 endeavours thus far made to restore peace and order, nor any shock our 
 humane sensibilities may have received from the cruelties which appear 
 to especially characterize this sanguinary and fiercely conducted war, have 
 in the least shaken the determination of the Government to honestly 
 
 » State Papers, LXXXVII, 733. 
 
490 COMMERCE IN WAR 
 
 fulfil every international obligation, yet it is to be earnestly hoped on 
 every ground that the devastation of armed conflict may speedily be 
 stayed and order and quiet restored to the distracted island, bringing in 
 their train the activity and thrift of peaceful pursuits." 
 
 A military expedition or enterprise within the meaning of 
 section 5286 of the Revised Statutes, was defined in Wiborg v. 
 United States ^ by the Supreme Court as a combination of men 
 organized in the United States for the purpose of proceeding to 
 and making war upon a foreign Government with which the 
 United States were at peace, and provided with arms to be used 
 for such purpose. 
 
 In this case a body of men went on board a tug loaded with 
 arms and were carried by it thirty or forty miles out to sea, where 
 they met a steamer by prior arrangement, boarded her with the 
 arms, opened the boxes and distributed the arms among them- 
 selves, drilled to some extent, and were apparently officered. 
 Then, as prearranged, they effected an armed landing on the 
 coast of Cuba. 
 
 " The men and the arms," said Fuller, C.J., " came together ; the arms 
 and ammunition were under the control of the men ; the elements of the 
 expedition were not only ' capable of proximate combination into an 
 organized whole,' ^ but were combined or in process of combination; 
 there was concert of action ; they had their own pilot to the common 
 destination ; they landed themselves and their munitions of war by 
 their own efforts. It may be that they intended to separate when they 
 reached the insurgent headquarters, but the evidence tended to show 
 that until that time they intended to stand together and defend them- 
 selves if necessary. From that evidence the jury had a right to find 
 that this was a military expedition or enterprise under the statute, 
 and we think that the Court properly instructed them on the subject. 
 
 In the United States v. Pena,^ the evidence showed that on 
 29 August, 1895, the defendants assembled in Wilmington, and 
 under cover of night went on board the tug-boat "Taurus" with 
 twenty-seven boxes of freight, some of which had been brought 
 from Philadelphia and others from Wilmington. The captain 
 was ordered by De Soto, one of the defendants, to go out into 
 the Delaware river, and to steam up and down between the 
 mouth of the Christiania and Gordon Heights until he should 
 hear the signal of three whistles from a steamship outward 
 
 1 163 U.S., 632 ; 16 Sup. Ct. Rep., 1127, 1197 (1895). 
 
 ^ Hall's " Rights and Duties of Neutrals," sec. 22. " In the case of an expedition 
 being organized in and starting from neutral ground, a violation of neutrality may take 
 place without the men of whom it is composed being armed at the moment of leaving. 
 ... On the other hand, the uncombined elements of an expedition may leave a neutral 
 State in company with one another provided they are incapable of proximate combination 
 into an organized whole." 
 
 3 69 Fed. Rep., 983 (1895). 
 
CAPTURE AND CONDEMNATION 491 
 
 bound, when he was to run alongside and tranship the boxes. 
 No steamship appearing, at the request of the defendants some of 
 them with their boxes of freight and personal effects were landed 
 at Pennsgrove, in New Jersey. But as the " Taurus " was 
 leaving the pier, the " Meteor," with the marshal on board, 
 appeared. The boxes were seized, replaced on the " Taurus," 
 the defendants arrested and charged under section 5286 of the 
 Revised Statutes. It was held that a military expedition or 
 enterprise, within the statute, means a military organization of 
 some kind, designated as infantry, cavalry, or artillery, officered 
 and equipped, or ready to be officered and equipped, for active 
 hostilities ; and preparing the means for such an organization 
 would come within the statute, but to complete the offence it 
 must be shown that the expedition was to be carried on from 
 thence against the dominions or territory of a foreign State ; 
 and the mere fact that persons of the same nationality as those 
 carrying on an insurrection in a foreign State, with which such 
 persons are believed to be in sympathy, have gathered arms 
 and prepared to ship them secretly and under suspicious cir- 
 cumstances, is not alone sufficient for the conviction of such 
 persons under the statute, without proof that such persons have 
 set on foot a military expedition within the United States against 
 such foreign State. 
 
 In the United States v. Hughes,^ it appears that the defendant 
 was captain of the " Laurada," which left New York on 21 
 October, 1895, ^.nd after passing Sandy Hook was joined by 
 two tugs, bringing her thirty-five men, some boxes, and three 
 small boats. Shortly after these had come aboard, the boxes were 
 opened, and guns, pistols, and machettes served out, and the 
 " Laurada " proceeded on her voyage, during which the men 
 were drilled. On approaching Cuba her lights were ex- 
 tinguished, and the men landed with their arms in the boats. 
 It was held that there was probable cause to believe that 
 Hughes had violated the statute by providing or preparing 
 the means for a military expedition to be carried on against a 
 foreign State, and that he must be committed for trial. 
 
 In the United States v. Hart,^ the defendants were charged with 
 violating the neutrality laws, by beginning, setting on foot or 
 preparing for, a military expedition or enterprise from New York 
 against Spain, in aid of the Cuban insurgents. The " Bermuda " 
 was arrested just before she was about to sail with sixty men on 
 board, who were neither armed, equipped, nor officered. There 
 was no proof, except the doubtful testimony of one witness 
 
 ' 70 Fed. Rep., 972 (1895). 
 
 2 74 Fed. Rep., 724 (April, 1896). 
 
492 COMMERCE IN WAR 
 
 belonging to the party, of any intent on the part of the men to go 
 to Cuba and join the army there. There were no arms on board. 
 
 The jury were instructed (i) that it was no offence for individuals, 
 singly or in company and in any way they chose, to go abroad for 
 the purpose of enlisting in a foreign army, provided they did not 
 in the United States enlist in or set on foot or prepare any military 
 expedition or enterprise ; (2) that such an expedition or enterprise 
 to come within section 5286 as one "carried on from this country" 
 must consist of some body of persons designing to act together in 
 a military way, and possess at the start from this country some 
 element of a military character beyond the mere intent to enlist 
 individually after arrival in Cuba ; (3) that it is not necessary that it 
 should possess all the elements of a military body at the start, but 
 it is sufficient if there was a combination of men for that purpose, 
 with the intent that it should become so before reaching the scene 
 of action ; (4) that it is not unlawful to transport peaceably and 
 by an unarmed vessel a body of men as individuals to Cuba who 
 wish to enlist there, and such transportation does not constitute 
 a providing of the means for a military expedition or enterprise 
 unless there is some enlistment or combination or agreement of the 
 men to act in some way as a military body, or the use of some 
 military force is contemplated, if necessary, in order to reach the 
 insurgent army. 
 
 The United States v. O'Brien^ formed part of the same offence 
 as the last case. O'Brien was the captain of the "Bermuda," Murphy 
 the mate, and Nunez the supercargo. These defendants were 
 charged with violating the neutrality laws by taking part in the 
 preparation and transportation of a hostile military expedition 
 against Spain in the island of Cuba under sections 5282 and 
 5286 of the Revised Statutes. 
 
 The charge to the jury by the District Judge laid down the same 
 principles as those relied upon by him in the last case. He 
 particularly emphasized the point that mystery and secrecy in the 
 preparation and conduct of such enterprises- — even the taking of 
 a false oath by the master in connexion with the clearance papers 
 — were not conclusive of the illegality of tke enterprise, inasmuch 
 as the transportation of passengers and merchandise in a perfectly 
 lawful way would be accompanied with danger. It was, therefore, 
 only the part of prudence to take all the means of secrecy possible 
 to prevent the anticipation and thwarting of the enterprise by the 
 foreign Power affected. Such precautions are as consistent with 
 legality as illegality, and the mere fact of secrecy or mystery which 
 might surround such enterprises does not of itself give them an 
 unlawful character. 
 
 1 75 Fed. Rep., 900 (July, 1896). 
 
CAPTURE AND CONDEMNATION 493 
 
 The jury disagreed upon the facts. 
 
 By the President's Proclamation of Neutrality of 27 July, 1896, 
 the citizens of the United States were again warned not to act in 
 contravention of the neutrality laws of the United States, and 
 their attention was expressly called to the recent judicial interpre- 
 tation of "a military expedition or enterprise,"^ But there was 
 no recognition of any responsible insurgent Government. On 
 the contrary, the President in his message of 7 December said : — 
 
 " As the contest has gone on, the pretence that civil government exists 
 on the island, except so far as Spain is able to maintain it, has been 
 practically abandoned. Spain does keep on foot such a government more 
 or less imperfectly in the large towns and their immediate suburbs. But 
 that exception being made, the entire country is either given over to 
 anarchy or is subject to the military occupation of one or the other party. 
 It is reported, indeed, on reliable authority, that at the demand of the 
 Commander-in-Chief of the insurgent army, the putative Cuban Govern- 
 ment has now given up all attempt to exercise its functions, leaving that 
 Government confessedly (but there is the best reason for supposing it 
 always to have been in fact) a Government merely on paper. . . . But 
 imperfect and restricted as the Spanish government of the island may be, 
 no other exists there — unless the will of the military officer in temporary 
 command of a particular district can be dignified as a species of govern- 
 ment." 
 
 The steamer "Three Friends"* was seized 7 November, 1896, 
 and libelled with being on 23 May, 1896, furnished, fitted out, 
 and armed, with intent to be employed in the service of certain 
 Cuban insurgents, to cruise and commit hostilities against the 
 subjects, citizens, and property of the King of Spain, in the 
 island of Cuba, with whom the United States are and were at 
 that date at peace, under section 5283 of the Revised Statutes. 
 The case was held by the District Judge not to come within the 
 Statute, since it was not alleged that the vessel had been fitted 
 out with intent to be employed in the service of a " people " 
 recognized as such by the political power of the United States. 
 
 In delivering the judgment of the Supreme Court, Chief 
 Justice Fuller defined neutrality as consisting of — 
 
 "abstinence from any participation in a public or private or civil war, 
 and in impartiality of conduct towards both parties, but the maintenance 
 unbroken of peaceful relations between two Powers when the domestic 
 peace of one of them is disturbed, is not neutrality in the sense in which 
 the word is used when the disturbance has acquired such head as to have 
 demanded the recognition of belligerency. And as mere matter of 
 municipal administration, no nation can permit unauthorized acts of war 
 within its territory in infraction of its sovereignty, which good faith 
 towards friendly nations requires their prevention." 
 
 1 State Papers, Vol. LXXXVIII, 845. 
 
 2 166 United States Rep., I (1897). 
 
494 COMMERCE IN WAR 
 
 Upon the question of recognition, the learned judge, referring 
 to the language of the Statute, observed : " But there is nothing in 
 all this to indicate that the words 'colony, district or people' 
 had reference solely to communities whose belligerency had been 
 recognized, and the history of the times . . . does not sustain 
 the view that insurgent districts or bodies unrecognized as 
 belligerents were not intended to be embraced. On the contrary, 
 the reasonable conclusion is that the insertion of the words 
 ' district or people ' should be attributed to the intention to include 
 such bodies as, for instance, the so-called Oriental Republic of 
 Artigas and the Governments of Pdtion and Christophe, whose 
 attitude had been passed by the Courts of New York more than 
 a year before in Gelston v. Hoyt,^ which was then pending in 
 this Court on a writ of error." There was no reason why they 
 should not have been included, and it is to the extended enumera- 
 tion as covering revolutionary bodies laying claim to rights of 
 sovereignty, whether recognized or unrecognized, that Chief 
 Justice Marshall manifestly referred to in saying in the " Gran 
 Para,"^ that the Act of 1817 
 
 "adapts the previous laws to the actual situation of the world. At 
 all events, Congress imposed no limitations on the words ' colony, district 
 or people,' by requiring political recognition. 
 
 "Of course, a political community whose independence has been 
 recognized is a ' State ' under the Act ; and if a body embarked in a 
 revolutionary political movement, whose independence has not been, but 
 whose belligerency has been, recognized, is also embraced by that term, 
 then the words ' colony, district or people,' instead of being limited to a 
 political community which has been recognized as belligerent, must 
 necessarily be held applicable to a body of insurgents associated together 
 in a common political enterprise and carrying on hostilities against the 
 parent country in the effort to achieve independence, although recognition 
 of belligerency has not been accorded. 
 
 " And as agreeably to the principles of international law and the 
 reason of the thing, the recognition of belligerency, while not conferring 
 all the rights of an independent State, concedes to the Government 
 recognized rights and imposes upon it the obligations of an independent 
 State in matters relating to the war being waged, no adequate ground is 
 perceived for holding that acts in aid of such a Government are not in aid 
 of a State in the sense of the statute. 
 
 " Contemporaneous decisions are not to the contrary, though they 
 throw no special light upon the precise question." 
 
 After referring to Gelston v. Hoyt,^ the "Estrella,"* the 
 " Nueva Anna and Liebre,"* the "Gran Para,"* in the latter of 
 which cases Chief Justice Marshall referred to Buenos Ayres as a 
 
 ' 13 Johns., 141, 561. 2 7 Wheat., 471, 489. 
 
 3 3 Wheat, 246. « 4 Wheat, 298. 
 
 s 6 Wheat, 193. 87 Wheat, 471. 
 
CAPTURE AND CONDEMNATION 495 
 
 State within the meaning of the Act of 1794, the learned judge 
 continued : — 
 
 "Even if the word 'State' as previously employed admitted of a less 
 liberal signification, why should the meaning of the words ' colony, district 
 or people ' be confined only to parties recognized as belligerent ? Neither 
 of these words is used as equivalent to the word ' State,' for they were 
 added to enlarge the scope of a statute which already contained that 
 word. The statute does not say foreign colony, district or people, nor 
 was it necessary, for the reference is to that which is part of the dominion 
 of a foreign prince or State, though acting in hostility to such prince or 
 State. Nor are the words apt if confined to a belligerent. As argued by 
 counsel for the Government, an insurgent colony under the Act is the 
 same before as after the recognition of belligerency, as shown by the 
 instances of the colonies of Buenos Ayres and Paraguay, the belligerency 
 of one having been recognized but not that of the other, while the statute 
 was plainly applicable to both. Nor is district an appropriate designation 
 of a recognized Power de facto, since such a Power would represent not 
 the territory actually held, but the territory covered by the claim of 
 sovereignty. And the word ' people,' when not used as the equivalent of 
 State or nation, must apply to a body of persons less than a State or 
 nation, and this meaning would be satisfied by considering it as applicable 
 to any consolidated political body." 
 
 The United States v. Quincy^ was next cited as showing that 
 the word " people," as used in the indictment, was merely descrip- 
 tive of the Power in whose service the vessel was intended to be 
 employed, and was one of the denominations applied by the Act 
 of a foreign Power. Any obscurity in the word as applied to a 
 recognized Government was ended by the words which followed : 
 " that is to say, in the service of the United Provinces of Rio de 
 la Plata." 
 
 Nesbitt V. Lushington,^ continued the learned judge — 
 
 "was an action on a policy of insurance in the usual form, and 
 among the perils insured against were ' pirates, river thieves,' and ' arrests, 
 restraints, and detainments of all kings, princes, and people of what nation, 
 condition, or quality soever.' The vessel with a cargo of corn was driven 
 into a port, and was seized by a mob who assumed the government of her 
 and forced the captain to sell the corn at a low price. It was ruled that 
 this was a loss by pirates, and the maxim noscitur a sociis was applied by 
 Lord Kenyon and Mr. Justice Buller. 
 
 " Mr. Justice Buller said, ' people ' means ' the supreme power ' ; ' the 
 power of the country,' whatever it may be. This appears clear from 
 another part of the policy ; for where the underwriters insure against the 
 wrongful acts of individuals, they describe them by the names of ' pirates, 
 rogues, theives'; then having stated all the individual persons against 
 whose acts they engage, they mention other risks, those occasioned by the 
 acts of ' kings, princes, and people of what nation, condition, or quality 
 soever.' Those words, therefore, must apply to nations in their collective 
 
 capacity. 
 
 1 6 Pet., 445- ' 4 T.R., 783. 
 
496 COMMERCE IN WAR 
 
 "As remarked in the brief of Messrs. Richard H. Dana, jun., & Horace 
 Gray, jun., filed by Mr. Gushing in Mauran v. Insurance Co.,^ the words 
 'were doubtless originally inserted with the view of enumerating all 
 possible forms of government — monarchical, aristocratical, and demo- 
 cratic' " 
 
 In pointing out the substantial correspondence of the seventh 
 section of the Act of George III with the third section of the 
 American Act of 1818, the learned judge said that the terms 
 of the English statute were considerably broader and left less to 
 construction. 
 
 After citing Lord Cairns's observations in the " Salvador." ^ the 
 Chief Justice said : — 
 
 " We regard these observations as entirely apposite, and while the word 
 ' people ' may mean the entire body of the inhabitants of a State, or the 
 State or nation collectively in its political capacity ; or the ruling power of 
 the country ; its meaning in this branch of the section, taken in connexion 
 with the words ' colony ' and ' district,' covers in our judgment any in- 
 surrectionary ' body of people, acting together, understanding and conducting 
 hostilities, although its belligerency has not been recognized! Nor is this view 
 otherwise than confirmed by the use of the same words in the succeeding 
 part of the sentence, for they are there employed in another connexion — 
 that is, in relaition to the cruising or the commission of hostilities, ' against 
 the subjects, citizens, or property of any foreign prince, or State, or of 
 any colony, district, or people with whom the United States are at peace ' ; 
 and as thus used are affected by obviously different considerations. If 
 the necessity of recognition in respect of the objects of hostilities by sea 
 or land were conceded, that would not involve the concession of such 
 necessity in respect of those for whose service the vessel is fitted out. 
 
 " Any other conclusion rests on the unreasonable assumption that the 
 Act is to remain ineffectual unless the Government incurs the restraints 
 and liabilities incident to an acknowledgment of belligerency. On the one 
 hand, pecuniary demands, reprisals, or even war may be the consequence 
 of failure in the performance of obligations towards a friendly Power ; 
 while, on the other hand, the recognition of belligerency involves the rights 
 of blockade, visitation, search, and seizure of contraband articles on the 
 high seas, and abandonment of claims for reparation on account of 
 damages suffered by our citizens from the prevalence of warfare. 
 
 " No intention to circumscribe the means of avoiding the case by 
 imposing as a condition the acceptance of the contingencies of the other 
 can be imputed. 
 
 " Belligerency is recognized when a political struggle has attained a 
 certain magnitude and affects the interests of the recognizing Power ; and 
 in the instance of maritime operations, recognition may be compelled, or 
 the vessels of the insurgents, if molesting third parties, may be pursued as 
 pirates.* 
 
 " But it belongs to the political department to determine when belligi- 
 rency shall be recognized, and its action must be accepted according to the 
 terms and intention expressed. 
 
 1 6 Wall., I. 2 L.R., 3 P.C, 218 ; ante, p. 442. 
 
 3 The "Ambrose Light," 25 Fed. Rep. 408 ; 3 Whart., "Dig." Int. Law, sec. 381. 
 
CAPTURE AND CONDEMNATION 497 
 
 " The distinction between recognition of belligerency and recognition 
 of a condition of political revolt, between recognition of the existence of 
 war in a material sense and of war in a legal sense, is sharply illustrated 
 by the case before us. For here the political department has not recog- 
 nized the existence of a de facto belligerent Power engaged in hostility 
 with Spain, but has recognized the existence of insurrectionary warfare 
 prevailing before, at the time and since this forfeiture is alleged to have 
 been incurred." 
 
 In support of this statement the learned judge cited the 
 Proclamations and Messages of the President of 1895 ^•nd 1896 : — 
 
 " We are thus," he continued, "judicially informed of the existence of an 
 actual conflict of arms in resistance to the authority of a Government with 
 which the United States are on terms of peace and amity, although acknow- 
 ledgment of the insurgents as belligerents by the political department has 
 not taken place ; and it cannot be doubted that, this being so, the Act in 
 question is applicable. 
 
 " We see no justification for importing into section 5283, words which 
 it does not contain, and which would make its operation depend upon the 
 recognition of belligerency ; and the libel might have been drawn with 
 greater precision. We are of opinion that it should not have been dis- 
 missed." 
 
 Upon the question of whether a vessel ought to be released 
 before hearing upon bond or stipulation, the Court found that, 
 although there was a discretion under rule 1 1 of section 9 1 7 of 
 the Revised Statues, the rule should not be applied when the 
 object of the suit was not the enforcement of any money demand 
 nor to secure any payment of damages, but to take possession of 
 and forfeit the vessel herself, in order to prevent her departure 
 upon an unlawful expedition in violation of the neutrality laws of 
 the United States. In the "Mary N. Hogan,"^ Judge Bacon said: — 
 
 " It is clearly not the intention of section 5283, in imposing forfeiture, 
 to accept the value of the vessel as the price of a hostile expedition 
 against a friendly Power, which might entail a hundredfold greater 
 liabilities on the part of the Government. No unnecessary interpretation 
 of the rules should be adopted which would permit that result ; and yet 
 such might be the result, and even the expected result, of a release of the 
 vessel on bond. The plain intent of section 5283 is effectually to prevent 
 any such expedition altogether, through the seizure and forfeiture of the 
 vessel herself. The Government is, therefore, entitled to retain her in 
 custody, and rule 1 1 cannot be properly applied to such a case." ^ 
 
 Section 5283 came under consideration in the case of the 
 "Laurada,"^ when it was held that the intent must be formed 
 within the limits of the United States. 
 
 1 17 Fed. Rep., 813 ; ante, p. 484. 
 
 2 See also SS., 938, 941 Rev. Statutes; The "Alligator," i Gall. 145 (1812); the 
 " Struggle," I Gall. 476 (1813), and the United States v. Ames, 99 U.S. Rep., 35. 
 
 3 98 Fed. Rep., 983 (1900). 
 
 2 K 
 
498 COMMERCE IN WAR 
 
 " To render the acts enumerated in this section unlawful," it was said, 
 " it is requisite that they should be done with intent that the vessel should 
 be employed to cruise or to commit hostilities, and that intention must be 
 formed within the limits of the United States. There is no evidence 
 whatever from which it could be inferred that at the time the ' Laurada ' 
 left this country an intent to employ her for either of these purposes 
 existed, and it is not necessary to decide whether the landing by her of 
 the expedition on the shore of Cuba was or was not a hostile act, for this 
 was done in pursuance of an intent which was not formed until after the 
 original purpose had been executed ; and the theory under which a vessel 
 afloat is, for some purposes, identified with the country to which it belongs, 
 cannot be so applied as to expand the plain and ordinary meaning of the 
 phrase ' within the limits of the United States ' as it is used in this 
 statute." 
 
 Ship's Papers. — Where the ship's papers (i) are false, or 
 (2) are concealed, spoiled, or destroyed with a view to deceive, 
 such ship may be captured and brought in for adjudication. 
 
 False papers : False or double papers invariably constitute a 
 sufficient justification for bringing a vessel in for adjudication, but 
 the practice as to condemnation varies. 
 
 In the case of the " Phoenix,"^ the ship and cargo were 
 ostensibly bound from Guadeloupe to Altona, but were found by 
 the Court to be engaged in the colonial trade between the colony 
 and the mother-country of the enemy. In condemning the ship 
 and cargo. Sir William Scott declared that he had not a doubt that 
 this was a voyage originally to Bordeaux under a false and 
 colourable destination, and that there never was any intention of 
 going to Altona. 
 
 But the possession of false or double papers does not 
 necessarily involve confiscation of ship or cargo. 
 
 " The use of false papers," says Mr. Duer, " although in all cases morally 
 wrong, is not in all cases a subject of legal animadversion in a court of 
 prize. Such a court has no right to consider the use of papers as 
 criminal, where the sole object is to evade the municipal regulations of a 
 foreign country or to avoid a capture by the opposite belligerent. The 
 falsity is only noxious where it certainly appears, or is reasonably pre- 
 sumed that the papers were framed with an express view to deceive the 
 belligerent by whom the capture is made, so that, if admitted as genuine, 
 they would operate as a fraud on the rights of the captors. It is not 
 sufficient that the papers disclose the most disgusting preparations of 
 fraud in relation to a different voyage or transaction. The fraud must 
 certainly or probably relate to the voyage or transaction which is the 
 immediate subject of investigation." ^ 
 
 The " Eliza and Katy " ' was the case of a ship under American 
 colours on a voyage from Philadelphia to Rotterdam. She was 
 
 1 3 Rob., 186 (1800). 
 
 2 "On Insurance," Vol. I, p. 738. 
 
 3 6 Rob., 185. 
 
CAPTURE AND CONDEMNATION 499 
 
 captured and brought in by the privateer " Polecat," but after 
 having been restored by consent, was proceeding on her voyage 
 to Rotterdam with a sentence of restitution on board when she 
 was seized by H.M.S. "Ariadne" and brought in for adjudica- 
 tion. In pronouncing a decree of restitution of the ship and 
 cargo, Sir William Scott declared that although the papers dis- 
 closed the most disgusting preparations of fraud, and although the 
 owners of the property had been detected in the meditation of 
 fraud, yet since the fraud was not directed to the present voyage 
 but to some future transaction, there was no ground upon which 
 he could pronounce a sentence of condemnation. 
 
 But, on the other hand, taking all the circumstances into con- 
 sideration — the conduct of the parties — the fact that every person 
 of any authority connected with the ship and cargo — the master, 
 the supercargo, and the owners — were implicated in the same 
 intention of concerting fraud against the belligerent rights of 
 Great Britain, the learned judge mulcted the claimants in costs. 
 
 The "Eenrom"^ was the case of a ship taken on a voyage 
 from Batavia to Copenhagen on 27 December, 1798, by an 
 English cruiser. On the outward voyage the "Eenrom" had 
 cleared from Copenhagen to the East Indies with a cargo con- 
 sisting of articles which by treaty between Great Britain and 
 Denmark were contraband of war. These circumstances, although 
 suspicious, were not allowed by Sir William Scott to affect his 
 judgment. At Batavia a cargo was put on board ostensibly as 
 the property of Messrs. Fabritius and Wever, Danish merchants, 
 who were also ostensibly the owners of the vessel. Upon her 
 capture Messrs. Fabritius and Wever claimed the entire property 
 in the ship, and through Mr. Fabritius, the son and supercargo 
 on board the vessel, half the cargo as their property. But in the 
 invoice the whole cargo was described as the property of Fabritius 
 and Wever. In their evidence the master and the mate described 
 Fabritius and Wever as the entire proprietors, and Mr. Fabritius, 
 the son, as the shipper. The invoice was signed by the latter, 
 but in his evidence he admitted that one moiety of the cargo was 
 shipped by a Mr, Inglehart, a Dutchman, and "he supposed it to 
 have belonged to him or to some person for whom he acted." But 
 Inglehart's name did not appear in a single document. It was 
 objected that the invoice was not a paper of consequence, and 
 that the bill of lading is the document to which reference is usually 
 made. But, declared Sir William Scott, this is both : it is a bill of 
 lading as well as an invoice. Upon this part of the case Sir 
 William had no difficulty in concluding that it had been the 
 
 1 2 Rob., I (1799). 
 
500 COMMERCE IN WAR 
 
 intention of the supercargo to mislead British courts of justice 
 and British cruisers as to the property in the cargo, that his 
 principals were affected by such fraudulent intention, and that their 
 property must consequently be confiscated. The fraud was that 
 of a deliberate interfering in the war, an attempt to mask and 
 withdraw from the rights of a belligerent, the property of his 
 enemy, to the amount of one half of a most valuable cargo. 
 
 The following passage from the conclusion of the judgment is 
 highly important as showing the consequences of deceit, not only 
 in this particular case, but in the practice of the Court in extending 
 the privileges of further proof to claimants : — 
 
 " With respect to the ship," asked Sir William, " is the property in that 
 so proved as to support a claim for restitution without further proof? If 
 that could be maintained, I might perhaps allow it to be distinguished 
 from the other part of the case. But if further proof is necessary, it comes 
 to this question : Are persons so convicted of an attempt to impose on the 
 Court entitled to the privilege of further proof? The ship was built at 
 Batavia, and has been constantly trading from Batavia. It must have 
 been the property of Dutchmen ; and therefore, under any circumstances, a 
 bill of sale would be necessary ; and under the particular circumstances 
 which I have pointed out a bill of sale could hardly be deemed sufficient. 
 But a thicker cloud is raised over this part of the case from what appears 
 from a paper in the ' Nancy,' ^ which is signed by Inglehart, and states: ' I 
 shall accompany this with the accounts of the " Eenrom," of which Messrs. 
 Fabritius and Wever are sharers.' It is said that this applies to the cargo 
 only. It may be so : it is a possible explanation. But how can this be 
 proved ? It can only be by further proof. Again, there are many pas- 
 sages in which Mr. Inglehart seftns to assume great authority over the 
 conduct of the vessel. It is said that this was in consequence of a charter- 
 party, by which he had chartered the vessel. It may be so ; but this is a 
 matter of explanation only and of further proof, as it is left at present, on 
 the face of it, very ambiguous. There being the necessity of further proof, 
 have the parties placed themselves in a situation in which they are entitled 
 to a privilege of this kind ? It is a rule that I shall uniformly adhere to 
 till I am better instructed, that where a party has been convicted of an 
 attempt to impose on the Court in the same transaction, the privilege of 
 further proof shall be denied him as a privilege which is justly forfeited by 
 deception and fraud. I shall therefore pronounce both the ship and cargo 
 subject to condemnation." 
 
 The "Calypso"^ was also a case of an attempt by a neutral 
 to cover enemy's property which was mixed up with his own. 
 The vessel was on an asserted voyage from Cayenne to Hamburg, 
 and was claimed, together with the cargo, for Mr. Beckman and 
 Messrs. Ecchardt & Co. of St. Thomas. The ship's papers 
 
 1 The " Nancy" was under the management of the same parties, and when brought 
 in, it was discovered from her papers that Inglehart was concerned in the cargo of the 
 " Eenrom." Hence the limited claim of Mr. Fabritius and his tardy repentance. 
 
 2 2 Rob., 154(1799). 
 
CAPTURE AND CONDEMNATION 501 
 
 were found by Sir William Scott to be unverified ; the pass was 
 not that described by the master. The master being rejected as 
 perjured and the papers being unverified, with respect to the ship 
 it was at the best, said Sir William, a case for further proof 
 independently of any connexion with the cargo. 
 
 " But I do not think," he added, " that the Court is limited to this view 
 of the transaction only without considering the circumstances relating to 
 the cargo as they stand connected with the character and employment of 
 the vessel, because the use and occupation of a vessel are extremely 
 proper to be considered ; for if the whole of the res gestcz shows the 
 parties to have been habitually and throughout this transaction employ- 
 ing the ship in fraudulent purposes, it must very materially affect their 
 claim to further proof respecting the property of the ship. It has been 
 said that false papers will not by the law of this Court necessarily lead to 
 condemnation if the proof of property is clear, and that papers false as 
 to destination will not stand in the way of restitution under the practice 
 of the Admiralty of this country. It has been said also, and truly, that 
 the evidence respecting the cargo does not generally affect the ship ; as it 
 may frequently happen that the owners of the cargo will, from lust 
 of gain, put on board false papers without the knowledge or privity of 
 the owners of the ship. But it is a very different case when the ship and 
 cargo belong to the same persons ; and although I will not say that false 
 papers would, even in such a case, necessarily lead to the condemnation of 
 the ship, yet when the first case is only a case of further proof, false 
 papers put on board by the common owners of both ship and cargo 
 cannot but very materially affect their claim to that indulgence." 
 
 The whole circumstances of this case were full of fraud. 
 The "Calypso" in the first instance cleared from St. Thomas for 
 Surinam, but put into Cayenne, a French colonial port (under 
 stress of mutiny, as it was alleged), and there sold her cargo. Her 
 real destination was held to be Cayenne. From Cayenne she 
 cleared for Hamburg, but put into La Rochelle, where her cargo 
 from Cayenne was sold. Her real destination was held to be 
 La Rochelle. Although stopped and searched by an English 
 frigate, her papers were so artfully drawn that she was released. 
 The return cargo from Cayenne was documented in the bill of 
 lading as the property of Beckman and Ecchardt, although it 
 appeared from some concealed papers eventually produced, that 
 the greatest part belonged to a number of French merchants. 
 On behalf of the claimants it was contended that all the papers 
 should be taken together, and that it was a reasonable rule that in 
 cases where some papers are produced first and others kept back, 
 the latter must be presumed to state the true and exact measure 
 of interest. Whilst allowing that all the papers should be taken 
 together. Sir William refused to admit that concealed papers are 
 to be taken as necessarily containing the truth. 
 
502 COMMERCE IN WAR 
 
 " If such a rule," he declared, " was established as a principle of this 
 Court, it would let in an infinity of fraud, and make it the easiest thing in 
 the world to protect the chief bulk of property in any case by giving up 
 some part upon the pretended disclosures contained in those concealed 
 papers. The more reasonable rule would be that where there is one set 
 of papers admitted to be false and another set coming out of the same 
 hands, that the whole is thrown into a state of uncertainty and doubt." 
 
 After refusing the parties the indulgence of proceeding to 
 further proof. Sir William unhesitatingly declared his opinion to 
 be that even if the cargo had been proved in the clearest manner 
 to be neutral property, yet 
 
 " if it was proved that the ship was going from the mother-country of the 
 enemy to their colony under false papers and a false mask and coming 
 back again to the mother-country, that she would be subject to con- 
 demnation. On every principle of justice the employment of a vessel in 
 this manner, not only to carry but to cover and protect enemy's colonial 
 trade from the just rights of war, is such a gross departure from neutrality 
 that I should have no hesitation to condemn expressly on this ground ; 
 but that is not necessary. The ground on which I condemn is that gross 
 leaven of fraud which runs through every part of the transaction and con- 
 taminates the whole case, even on the neutrality of the property." 
 
 In the case of the " Rising Sun,"^ an American vessel clearing 
 from a French port, the destination was described in some of the 
 ship's papers as Altona, in others as Charleston, whereas the true 
 destination was Guernsey. But as these were both neutral ports, 
 Sir William Scott did not think there was much in that point, more 
 especially as it is the general practice not to allow a vessel to 
 clear out for an enemy's port. 
 
 The "Graaf Bernstorf "^ was a similar case. Here a valuable 
 cargo was seized on a voyage from Batavia to Copenhagen. 
 The claim was originally made by the house of Black & Co., 
 of Copenhagen, to the whole of the cargo, but some circum- 
 stances having transpired, an amended claim was put in, by leave, 
 for the cargo as the property of Black & Co. and a Mr. Van Tromp, 
 who was found by the Court to be a Dutchman. In condemning 
 Van Tromp's share in the cargo. Sir William Scott found that the 
 interests of Black & Co. were so complicated by those of Van 
 Tromp as to require further proof In refusing to extend this 
 indulgence to Black & Co., Sir William followed the lines he 
 had already laid down : — 
 
 " The general rule of the Court," he declared, " is certainly this : that 
 where there has been a suppression of an enemy's interest with a fraudu- 
 lent view, the party engaged in that fraud shall not be permitted to 
 supply the defects of proofs of his own property mixed up with it. It 
 
 * 2 Rob., 104 (1799). ^ 3 Rob., 109 (1800). 
 
CAPTURE AND CONDEMNATION 503 
 
 appears to be a rule perfectly reasonable in its principle, and one that 
 this Court would find it necessary to support, even if the authority of the 
 Superior Court which has adopted it, had not made it absolutely binding 
 upon its practice." 
 
 The American Courts have followed the same principles. In 
 the case of the " St. Nicholas,"^ it was held that where the 
 enemy's property was fraudulently blended in the same claim with 
 neutral property the latter was liable to share the fate of the 
 former. In this case, said Mr. Justice Johnson, all the circum- 
 stances, all the hopes and wishes of the adventure centred in a 
 hostile country. The nominal owners were only introduced into 
 the bills of lading as a cloak. There was scarcely wanting one 
 of those characteristics by which Courts Admiralty are led to the 
 detection of neutral fraud. The ship and cargo were condemned. 
 
 Where false papers are used with the intention of deceiving the 
 enemy and the trade is in fact innocent, such fraud is not sufficient 
 of itself to entail confiscation. 
 
 In the " Sarah,^ the cargo was documented as the property of 
 persons at Emden whereas it was claimed as the property of 
 persons in London. In either case it was not confiscable. 
 
 " It is said," declared Sir William Scott, " that the name of Abegg (of 
 Embden) was used for the purpose of protecting it from the cruisers of the 
 enemy — an artifice which this Court is not very scrupulous to detect, where 
 it does not appear that there is any sinister purpose concealed under that 
 pretence or that any enemy's interest is concerned." 
 
 But since the captors were misled by such false papers into cap- 
 turing an innocent vessel, they were allowed their expenses. 
 
 " If," said Sir William, " English merchants resort to the expedient of 
 protecting their trade by these false papers, it leads captors into expenses 
 for which these captors ought not to be answerable." 
 
 By the municipal law of Russia, a ship's passport, on presenta- 
 tion by the master, if found to be false or tampered with, entails 
 confiscation of both vessel and cargo. ^ 
 
 By Art. 4 of the ukase of i August, 1809, it is enacted that — 
 
 " Le passeport donne au navire ne peut ^tre admis comme veritable, si 
 Ton decouvre que la navire, dans le temps ou ce passeport lui a 6te delivr^, 
 ne se trouvait pas dans un des ports appartenant k la puissance au nom de 
 laquelle il a et6 donne."* 
 
 Double documents with different destinations found on board 
 entail the confiscation of the ship as well as the cargo.* 
 
 In Spain double papers of any kind entail confiscation of both 
 ship and cargo.^ 
 
 1 I Wheat, 417 (1816). 2 3 Rob., 330 (1801). 
 
 3 " Rev. de Droit Int.," X, 61 1. * Ibid., 613. 
 
 6 Ibid. * Negrin, 251. 
 
S04 COMMERCE IN WAR 
 
 Concealment, spoliation, or destruction of ship's papers. 
 
 — In English and American practice concealment, spoliation, or 
 destruction of papers does not of itself necessarily entail any 
 penalty. 
 
 " Spoliation is not alone," declared Sir William Scott, " in our Courts of 
 Admiralty, a cause of condemnation ; but if other circumstances occur to 
 raise suspicion it is not too much to say of a spoliation of papers, that the 
 person guilty of that act shall not have the aid of the Court or be permitted 
 to give further proof, if further proof is necessary."^ 
 
 In this case the master, under apprehension of capture by a 
 French cruiser, concealed or destroyed some letters. The greater 
 part of the cargo was claimed " for the owner and the master," but 
 Sir William rejected the claim of the latter on the ground of his 
 spoliation of the papers. 
 
 " It is certain," said Sir William Scott in the " Hunter,"^ " that by the 
 law of every maritime court of Europe, spoliation of papers not only ex- 
 cludes further proof, but does per se infer condemnation, founding a pre- 
 sumption, /wm et de jure, that it was done for the purpose of fraudulently 
 suppressing evidence which if produced would lead to the same result ; 
 and this surely not without reason, although the lenity of our code has 
 not adopted the rule in its full vigour, but has modified it to this extent, 
 that if all the other circumstances are clear, this circumstance alone shall 
 not be damnatory, particularly if the act was done by a person who has 
 interests of his own that might be benefited by the cdm mission of this 
 injurious act. But though it does not found an absolute presumption 
 juris et de jure, it only stops short of that, for it certainly generates a most 
 unfavourable presumption. A case that escapes with such a brand upon 
 it is only saved so as by fire. There must be overwhelming proof arising 
 from the concurrence of every other circumstance in its favour that forces 
 a conviction of its truth, in spite of the powerful impression which such an 
 act makes to its entire reprobation. It is the less necessary to examine 
 this minutely, because the Court has admitted the introduction of proof 
 not professedly and formally in that character of further proof, but mani- 
 festly so to be considered in substance and effect, consisting of affidavits 
 and papers that do not appear to have been on board this vessel. The 
 question remains whether, with the advantage of all the evidence that has 
 been admitted, it answers the description of a case in which an unfortu- 
 nate act of spoliation occurs, but which in all other respects wears the 
 aspect of perfect sincerity and truth. In considering that question, it may 
 be proper to consider the conduct of the parties, for conduct is a good 
 expositor of facts. If the parties act in a way consistent with their state- 
 ment, it greatly confirms the statement ; if, on the other hand, they con- 
 duct themselves in a way that appears utterly irreconcilable with it, then 
 it is not too much to say that the credibility of the statement is deeply 
 affected by the contradiction of the facts." 
 
 " Concealment and even spoliation of papers do not ordinarily," said 
 Story, J., " induce a condemnation of the property, but they always afford 
 
 ' " Rising Sun," 2 Rob., 104 (1799.) 
 2 I Dods., 480 (1815). 
 
CAPTURE AND CONDEMNATION 505 
 
 cause of suspicion, and justify capture and detention. In many cases the 
 penal effects extend in reality, though indirectly, to confiscation. For if 
 the cause labour under heavy doubts, if the conduct be not perfectly fair, 
 or the character of the parties is not fully disclosed upon the papers 
 before the Court, the concealment or spoliation of papers is made the 
 ground of refusing further proof to relieve the obscurity of the cause, and 
 all the fatal consequences of a hostile taint follow on the denial." ^ 
 
 The case of the " Madonna del Burso "^ forms an apparent 
 exception to the^ general rule. This viras an Ottoman vessel with 
 a cargo belonging to Greek merchants, which was seized in 
 Dingle Bay, in Ireland, by a custom-house cutter on the ground 
 of a false destination and the suppression and spoliation of 
 papers. 
 
 In view of the fact that British prize courts had been in the 
 habit of showing peculiar indulgence to vessels sailing under the 
 protection of the Ottoman Porte, and that the custom-house 
 officer had delayed instituting proceedings for considerably more 
 than three months. Sir William Scott did not enforce the penalty 
 of loss of freight and expenses. 
 
 If the cause had been properly prosecuted, the ship would have 
 been immediately restored, and although a case of suspicion — of 
 vehement suspicion against the cargo would have arisen — a sus- 
 picion principally excited by the behaviour of the master and the 
 false representation of the voyage contained in the papers — this 
 would not have amounted to a conclusive demonstration of the 
 total falsehood of the claim. The effect of such misconduct 
 would have merely operated to the forfeiture of freight and 
 expenses on the part of the ship, and an order for further proof 
 of the cargo would have been admitted. 
 
 "AH the inconvenience sustained," said the learned judge, "would have 
 been the delay of payment for the cargo, if proved to be neutral, and the 
 forfeiture of the original freight for the ship — inconveniences not to be 
 complained of by those who had brought them upon themselves, by pre- 
 varicating documents respecting the voyage, and by the rash and intem- 
 perate conduct of the master entrusted with it. . . . The practice of holding 
 out a false destination (which in this case is sworn to have been done at 
 the instance of the insurers) is unquestionably a bad practice, founded 
 on a silly and dangerous policy, and penal to the party who employs it. 
 But when I consider how familiar it is in the practice of other nations, 
 and that even when it occurs there, it is not held, absolutely and con- 
 clusively, to bar the admission of further proof, unless the falsehood is 
 supported by a concurrent falsehood of the depositions, or by other cir- 
 cumstances of grave suspicion — can I say in this case, when the master 
 avows upon his deposition the real voyage he was to pursue, that it is to 
 have more than its ordinary effect, particularly connected with the habitual 
 indulgence shown to the subjects of the Porte ? " 
 
 1 Livingstone v. Maryland Insurance Co., 7 Cranch, at p. 544 (1813). 
 
 2 4 Rob., 169 (1802). 
 
5o6 COMMERCE IN WAR 
 
 Where the captors were guilty of unreasonable and unjustifiable 
 delay in instituting proceedings whereby heavy losses were 
 entailed upon the ship and cargo, they render themselves liable to 
 demurrage, compensation, and costs.^ 
 
 WARRANTY OF NEUTRALITY. 
 
 Effect of false papers, and concealment, spoliation, or destruction of 
 papers upon a policy of insurance. 
 
 Where there is a warranty of neutrality in an insurance policy 
 upon the ship or cargo, the law is much stricter as to false papers. 
 
 " A warranty of neutrality," said Lewis, C.J., of the Supreme Court of 
 the State of New York, " in a policy of insurance, imports not merely that 
 the property is neutral, but that it shall be accompanied with all the 
 accustomed documents to ensure its respect as such within the laws of 
 nations. And although the question has never to my knowledge been 
 decided, the same principle will require that it be unaccompanied with any 
 document that shall compromit its neutral character. When the assured, 
 by means of false papers or by any other improper conduct, invests the 
 property with the double character of neutral and belligerent, be his 
 motives what they may, he subjects it to a risk against which the under- 
 writer did not insure, and of course releases him from all responsibility. 
 The assured stipulates by his warranty that the insurer shall be liable for 
 a neutral risk alone. The instant, then, that he attempts to put him to the 
 hazard of a belligerent risk, he forfeits his claim to indemnity. . . . 
 
 " . . . It is a maxim that neutral commerce is to be conducted with good 
 faith towards belligerents. Their rights are to be respected as well as 
 those of neutral nations. It is not sufficient that a part only, but the whole 
 property covered by the policy must be neutral. And if a cover is 
 attempted for enemy's property by an intermixture with neutral, it is held 
 to subject the whole to confiscation." ^ 
 
 " It is undoubtedly true," said Story, J., " that the warranty of neutrality 
 extends, not barely to the fact of the property being neutral, but that the 
 conduct of the voyage shall be such as to protect and preserve its neutral 
 character. It must also be conceded that the acknowledged belligerent 
 right of search draws after it a right to the production and examination of 
 the ship's papers. And if these be denied and the property is thrown into 
 jeopardy thereby, there can be no reasonable doubt that such conduct 
 constitutes a breach of warranty."* 
 
 Accompanied by accustomed documents. — To comply 
 with a warranty of " neutral property," it was held by the English 
 Courts in the same year that the warranty must be accompanied 
 with all the papers and documents required by the treaties between 
 the States of the captors and the captured. 
 
 > The "Madonna Del Burso," 4 Rob., p. 169 (1802). 
 
 ^ Blagge V. N.Y. Ins. Co., i Caines, p. 549 (1804). 
 
 ^ Livingtone v. Maryland Insurance Co., 7 Cranch, p. 544 (1813). 
 
CAPTURE AND CONDEMNATION 507 
 
 Baring v. Royal Exchange Assurance Company ^ was an action 
 against the underwriters for ^5000 on goods, being one-half of 
 the cargo, warranted American property, on board the " Rosanna," 
 warranted an American ship. On the voyage from Surinam to 
 London, Rotterdam, Amsterdam, or Hamburg, she was captured 
 by a French privateer and carried into La Rochelle. Ship and 
 cargo were condemned upon the ground that the provisions of 
 the treaty of 6 February, 1778, between France and the United 
 States had been infringed. By Article XXV of this treaty it 
 was stipulated that the vessels of either party should be provided 
 with sea-letters or passports specifying the name, the property, 
 and the tonnage of the ship, together with the name and resi- 
 dence of the master. Further, a complete list of the crew and 
 passengers was to be furnished to the marine officials at the port 
 of embarkation, and a copy to be carried on board and produced 
 when required. 
 
 It was held that the French sentence of condemnation, which 
 had proceeded on the ground of infraction of treaty between 
 France and the United States, was conclusive in our Courts 
 against a warranty of neutrality of such ship and cargo in an 
 action of insurance against the underwriters. 
 
 Baring v. Christie ^ was a similar case. Here the passport, 
 instead of giving the residence of the master, described him as 
 "George B. Dominick, master or commander of the ship called 
 ' Mount Vernon,' of the town of Philadelphia." Upon the capture 
 of the vessel by a French cruiser she was, upon the ground of 
 this infraction of the treaty of 1778, condemned. 
 
 In delivering the judgment of the English Court upon the con- 
 struction of this description, Lord Ellenborough said that "the 
 town of Philadelphia" could not by any fair construction be 
 referred to the master of the ship, but referred only to the ship, 
 and that consequently the passport was not such as required by 
 Article XXV of the treaty. 
 
 In Barker v. Phoenix Insurance Company,^ it was objected that 
 sailing without a register was a breach of warranty. At the 
 time of the policy there were two kinds of American vessels, the 
 one registered and the other unregistered, but carrying a sea- 
 letter or official certificate of ownership. Both kinds were 
 recognized by municipal law as American vessels, and both were 
 equally entitled by the law of nations to protection as American 
 property. In this case the vessel had a sea-letter, and Kent, C.J., 
 held that there was no use in requiring a register for any object 
 
 1 5 East., 99(1804). 
 
 2 Ibid., 398 (1804). 
 
 3 8 John., 307(1811). 
 
So8 COMMERCE IN WAR 
 
 within the purview of the warranty. The want of it did not 
 enhance the risk. 
 
 In coming to this conclusion, the learned Judge relied upon the 
 opinion expressed by Sir William Scott in the " Vigilantia," "^ 
 where he went out of his way to lay down his view upon the 
 abstract question of law. 
 
 " I conceive," he said,^ " the rule to be that where there is nothing 
 particular or special in the conduct of the vessel itself, the national character 
 is determined by the residence of the owner ; but there may be circum- 
 stances arising from that conduct which will lead to a contrary conclusion. 
 It is a known and established rule with respect to a vessel, that if she is 
 navigating under the/fljj of a foreign country she is considered as bear- 
 ing the national character of the nation under whose pass she sails ; she 
 makes a part of its navigation, and is in every respect liable to be con- 
 sidered as a vessel of that country." 
 
 Moreover, there must not be on board any papers which will 
 increase the risk or falsify the warrant. A letter, therefore, in 
 sympathetic ink, stating the property to be in other than the 
 assured, is a violation of the warranty.^ So, too, is any act or 
 omission of the assured or his agent by claiming falsely or omitting 
 to claim.* 
 
 But if there is no warranty of the national character of a ship, 
 and she is not represented to be of any particular country at the 
 time of the policy, she need not be documented as of the country 
 to which she belongs, and if captured and condemned by a foreign 
 State for the want of the documents required by treaty between 
 that State and her own, the assured may recover against the 
 underwriter. 
 
 In Dawson v. Atty,* Lord Ellenborough, C.J., said that as the 
 ship was not represented as American at the time when the insur- 
 ance was effected, the assured was not bound by it; and there being 
 no undertaking in the policy itself that she was American, there 
 was no necessity for her being documented as such. But the law 
 as to documenting would appear to apply only to express and not 
 to implied warranties. In Elting v. Scott and Seaman,^ the policy 
 contained no warranty of neutrality or of the character of the 
 -vessel, and, consequently, it was held that the assurers had taken 
 on themselves all risks, belligerent as well as neutral. It was 
 given in evidence that the vessel in which the cargo insured was 
 shipped had not a sea-letter on board at the time of capture, and 
 
 ' I Rob., I (1798). 
 
 ^ Cancre v. Union Insurance Company, Cond. Marsh, 406a. 
 
 3 Galbraith v. Grade, Cond. Marsh, ijddb. 
 
 * 7 East, 367 (1806). 
 
 * 2 John., 157 (1807). 
 
CAPTURE AND CONDEMNATION 509 
 
 that the want of this or of some other papers was the cause of her 
 condemnation. But it was held that where the national character 
 of a vessel is not warranted or represented, it is not incumbent on 
 the assured to show that she had a sea-letter or other papers 
 required by the laws of the country or by treaties with foreign 
 nations. Upon this point, Kent, C. J., in delivering the opinion of 
 the Court, said : — 
 
 " I very much doubt whether it be part of the implied warranty of sea- 
 worthiness that a vessel shall have her proper documents on board. There 
 is no case that goes to that length. These documents are only material 
 when the national character of the vessel is warranted or represented. In 
 the present case it does not appear to what nation or to what individual 
 the vessel belonged. All that is stated is, that she was to sail on a voyage 
 from Curagoa to New York ; the plaintiiifs, as insurers of the cargo on 
 board, took upon themselves belligerent risks. The sea-letter and other 
 documents could only have been requisite to protect the vessel as a 
 neutral, but it was no part of the contract that she was to sail in that 
 character; or to protect her against the revenue laws of Cura9oa, but their 
 laws we are not to notice ; or to comply with the laws of our own country 
 to which the vessel was bound, but there is no evidence that she was 
 sailing in contravention of our laws. A vessel may be competent to 
 perform the voyage insured without the possession of these documents ; 
 and although we do not profess to declare a very strong opinion on this 
 point, we are inclined to think that the want of those documents could not 
 have furnished to the plaintiff a valid defence against the policy." 
 
 To the general rule that concealment of papers constitutes a 
 breach of warranty there would appear to be an exception, at any 
 rate, in American practice. It was held in Livingstone v. the 
 Maryland Insurance Company^ that if by the usage of the trade 
 insured it be necessary that certain papers should be on board, the 
 concealment of those papers would not affect the assurer's right to 
 recover upon the policy. 
 
 " The question," said Story, J., " must always be whether there be a con- 
 cealment of papers material to the preservation of the neutral character. 
 It would be too much to contend that every idle and accidental or even 
 meditated concealment of papers manifestly unimportant in every view 
 before the prize tribunal should dissolve the obligation of the policy. And 
 if by the usage and course of trade it be necessary or allowable to have on 
 board spurious papers covered with a belligerent character, whatever effect 
 it may have upon the rights of the searching cruiser, it would be difficult 
 to sustain the position that the concealment of such papers, which, if dis- 
 closed, would completely compromit or destroy the neutral character, 
 would be a breach of the warranty. In such case the disclosure of the 
 papers produces the same inflamed suspicions, the same legal right of 
 capture and detention, the same claim for further proof, and the same 
 right to deny it, as the concealment would. If the concealment would 
 
 1 7 Cranch, 506 (1813). 
 
Sio COMMERCE IN WAR 
 
 induce the conclusion that the interest was enemy's covered with a ficti- 
 tious neutral garb, the disclosure would not in such a case less authorize 
 the same conclusion. In such case it would depend upon the sound discre- 
 tion of the Court, under all the circumstances of the case, to allow the veil 
 to be drawn aside and admit or deny the claimant to assume his real 
 character. Whenever, therefore, the underwriter has knowledge and assents 
 to the cover of neutral property under belligerent papers (as he does in all 
 cases where the usage of the trade demands it), he necessarily waives his 
 rights under the warranty, so far as the visiting cruiser may demand the 
 disclosure of such papers. In other words, he authorizes the concealment 
 in all cases where it is not necessary to assume the belligerent national 
 character for the purpose of protection." 
 
 It was further held that no acts justifiable by the usage of the 
 trade and done by the assured to avoid confiscation under the 
 laws of one of the belligerents could avoid the policy. But any 
 acts or omissions by the assured or his agents which, according 
 to the published notification or decisions of the belligerents, 
 though not according to international law, would enhance the 
 danger of capture or condemnation, might if such acts or omis- 
 sions were unreasonable, unnecessary, or wanton, form a sound 
 objection to the right of recovery upon the policy. The insured 
 can have no right to jeopardize the property by any conduct, 
 which the fair objects of voyage or the usage of the trade do not 
 justify. 
 
 With respect to the allowance of freight to neutral ships carry- 
 ing enemy's goods, it is asserted on the authority of Sir Henry 
 Martin,^ an eminent practitioner and afterwards Judge of the 
 Court of Admiralty, that so far back as the year 1640 it had 
 never been the practice to condemn neutral ships for having 
 enemy's goods on board without allowing freight for the enemy's 
 goods which were condemned. 
 
 It was held in the " Carlos F. Roses "^ that as the vessel was 
 an enemy's vessel the presumption was that the cargo was also 
 enemy's property, and this could only be rebutted by clear and 
 positive evidence to the contrary. 
 
 Thus in the "Betsey"^ it was held that a prize court of a 
 belligerent Power is entitled to proof of the neutrality of the 
 cargo on board an enemy's vessel, and that in the absence of 
 proof may condemn it as the property of unknown belligerent 
 owners. 
 
 Transfers of vessels prior to the declaration of war will be 
 regarded with grave suspicion, 
 
 » "The Atlas," 3 Rob., 304, note. 
 
 2 177 U.S. Rep., 655 (1900). 
 
 3 36 Ct. CL, 256 (1901). 
 
CAPTURE AND CONDEMNATION S" 
 
 It was held in the " Benito Estenger "^ that transfers of vessels 
 flagrante delicto cannot be sustained if subject to any condition by 
 which the vendor retains an interest in the vessel or its profits, 
 any control over it, or any right to its restoration upon the con- 
 clusion of the war. It was also held that the burden of proof of 
 the validity of such transfers lies on the vendor claimants. 
 
 1 176 U.S. Rep., 568 (1900). 
 
CHAPTER VIII 
 FORMALITIES OF CAPTURE 
 
 UPON taking possession of the prize the first duty of the 
 captain is to appoint a prize master, who should if possible 
 be the officer who made the visit and conducted the search, to 
 collect and seal up all the ship's papers and to entrust them for 
 safe custody to the prize master. In addition, all witnesses who 
 will be required at the adjudication of the prize should, as far as 
 possible, be detained on board and sent in with the ship. 
 
 Provided the crew of the prize consent to navigate the vessel, 
 it is not necessary to put a prize crew on board, and in such case 
 the captors are not responsible for any loss which may ensue on 
 this account. But unless such consent is obtained, the captors are 
 bound to put on board a sufficient prize crew to navigate the 
 ship. 
 
 " Should they send," said Tilghman, C.J., in Wilcocks v. Union Insur- 
 ance Company,! « ^juj. ^ single hand or so few that it was manifestly 
 impossible to work her, this would not be taking sufficient possession. 
 In that case neutrals are not obliged to submit their property and lives to 
 the mercy of the winds and waves, and may lawfully consider her as 
 abandoned to them and act accordingly. But if a force insufficient to 
 work the vessel is put on board by the captors in consequence of the 
 promise of the neutral crew to navigate her to her destined port, they are 
 bound by such promise and must be considered for the purpose agreed on 
 as the hands of the captors." 
 
 In the case of the " Resolution "^ two men only were put on 
 board by the captor in consequence of a promise by the neutral 
 crew to assist in taking the prize into a British port. 
 
 The " Pennsylvania "^ having been captured by two British 
 cruisers, a prize master and two men were put on board. These 
 men being unable to navigate the vessel, the neutral master con- 
 tinued to direct her course according to his owners' instructions 
 and refused to carry the vessel into Malta, as required by the 
 prize master. 
 
 1 2 Binn. 574(1809) ; Alexander, i Gall., 532, S.C., 8 Cranch, 169. 
 
 2 6 Rob., 13 (1805). 3 I Acton, 33 (1809). 
 
FORMALITIES OF CAPTURE 513 
 
 "The neutral master and his crew," said Sir William Scott, "owe no 
 service to the captors and are still to be considered answerable to the 
 owners for their conduct. It is the duty as well as the interest of the 
 captors to make the capture sure ; if they neglect it from any anxiety to 
 make other captures, or thinking the force already furnished sufficient, it 
 is exclusively at their own peril. In this case the captain performs a duty 
 he conceives he owes to the owners. He will not act against their interest, 
 nor will he attempt to prosecute their interest by any violence on his part 
 or that of his crew. Neither he nor they are found to make any 
 resistance. The captors therefore are left to pursue their separate interests ; 
 they are unable to navigate the vessel and the captain resumes his 
 command." 
 
 " It is said," observed Story, J., in the " Alexander,"^ "that no prize crew 
 was put on board, that the navigation was left to the ordinary crew of the 
 vessel. This objection proceeds upon the supposition that to constitute 
 a capture as prize the vessel must be navigated by a prize crew. The sup- 
 position is not founded in law. It is true that the master and crew of 
 a prize ship are not compellable to navigate her, but if they voluntarily 
 engage so to do it is a legal waiver of the prize crew, and the parties are 
 bound by their engagement, and the capture stands absolute." 
 
 In this case a prize master only was put on board. 
 
 Either of these courses having been taken, the prize must then 
 be sent in for adjudication to the nearest and most convenient 
 port. In the case of the " Anna,"^ a vessel sailing under American 
 colours from the Spanish Main to New Orleans, taken by a British 
 privateer within a mile and a half of the western shore of the 
 principal entrance to the Mississippi and sent in for adjudication 
 to England, Sir William Scott said : — 
 
 " It lies on the captor to exonerate himself from the impropriety of this 
 act, because although the instructions to cruisers give something of a discre- 
 tion to captors as to the port to which they are to bring their prize, to some 
 convenient port, it is a discretion which must be cautiously exercised and with 
 sound reason, so as to be justified in the Court before which the case is 
 brought. It would be cause of infinite vexation if neutral vessels taken on 
 slight pretences at so great a distance as the coast of America were to be 
 dragged across the Atlantic for adjudication, more especially when this 
 country has established courts in different islands in the West Indies to 
 prevent inconvenient recurrence to this Court, and to provide for claimants 
 in that part of the world justice at their own doors, that their commerce 
 may be subject to as little interruption as possible from the exercise of 
 the rights of war on the part of this country in those seas. At the same 
 time there may be circumstances that would justify such a procedure ; as 
 if a King's ship bound on the public service makes a capture in her course, 
 such a vessel cannot depart from her instructions, but must proceed upon 
 her original destination. That would be a case of necessity arising out of 
 the public service for which States must make allowance reciprocally." 
 
 » I Gall, 532 ; 8 Cranch, 169 (1813). 
 2 5 Rob., 373 (1805). 
 
 2 L 
 
514 COMMERCE IN WAR 
 
 The vessel was released upon the grounds that first she ought 
 never to have been seized, and secondly her seizure was a viola- 
 tion of neutral territory. Damages for bringing her in for 
 adjudication to England were decreed. 
 
 The " Catherina Elizabeth"^ was a Swedish vessel on a voyage 
 from Teneriffe to London. Whilst off Teneriffe she was seized 
 by the privateer "Spy," and a prize crew being put on board, carried 
 to Barbados. In this port she was seriously injured. Upon appeal 
 the Court followed the precedent of the " Maryland,"^ in which 
 case the captor, a Liverpool privateer, was held to be highly cen- 
 surable for carrying her prize, which had almost reached the coast 
 of Europe, back to the West Indies. For this carrying to a 
 remote port for adjudication the captors of the " Catherina 
 Elizabeth " were condemned in the costs and damages sustained 
 by the owners subsequent to the capture. 
 
 The " Hunter"' was an American ship captured off Canton, and 
 was ordered to England. On her way home she put into the 
 Madrcis Roads, where she remained more than five weeks. 
 
 "This Court," said Sir William Scott in delivering judgment, "is 
 extremely disposed to hold it as generally proper that questions of 
 capture, arising in that remote part of the world, should be decided there 
 in the courts instituted for that purpose, although this Court, possessing 
 an universal jurisdiction, has, of course, a concurrent jurisdiction witili 
 them all. At the same time, without meaning to give any undue en- 
 couragement to another practice, I am not prepared to say that circum- 
 stances may not possibly occur in which the contiguous courts may not 
 be the most convenient to the king's cruisers in a fair legal estimate of 
 convenience. Exigencies of the public service may call upon them to 
 proceed to Europe; the nature of the cargoes taken may render them 
 unfit for the Indian market in case of necessary conversion pending suit ; 
 the property may appear to belong to parties who are more in the vicinity 
 of the European court of prize, and can communicate with it more 
 promptly. These and other circumstances may influence a just and 
 cautious discretion. Nor am I prepared to say that if a king's cruiser 
 has upon justifiable reasons directed his prize to proceed to England, the 
 mere coming into roads in itinere will induce a legal obligation to proceed to 
 adjudication in the court that has the local jurisdiction. Ships must in so 
 long a voyage touch at some intermediate places for purposes of necessary 
 refreshment. It is and must be so done by all ships, and it is not the mere 
 going in in transitu for such an occasion that will make it at all unlawful 
 for the vessel to proceed upon the original destination if otherwise proper." 
 
 In the interpretation of the term convenient are also included the 
 security, capacity, and accessibility to Courts of Admiralty. 
 
 1 I Acton, 309 (1810). 
 
 2 7*»rf., 310(1810). 
 
 3 I Dods., 480(1815). 
 
FORMALITIES OF CAPTURE 515 
 
 Security :- 
 
 " Convenient" said Sir William Scott in the "Washington,"^ "is a large and 
 general term, leaving a certain latitude of discretion, but a discretion to be 
 cautiously exercised and with reference to the view which the Crown itself 
 must be supposed to have entertained in issuing the instructions. Con- 
 veniences are of different kinds — some of a slighter nature, others almost 
 indispensable. Among the most important must be considered that of 
 bringing a vessel to a port where she may lie in safety, since that cannot 
 unquestionably be deemed a convenient port which does not afford security 
 and protection to the property that is brought in. An open road, for 
 instance, where the ship may be occasionally exposed to the weather, can- 
 not be a place of security. It is therefore quite impossible that it should be 
 considered as a convenient port for the preservation of property."^ 
 
 Capacity : — 
 
 "Another material ingredient of convenience" continued the learned 
 judge, " will be that the port shall be of sufificient capacity to admit vessels 
 to enter without unloading their cargoes, since it is the intention of the 
 Legislature that bulk shall not be broken. If there is not depth of water to 
 allow vessels to lie without taking out the cargo non erit his locus, since 
 captors are not to meddle with cargo in any manner without the authority 
 of the Court, which cannot be exercised until the vessel has been brought 
 into port." 
 
 Accessibility : — 
 
 "It is also highly desirable," concluded his lordship, "that the port 
 should be a place which holds ready communication with the tribunals 
 which have to decide on questions arising out of capture ; that the parties 
 may have access to advice and may be enabled to obtain the necessary 
 information ; and that the directions of the Court of Admiralty may be 
 carried into effect with despatch." 
 
 In the selection of a port, the interests of the owners of the 
 vessel and cargo should, if possible, be considered. If these are 
 unreasonably disregarded, the captors will render themselves liable 
 for damages and costs. 
 
 The " Wilhelmsburg "' was seized on a voyage from Amsterdam 
 to Archangel, and was sent in to Shetland. 
 
 " The captor," said Sir William Scott, " is certainly not justified under 
 the Prize Act to select any port that he pleases. It must be a convenient 
 port, and in that consideration the convenience of the claimant in proceed- 
 ing to adjudication is among one of the first things to which the attention 
 of the captor ought to be addressed. If the vessel had been sent, in the 
 first instance, to Leith or Berwick, or to any of the principal northern ports 
 of this kingdom, the consequences that have arisen in this case would not 
 have ensued." 
 
 » 6 Rob., 27s (1806). 
 
 2 See also the " Principe," Edw., 70 (1809). 
 
 3 5 Rob., 143 (1804). 
 
5i6 COMMERCE IN WAR 
 
 What, asked Story, J., in the "Alexander,"* is necessary to 
 constitute a capture ? 
 
 "In ordinary cases the fact admits no doubt, and in point of law 
 nothing more is necessary than an intention of capture, followed up by an 
 actual or constructive possession of the property. Force and violence or 
 physical superiority are not required. It is sufficient if there be a deditio 
 or submission on the one side, and an asserted possession on the other." 
 
 If there was animus capiendi coupled with actual or constructive 
 possession on the one side, and surrender on the other, the 
 capture is absolute. 
 
 Bona fide />ossesston.-^Whenever the captors are justified in 
 the capture, i.e. whenever there was probable cause, they are 
 considered as having bona fide possession. Bona fide captors 
 are not responsible for any losses or injuries, subsequent to the 
 capture, arising from mere accident or casualty. 
 
 "That a bona fide possessor is not responsible for casualties, 
 but that he may by subsequent misconduct forfeit the protection 
 of his fair title and render himself liable to be considered as a 
 trespasser from the beginning," was, said Sir William Scott in the 
 " Betsy," ^ one of the first principles of universal jurisprudence. 
 
 The casualty in this case was recapture. The " Betsy " was 
 neutral American property, seized for alleged breach of blockade, 
 and recaptured by the French. As it was held by the Lords of 
 Appeal that there was no legal blockade, the vessel would have 
 been entitled to be restored, but Sir William found that as it was 
 doubtful at the time whether or not a blockade had been instituted, 
 there was probable cause for the capture, and consequently, since 
 there was bona fide possession, the recapture was an accident for 
 which the captors were not liable. 
 
 " Captors," said Sir William Scott in the " Catherine and Anna," ^ " are 
 generally bound for two things — for safe and fair custody, and if the 
 property is lost or destroyed for want of that safe and fair custody, they 
 are responsible for the loss. For these two things every, captor is answer- 
 able ; but if an accident or mere casualty happens against which no fair 
 exertions of human dilig:ence could protect, it must fall on the party to 
 whom the property is ultimately adjudged." 
 
 In the case of the " Carolina,"* it was alleged that the captors 
 did not bring the vessel to adjudication as they should have done, 
 and the vessel having been lost, the owners lost the opportunity 
 of showing that the loss might have happened through some 
 culpable negligence of the captors. The vessel was lost by 
 accident and stress of weather, and since the capture was justifi- 
 able the captors were held not to be responsible. They were 
 
 » I Gall., 533 (1813). ^ I Rob., 93 (1798). 
 
 3 4 Rob., 39 (1801). 4 Ibid., 356 (1802). 
 
FORMALITIES OF CAPTURE 517 
 
 exempted from proceeding to immediate adjudication since they 
 were engaged in the investment of Alexandria. 
 
 ^ "It must be conceded," said Sir William Scott, " as a reasonable dis- 
 tmction, that commanders acting in the management of great expeditions 
 cannot be tied down exactly to the same rules by v(rhich individual cruisers 
 are directed to proceed," 
 
 In the case of Del Col v. Arnold,^ a French privateer, " La 
 Montague," captured the American brig " Grand Sachem," took 
 out of her a large sum in dollars, put a prize crew on board, and 
 directed her to steer for Charleston. When in sight of the light- 
 house " La Montague " was captured by a British frigate, which 
 also gave chase to the "Grand Sachem." The latter was run 
 into shoal water and abandoned, and eventually scutded and 
 plundered. 
 
 It was held although the original capture was justifiable, it did 
 not authorize or excuse any spoliation or damage, but that captors 
 proceed at their peril, and are liable for all consequent injury 
 and loss. It was also held that the owners of the privateer were 
 responsible for the conduct of the officers and crew of the 
 privateer to all the world. The prize crew were justified in 
 abandoning the prize in order to escape captivity, but the removal 
 of the money into the privateer and the subsequent scuttling of 
 the brig were unlawful acts. 
 
 "Although captors," said Sir William Scott in the " Speculation," ^ 
 " may have made a justifiable seizure, yet they may still forfeit that title 
 by subsequent misconduct." 
 
 Depositions had in this case been improperly taken, and all 
 the crew but two men had been taken out of the prize. This, in 
 Sir William's opinion, had the appearance of sottiething very like 
 a management and a tampering with evidence. The captors' 
 expenses were ordered to be forfeited. 
 
 Captors responsible for acts of their agents. — " It is," 
 said Sir William Scott in the " Der mohr,'** a principle of law 
 undoubtedly that may operate with great rigour in particular 
 cases ; but it is one that the Court cannot depart from in any 
 degree, that the principal must be responsible for the acts of his 
 agent." 
 
 In this case the prize had been committed to the care of 
 Captain Talbot, one of the joint captors, with directions to send 
 on board a pilot to take her through the Needles. A pilot was 
 accordingly sent on board by Captain Talbot, but the prize- 
 
 1 3 Dall., 333 (1796). * 2 Rob., 293 (1779). 
 
 3 3 Rob., 129 (1800). 
 
5i8 COMMERCE IN WAR 
 
 master refused to admit him, asserting that he was himself a 
 pilot for the Needles and wanted no assistance. Further, the 
 neutral master, who knew the passage very well, warned him to 
 brace his yards sharper, but he refused. The vessel was lost, and 
 it was lost, said Sir William Scott, by the misconduct of the prize- 
 master, and it was impossible for him to steer clear of the rule of 
 law that a principal is civilly answerable for the conduct of his 
 agent. Restitution in the value of the ship was decreed. 
 
 Due diligence. — In the case of a justifiable seizure the captor 
 must exercise due diligence. Sir William Scott, in the "William," ^ 
 declined to assent to the proposition that captors were only bound 
 to exercise such care as they would take of their own property. 
 Capture is not analogous to bailment. In the former 
 
 " there is no confidence reposed nor any voluntary election of the 
 person in whose care the property is left. It is a compulsory act of 
 justifiable force, but still of such force as removes from the owner any 
 responsibility for the imprudent or incautious conduct of the prize-master. 
 It is not enough, therefore, that a person in that situation uses as much 
 caution as he should use about his own affairs. The law requires that 
 there should be no deficiency of due diligence" 
 
 Here the prize-master refused to take a pilot on board. The 
 vessel, without any change of wind or any accident imput- 
 able to the weather, struck on a rock and went down in midday. 
 The Trinity masters found that in not taking a pilot all was not 
 done which ought to have been done, and that there was a want 
 of due skill in not steering clear of the rocks. Restitution in 
 value was decreed. 
 
 In the case of the " Portsmouth"^ and other cases, it was held 
 that it was a principal test of due diligence whether the prize- 
 master availed himself of the ordinary opportunities of taking a 
 pilot on board. 
 
 " As to the question of legal responsibility, it appears that there was a 
 regular pilot on board, to whom the care of the navigation of the vessel 
 was necessarily confided. If persons under him do their duty, and it is not 
 shown that the cause of damage arises from any want of obedience in them, 
 or from any cause assignable to the want of that control which the captor 
 is bound to exercise over the crew, I am of opinion that the captor is 
 exonerated." 
 
 Detention of neutral ship. — Where there has been unreasonable 
 detention of a neutral vessel, which is clearly entitled to be 
 restored, demurrage will be granted against the captors. In the 
 case of the " Zee Star,"^ there was a detention of the vessel for 
 two months and twenty days after the claim had been put in, 
 
 1 6 Rob., 316 (1806). 2 Ibid., 317, note (1807). 
 
 8 4 Rob., 71 (1801). 
 
 s 
 
FORMALITIES OF CAPTURE 519 
 
 the captors not consenting to restitution until the end of that 
 period. No explanation of this want of due and necessary 
 diligence was offered. Sir William Scott gave two months 
 demurrage, together with costs and damages, and refused the 
 captors' expenses. 
 
 So in the case of the " Peacock,"^ which had been captured by 
 an English privateer and carried into Lisbon, where she was 
 detained six weeks upon the excuse that the privateer wanted to 
 refit, and " they waited for an opportunity of sending the prize to 
 England under convoy." 
 
 " It is the duty of privateers," said Sir William Scott, "to bring their 
 prizes home to a port of this kingdom as soon as they can. King's ships 
 may reasonably be allowed a greater latitude. It may sometimes be 
 necessary for them to send their prizes to Lisbon, and in some cases I 
 will not say that it may be absolutely improper for privateers. But it 
 cannot be so necessary, and unless some very particular reason intervenes, 
 it is their duty to bring their prizes home as soon as possible, unless they 
 carry them to the port of Gibraltar," 
 
 Accordingly the captors were held liable to costs and damages, 
 although the original seizure was not wrongful. They were 
 allowed such expenses as would have been incurred if they had 
 proceeded here. 
 
 It was stated in the " Susanna " ^ 
 
 " that the ship was seized as prize-at-sea, that certain persons were 
 put on board, that the king's ship parted in chase of another vessel, that 
 this schooner joined in the chase, and by carrying too much sail was 
 upset and lost." 
 
 No claim was made upon the captors to proceed to adjudication 
 until nearly six years had elapsed. 
 
 " The obligation on the captors," said Sir William Scott, " to institute 
 proceedings may therefore, I think, be held not to attach quite so strongly 
 as when a ship is brought into port, when the captor has taken complete 
 possession and is bound by the express directions of the Prize Act to 
 proceed to adjudication. Whilst the ship is at sea he may deliberate, and 
 after mature investigation discharge himself of the custody. He may 
 remain liable for misconduct in having detained at sea, but the obligation 
 to proceed in the direct question of prize is not so imperative upon him as 
 in a case where the vessel is actually brought in. If any inconvenience is 
 to be apprehended from delay, that will be sufficiently counteracted by the 
 opportuntity which the other party has of instituting proceedings and of 
 calling upon the captor to compensate for the detention under another 
 form than that of a prize proceeding. Under the circumstances of the 
 present case, I cannot say that any laches is imputable to the captor ; still 
 less such as will remove the imputation of delay that is chargeable to the 
 other party. The onus lay upon the claimant. He ought to have 
 proceeded and within a reasonable time." 
 
 1 4 Rob., 185 (i8o2). 2 6 Rob_^ 48 (1805). 
 
520 COMMERCE IN WAR 
 
 The " Gerasimo " ^ was a Wallachian vessel seized by a British 
 cruiser for an alleged breach of blockade. The seizure took 
 place as the vessel was coming from Galatz, out of the mouth of 
 the Danube. She was sent into Constantinople, where she was 
 released upon security and the cargo sold. No tidings having 
 been heard of the proceeds and the captors not having taken any 
 proceedings, the claimants, on behalf of the owners of the cargo, 
 commenced process here to compel the captors to proceed to 
 adjudication. 
 
 "On the part of the claimants," said Dr. Lushington, "a very long argu- 
 ment was addressed to the Court, impugning the conduct of the captors 
 and charging them with having improperly brought the vessel to Con- 
 stantinople. It has been further stated that there being no means of 
 examining witnesses at Constantinople, great unnecessary delay had 
 occurred, and that the captors were responsible for such delay and all the 
 consequences. The Court is not disposed to deny the truth and justice of 
 the principle contended for ; on the contrary, I am clearly of opinion that 
 if a delay in bringing to adjudication and the non-examination of witnesses 
 arose — though it may be almost impossible for the Government of the 
 belligerent nation to prevent such occurrence — still that neutrals ought to 
 be indemnified if injustice has been done them. The captors in the first 
 instance, though they may be perfectly blameless, are responsible to the 
 neutrals, and they must look to their own Government for redress if they 
 have been compelled to make good any injury sustained by neutrals in 
 consequence of their fulfilling the commands which they dare not disobey. 
 In many cases the captains of some of Her Majesty's cruisers may have a 
 discretion to release at once, but this may not be so in case of a blockade, 
 when special orders may have been given to capture and detain." 
 
 This statement of legal principles was adopted by the Privy 
 Council upon appeal. What claim the captor might have upon 
 the Government it was not, said their lordships, their duty to 
 judge, nor had they any means of forming an opinion. His con- 
 duct appeared to them to be without any excuse, and they had no 
 hesitation in advising restitution of the cargo, with costs and 
 damages against the captor. 
 
 Delay by captors in proceeding to adjudication.— Captors 
 
 ought to proceed to adjudication as soon as possible after the prize 
 has been brought in, and if they delay the claimants may compel 
 them to do so. 
 
 " During the existence of the prize commission," said Sir William Scott 
 in the "Huldah,"^ "there is no fixed and definite time by which the party 
 can be said to be legally barred from calling on the captor to proceed to 
 adjudication ; although it may be proper to hold that there must exist a 
 time which would work such an effect; but I know of no prescribed limita- 
 tion against the admission of a claim, nor of any other means by which the 
 
 1 II Moore, P.C, 88 (1857). 
 
 2 3 Rob., 23s (1801). 
 
FORMALITIES OF CAPTURE 521 
 
 captor can protect himself but by applying to a court of competent juris- 
 diction. If he neglects to apply to any tribunal, he would be guilty of a 
 great misdemeanour ; if through misapprehension he applies to an improper 
 tribunal, though he may defend himself against the charge of a misde- 
 meanour, he cannot protect himself from the call of the claimant to proceed 
 to adjudication before a competent tribunal. In this case there is no impu- 
 tation of misconduct ; the captor went to a Court which was sitting at St. 
 Domingo apparently without authority; in that Court he obtained a 
 sentence of condemnation, and distribution has taken place in consequence 
 of it. But that Court having no authority, those proceedings are null and 
 of no legal effect whatever. On the other hand, it was the duty of the 
 claimant to have brought this matter before the Court as soon as he could ; 
 as it is always in the power of the claimant to compel the captor to pro- 
 ceed if he neglects to do so himself." 
 
 " However justifiable the seizure may have been," observed Sir William 
 Scott in the " Madonna Del Burso,"^ " the first obligation which the seizor 
 has to discharge is that of accounting why he did not institute proceed- 
 ings against the vessel and cargo immediately, and unless he can excul- 
 pate himself with respect to delay in this matter, he is guilty of no 
 inconsiderable breach of his duty." 
 
 In the case of the " St. Juan Baptista," ^ some Spanish prizes 
 were brought into Falmouth on 12 August, but no proceedings 
 vpere taken till 12 September, 
 
 " It must be understood," declared Sir William Scott, " by those who 
 arm themselves with the commission of their country, that if they bring 
 neutral ships into British ports they must on no account detain them 
 there without inquiry. Grievous would be the injury to neutral trade and 
 highly disgraceful to the honour of their own country if captors could 
 bring in ships at their fancy and detain them any length of time, without 
 bringing the matter to the cognizance of a court of justice." 
 
 Delay by claimants. — In the case of the "Mentor,"^ the 
 claimant only instituted proceedings sixteen years after the cap- 
 ture. In delivering judgment upon this and other points, Sir 
 William Scott said : — 
 
 " It is not within my recollection that a case of such antiquity has ever 
 been suffered to originate in this Court. I do not say that the Statute of 
 Limitations extends to prize causes ; it certainly does not ; but every man 
 must see that the equity of the principle of that statute in some degree 
 reaches the proceedings of this Court, and that it is extremely fit that 
 there should be some rule of limitation provided by the discretion of the 
 Court attending only to the nature and form of the process conducted 
 here by which captors or other persons should be protected against 
 antiquated complaints. And if there is any case of remote antiquity which 
 ought not to be entertained, undoubtedly that would be one in which it 
 clearly appeared that the party complaining had been fully apprized of 
 the nature of his injury and of the mode of redress which he ought to 
 have pursued." 
 
 1 4 Rob., 169 (1802). 2 5 Rob.^ 33 (1803). 
 
 3 I Rob., 179 (1799). 
 
522 COMMERCE IN WAR 
 
 The "Susanna"^ was a claim to proceed to adjudication six 
 years after the capture. 
 
 " The fact on which the application is made," said Sir William Scott, 
 " is therefore of a very antiquated date ; at the same time I will not say- 
 that mere time alone would be an absolute bar, if the claimant had shown 
 that he had used due diligence and that he had been prevented by circum- 
 stances of inevitable and incurable necessity from prosecuting his demand 
 in due time. ... If a claimant has mistaken his way and has not pursued 
 his remedy in a proper manner and in due season, his error should not 
 expose other parties to the inconvenience of being harassed by pro- 
 ceedings at this distance of time, when the very circumstance of delay 
 has unavoidably occasioned additional difficulties in establishing their 
 defence and on a point which must at all times have been considered as 
 a question of delicate and difficult discussion." 
 
 Treatment of neutral crew by captors.— Upon the cap- 
 ture of a neutral ship the crew ought not to be put in restraint, 
 handcuffed, or put in irons except in extreme circumstances. In 
 the case of the " St. Juan Baptista"^ there had been some slight 
 resistance, since the neutral crew were in ignorance that war had 
 broken out between Great Britain and Spain, and the captors were 
 taken for pirates. Upon the charge of ill-treatment of the crew 
 Sir William Scott declared the imputation of such a practice, " if 
 proved to have existed in the extent alleged and without necessity, 
 must be pronounced to be disgraceful to the character of the 
 country; since no one who hears me will deny that to apply even 
 to enemies modes of restraint that are unnecessary and at the 
 same time convey personal indignity and personal suffering is 
 highly dishonourable. It is alleged in this case that the Spanish 
 crew, to the number of twenty- two persons, were put in irons." 
 The sum of ;^ioo was ordered to be distributed amongst the men 
 so confined by way of damages. 
 
 In the case of the " Die Fire Damer,"* the prize-master was 
 found to have been in a continual state of intoxication, and to 
 have been guilty of great cruelty and misbehaviour to the crew of 
 the neutral vessel. A sum of one hundred guineas was ordered 
 to be paid by the owners of the privateer, to be distributed amongst 
 the ten hands which formed the crew of the captured vessel. 
 
 " It would be disgraceful," said Story, J., in the " Lively,"* " to the char- 
 acter of the country to suffer a practice to exist which, setting at defiance 
 the rules of civilized warfare, should consummate a triumph over an enemy 
 by personal indignities or modes of restraint unnecessary for the general 
 safety. Much less ought such conduct to be tolerated towards neutrals or 
 citizens of our own country. And when the case should be clearly made 
 but, accompanied with undeserved suffering or malicious injury, the Court 
 could never hesitate to pronounce for exemplary damages." 
 
 1 6 Rob., 48 (1805). 2 5 Rob., 33 (1803). 
 
 5 Ibid., 357 (1805). 4 I Gall., 315 (1812). 
 
FORMALITIES OF CAPTURE 523 
 
 Inviolability of neutral property on captured vessel. — 
 
 It is the duty of the captors to preserve the ship and property in 
 the same condition as that in which they received it. Except in 
 case of urgent necessity, they must not break bulk, or remove, 
 convert, or embezzle any of the property, or spoil or damage the 
 ship or its furniture in any manner whatever. 
 
 Conversion.— The " L'Eole " ^ was a French vessel captured off 
 the coast of Africa by three British privateers. Fourteen slaves 
 on board were taken out, and the rest of the cargo was bartered 
 away for a numerous cargo of slaves, who were shipped on the 
 prize and sent to Barbados for adjudication. 
 
 " Was there any necessity," asked Sir William Scott, " for this transac 
 tion ? It is to be observed, in the first place, that captors have no right 
 to convert property till it has been brought to legal adjudication ; they are 
 not even to break bulk. They can have no justification for converting 
 such property, except in cases of physical necessity, which overpowers all 
 ordinary rules. If a case arises in a distant part of the world and it is 
 known that the goods were perishing, I must not deny that such a justify- 
 ing cause of conversion might be pleaded upon property so acquired ; but 
 no such case is presented to the Court. It is not alleged that the cargo 
 was perishing, but merely that the goods could not be sold as well else- 
 where, or in other words, that it would not be so good a prize. That is 
 not enough. It is not even averred in any affidavit that the goods were of 
 a perishable nature, or if perishable, that they might not have been dis- 
 posed of to some other trader on the coast. Suppose the Court had gone 
 so far as to justify a conversion, I cannot but think that the barter for 
 slaves is the last mode of conversion that should have been adopted. The 
 captors might have taken gold-dust or other articles of commerce known 
 in the traffic of that country. To trade in slaves is a species of commerce 
 which the humanity of the Legislature has fenced round with peculiar regu- 
 lations, every one of which is overlooked in this act of these individuals." 
 
 Embezzlement. — In the case of the " Concordia,"^ it ap- 
 peared that the prize-master demanded the keys and forced open 
 certain packages, in consequence of which a number of bales of 
 linen were missing. Restitution of the cargo had already been 
 ordered, and it was in possession of the Dutch commissioners. 
 Those in possession were ordered to make full restitution, with 
 leave to call upon the captors to make good the deficiencies of 
 embezzlements happening whilst tjie cargo was in their hands. 
 
 When a large sum of cash was taken out of a prize by a 
 privateer, the owners were held to be responsible for its removal.^ 
 
 After the deposit of the cargo in suitable warehouses under a 
 commission of unlivery, the captors are only responsible for 
 due diligence, and are not answerable for loss through burglary or 
 robbery, 
 
 1 6 Rob., 220 (1805). 2 2 Rob., 102 (1799). 
 
 3 Del. Col. V. Arnold, 3 Dall., 333 (1796). 
 
524 COMMERCE IN WAR 
 
 In the two cases of the "Maria" and the " Vrow Johanna,'" 
 the captor was charged with negligent keeping. 
 
 " If this charge had been made out," said Sir William Scott, " there can 
 be no doubt but that he would be answerable to the utmost ; for the 
 captor holds but an imperfect right; the property may turn out to belong to 
 others, and if the captor puts it in an improper place or keeps it with too 
 little attention, he must be liable to the consequences if the goods are not 
 kept with the same caution with which a prudent person would keep his 
 own property. But there is no ground for any imputation of personal 
 negligence in this case, because it appears that the loss happened by 
 burglary, the warehouse having been broken open and the goods stolen." 
 
 This, explained the learned judge, is not a case of a bailment 
 for a reward. Persons who receive no consideration for their 
 custody are only required to show such care and due diligence as 
 they would apply to their own property. 
 
 " The goods were taken jure belli; the captor had a right to bring 
 them in, and if any accident had happened in so doing, he would have 
 been excusable except for want of due care on the part of himself or 
 his agents. When the goods were brought in they were placed under the 
 custody of the law. It became necessary to take them out of the ship, 
 and the captor obtained a commission of unlivery from the Court ; they 
 were put into warehouses, and nothing has been advanced to show that 
 those warehouses were not proper places and sufficiently secure. The 
 question comes forward, therefore, on the general principle, and on this 
 point I am disposed to think that the captor is not responsible for a loss 
 happening to goods whilst they were under the custody of the law. . . . 
 If the captor has used due diligence he is exonerated ; it is necessary to 
 show negligence on his part in order to fix a responsibility upon him." , 
 
 "This Court has held," said Sir William Scott in the " Rendsbetg,,"^ 
 " private captors discharged from responsibility where the property has 
 been shown to be missing without any default on their part." 
 
 Where property was lost by the negligent custody of the 
 marshal, he was held liable for the loss. 
 
 Right of Crown to release prize before adjudication. 
 
 The power of the Crown to direct a release of property seized 
 as prize, before adjudication and without the consent of the captors, 
 is an inherent right which is not taken away by any grant of prize 
 conferred in any Order of Council, Proclamation of Neutrality, or 
 the Prize Acts. 
 
 "The rights of the Crown," said Sir William Scott in the "Elsebe,"' 
 "are public rights, conferred not merely for private purposes or for personal 
 splendour, but for the public service, and to answer the great exigencies 
 of public interests and claims of public justice ; as such, they demand the 
 active protection of every court in which the occurrence of them is 
 
 1 4 Rob., 348 (1803). 2 6 Rob., 156-7 (1805). 
 
 3 "Elsebe,"sRob., 174. 
 
FORMALITIES OF CAPTURE 525 
 
 suggested to arise. The right which is asserted by the claimant, and 
 is denied on the part of the captor, is that of releasing ships and goods 
 that had been taken jure belli before adjudication and without the consent 
 of the captors. I say without consent, because I think I must hold, upon 
 the present evidence, that the captors have not done any act by which 
 they can be considered as communicating their consent." 
 
 The learned judge then reviewed the evidence upon the 
 questions whether the Crown had, in fact, exercised its power 
 of release, and whether the claimant had not renounced the 
 benefit of it. The first question he held to be sufficiently proved 
 by an official letter from the Secretary of State for the Foreign 
 Department to the Minister of the country whose subjects were 
 principally interested, informing him that the ships were released, 
 and that orders had been given by the Lords of the Admiralty for 
 that purpose. The form of such communication signified nothing. 
 Whether it was in writing or verbal and by what means it reached 
 its destination were immaterial. So long as it had proceeded 
 from the State and bore the impress of that original authority, 
 and had not been disavowed or seceded from, the Court was 
 bound by it. 
 
 Upon the second question the learned judge found that it was 
 competent for the claimant to decline to avail himself of the 
 benefit of the release, and to apply to a court of justice for a more 
 ample compensation. 
 
 " If he had appealed," said Sir William, " from the Government to the 
 Court of legal redress, the Court must have received the complaint, and 
 have proceeded to an ultimate determination on the quantum of the 
 grievance alleged, and by such a conduct the party might fairly have been 
 considered to have waived the benefit of a partial release." 
 
 These questions having been disposed of, the question of right 
 remains, "How far can the Crown release at any time before 
 adjudication without the consent of the captors ? " 
 
 "It is admitted," continued the learned judge, "on the part of the 
 captors . . . that their claim rests wholly on the Order of Council, the 
 Proclamation, and the Prize Act. It is not (as it cannot be) denied that, 
 independent of these instruments, the whole subject-matter is in the 
 hands of the Crown, as well in point of interest as in point of authority. 
 Prize is altogether 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 right of making war 
 and peace is exclusively in the Crown. The acquisitions of war belong 
 to the Crown, and the disposal of these 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 universally received as a necessary 
 principle of public jurisprudence by all writers on the subject— ^^//o 
 
526 COMMERCE IN WAR 
 
 parta cedunt reipublicae. It is not to be supposed that this wise attribute 
 of sovereignty is conferred without reason ; it is given for the purpose 
 assigned, that the Power to whom it belongs to decide peace or war may 
 use it in the most beneficial manner for the purposes of both. A general 
 presumption arising from these considerations is that the Government 
 does not mean to divest itself of this universal attribute of sovereignty, 
 conferred for such purposes, unless it is so clearly and unequivocally 
 expressed. In conjunction with this universal presumption must be 
 taken also the wise policy of our own peculiar law, which interprets the 
 grants of the Crown in this respect by other rules than those which are 
 applied in the construction of the grants of individuals. Against an 
 individual it is presumed that he meant to convey a benefit with the 
 utmost liberality that his words will bear. It is indifferent to the public 
 in which person an interest remains, whether in the grantor or the taker. 
 With regard to the grant of the sovereign it is far otherwise. It is not 
 held by the sovereign himself as private property, and no alienation sheill 
 be presumed, except that which is clearly and indisputably expressed. 
 
 " With these rules of interpretation the title deeds of the captors must 
 be considered, to determine whether the Crown has in those deeds re- 
 nounced that power, which in principle it possesses and in practice has 
 frequently exercised. If there is anything which can be supposed to 
 produce that effect, it must be the conveyance of a right of some species 
 or other to other persons, and these can be no other than the captors, in 
 virtue of which they claim an indefeasible interest in prize once taken. 
 The right contended for is a right to seize and bring in to adjudication all 
 ships of the enemy. Does the right to seize thus generally given alone 
 bind the Crown, so as to bar it from any further exercise of its power with 
 respect to seizures ? Certainly not ; for after that right is given to seize 
 all ships of the enemy, the Crown can exempt as it sees fit. The Crown 
 which declares general hostilities can limit their expiration. It can 
 except individuals. It grants particular passes. It exempts particular 
 classes of the enemy's ships, notwithstanding the right thus given of 
 seizing all ships. If, then, the right of seizing all ships thus generally 
 given does not bind the Crown in its power of qualifying that right by 
 subsequent modifications, on what ground is it contended that the exercise 
 of its power with respect to proceeding to adjudication is barred by the 
 mere act of seizure ? The mere act of seizure surely cannot work any 
 such effect : it is an act in itself in some degree always dubious till 
 adjudication and possibly erroneous ; yet this dubious act is to convey 
 to the party a right indefeasible to proceed to adjudication when the very 
 proceeding may be a further wrong done, an aggravation of costs and 
 damages already occasioned by the improper seizure ! I attended with 
 great impatience to the able argument of Dr. Arnold to learn what was 
 the specific nature of the right conferred on the captors by the act of 
 seizure, to which the effect of barring the power of the Crown to release 
 is to be attributed. It is admitted to be in degree an imperfect right. In 
 species it was stated, if I understand the argument, to be a. jus persequendi, 
 a right of action and no more ; no right of interest, but a mere right of 
 bringing to adjudication. Whatever is the nature of this right, it is con- 
 veyed only in the Order of Council ; it is not given in the Proclamation 
 or the Prize Act. It is, indeed, recited in both as a thing otherwise 
 existing, but it makes no part of the powers conferred in either of those 
 
FORMALITIES OF CAPTURE 527 
 
 instruments. Now, according to the construction which is, in my opinion, 
 to be put upon this matter, this jus persequendi, as it is called, is not a 
 nght conveyed, but a duty enjoined. Captors have generally a right to 
 seize, subject to this duty of bringing to adjudication — a duty enjoined 
 that they may not make seizures without bringing to adjudication — a 
 duty enjoined that they may not make seizures without bringing the 
 ships and goods seized to the notice of the proper tribunal in order to 
 prevent the right of seizure from degenerating into piratical rapine. If 
 the Crown imposes that obligation, the Crown can release it. Supposing 
 the Proclamation and Prize Act to be out of the way, and that the 
 matter stood singly upon the Order of Council, there can be no doubt 
 that the Crown could so release. The Crown imposed the obligation, and 
 so far as the Order of Council alone is considered, the Crown retains the 
 whole interest. If the prize is condemned, it must be condemned to the 
 Crown, and for its interest, for the Order of Council gives no interest to 
 the captors. No doubt could exist, supposing the matter to stand on the 
 Order of Council alone, that the Crown is completely dominus litis, and 
 also dominus rei litigatae, supposing there is no claim maintainable on 
 the part of any neutral proprietor. 
 
 " As far as any right to the extent contended for can be supposed to 
 be vested in the captor, then it must be attributed to some enlargement 
 of these rights given by the Order of Council, derived from the Prize Act 
 and Proclamation. Let us consider what this enlargement is. The 
 Proclamation gives the whole property, but not till after adjudication: 
 until that time no beneficial interest attaches. So the Prize Act, in like 
 terms, gives the whole interest or property in opposition to that proportional 
 and partial interest given by former Acts,^ but not till adjudication. In 
 adverting to these instruments, it is impossible not to remark the very 
 guarded terms in which the benefit is conferred. The Proclamation gives 
 to privateers ' after final adjudication and not before^ not merely after 
 adjudication, but superadding a negative pregnant, ' and not before' With 
 regard to king's ships, the grant is expressed with similar caution ; it 
 gives the neat produce of all such prizes taken, the right whereof is 
 inherent in us and our crown. And again, ' It directs that such prize may 
 be lawfully sold or disposed of by them and their agents after the same 
 shall have been finally adjudged lawful prize and not otherwise' 
 
 " What is the use of these guarded expressions ? Surely not merely 
 the object of protecting the interests of the claimant till after adjudication. 
 The Crown cannot be supposed to be anxious to make a reservation or 
 exception of that which without any exception would be perfectly safe, 
 for no interest of the Crown or its grantor could divest the interest of the 
 claimant. The reservation must ex necessitate rei, ex defectu alicvjus 
 alterius materiae, apply to rights over which the Crown has a dominion, 
 and which, unless reserved, it might be supposed to have granted away. 
 What are these rights ? The right of controlling the whole proceeding 
 till final adjudication, the right of declaring that the party shall not be 
 farther proceeded against as an enemy, the right of suspending hostility 
 against him with regard to property which has been seized under the 
 general order of reprisals. For such purposes, and such purposes only, 
 it must be that the Crown has declared that till after adjudication the 
 
 ' See 4 & 5 Will. & Mar. c. 24, and 6 Ann. c. 13, by which officers and seamen of 
 Queen's ships, privateers, etc. were given the sole property in all prize ships. 
 
528 COMMERCE IN WAR 
 
 captor has no interest which the Court can properly notice for any legal 
 effect whatsoever. In the case of captures made by the King's own ships, 
 the authority of the Crown is most marked upon the face and in the sub- 
 stance of every part of the proceedings in the most emphatical manner. 
 The Crown officers are the prosecutors in the name of the Crown ; the 
 final adjudication under the very terms of the Act is a condemnation to 
 the Crown, and most clearly the interest would vest in the Crown under 
 that condemnation if the Act had not expressly superadded that it should 
 enure to the benefit of the captor. In seizures made by private ships of 
 war the hand of the sovereign authority is less visible in the mode and 
 style of proceeding ; but the right of the Crown is sufficiently guarded by 
 the repeated declarations that the interest shall vest in such captors ' after 
 final adjudication and not before! " 
 
 His lordship then dealt with the practice with reference to the 
 instances cited. The practice for the Crown to direct the release 
 of ships he conceived to have been unquestioned. He referred 
 to one class of cases, viz. restitution at the termination of a war 
 stipulated for in the Preliminary Articles of Peace, from which 
 such a power might be inferred to exist in the Crown. In such 
 cases it is not easy, said Sir William, 
 
 " to conceive a power lodged in the Crown to secure that retrospective 
 effect, to the conclusion of a treaty, without supposing also a correspond- 
 ing power over the acts of its own subjects, to supersede the intermediate 
 events of war, and to annul captures, rightly made, up to the moment of 
 ratification under the only known rule of action then promulgated and 
 communicated to cruisers for the government of their conduct." 
 
 Upon the larger question of public policy, Sir William was 
 content to point to the pbvious menace to the State of placing 
 in the hands of the pettiest commander the power to force on, 
 in spite of all the prudence of the Crown, the discussion and 
 decision of the most delicate questions — the discussion and 
 decision of which might involve the country in the most ruinous 
 hostilities. 
 
 " I am of opinion," concluded the learned judge, "that all principles of 
 law, all forms of law, all considerations of public policy, concur to support 
 the right of release prior to adjudication, which I must pronounce to be 
 still inherent in the Crown." 
 
 Destruction of enemy vessels by a belligerent. — When 
 from some cause, such as the dangerous condition of the ship, 
 the possibility, if released, of it giving information to the enemy, 
 want of men to form a prize crew, disease, lack of provisions or 
 water, the prize if enemy's property may be ransomed,^ sold, 
 retained and used as a tender to the captor's own ship, or 
 destroyed. During the Anglo-American War of 1812 the 
 
 ^ The English Regulations forbid ransom. 
 
FORMALITIES OF CAPTURE 529 
 
 United States adopted the policy of burning all British prizes 
 in the endeavour to cripple the enemy's commerce; and in the 
 American Civil War the commander of the "Alabama" burned 
 most of his captures, since the Confederate ports were blockaded 
 and the neutral ports of England, France, and other maritime 
 States were closed to his prizes. If an enemy's ship and cargo 
 are destroyed under some necessity, care must be exercised in 
 taking out all the persons on board together with their baggage, 
 A good illustration of such necessity is the case of the " Felicity,"^ 
 which had been captured during the Anglo-American War of 
 1 81 2 by the British cruiser "Endymion" after attempting to 
 reach the coast of America in a shattered condition and under un- 
 settled and boisterous weather. The captain and crew with their 
 baggage were removed on board the cruiser, and the " Felicity " 
 was destroyed, 
 
 "Taking this vessel and cargo to be merely American," said Sir 
 William Scott, " the owners could have no right to complain of this act of 
 hostility, for their property was liable to it in the character it bore at that 
 period of enemy's property. There was no doubt that the ' Endymion ' 
 had a full right to inflict it if any grave call of public duty required it. 
 Regularly a captor is bound by the law of his own country conforming to 
 the general law of nations to bring in for adjudication, in order that 
 it may be ascertained whether it be enemy's property, and that mistakes 
 may not be committed by captors in the eager pursuit of gain, by which 
 injustice may be done to neutral subjects and national quarrels produced 
 with the foreign States to which they belong. Here is a clear American 
 vessel and cargo, alleged by the claimants to be such, and consequently 
 the property of enemies at that time. They share no inconvenience by 
 not being brought in for condemnation, which must have followed if it 
 were mere American property ; and the captors fully justified themselves 
 by the law of their own country, which prescribes the bringing in, by 
 showing that the immediate service in which they were engaged, that 
 of watching the enemy's ship of war the 'President,' with intent to 
 encounter her, though of inferior force, would not permit her to part with 
 any of their own crew to carry her into a British port. Under this 
 collision of duties nothing was left but to destroy her, for they could not 
 consistently with their general duty to their own country, or indeed its 
 express injunctions, permit enemy's property to sail away unmolested. 
 If it is impossible to bring in, their next duty is to destroy enemy's pro- 
 perty. Where doubtful whether enemy's property and impossible to 
 bring in, no such obligation arises, and the safe and proper course is to 
 dismiss." 
 
 Dr. Lushington is equally emphatic in the " Leucade,"^ 
 " The destruction of a vessel under hostile colours is a matter of duty. 
 The Court may condemn on proof which would be inadmissible or wholly 
 irregular in the instance of a neutral vessel. It may be justifiable or even 
 
 1 2 Dod., 383 (1819). 
 
 2 Spinks, 217 (1855). 
 
 2 M 
 
530 COMMERCE IN WAR 
 
 praiseworthy in the captors to destroy an enemy's vessel. Indeed, the 
 bringing in to adjudication of an enemy's vesssel is not called for by any 
 respect to the right of the enemy proprietor when there is no neutral pro- 
 perty on board." 
 
 In the war between the United States and Mexico, the 
 "Admittance,"^ an American vessel, was seized upon suspicion 
 of trading with the enemy, and with its cargo sold without being 
 sent for adjudication to the United States. 
 
 In supporting this conduct of the captors, Taney, C.J., said: — 
 
 " As a general rule, it is the duty of the captor to bring it within the 
 jurisdiction of a prize court of the nation to which he belongs, and to 
 institute proceedings to have it condemned. This is required by the Act 
 of Congress in cases of capture by ships of war of the United States ; 
 and this Act merely enforces the performance of a duty imposed upon 
 the captor by the law of nations, which in all civilized countries secures 
 to the captured a trial in a court of competent jurisdiction before he can 
 be finally deprived of his property. 
 
 " But there are cases when, from existing circumstances, the captor 
 may be excused from the performance of this duty, and may sell or 
 otherwise dispose of the property before condemnation. And where the 
 commander of a national ship cannot, without weakening inconveniently 
 the force under his command, spare a sufficient crew to man the captured 
 vessel, or when the orders of his Government prohibit him from doing so, 
 he may lawfully sell or otherwise dispose of the captured property in a 
 foreign country, and may afterwards proceed' to adjudication in a court 
 of the United States. But if no sufficient cause is shown to justify the 
 sale, and the conduct of the captor has been unjust and oppressive, the 
 Court may refuse to adjudicate upon the validity of the capture, and may 
 award restitution and damages against the captor, although the seizure as 
 prize was originally lawful or made upon probable cause." 
 
 Bluntschli, however, is opposed to destruction except in cases 
 of necessity,^ and even Captain Semmes of the "Alabama" 
 ransomed his prizes wherever neutral goods were on board.^ 
 Heffter considers destruction inexcusable except under dire 
 necessity.* In the Franco-German War of 1870 the French 
 commander Desaix burned two German merchant ships as he 
 could not spare prize crews, and compensation for the destruction 
 of neutral property on board was refused by the French prize 
 court. When, in the Russian - Turkish war of 1878, Russian 
 ports in the Black Sea were blockaded, the Russians burned the 
 enemy's ships, the Institute of International Law in Congress at 
 Turin in 1882 fully recognized their right. 
 
 In commenting upon the action of Captain Semmes, Mr. 
 Charles Clarke, relying upon the judgments of Sir William Scott 
 
 1 Jecker v. Montgomery, 13 Howard, 498 (1851). 
 
 2 Mod. Volkerrecht, sec. 672. 
 
 3 "Service Afloat," 141. * Sec. 138. 
 
FORMALITIES OF CAPTURE 531 
 
 in the " Actaeon "^ and the " Felicity,"^ urges that, except under the 
 pressure of paramount necessity for self-preservation, the destruc- 
 tion of enemy ships without bringing in for adjudication ought 
 to be declared unlawful and deserving of reprobation and punish- 
 ment. The mere convenience of disembarrassing yourself of a 
 captured ship can be no justification or excuse for, on your own 
 judgment, treating it forthwith as your own lawful prize and de- 
 stroying it. 
 
 Although adjudication is " for the benefit of the neutral," it is 
 asserted, he says — 
 
 "that the captured ship, being an enemy or sailing under an enemy's 
 flag, may for the convenience of the captor be burned to the water's edge ; 
 yet it may be chartered by a neutral and filled with the goods of a 
 neutral, goods, if you like, purchased from the enemy, being either at that 
 moment or at a future time to be paid for in cash or in other goods, and 
 therefore to all intents and purposes, even under the law of bankruptcy 
 and of carrier's liability, the property of the neutral. This is a proposi- 
 tion which, though not made in terms (for so making it would have 
 startled its makers), is inevitably involved in the pretence that because a 
 captor has no ports nor courts, he may at once burn every ship he meets 
 with sailing under the enemy's flag. Everything is assumed to be 
 enemy's property because the ship's flag is enemy's. No assumption 
 can be more absurd. In the present state of the world, when no nation 
 is the almost sole carrier for the goods of the whole world, and when 
 therefore, as convenience dictates, anybody's goods are put on board of 
 anybody's ship, the opportunity and speed of transit and the cost of 
 freight being the only motives for the selection, this sweeping rule of de- 
 stroying everybody's goods with a ship that sails under any particular 
 colours, is an application of the rule of piracy which may be very con- 
 venient to the pirate, but is wholly unjustifiable as to any one else." * 
 
 Destruction of neutral vessels. — But a neutral vessel must 
 never be destroyed. If it is impossible to bring her within the 
 jurisdiction of a court competent to adjudicate upon her, she must 
 be immediately released. 
 
 If, however, she can be sent into a neutral port with safety and 
 the neutral authorities allow her to lie there, it is permissible to 
 send her there. In that case, all witnesses and documentary 
 evidence must be sent to the nearest port of the captors contain- 
 ing a prize court. 
 
 The general rule of justice which forbids the destruction of a 
 neutral vessel was laid down by Sir William Scott in the clearest 
 manner. 
 
 In considering the effect of his judgments, it must be borne in 
 mind that Great Britain was at this moment (181 2) at war with 
 both France and the United States, one consequence of which was 
 
 1 2 Dods., 48 (181 5). ^ Ibid., 381. 
 
 3 Papers read before the Juridical Society, Vol. Ill, 1863-70, p. 13. 
 
532 COMMERCE IN WAR 
 
 the necessity for a constant supply of American flour for the use 
 of the British army in Spain. 
 
 Licences were therefore issued to all, except French, vessels, 
 being unarmed and not less than loo tons burthen and bearing 
 any flag, except that of France, to import into Cadiz from any 
 port of the United States cargoes of grain, etc, without molesta- 
 tion on account of any hostilities which might exist between 
 Great Britain and the United States, notwithstanding such 
 vessels and cargoes might belong to American citizens. These 
 licences were issued upon condition that those vessels should not 
 return to blockaded ports, and that the names of the masters 
 should be endorsed thereon at the time of the vessels clearing 
 from their ports of lading. They continued in force for twelve 
 months. 
 
 The "Actaeon"^ was an American ship which under such a 
 licence had taken a cargo of flour to Cadiz and discharged there. 
 Upon the production of this licence to the British Minister, it was 
 endorsed with permission to return with cargo to any port of the 
 United States. In the course of the voyage to Boston, the 
 " Actaeon " was boarded by several British ships, the commanders 
 of which, upon examination of the licence, allowed her to proceed. 
 When approaching American waters she was captured by the 
 English cruiser " La Hogue," commanded by the Hon. Captain 
 Capel, who, in consequence of a strong American squadron in his 
 neighbourhood, found it impossible to weaken his crew by putting 
 a prize crew on board, and equally impossible to allow her to 
 proceed, as the exact strength and position of his own squadron 
 would thereby have been communicated to the American Govern- 
 ment, and might have entailed very serious injury to the public 
 service. The "Actaeon" was therefore set on fire and the ship and 
 cargo destroyed. 
 
 At the instance of the American claimants a monition was 
 issued calling upon the captors to proceed to adjudication of the 
 ship and cargo. An appearance was given under protest for the 
 captor, who did not contend against a sentence of restitution, but 
 objected to the payment of costs and damages upon the ground 
 that they had not been guilty of wilful misconduct. 
 
 In considering the measure of restitution to be awarded, Sir 
 William Scott said : — 
 
 " The natural rule is that if a party be unjustly deprived of his property, 
 he ought to be put as nearly as possible in the same state as he was before 
 the deprivation took place ; technically speaking, he is entitled to restitu- 
 tion, with costs and damages. This is the general rule upon the subject ; 
 but, like all other general rules, it must be subject to modification. If, for 
 
 » 2 Dods., 48 (1815). 
 
FORMALITIES OF CAPTURE 533 
 
 instance, any circumstances appear wliich show that the suffering party 
 has himself furnished occasion for the capture — if he has by his own con- 
 duct in some degree contributed to the loss — then he is entitled to a 
 somewhat less degree of compensation, to what is technically called simple 
 restitution. 
 
 " This is the general rule of law applicable to cases of this description 
 and the modification to which it is subject. Neither does it make any 
 difference whether the party inflicting the injury has acted from improper 
 motives or otherwise. If the captor has been guilty of no wilful miscon- 
 duct, but has acted from error and mistake only, the suffering party is 
 entitled to full compensation, provided, as I before observed, he has not by 
 any conduct of his own contributed to the loss. The destruction of the 
 property by the captor may have been a meritorious act towards his own 
 Government, but still the party to whom the property belongs 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 a benefit on the public, he must look to the 
 Government for his indemnity. The loss must not be permitted to fall on 
 the innocent sufferer." 
 
 In conclusion, the learned judge found that the conditions under 
 which Captain Capel laboured were circumstances which might 
 have afforded very good reasons for destroying this vessel, and 
 might have made it a very meritorious act in Captain Capel as far 
 as his own Government was concerned, but which furnished no 
 reason why the American owner should be a sufferer. 
 
 " I do not see," he declared, " that there is anything that can fairly be 
 imputed to the owner as contributing in any degree to the necessity of 
 capturing or destroying his property, and I think, therefore, he is entitled 
 to receive the fullest compensation from the captor. It does not appear 
 that Captain Capel is chargeable with having acted from any corrupt or 
 malicious motive, and if, as I believe has been the case, he has acted from 
 a sense of duty and of obedience to the orders he received, I can have no 
 doubt that he will be indemnified upon a proper representation being 
 made to the Government. But this will not affect the right of the Ameri- 
 can claimant, whom I must pronounce to be entitled to restitution with 
 costs and damages." 
 
 The same order was made in the "Rufus," but in the "William," 
 where the licence was rather doubtful in point of authority and 
 the capture justifiable, simple restitution only was decreed. 
 
 The " Felicity " ^ was also an American vessel which, during 
 the same war, had carried a cargo of provisions to Cadiz under a 
 British licence and was returning to Boston under similar protec- 
 tion when she was captured by the British cruiser " Endymion " 
 and destroyed. 
 
 That part of Sir William Scott's judgment which deals with the 
 destruction of the enemy's property has already been set out. 
 
 1 2 Dods., 381 (1819). 
 
534 COMMERCE IN WAR 
 
 " If a neutral ship or a protected ship," said Sir William, " is destroyed 
 by a captor, either wantonly or under an alleged necessity in which she 
 was not directly involved, the captor or his Government is answerable for 
 the spoliation." Again, he says, " Where it is neutral, the act of destruc- 
 tion cannot be justified to the neutral owner by the gravest importance of 
 such an act to the public service of the captor's own State ; to the neutral 
 it can only be justified, under any such circumstances, by a full restitutiqn 
 ip value. These rules are so clear in principle and established in practice 
 that they require neither reasoning nor precedent to illustrate or support 
 them. In the present case it is contended that the hostile character was 
 disarmed by a licence ; and I see no reason to dispute either the existence 
 of the licence or its authority. It had been granted under circumstances 
 that have been justly described as favourable. ... It is not to be denied 
 that these facts [viz. her services] create claims of a very strong and com- 
 manding nature — claims which are quite irresistible, if urged in a proper 
 manner. And the only question is, whether these claims are so brought 
 forward as to affect the captor with responsibility. I take it to be clear 
 that if the captor knew of the licence, either from its production or from 
 other circumstances which ought to have satisfied him of its existence, he 
 is liable to the whole extent of the mischief done ... it is «j clear a pro- 
 position that if the existence of the licence was not disclosed to him and 
 he had no sufficient means to inform himself, he is not a wrongdoer. The 
 act, if tortious, is the act of the persons who withheld the information they 
 were bound to have given him before the act of destruction took place. If 
 they held out the ship and cargo to be the enemy's property, he had still 
 more right to treat it as such. There is no case in which the rule de non 
 existentibus et non apparentibus can more justly apply than when a man is 
 called upon to answer for a case occasioned by the act of concealment of 
 the complainant himself. If a ship armed with a protecting licence, which 
 is not alleged or produced at the time of capture, is brought in under 
 circumstances that did not at all compel and authorize an immediate 
 destruction, the Court would subsequently restore that vessel, but it would 
 indemnify the captor to the utmost extent of all the expense he had been 
 put to by that act of concealment or denial. The ship in this case being 
 destroyed cannot be restored ; but if she was justifiably destroyed, under 
 an ignorance produced by such an act, the Court owes the captor the same 
 protection to the fullest extent. Was the knowledge of this licence com- 
 municated to the captor, or was it necessarily to be inferred by him before 
 the act of destruction took place ? " 
 
 Both these questions the learned judge ansvirered in the nega- 
 tive, freeing the captor of all responsibility and condemning the 
 claimant in the costs of the proceedings. 
 
 Dr. Lushington took substantially the same view in the 
 " Leucade,"^ a vessel sailing under Ionian colours and captured 
 by a British cruiser during the Crimea War on the ground of 
 illegal trade with Russia. She had been brought in for adjudica- 
 tion, and the claimants in addition to restitution asked for costs 
 and damages. "When a vessel under neutral colours is detained," 
 
 1 Spinks, 217 (1855). 
 
FORMALITIES OF CAPTURE 535 
 
 said Dr. Lushington, "she has the right to be brought to ad- 
 judication according to the proceedings in the prize court ; and 
 It is the very first duty of the captor to bring- it in if it be 
 practicable." 
 
 "From the performance of this duty the captor can be exonerated only 
 by showing that he was a bona fide possessor, and that it was impossible 
 for him to discharge it. No excuse as to inconvenience or difficulty can 
 be admitted as between captors and claimants. If the ship be lost, that 
 fact alone is no answer; the captor must show a valid cause for the 
 detention as well as for the loss. If the ship be destroyed for reasons of 
 policy alone, as to maintain a blockade or otherwise, the claimant is 
 entitled to costs and damages. The general rule, therefore, is if a ship 
 under neutral colours be not brought to a competent Court for adjudica- 
 tion, the claimants are, as against the captor, entitled to costs and 
 damages. Indeed, if the captor doubt his power to bring a neutral vessel 
 to adjudication, it is his duty, under ordinary circumstances, to release her." 
 
 It is clear from this passage that Dr. Lushington contem- 
 plated cases of the destruction even of neutral vessels under 
 pressure of paramount duty, and what he was laying down here 
 was that if the vessel was destroyed under such circumstances 
 mere restitution of the value would not suffice, but costs and 
 damages must be added. 
 
 There is nothing in these cases indicating any right to destroy 
 on the part of the belligerent. If he does destroy, and it turns out 
 that the vessel was not committing any offence against neutrality, 
 then, no matter how important to the public service of his own 
 State, he or his Government is answerable to the claimant for the 
 fullest compensation. 
 
 Professor Holland has summarized these cases as follows : " An 
 enemy's ship after her crew has been placed in safety may be 
 destroyed. When there is any ground for believing that the ship 
 or any part of her cargo is neutral property, such action is justifiable 
 only in cases of the gravest importance to the captor's own State, 
 after securing the ship's papers, and subject to the right of the 
 neutral owners to receive full compensation."^ 
 
 With all respect to Professor Holland, it would appear that his, 
 conclusion that the destruction of a neutral ship is "justifiable only 
 in cases of the gravest importance to the captor's own State " is 
 entirely unwarranted by any principle, rule, or usage of inter- 
 national law, and is equally opposed to every principle of juris- 
 prudence. Mr. Arthur Cohen, K.C., denies that this construction 
 is correct. He asserts that the liability to compensate implies that 
 the destruction is unjustifiable as regards the owner, and that the 
 only remedy for a wrongful deprivation of property is the recovery 
 
 " Times," 6 August, 1904. 
 
536 COMMERCE IN WAR 
 
 of compensation from the wrongdoer. But it is more than this ; 
 it is an offence against international law. Surely, under every 
 system of modern jurisprudence, the compensation to the one 
 deprived is of secondary consideration. The offence is primarily 
 an offence against the State, and the penalty inflicted by the State 
 must be paid first. 
 
 These cases do no more than establish the proposition that if 
 neutral property is destroyed without justification, restitution must 
 be made, coupled with costs and damages. They simply declare 
 the penalty to be paid to the injured person, and that such penalty 
 must be paid by the captor or his Government, thus recognizing 
 that it is an offence against international law. But they do not 
 confer upon the captor any right to destroy. 
 
 This is not a mere verbal controversy. It has had far-reaching 
 effects. Upon this theory of justification some nations have built 
 up a claim to destroy neutral property under certain circumstances, 
 varying according to the necessities of time or place. Thus Russia 
 claims the right to destroy upon the ground of her distance from 
 her oWn ports. 
 
 The " Knight Commander" was an English ship with a cargo 
 of American goods, which was captured in 1904 by a Russian 
 cruiser, and, on the grounds that she was carrying contraband of 
 war and that it was extremely difficult for her to be brought in for 
 adjudication, she was sunk. She was subsequently condemned by 
 the Vladivostok prize court. 
 
 Professor Holland endeavours to support his view by citing the 
 naval regulations and naval codes of Russia, France, and the 
 United States. By Art. 21 of the regulations of 1895 ^.nd Art. 40 
 of the instructions of 1901, Russian commanders are empowered 
 to destroy their prizes without distinction, under such exceptional 
 circumstances as the bad condition or small value of the prize, risk 
 of recapture, distance from Imperial ports or their blockade, and 
 danger to the Russian cruiser, or to the success of her operations. 
 That this is a modern innovation upon ancient practice, even in 
 Russia, may be gathered from the maritime ordinance of Peter the 
 Great, whereby a Russian commander was forbidden under pain of 
 death, or some other almost equally severe penalty, to destroy his 
 prizes on the high seas or to conduct them into foreign waters, 
 unless it became necessary from dire necessity. 
 
 In the case of the United States, by the regulations issued in 
 1898, repeated in the Naval Code 1900, and now withdrawn in 
 favour of the Naval Code 1904, which has not yet reached this 
 country, where there are controlling reasons why the vessel may 
 not be sent in, such as unseaworthiness, infectious disease, or lack 
 of prize crew, it may in the last resort be destroyed. But if there 
 
FORMALITIES OF CAPTURE 537 
 
 is imminent danger of recapture, the vessel may be destroyed, 
 provided there is no doubt that she is good prize. 
 
 Undoubtedly we have here considerable confusion of thought. 
 If there ought to be no doubt in the latter case, surely the same 
 principle ought to apply in the former cases. 
 
 That the instructions issued by the French Government in 1870 
 expressly contemplated compensation to neutrals does not appear 
 to strengthen Professor Holland's view. In fact, it might be 
 claimed as proof against it. The refusal by the French prize court 
 to award compensation to the neutral owners of property on board 
 the two German merchantmen sunk during the Franco-German 
 War hardly touches the point. 
 
 On the other hand, the English and Japanese regulations are 
 entirely opposed to Professor Holland's view. 
 
 British commanders are instructed to release without ransom a 
 vessel which is not in a condition to be sent in, or for which a prize 
 crew cannot be spared, unless there is clear proof that she belongs 
 to the enemy, in which case only are they authorized to destroy it. 
 
 By Articles 20 and 22 of the instructions issued in 1894, the 
 Japanese commanders are authorized to destroy an enemy's vessels 
 if unable to send them in, but if the vessel does not belong to the 
 enemy, it must be released after having taken out articles contra- 
 band of war. 
 
 Municipal regulations, however, do not make international law. 
 They may be indications of usage, but where they fail to conform 
 to international law they may be disregarded. The English and 
 Japanese regulations strongly support the view here endeavoured 
 to be formulated. 
 
 Dr. Lawrence goes so far as to declare that the Russian view 
 runs "counter to the opinion of the civilized world." This is 
 clearly putting it too high. In the model Code des Prises prepared 
 by the Institut de Droit International and approved at the Con- 
 gresses of Turin, 1882, and Munich, 1883, no distinction is drawn 
 between the destruction of enemy and neutral ships. 
 
 But on the other hand, at the Heidelberg Congress of 1887 
 this question was discussed at great length, with the result that the 
 rule was confined to the destruction of enemy ships. 
 
 Professor C. N. Gregory, of Iowa University, also supports the 
 Russian claim as being more just and reasonable than that of Sir 
 William Scott. In his opinion a belligerent in case of necessity 
 must have the right of destroying neutral property, provided the 
 crew and ship's papers are preserved and the question of prize or 
 no prize left to be adjudicated just as if the ship had been brought in. 
 
 In view of the fact that the Appeal Court of St. Petersburg has 
 in the case of the German steamship "Thea," sunk under similar 
 
538 COMMERCE IN WAR 
 
 circumstances to those of the " Knight Commander," reversed the 
 decision of the Vladivostok prize court, upon the ground that it 
 was unjustifiable, it seems not improbable that the result of the 
 appeal of the latter vessel will have a similar result. 
 
 Of the " Oldhamia " we know nothing except that she was cap- 
 tured by the Baltic Fleet just prior to the battle of the Sea of 
 Japan, her crew taken out, and the vessel stated to have been 
 sunk. 
 
 The attitude then taken up by the late Unionist Government, if 
 one may take Professor Holland as its spokesman, is illogical and 
 suicidal. When belligerents, we are to instruct our commanders 
 to release all ships unless they are absolutely certain they belong 
 to the enemy ; but when neutrals, we are to acquiesce in a declared 
 policy of belligerents to sink our ships whenever it suits them, and 
 take the chance of obtaining compensation if they make a 
 mistake. If all foreign prize courts were above suspicion, and if 
 Russian prize courts, in particular, were properly constituted, such 
 acquiescence would still be dangerous. As matters stand, we are 
 going out of our way to create a right which has no existence in 
 the law of nations — viz., a right to destroy neutral ships and cargo 
 without adjudication by a court of competent jurisdiction. 
 
 The Status of the Russian Volunteer Fleet. 
 
 Apart altogether from the question of the right of a belligerent 
 to destroy a neutral vessel upon the high sea without adjudication 
 in a court of competent jurisdiction, arises the question of the 
 legal character of the cruisers belonging to the Russian Volunteer 
 Fleet. The solution of this question is still to seek. Although 
 the reluctance of the British Government to press for a satis- 
 factory answer to this question under the then circumstances 
 can be readily understood, to burke discussion which may lead to 
 some definite result only renders the situation more dangerous. 
 Driven from her warm-water ports in the Far East, Russia will 
 naturally look for her outlet in the near East. The outlet from 
 the Black Sea to the Mediterranean will certainly be one, and 
 instead of being merely of convenience, as it was then, it has 
 become of vital importance to her very existence as a sea Power. 
 
 Before dealing with the question in hand, it is desirable to pass 
 in review the constitution of some of the volunteer navies of 
 modern times. 
 
 During the Franco-German war, a Prussian decree of 24 July, 
 1870, authorized the creation of a volunteer navy. Owners of 
 vessels were invited to fit them out for the purpose of attacking 
 
FORMALITIES OF CAPTURE 539 
 
 French cruisers, large premiums being offered for their destruc- 
 tion. The crews were to be furnished by the owners, but were 
 to be under naval discipline, and to serve under the Prussian flag ; 
 the officers were to be merchant seamen wearing the naval uniform 
 and provided with temporary commissions. They were to take 
 the oath to the Articles of War, but were not to be attached to 
 nor form part of the regular navy. 
 
 Upon the protest of the French Government to Great Britain, 
 the law officers of the Crown advised that there were substantial 
 distinctions between the proposed naval volunteer force thus 
 sanctioned and the system of privateering, which, under the 
 designation of "la course," the Declaration of Paris was intended 
 to suppress, and that as far as they could judge the vessels 
 referred to would be to all intents and purposes in the service of 
 the Prussian Government, and the crews would be under the 
 same discipline as the crews on board vessels belonging per- 
 manently to the regular navy. 
 
 Mr. W. E. Hall disagreed with this view. In both cases he 
 declared the armament was fitted out by private persons with a 
 view to gain ; in both the crews and officers were employed by 
 them, and worked therefore primarily in their interests rather than 
 in those of the nation at large. The limitation to the seizure of 
 ships of war was accidental, and would have been withdrawn in 
 the stress of war. Knowing her weakness at sea, Prussia had 
 announced her determination not to attack French merchantmen, 
 but France failing to reciprocate, this decree was cancelled. 
 
 The only real difference, says Mr. Hall, would have been 
 that the volunteer cruisers would have been subject to naval 
 discipline. Phillimore found it difficult to find any substantial 
 difference from the old system of privateering. Bluntschli, it is 
 true, appears to think that the fact of the Volunteer Fleet being 
 under a general naval command would make a sufficient distinc- 
 tion, although he admits that even "la corsaire reconnaissait 
 I'autorit^ de I'amiral commandant la flotte." Sir Henry Maine also 
 considered that this project was not an evasion of the Declaration 
 of Paris, but was perfectly legitimate. 
 
 But although these vessels were to be in the service of the 
 Government, and to be subject to its orders transmitted through 
 the Naval Department, since they were not to be attached to or to 
 form part of the regular navy, it is difficult to see how they differed 
 from privateers. Mr. Hall's conclusion would appear to be 
 the better view, that unless a volunteer navy can be shown to be 
 under the same control as the regular navy, it would be difficult 
 to show as a mere question of theory that its establishment did 
 not constitute an evasion of the Declaration of Paris. 
 
540 COMMERCE IN WAR 
 
 In this conclusion Mr. Hall is supported by Calvo, who is 
 of opinion that such vessels are privateers of an aggravated 
 character, as the owners were not required to give any security for 
 their good conduct. 
 
 As the decree was never put into execution, the discussion was 
 dropped. In France some of the great mail liners are commanded 
 by a commissioned naval officer, but until the outbreak of war 
 their service is strictly private and commercial. Until then they 
 are not part of the navy, but immediately war is declared they are 
 liable to be incorporated with the navy, converted into cruisers, 
 and placed under naval discipline and control. 
 
 In Spain a similar system exists, with the addition that these 
 mail boats carry in time of peace a certain amount of effective 
 armament. 
 
 In Great Britain some of the leading steamship companies, in 
 return for an annual subsidy, have constructed some of their liners 
 so that they may the more readily be converted into swift light- 
 armed cruisers, with an undertaking to place them at the disposal 
 of the Government in the event of war, either by sale or on hire. 
 Half the crews are to be drawn from the Naval Reserve, and the 
 Admiralty reserve the right of placing on board fittings and other 
 arrangements to facilitate the speedy conversion to cruisers in case 
 of war. 
 
 The United States Government acquired similar rights over 
 the vessels of the American Line in 1892. Germany subsidizes 
 five of her largest and fastest Atlantic liners upon similar terms. 
 When war threatend to take place between Great Britain and 
 Russia in the winter of 1877-78, the latter Power accepted the 
 offer of a patriotic association to create a Volunteer Fleet. The 
 vessels were to be purchased by private subscription, and in the 
 event of war to be handed over to the Government and com- 
 manded by naval officers. 
 
 This association survived the occasion of its origin. In return 
 for an annual subsidy its vessels are retained permanently in the 
 Imperial service, commanded by naval officers, and their crews 
 subject to naval discipline. They are employed for both civil and 
 military purposes — in the transport of convicts and of troops from 
 the Black Sea ports to the Far East. They are also engaged in 
 commerce — in the China tea trade more especially, and in ordinary 
 passenger service. But in all cases in time of peace they sail 
 under the commercial flag, since by the treaties of London, 1841, 
 of Paris, 1856, of London, 1871, and of Berlin, 1878, the Darda- 
 nelles and the Bosphorus are, with certain exceptions which need 
 not be considered here, closed to all ships of war. 
 
 What weight, then, is to be given to the commercial flag ? 
 
FORMALITIES OF CAPTURE 541 
 
 "Taking the circumstances as a whole," says Mr. Hall, "it is diffi- 
 cult to regard the use of the mercantile flag as serious; they are not merely 
 vessels which in the event of war can be instantly converted into public 
 vessels of the State : they are properly to be considered as already belong- 
 ing to the Imperial navy." 
 
 So long as these vessels are confined to the waters of the Black 
 Sea no publicist would, it is suggested, be found to regard their incor- 
 poration into the Imperial navy as a violation of the Declaration 
 of Paris. But they only obtained the sanction for their passage 
 through the Dardanelles and the Bosphorus in their character of 
 merchantmen, and after the commencement of the recent war 
 with Japan they so passed through under the mercantile flag and, 
 as it is alleged, with their guns in the holds. 
 
 If they were in fact public ships of war lawfully commissioned, 
 they were committing a breach of the above-mentioned treaties. 
 If they in fact passed through in their character of merchantmen, 
 they were committing a breach of International Law. 
 
 The " Petersburg" and the " Smolensk" were two of the Black 
 Sea Volunteer Fleet which under these circumstances passed 
 through the Straits after the commencement of the war. The 
 former in the month of May, 1904, stopped the P. and O. mail 
 steamship " Malacca," and upon search found munitions of war on 
 board. The " Malacca " was bound for a Japanese port. Upon 
 these facts she was seized, and a prize crew put on board. The 
 whole of the contraband, as it turned out, was the property of the 
 British Government, which had been consigned to the British 
 Admiral stationed at Hong-Kong, Upon the official communica- 
 tion of these facts to the Russian Government, the " Malacca " 
 was released. 
 
 In the month of August the " Knight Commander," a British 
 ship with American cargo, was sunk by the " Petersburg." 
 
 Confronted by the dilemma of admitting either a breach of the 
 treaties or a breach of international law. Count Lamsdorff 
 assured the British Government that the "Petersburg" and the 
 "Smolensk" had sailed under "special commissions," which had 
 been cancelled, and on 13 August, 1904, Mr. Balfour felt himself 
 able to write to Sir Albert Rollit that "the Government had 
 reason to know that no more ships to be used as cruisers would 
 issue from the Black Sea, and that no more neutral ships would 
 be sunk." 
 
 The assurance that no more neutral ships would be sunk 
 signally failed. A number of vessels, English, German, and 
 Dutch, suffered this drastic treatment, and in particular the 
 British steamship " St. Hilda " was destroyed by the " Petersburg," 
 which had become the "Dnieper." If the "Petersburg's" com- 
 
542 COMMERCE IN WAR 
 
 mission had been cancelled as alleged, this was a mere act of 
 piracy. If it was not cancelled, then the former question arises, 
 did she sail from the Black Sea port as a public ship lawfully 
 commissioned ? 
 
 Belligerent rights can only be exercised by armed vessels com- 
 missioned by the authority of the State to which they belong. 
 Such vessels must be either public ships of the regular navy or 
 privateers. By the Declaration of Paris, Russia is precluded from 
 employing privateers against any Power which is a party thereto 
 or has given its adhesion. Japan had declared its adhesion. 
 
 We were told by Count Lamsdorff that the "Petersburg" and 
 the "Smolensk" sailed under "special commissions," whatever 
 that may mean. But they sailed under the mercantile flag ; their 
 armament was concealed ; and by their conduct held themselves 
 out to the world as private ships. In this character they were 
 liable to all the disabilities of private ships. They were liable to 
 proceedings in rem in any port at the suit of any private individual 
 who had cause to complain of their action. 
 
 In international law the public character of a vessel is proved 
 by her flag, the public commission, and the possession of the naval 
 officer. The word of the officer is considered sufficient evidence 
 at sea or in port, for fiscal or executive purposes, of her public 
 character. No public vessel carries any other documents. No 
 other proof of property in the sovereign is ever required. 
 
 If it is assumed that the volunteer cruisers were public arnled 
 vessels — and in view of the conditions under which they were 
 incorporated in the regular navy it must be so assumed — 
 did they become divested of their public character by their con- 
 duct, although sailing under a "special" or secret commission? 
 It seems impossible to deny that they did so divest themselves. 
 If they did, having once lost that character by their own voluntary 
 act for the purposes of deception, can they, when their object 
 has been achieved, re-invest themselves with that which they had 
 openly abandoned .? Are they not estopped by their own fraud ? 
 
 This cannot be compared with the purchase of a vessel by a 
 belligerent^ from a neutral, which is taken over on the high seas, 
 converted into an armed ship, and commissioned on the spot. 
 
 Suppose the "Petersburg," whilst still under the mercantile 
 flag, had committed some injury to a neutral ship, and upon enter- 
 ing a national port of such neutral had been seized and proceed- 
 ings in rem taken against her, would the production of the 
 "special commission" have been a good defence? If the judg- 
 ments of Chief Justice Marshall in the "Exchange"^ and of the 
 Court of Appeal in the " Parlement Beige " ^ are to be accepted 
 
 ' 7 Cranch, ii6. 25 Prob., 197. 
 
FORMALITIES OF CAPTURE 543 
 
 as sound law, it is perfectly clear that the declaration of the com- 
 mander of the "Petersburg" to the Turkish authorities that the 
 vessel was a private ship would be conclusive evidence against 
 such a defence. 
 
 " It seems very difficult," said Brett, L.J., " to say that any Court can 
 inquire by contentious testimony whether that declaration is or is not 
 correct. To submit to such an inquiry before the Court is to submit to its 
 jurisdiction. It has been held that if the ship be declared by the 
 sovereign authority by the usual means to be a ship of war, that declara- 
 tion cannot be inquired into. That was expressly decided under very 
 trying circumstances in the case of the ' Exchange.' " 
 
 Surely the converse is equally true. If the commander of a 
 public ship, by his conduct and by his open declaration, admits 
 his vessel is not a public vessel of war, that statement must be 
 accepted, but it must be accepted once for all. He cannot be 
 allowed to turn round and say when it suits his purpose, "It is 
 true I declared my vessel not to be a public ship, but it was in 
 fact so because I held a secret commission, and therefore I claim 
 to exercise all the rights of a public ship." The plain answer to 
 such a preposterous claim is that even a Russian ship cannot be 
 at the same time both a public and private ship. The doctrine 
 that a vessel may play fast and lose, put on and put off her public 
 character as it suits her convenience, has no foundation in 
 common sense or in international law. It has always been under- 
 stood that a vessel retains the character in which she sailed until 
 her return, unless her status is in the meanwhile changed by 
 purchase, capture, or some other legal transfer. 
 
 This country had no desire to take any advantage of Russia's 
 then embarrassments, but to acquiesce in breaches of treaties, 
 of international law was to exhibit uncalled-for generosity. As 
 Lord Lansdowne truly said on lo August, 1904, an end ought to 
 be put without delay to a condition of things so detrimental to the 
 commerce of this country, so contrary to acknowledged principles 
 of international law, and so intolerable to neutrals. 
 
 Two years have since passed, and we are back to the old 
 position. Supported by Professsor Holland, Russia has renewed 
 her claim to the right to sink neutral ships merely because it is 
 difficult or impossible to bring them to a national port for adjudica- 
 tion. Lord Lansdowne, at any rate, does not believe in any such 
 right, and it is time to vindicate what we, as the great mer- 
 cantile Power, believe to be the principles of international law 
 and usage. To wait for such vindication until Russia has 
 regained her strength may be generous, but it is not politic. 
 
 Joint capture. — To the owner of captured property it 
 matters little how the spoils of war are divided by the captors, 
 
544 COMMERCE IN WAR 
 
 and whether the captors are joint or sole, privateers or public 
 ships. To the captors, however, this question is all important, and 
 the general principles guiding the distribution may be briefly 
 noticed. 
 
 Being in sight. — It is not every circumstance of being in sight 
 that is sufficient to entitle to a share. 
 
 "For," said Sir William Scott in the « Vryheid," ^ " it is perfectly clear 
 that being in sight in all cases is not sufficient. What is the real and true 
 criterion ? The being in sight or seeing the enemy's fleet accidentally a day 
 or two before will not be sufficient ; it must be at the commencement of 
 the engagement, either in the act of chasing or in preparations for chase 
 or afterwards during its continuance. If a ship was detached in the sight 
 of the enemy and under preparations for chase, I should have no hesita- 
 tion in saying that she ought to share ; but if she was sent away after the 
 enemy had been descried, but before any preparations for chase or any 
 hostile movements had taken place, I think it would be otherwise ; there 
 must be some actual contribution of endeavour as well as a general 
 intention." 
 
 Privateers. — Since privateers are under no obligation to fight, 
 a different principle has been applied in the case of joint capture. 
 Where, therefore, a capture is joint, no right to share in the prize 
 arises merely by being in sight at the time of the capture. There 
 is no mere presumption to be drawn in their favour by their being 
 in sight, that they had any intention of giving assistance or 
 engaging in the fight. The animus capiendi must in their case be 
 demonstrated by some overt act : there must be actual intimida- 
 tion or actual or constructive assistance. 
 
 " It must be shown on the part of privateers," said Sir William Scott 
 in the " Amitie,"^ "that they were constructively assisting. The being in 
 sight is not sufficient with respect to them to raise the presumption of 
 co-operation in the capture. They clothe themselves with commissions of 
 war from views of private advantage only. They are not bound to put 
 their commissions in use on every discovery of an enemy. And therefore 
 the law does not presume in their favour, from the mere circumstance of 
 being in sight, that they were there with a design of contributing assist- 
 ance and engaging in the contest. There must be the animus capiendi 
 demonstrated by some overt act ; by some variation of conduct which 
 would not have taken place but with reference to that particular object, 
 and if the intention of acting against the enemy had not been effectually 
 entertained." 
 
 In the case of the "Santa Brigada,"^ a Spanish galleon cap- 
 tured by a British cruiser, the claim to share as for a joint capture 
 by a privateer was rejected by Sir William Scott. 
 
 " The being in sight only" said the learned judge, "will not be sufficient; 
 it would open a door to very frequent and practicable frauds if by the 
 
 1 2 Rob., i6 (1799). 2 6 Rob., 261 (1806). 
 
 5 3 Rob., 52 (1800). 
 
FORMALITIES OF CAPTURE 545 
 
 mere act of hanging on upon His Majesty's ships to pick up the crumbs 
 of captures small privateers should be held to entitle themselves to an 
 interest in the prize which the King's ships took. The sound doctrine of 
 the Court has been that the being in sight, with respect to those two 
 descriptions of vessels, is not sufficient to entitle the privateer to share. 
 ... It is argued, however, that she was eventually of service by diverting 
 the attention of four Spanish frigates from the transaction of this valuable 
 capture, and it is not improbable. But mere diversion of attention has 
 never been held a sufficient ground for a title of joint capture; it is a mere 
 casualty, totally unconnected with all merit, actual or constructive. If she 
 had herself been captured it would have produced exactly the same effect 
 in a still stronger degree, and yet it would have been perfectly ludicrous to 
 have pronounced for her joint interest of capture under such circum- 
 stances." 
 
 The French practice may be gathered from the following articles 
 of the Reglement du ly Janvier, 1706 : — 
 
 " I. Aucun ne pourra fitre admis au partage d'un vaisseau pris siir les 
 ennemis, s'il n'a contribu6 a I'arrfiter ou contract^ soci6t6 avec celui qui s'en 
 est rendu maitre. 
 
 " 1 1. Celui qui prdtend partager un vaisseau ne sera point cens6 avoir 
 contribu6 a I'arr^ter s'il n'a combattu, ou s'il n'a fait tel effort qu'eh intimi- 
 dant I'ennemi par sa presence, ou en lui coupant chemin et I'emp^chant 
 de s'echapper, il I'ait oblig6 a se rendre, sans qu'il lui suffice d'avoir 6t6 en 
 vue, d'avoir donn6 chasse, lorsqu'il sera prouv6 que cette chasse aura hth 
 inutile." 
 
 Public ships of war. — A different rule, as has been seen, has 
 been applied to public ships of war. All such ships being in sight 
 are deemed to be constructively assisting, and are therefore en- 
 titled to share in capture. The reason for this principle has 
 already been stated. King's ships, said Sir William Scott in "La 
 Flore,"^— 
 
 " are under a constant obligation to attack the enemy wherever seen ; a 
 neglect of duty is not to be presumed, and therefore from the nriere circum- 
 stance of being in sight a presumption is sufficiently raised that they are 
 there animo capiendi. In the case of privateers the same obligation does 
 not exist. The law, therefore, does not give them the benefit of the same 
 presumption." 
 
 The same rule is applied whether the actual captor is a priva- 
 teer or a public ship,^ though, as has been stated in the converse 
 case, a privateer is not entitled to share from the mere circum- 
 stance of being in sight,^ 
 
 Constructive assistance. — The definition of constructive 
 assistance and the extent to which the principle should be applied 
 were discussed in the " Vryheid,"* 
 
 1 5 Rob., 268 (1804). 
 
 2 The " Robert," 3 Rob., 194 ; " La Flore," 5 Rob., 268. 
 
 3 The " Santa Brigada," 3 Rob., 152. 
 « 2 Rob., 16 (1799)- 
 
 2 N 
 
546 COMMERCE IN WAR 
 
 " The Act of Parliament and the Proclamation," said Sir William Scott, 
 " give the benefit of prize ' to the takers,' by which term are naturally to 
 be understood those who actually take possession, or those affording an 
 actual contribution of endeavour to that event. Either of these persons 
 are naturally included under the denomination Takers, but the courts of 
 law have gone further, and have extended the term Taker to another 
 description of persons — to those, who not having contributed actual 
 service, are still supposed to have rendered a constructive assistance, either 
 by conveying encouragement to the captor or intimidation to the enemy. 
 
 " Capture has, therefore, been divided into capture de facto and capture 
 by construction : I need not say that the construction must be such as the 
 Courts have already recognized, and not a new unauthorized construction ; 
 for as the word has already travelled a considerable way beyond the 
 meaning of the Act of Parliament, the disposition of the Court will be, 
 not to extend it still further, but to narrow it and bring it nearer to the 
 terms of the Act than has been done in some former cases." 
 
 In the " Odin "^ there was undoubtedly an offer by the captain 
 of a privateer to assist the captain of a king's ship to effect a 
 capture, followed up by an attempt on the part of the former to 
 join in the actual capture. A cutter was sent from the privateer 
 with this object, but before it could come up with the prize, a 
 boat's crew of the king's ship had gained possession, and refused 
 to let the ofificer of the cutter come on board. 
 
 It was certainly the intention of the privateer to give all 
 assistance in its power. But, said Sir William Scott, 
 
 " something more is necessary to be established. It must be shown that 
 some assistance was effectually given, and in conjunction with the actual 
 captor." 
 
 An exception to the rule of being in sight is found in the case of 
 a capture made by part of a squadron. In the case of the 
 " Forsigheid,"^ the actual capture was made by some ships form- 
 ing part of the squadron which were employed in the blockade of 
 the Texel, but which were out of sight of the fleet at the time of 
 the capture. 
 
 "In case of ships associated together by public authority," said Sir 
 William Scott, " the same principle does not apply. It will not be denied 
 that if one ship of a squadron takes a prize in the night unknown to the 
 rest it would entitle the whole fleet to share, although possibly the capture 
 might have been made at a distance out of sight of most of the ships of 
 war, even if it had been noonday, for the fleet so associated is considered 
 as one body unless detached by orders, or entirely separated by accident, 
 and what is done by one continuing to compose, in fact, a part of the fleet, 
 enures to the benefit of all." 
 
 Another exception to the rule of being in sight is where there 
 is a joint chase, without any common co-operation, but each 
 
 1 4 Rob., 318 (1803). 
 
 2 3 Rob., 311 (i8oi). 
 
FORMALITIES OF CAPTURE 547 
 
 party acting separately, although with a common object, one of 
 the parties, owing to the darkness of the night or some other 
 circumstance, loses sight of the enemy. 
 
 In the case of " Le Niemen,"^ the British frigates "Amethyst" 
 and " Emerald " were cruising in company but without co-opera- 
 tion, for French vessels, when the " Amethyst " sighted a French 
 frigate, " Le Niemen," and went in chase of her. The " Emerald " 
 having soon afterwards sighted the strange sail, and the 
 "Amethyst" in pursuit, joined in the chase, but when night came 
 on and the chase was lost in the darkness, in the expectation that 
 it would resume its original course, the "Emerald" changed her 
 course in order to intercept it. The following day the "Amethyst" 
 came up with " Le Niemen " and a severe engagement ensued. 
 Whilst both frigates were lying in a disabled condition, unable to 
 renew the fight, the British cruiser " Arethusa" made her appear- 
 ance, and to her " Le Niemen" surrendered. The "Emerald" 
 subsequently came up also. 
 
 In rejecting the claim of the " Emerald " to share as joint 
 captor. Sir William Scott said : — 
 
 "It is only derivately through the 'Amethyst' that she (the 
 ' Emerald ') can sustain any claim as against the ' Arethusa,' and this 
 species of claim the Court would not be much disposed to maintain 
 when there was such an entire absence of co-operation. It is said, how- 
 ever, that the 'Emerald' must be considered as acting in conjunction 
 with the ' Amethyst.' The grounds upon which she could by any possibility 
 have been entitled against the 'Amethyst' are, that she had joined in 
 the pursuit of the prize the day before the capture, and had not dis- 
 continued the chase. It is, I think, to be collected from the evidence 
 that the ' Emerald ' had seen the prize the day before and had used her 
 best exertions to co-operate, but night comes on and she necessarily loses 
 sight of the enemy. It does not appear that there was any particular 
 concert between these two vessels, or any authority directing a co-opera- 
 tion between them. The signals that were made did not convey any 
 instructions as to the courses proper to be pursued ; there was no common 
 co-operation except such as the discretion of two parties acting separately 
 with a common object in view might produce. I do not mean to say that it 
 is necessary that the two ships should have pursued the enemy in precisely 
 the same line ; it certainly is not necessary to constitute a unity of chase 
 that vessels should sail in the same or even in a parallel direction. If one 
 vessel should sail in one direction and the other in another, with the 
 purpose of capturing, that difference of course would not necessarily 
 defeat unity of purpose; if in sight certainly not. I accede to the 
 observation of the counsel for the party claiming as joint captor, that a 
 pursuit in parallel or even opposite lines would not of necessity defeat 
 unity of operation. What the fact may have been with respect to the 
 ' Amethyst ' is not clearly established ; it is not, however, inconsistent, as 
 far as I can judge, with anything in the evidence, that she might, even 
 
 » I Dod., 9(i8ii). 
 
548 COMMERCE IN WAR 
 
 during the night, have retained some glimpse of this vessel which had 
 been the object of their common pursuit. The ' Emerald ' certainly had 
 no sight, but was left to her own speculation as to what course the enemy 
 would take during the darkness of the night in order to elude her pur- 
 suers and to withdraw herself from the probability of falling in with 
 either of them. Why, then, what was the ' Emerald ' doing at this time ? 
 I think cruising merely in search. It became matter of mere conjecture 
 what the course of the enemy might be, and the ' Emerald,' it turns out, 
 was unfortunate in her conjectures. The truth is she never came up to 
 the place of action or near to it ; she merely saw the lights and a rocket, 
 which do not appear in the slightest degree to have influenced her con- 
 duct. She had no knowledge of the engagement ; she neither saw the 
 flashes nor heard the report of the guns; and every step she took was 
 carrying her away from the object of her pursuit, if pursuit it can be 
 called. I am not aware of any case on which a claim of joint capture has 
 been supported on reasons like these. Here was, it is true, an animus 
 persequendi, but here was likewise an erroneous course ; and in con- 
 Sequence of that the benefit, and I may add the burden, of the contest 
 has been thrown on the ' Amethyst' It was a speculation, I will not say 
 unwisely, undertaken by the 'Emerald,' but which has certainly ter- 
 minated inauspiciously for her interest. The case of continued joint 
 chasing is not made out ; what is proved is an office of a similar but 
 inferior kind — it is going in search, and not in pursuit. I know of no case 
 in which it has been held that a ship beginning a chase and then dis- 
 continuing it (for it is a discontinuance to change a course upon con- 
 jecture), is entitled to share as a joint captor." 
 
 The facts in the " Financier"^ were very similar. It was held 
 here that one of two joint chasers being ordered to pick up, the 
 boats of the other, and in consequence of the delay occasioned 
 by her obedience to such orders losing sight of the prize, is not 
 entitled to share with a third ship which comes up and makes the 
 actual capture. 
 
 The joint chasers were the " Britomart " and the " Quebec." 
 The former, in carrying out the orders of the latter, lost sight 
 both of the enemy and of the "Quebec." But for the intercep- 
 tion of the " Desir^" the prize would have escaped into the 
 Texel. 
 
 " If," said Sir William Scott, " the ' Britomart ' contin^pd the chase of 
 any ship, it must have been of the ' Quebec,' and of that she had entirely 
 lost sight ; the pursuit even of that ship cannot properly be denominated 
 a chase; it was a conjectural pursuit only; it was a feeling about in the 
 dark, a search and inquiry, but no chase. The chase of the prize by 
 the ' Britomart ' must be held to have ceased at six or seven o'clock on 
 the evening before the capture, when she was employed in picking up the 
 boats of the ' Quebec,' after which time she never again got sight of the 
 prize. Then by what possibility can the ' Britomart' be considered a joint 
 chaser ? The actual chase— that is, the chase by the ship which actually 
 effected the capture— did not commence till long after the 'Britomart' had 
 
 1 Dod., 6i (1811). 
 
FORMALITIES OF CAPTURE 549 
 
 discontinued pursuit. In this second and effectual chase she did not in 
 any manner co-operate ; she neither saw the chaser nor the chased, and 
 had no participation whatever in the transaction. On what principle, then, 
 can it be contended that she is entitled to share by virtue of the former 
 chase with the 'Quebec'? The 'Quebec' is herself only a constructive 
 captor ; and to let in another ship merely because she had joined in a 
 previous chase with a constructive captor to share with an actual captor 
 is, in itself, an indulgent construction of the law, which must not be further 
 extended. ... It appears to me that there was no contribution of assist- 
 ance either actual or virtual. In point of fact, not any actual chase ; in 
 point of principle, neither encouragement of the friend nor intimidation 
 of the enemy." 
 
 The mere diverting the course of the enemy so as to throw 
 her into the hands of another chaser is not of itself sufficient to 
 raise a claim as joint captor. The expenses, however, of the 
 " Britomart " were directed to be paid. A similar claim was made 
 in " Le Niemen,"^ and rejected. 
 
 " I am not,'' said Sir William Scott, " aware of any such principle. It 
 appears to me to be perfectly novel ; that it is capable of being abused 
 ^:o a very considerable extent the cases which have been mentioned 
 I think clearly prove. Among the instances enumerated by the counsel 
 is that of the chase of the French fleet by Lord Nelson when he pursued 
 it to the West Indies and back, and drove it into the lap of Admiral 
 Calder. 
 
 " Another case pointed out is that of the four French ships flying from 
 Trafalgar and afterwards captured by Sir Richard Strachan. A third 
 instance was that of an enemy's ship, crippled and left by a British frigate 
 with which she had an action,in a disabled state, and afterwards taken posses- 
 sion of by a ship accidentally arriving on the spot. In none of these cases 
 was it ever pretended that any but the actual captors were entitled to 
 share. It would indeed be a monstrous position that every fleet or ship 
 which, either by accident or design, diverts the course of an enemy, and 
 by so doing occasions her capture by a totally distinct force, should be 
 considered a joint captor." ' 
 
 But where one party continues the chase in a proper direction, 
 and owing to the darkness of the night or a fog she is not in sight 
 at the time of capture, this circumstance will not universally 
 exclude her from a right to share. In the " Union,"^ the "Andro- 
 mache," which had joined in the chase of the "Union" by the 
 " Iris," persisted in the pursuit in spite of the fog and the night, 
 in consequence of which she lost sight of both vessels. At the 
 time of the capture she was not more than three miles off, although 
 owing to the fog and darkness she could not be seen by those on 
 board the *' Iris " or the prize. 
 
 "I am clearly of opinion," said Sir William Scott, "that upon this state- 
 ment the ships would be entitled to share as joint captors, because if they 
 were prevented seeing solely by the fog and darkness of the night, that 
 
 1 I Dod., p. 17. ^ Ibid., 346 (1813). 
 
550 COMMERCE IN WAR 
 
 circumstance would not be sufficient to bar them of a right to which they 
 would otherwise have been entitled. It is certainly true that darkness 
 preventing sight will not universally exclude from a right to share, nor can 
 the rule be laid down universally the other way ; for there may not, in 
 every case, be evidence to show proximity to the scene of action. But 
 where it can be shown that the asserted joint captor was in sight when the 
 darkness came on, that it continued steering the same course by which it 
 was nearing the prize, and that the prize itself also continued the same 
 course, it amounts to demonstration that the ships would have seen and 
 been seen by each other if darkness had not intervened." 
 
 Antecedent or subsequent services. — Upon the capture 
 of the Spanish settlement of Buenos Ayres,^ a claim of joint capture 
 was made by the " Leda," which had been sent to obtain informa- 
 tion before any decision had been resolved upon to attack the 
 settlement, and which left Buenos Ayres before the arrival of the 
 fleet, and only returned six days after the capture. 
 
 " The question is," said Sir William Scott, " whether upon any general 
 principle the services antecedently performed by the ' Leda ' are of a nature 
 to give her an interest in the capture. I am of opinion that they are not ; 
 that the services previously performed by her, however meritorious they 
 may have been, will not entitle her to share, since there was no preconcert 
 and no specific knowledge of the expedition till after the capture was 
 effected. Upon any general principle of joint capture or on the authority 
 of decided cases, I am clearly of opinion that the claim of the ' Leda ' 
 cannot be established ; and it certainly is not the disposition of this Court 
 or of the Lords Commissioners of Appeal to extend the interests of joint 
 capture beyond their present limits. So likewise with respect to services 
 subsequently performed; they must be considered precisely in the same 
 light. I think I may lay it down as a certain and fixed rule that no 
 services, antecedent or subsequent, unless the vessel is employed in the 
 identical service of the expedition, will impart a prize interest." 
 
 Tenders. — A public ship is entitled to share in all the cap- 
 tures made by a tender attached to her, whatever the distance 
 may be which separates them at the time of the capture. " The 
 claim for the king's ship is given," said Sir William Scott in the 
 " Charlotte,"^ 
 
 " in virtue of a seizure said to be made by this vessel as a tender ; and 
 in order to support that averment it must be shown, either that there has 
 been some express designation of her in that character by orders of the 
 Admiralty, or that there has been a constant employment and occupation 
 in a manner peculiar to tenders and sufficient to impress that character 
 upon her. The former species of proof would undoubtedly be most 
 desirable." 
 
 As the "Charlotte" did not comply with either of these 
 requisites, and as the master was not on board, the legal interest 
 
 1 I Dod., 28 (1811). 
 
 2 5 Rob., 281 (1804). 
 
FORMALITIES OF CAPTURE 551 
 
 did not enure to the private captors under this commission, but 
 was condemned as a droit of Admiralty, taken by non-commis- 
 sioned captors. 
 
 In the case of the "Carl,"^ the tender " Avon" was proved to 
 be attached to the " Impregnable " by a letter from the Admiralty. 
 
 " It is quite clear," said Dr. Lushington, " that the ' Avon ' had all the 
 requisites mentioned in this judgment [Sir William Scott's]. There is an 
 express designation of her as tender, and there is a constant employment 
 of her in that capacity. Under such circumstances, I apprehend that the 
 tender becomes, as has been contended in law, a part of the ship to which 
 she has been attached, and that any capture made by her enures to the 
 benefit of the ship to which the tender is an adjunct. This was the old 
 rule and practice, and must prevail unless any distinction can now be 
 shown." 
 
 The tender in this case not being commissioned, Dr. Lushing- 
 ton held that the prize must have been condemned as a droit of 
 Admiralty, unless the capture were considered as made by the 
 vessel to which the tender was attached. 
 
 Ship's boats. — The same principle applies in the case of 
 captures made by a ship's boats. Thus, where a boat despatched 
 from a ship makes a capture, this enures to the benefit of the whole 
 ship, and not merely to the boat's crew. 
 
 But constructive assistance by boats founded upon the mere 
 circumstance of being in sight will not support a claim even for 
 the boat's crew, and much less for the ship to which it is attached. 
 
 "There is, I think," said Sir William Scott in the "Odin,"^ "a very 
 solid ground of distinction between the claims of a boat in the different 
 cases of an actual and a constructive capture. Where a boat actually 
 takes, the ship to which it belongs has done by means of this boat all 
 that it could have done by the direct use of its own force. In the case of 
 mere constructive capture, the construction which is laid upon the supposed 
 intimidation of the enemy and the encouragement of the friend, from a 
 ship of war being seen or within sight of a capture applies very weakly to 
 the case of a boat — an object that attracts little notice upon the water, 
 and whose character, even if discovered by either of the other parties, may 
 be totally unknown to both — more unreasonable still would this be upon 
 the actual captors, if the constructive co-operation of such an object would 
 give an interest to the entire ship to which it belonged. When a ship is 
 in sight she is conceived to co-operate in the proportion of her force : but 
 what room is there for such a presumption when she co-operates only by 
 the force of her boat ? 
 
 " I am not in possession of any case in which a boat without any actual 
 assistance or previous 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 
 actually composing the boat's crew ; much less to establish a claim of joint 
 capture for the whole ship to which the boat belongs. I have not been 
 
 1 Spinks, 238 (185s). 
 
 2 4 Rob., 318 (1803). • 
 
5S2 COMMERCE IN WAR 
 
 able to find any precedent to that effect ; nor has any been produced by 
 the counsel in consequence of the inquiry which I directed to be made. 
 Extremely different in principle is such a case from the case of two 
 ships, on the grounds which I have already stated." 
 
 The circumstances in the case of the "Nancy,"^ decided by 
 the Lords of Appeal, were even stronger. The boat's crew of 
 the " Royal Admiral " came up very soon after the boat of the 
 " Trusty " and were admitted on board the prize, which was not 
 the case in the " Odin," and did actually render assistance by 
 navigating the prize into port and bringing her to anchor in the 
 harbour of St. Helena; and further, that the "Royal Admiral" 
 and the " Trusty " were lying at anchor at St. Helena, and were 
 ■within sight and seen by the officers and crew of the " Nancy" at 
 the time of the capture. Nevertheless, the Lords of Appeal 
 rejected the claim of the " Trusty " to participate, as its allegations 
 were not sufficient in law to support the demand. 
 
 " Constructive assistance by boats," said Sir William Scott in " La Belle 
 Coquette," 2 "cannot entitle the ships to which they belong to share in 
 the prize. The actual capture by the boats would be sufficient for that 
 purpose, for they are a part of the force of the ship. But in cases of mere 
 constructive assistance, the right of participation must be in proportion 
 to the quantum of intimidation caused, and cannot go beyond the force 
 actually seen by the enemy. How far the seamen composing the crews 
 of these boats were provided with the means of subduing a vessel of this 
 force does not appear ; we all know the active valour of that class of men 
 in finding expedients under all possible circumstances, and I presume that 
 they had arms of some description or other with them. But how stand 
 the facts of the case, as disclosed by the evidence ? 
 
 "Four boats belonging to the 'Tonnant' are despatched in search of the 
 enemy ; they are supported by two Schooners, one of which formed a part 
 of the original squadron, and the other, though it happened by accident 
 only to be on the spot, yet by the practice of the navy became subject 
 for the time to the orders of the AdmiraL The boats, however, were under 
 the necessity of returning many hours before the capture took place, being 
 unable to proceed on account of the wind and weather ; not, as happened 
 in the case the other day before the Court of Appeal, when one vessel 
 quitted merely because she saw the other was of sufficient force to ensure 
 the capture without assistance. It is clear, therefore, that they are in no 
 way to be considered the actual captors ; they can convey no interest to 
 the ship, and they are themselves not entitled upon the ground of con- 
 structive assistance, since they relinquished the chase and returned to the 
 harbour before the capture took place. The case, then, is reduced to this, 
 that one of these boats put some of her men on board the actual captor, 
 and as part of the crew pro tempore of that ship they are entitled to share, 
 but not as part of the crew of the ' Tonnant.' The claim of these men is 
 admitted ; but I have no hesitation in deciding that those who remained 
 in the boats of the ' Tonnant ' are not entitled to share, and a fortiori that 
 the ' Tonnant ' herself can have no interest in this capture." 
 
 1 4 Rob., 327 n. (1803). 2 I Dod., i8 (181 1). 
 
FORMALITIES OF CAPTURE 553 
 
 But if a boat is detached from the ship to which she belongs 
 and attached to another, her own ship is not entitled to participate 
 in the prize. 
 
 The " Melomane "^ was captured by the cutter " Assistance," to 
 which had been attached a boat from the cruiser " Dragon," the 
 actual seizure being made by the boat's crew of the " Dragon." 
 
 Was the boat acting as the boat of the " Dragon " or not ? 
 asked Sir William Scott. 
 
 "The tenor of all the evidence inclines me to think," answered the 
 learned judge, "that she was not; that she had been detached from 
 the 'Dragon' and attached to the 'Assistance' cutter, and that she was 
 employed in performing the same services for the cutter as she would 
 have perfornied for her own ship. If that is to be taken as a correct view 
 of her situation, I cannot but accede to what has been said in argument, 
 that a boat so detached from one and attached to another must be taken as 
 acting under the authority, and for the benefit of, the ship to which at that 
 time, and in those operations, she more properly belongs. The fact appears 
 to me to be, as it is described by the witnesses of the captured ship, ' that 
 the capture was actually and effectually made by the " Assistance " cutter, 
 and that the boat was only used to perform such acts as would in the 
 ordinary course of service have been performed by the cutter's own 
 boat.'" 
 
 Transports. — Mere association with a fleet or an army, with- 
 out any direct or immediate employment in military operations, is 
 not sufficient to entitle transports to participate as joint captors. 
 In the operations which led to the capture of the Cape of Good 
 Hope* from the Dutch, a number of East Indiamen were em- 
 ployed to transport troops to that port: It was alleged that their 
 appearance disconcerted the enemy, and prevented them from 
 making an attack upon the English camp, which they were on the 
 point of attempting. It was consequently claimed that this be- 
 came a case not merely of constructive service but of actual assist- 
 ance. 
 
 " The greatest part of the naval operations," said Sir William Scott, 
 " had been performed before the arrival of these ships, and there appears 
 to have been only one particular piece of military service performed on the 
 part of the navy after their arrival, and on which only one of these ships 
 was employed : that vessel will undoubtedly be allowed to share. As to the 
 rest, although it must be admitted on all sides that the East India Com- 
 pany have performed services in respect of this expedition which may 
 entitle them to the thanks of their country, yet the question of legal 
 merit whether they are entitled to share in the proceeds of this prize will 
 depend on very different considerations. It is not stated in what way the 
 agreement was made with these ships, whether it was to act in a military 
 capacity or not. If it was to act in a military character, that might nearly 
 decide the question. But nothing is said on this subject in the plea, and 
 
 1 5 Rob., 41 (1803). 2 2 Rob., 274 (1799). 
 
554 COMMERCE IN WAR 
 
 therefore I must infer that no such ground of pretension could be sus- 
 tained. All that is said is, ' that they carried out General Clarke and his 
 troops.' It is perfectly clear that at the time of leaving the coast of Brazil 
 it was perfectly unknown to these ships for what attack these troops were 
 conveying : whether by virtue of their contract they were to stay at any 
 place, or come away after the troops were landed at such place, is wrapped 
 in complete silence, and therefore, for want of any more particular de- 
 scription, I can look only to their general character, which is that of 
 merchant vessels commissioned against the i^f^wcA, but havingno commis- 
 sion against that enemy who was the particular object of this expedition ; 
 whatever their force may have been, I do not see that they can be con- 
 sidered in their original character as more than transport vessels, liable to be 
 called upon occasionally to act with alacrity and vigour (for British vessels 
 of any character are liable to be called upon on extraordinary occasions of 
 public necessity), but not deriving from that circumstance, as far as this 
 expedition was concerned, any title to invest them with military character ; 
 for the mere conveyance of troops would have no such effect. At the 
 same time, it is true that a military character might be afterwards im- 
 pressed upon them by the nature and course of their subsequent employ- 
 ment. If they could have been associated to act in conjunction with the 
 King's fleet, and did so act, they may acquire an interest which on proper 
 application will be sure to meet with due attention. The question for me 
 to consider, then, will be whether they have acquired that military char- 
 acter or not. Their pretensions have been put on several grounds : it is 
 first said that they were associated with the fleet ; mere association will 
 not do — the plea must go farther and show in what capacity they were 
 associated, and that capacity must be directly military. Transports are 
 associated with fleets and armies for various purposes, connected with or 
 subservient to the military uses of those fleets and armies. But if they 
 are transports merely, and as such are employed simply in the transporta- 
 tion of stores or men, they do not rise above their proper mercantile char- 
 acter in consequence of such an employment. The employment must be 
 that of an immediate application to the purposes of direct military opera- 
 tions, in which they are to take part. 
 
 " It is placed on the ground of intimidation, and it is said that when the 
 enemy is proved to have been intimidated, when it is not matter of infer- 
 ence but of actual proof, the assistance arising from intimidation is not to 
 be considered as constructive merely, but an actual and effective co-opera- 
 tion. But I take that to be not quite correct, for a hundred instances 
 might be mentioned in which actual intimidation might be produced with- 
 out any co-operation having been given. Suppose the case of a small 
 frigate going to attack an enemy's vessel, and four or five large merchant 
 ships unconscious of the transaction should appear in sight, they might be 
 objects of terror to the enemy, but no one would say that such a terror 
 would entitle them to share ; though the fact of terror was ever so strongly 
 proved, there would not be that co-operation nor that active assistance 
 which the law requires to entitle non-commissioned vessels to be con- 
 sidered as joint captors. What is the intimidation alleged ? ' That the 
 Dutch forces were about to make an attack on the British army, but on 
 the appearance of these fourteen ships desisted.' This was an intimida- 
 tion of which the ships were totally unconscious, and which would have 
 been just as effectually produced by a fleet of mere transports ; and I see no 
 
FORMALITIES OF CAPTURE 555 
 
 principle on which I could pronounce these ships entitled on which I 
 should not be also obliged to pronounce any fleet of merchantmen entitled 
 in a similar situation ; for any number of large ships known to be British, 
 and not known to be merchantmen, would have produced the same effect. 
 The intimidation was entirely passive ; there was no animus nor design on 
 their part, nor even knowledge of the fact, for it was not till the next day, 
 when their commodore returned from Lord Keith, that they knew any- 
 thing of the matter, or even thought of the terror they had assisted 
 in exciting. I take it that no case can be alleged in which a terror so 
 excited has been held to enure to the benefit of a non-commissioned ship. 
 Another ground on which it is put, and which it may be proper for me to 
 advert to, is the ground of analogy. That it is a case of assistance, 
 analogous to that of joint chasing, on which it is said to be sufficient if 
 the non-commissioned ship puts itself in motion ; and the case of the 
 'Twee Gesuster'i in the last war and the 'Le Franc '^ have been relied 
 upon. I see no ground on which the analogy can be supported. The 
 cases cited were of a very different nature ; in both of them the non-com- 
 missioned ships chased animo capiendi, and contributed materially, in the 
 case of the ' Le Franc ' directly and immediately, to the act of capture. 
 In the present case these ships approached, but with no animus capiendi, 
 with no hostile purpose entertained by themselves, for they were totally 
 ignorant of the objects of the expedition. It is, moreover, obvious to remark 
 that all cases of joint chasing at sea differ materially from the cases of con- 
 junct operations at land, that they are with great danger of inaccuracy applied 
 to illustrate each other. In joint chasing at sea, there is the overt act ot 
 pursuing, by which the design and actual purpose of the party may be 
 ascertained and much intimidation may be produced ; but in cases of con- 
 junct operations at land it is not the mere intrusion even of a commis- 
 sioned ship that would entitle parties to shares. The words of the Act of 
 Parliament direct ' That in all conjunct expeditions of the navy and army 
 against any fortress upon the land directed by instructions from His 
 Majesty, the flag and general officers and commanders and other officers, 
 seamen, marines, and soldiers shall have such proportionable interest 
 and property as His Majesty under his sign manual shall think fit to order 
 and direct' The interest of the prize is given to the fleet and army, and 
 it would not be the mere voluntary interposition of a privateer that Would 
 entitle her to share. It would be a very inconvenient doctrine that private 
 ships of war, by watching an opportunity and intruding themselves into 
 an expedition which the public authority had in no degree committed to 
 them, should be at liberty to say ' we will co-operate,' and that they 
 should be permitted to derive an interest from such a spontaneous act, to 
 the disadvantage of those to whom the service was originally entrusted. 
 Expeditions of this kind, designed by the immediate authority of the 
 State, belong exclusively to its own instruments whom it has selected for 
 the purpose, and it might be attended with very grave: obstruction to the 
 public service of the country if private individuals could intrude them- 
 selves into such undertakings uninvited and under colour of their letter of 
 
 ' 2 Rob., 284 n. 
 
 ^ Ibid., 285 n. In both these cases it was held on appeal that the prizes had been 
 captured by commissioned and non-commissioned ships, and that the shares which 
 would have been taken by the latter if they had been commissioned became droits and 
 perquisites of Admiralty. 
 
5S6 COMMERCE IN WAR 
 
 marque. I think, therefore, that the cases of chasing at sea and of con- 
 junct operations at land stand on different principles, and that there is 
 little analogy which can make them clearly applicable to each other. . . . 
 Upon the whole of these facts ... it has not been shown that these ships 
 set out in an original military character, or that any military character 
 has been subsequently impressed upon them by the nature and course of 
 their employment ; and, therefore, however meritorious their services 
 may have been, and however entitled they may be to the gratitude of 
 their country, it will not entitle them to share in this valuable capture." 
 
 Where ships are associated in the same service, or engaged in a 
 joint enterprise under the orders of the same superior officer, they 
 are usually entitled to share in each other's prizes made in such 
 service or enterprise. 
 
 Different principles apply to the cases of ships associated by 
 public authority on a common service and ships not so associated. 
 
 "In the latter case," said Sir William Scott in the "Forsigheid,"^ "where 
 a capture is made by ships not associated by public authority for a common 
 service, it could not be maintained on any principle that the mere circum- 
 stance of being within such a distance as would bring them within sight in 
 clear weather would entitle them to share when in fact , they were not seen 
 at all. It would put this rule of law on a very uncertain footing indeed, 
 unconnected with all rational principle as well as incapable of all satisfac- 
 tory proof, if the Court had to determine on the state of the atmosphere 
 and on the loose conjectural evidence that might be applied to ascertain 
 such a state ; whether the distance for sight, if the weather had been clear ; 
 and what under such a state could be the impression on the mind of the 
 enemy or the friend. It is essentially necessary in such cases that the 
 party should have been in sight at some part of the transaction, though it is 
 not required that it should be at the moment of capture, because the 
 impulse and impression on the mind of the enemy who is to be intimi- 
 dated or of the friend who is to be encouraged may remain notwithstand- 
 ing the intervention of a headland or fog, and may therefore bring it within 
 the reach of that principle of law on which constructive assistance is built. 
 
 " But in cases of ships associated together by public authority the same 
 principle does not necessarily apply. It will not be denied that if one ship 
 of a squadron takes a prize in the night unknown to the rest, it would 
 entitle the whole fleet to share, although possibly the capture might have 
 been made at a distance out of sight of most of the ships of war, even if it 
 had been noonday ; for the fleet so associated is considered as one body, 
 unless detached by orders or entirely separated by accident ; and what is 
 done by one continuing to compose in fact a part of a fleet enures to the 
 benefit of all. In the present case no accidental separation is suggested. 
 The only question is whether or not the capture was made whilst those 
 ships composed de facto a part of this fleet. 
 
 " The whole case, then, is reduced to this point : whether these ships are 
 to be considered as detached or not — detached, I mean, in the same manner 
 as detachments are usually made, for some distinct and separate purpose, 
 which, though possibly connected with the main service, carries them out 
 of the scene of common operation for the time, or whether they were sent 
 
 1 3 Rob., 311 (i8oi). 
 
FORMALITIES OF CAPTURE 557 
 
 only on the look out to preserve their connexion with the service of the 
 fleet and maintain their dependence on it? To determine this question I 
 must look to the orders that were given : they direct them ' to watch well 
 the mofions of the enemy, to cruise between certain points, joining the 
 fleet occasionally for communication.' If they stopped here, I should be 
 inclined to hold that it was a separate service, with order to join again ; 
 but they go on — ' directing them to avoid being at such a distance as not 
 to observe the signals that were made! It is impossible under these terms 
 to say that it was a detached service. It is more like the stretching out of 
 the arms of the fleet, without dissolving in any manner the connexion 
 between them and the main body. From this very circumstance a pre- 
 sumption strongly arises, were it necessary to consider the probability of 
 that fact, that the fleet would have been actually in sight if an accidental 
 haziness had not intervened. On the whole of the case contained in this 
 allegation, I am of opinion that the fleet is entitled to share, and on the 
 same principle by which it would have shared in a capture made by one of 
 its own ships not sent off under such an order." 
 
 Conjunct military and naval expeditions. — Apart from 
 municipal law, a mere general co-operation of land and sea forces 
 in the same general object is not sufficient to give to either force 
 a title to participate in the prizes made by the other. In order 
 to entitle them to share in such prizes there must be actual co- 
 operation. 
 
 " Much more is necessary than a mere being in sight" said Sir William 
 Scott in the "Dordrecht," ^ "to entitle an army to share jointly with the navy 
 in the capture of an enemy's fleet. The mere presence or being in sight of 
 different parties of a naval force is, with few exceptions, sufficient to entitle 
 them to be joint captors, because they are always conceived to have that 
 privity of purpose which may constitute a community of interests ; but 
 between land and sea forces, acting independently of each other and for 
 different purposes, there can be no such privity presumed ; and, therefore, 
 to establish a claim of joint capture between them there must be a con- 
 tribution of actual assistance, and the mere presence or being in sight will 
 not be sufficient. . . , When there is no preconcert, it must be not a slight 
 service, nor an assistance merely rendering the capture more easy or con- 
 venient, but some very material service that will be deemed necessary to 
 entitle an army to the benefit of joint capture. When there is preconcert, 
 it is not of so much consequence that the service should be material, 
 because then each party performs the service that is previously assigned to 
 him, and whether that is important or not, it is not so material ; the part is 
 performed, and that is all that is expected. But where there is no such 
 privity of design, and where one of the parties is of force equal to the work 
 and does not ask assistance, it is not the interposing of a slight aid, 
 insignificant, perhaps, and not necessary, that will entitle another party 
 to share. Suppose an engagement at sea, in which a part of the enemy's 
 crews, being disposed to fly to shore, should be prevented from landing by 
 an armed force, and should therefore be induced to surrender with the main 
 fleet ; or suppose this body of armed men on shore should have prevented 
 the fleet from obtaining supplies two or three days previous to the action, 
 
 1 2 Rob., 55 (1799)- 
 
558 COMMERCE IN WAR 
 
 these would be very remote services, and such as would not induce me to 
 pronounce for a joint capture. The services which I should require must be 
 such as were directly or materially influencing the capture, so that the 
 capture could not have been made without such assistance, or at least not 
 certainly and without great hazard. It is further expected that the evidence 
 by which such a claim is supported should be clear and consistent, because 
 it lies on those setting up an interest of joint capture to make out their 
 case ; the presumption is on the side of the actual captor. Their evidence, 
 therefore, must be satisfactory, for if not, or if it is left at all doubtful, it is 
 the duty 'of the Court to adhere to the interests of the actual captor." 
 
 The same principle was applied by the Supreme Court of the 
 United States in Oakes v. United States.^ In this case the 
 " Eastport," during the Civil War, was captured whilst water- 
 borne by detachments of men in small boats from three United 
 States gunboats, commanded by a lieutenant in the navy, part of 
 the naval forces under the command of a naval captain. At the 
 time of the capture no land forces were near the scene thereof or 
 took any active part therein ; but the gunboats and naval forces in 
 the inland waters, where the prize was lying, were under the 
 control of the War Department. It was accordingly held that 
 the capture was made not by the army, but by the naval forces, 
 although the cutters at the time and place were under the general 
 control of the War Department. 
 
 In the case of the " Stella del Norte,"" a squadron was detached 
 from the British fleet to act in concert with the Austrian army on 
 the coast of Genoa, for the purpose of driving the French forces 
 out of that country. The " Stella del Norte " and other vessels 
 were captured by ships of the squadron coasting along the shore, 
 in co-operation with the Austrian troops, after the latter had 
 driven away the garrison from a battery, under the protection of 
 which these vessels had been lying. 
 
 This was held not a conjunct expedition within the purview of 
 the Prize Act. 
 
 " As far as the particulars of the case may be taken to be distinctly 
 stated in the allegation," said Sir William Scott, "it is a conjunct ex- 
 pedition of a much wider range ; it is a case of an army sweeping 
 the shore and of a fleet sailing along the coast, not pressing on any 
 particular point, but both going on progressively against a whole 
 country. It is therefore materially different from ordinary cases in this 
 particular circumstance, that it is not easy to conceive objects of booty or 
 prize, as to which there could be any privity or co-operation between them. 
 Suppose the case of a Russian army landed in France and supported, as 
 far as it was capable of receiving assistance, by an English fleet upon the 
 coast. Though a general purpose of concert and assistance might subsist 
 between them, there would be many acts and many situations in which 
 
 1 174 U.S. Rep., 778 (1898). 
 
 2 s Rob., 349 (180S). 
 
FORMALITIES OF CAPTURE 559 
 
 there could be no possibility of co-operation. If the army moved ever so 
 little into the interior with a view of concentrating its force or of taking a 
 more advantageous position, any booty taken in such a course would be 
 a capture, towards which scarcely any privity or communication of 
 endeavour could subsist between the two forces, in comparison with other 
 cases of co-operation, pointing to one particular and identical object. So 
 on the other side, whilst the army was ever so little retired, a capture made 
 by the fleet of any ships appearing on the coast must be an act in which 
 the army could have very little participation." 
 
 By the Prize Act, 1864,^ to entitle naval and military forces to 
 participate, first such forces must be those of His Majesty, and 
 secondly its provisions point particularly to expeditions against 
 some fortress on land which is accessible by land and sea, against 
 which both descriptions of forces are capable of concurring in one 
 identical operation or series of operations. 
 
 In the United States of America, in the case of joint capture by 
 military and naval forces, since no Act exists giving prize to the 
 latter in such a case, the capture enures exclusively to the benefit 
 of the Government. 
 
 In the " Siren," ^ Mr. Justice Swayne said : — 
 
 " In our jurisprudence there are, strictly speaking, no droits of Admiralty- 
 The United States have succeeded to the rights of the Crown [i.e. the 
 English Crown]. No one can have any right or interest in any prize 
 except by grant or permission. All captures made without their express 
 authority enure ipso facto to their benefit. Whenever a claim is set up its 
 sanction by an Act of Congress must be shown. If no such Act can be 
 produced, the alleged right does not exist. The United States takes the 
 captured property not as droits, but strictly and solely jure reipublicce, 
 
 "Four Acts of Congress," continued the learned judge, "have been 
 passed allowing captors to participate in the fruits of the property 
 captured. They are the Act of 1799,^ that of 1800,* that of 1862,^ and 
 that of 1864.^ It is necessary in this case to consider only one clause of 
 the tenth section of the Act last mentioned, which is as follows : ' The net 
 proceeds of all property condemned as prize, when the prize was of 
 superior or equal force to the vessel or vessels making the capture, shall 
 be decreed to the captors. And when of inferior force, one-half shall be 
 decreed to the United States, and the other half to the captors." 
 
 " No provision is found in any of these statutes touching joint captures by 
 the army and navy. They are wholly silent as to the military arm of the 
 service. It results from this state of things, according to the principles we 
 have laid down, that such captures enure exclusively to the benefit of the 
 United States." 
 
 1 Sect. 34 of 27 & 28 Vict. c. 25. 
 
 2 13 Wall., 389 (1871). 
 
 3 U.S. Statutes at Large, Vol. I, 7i5- 
 ^ Ibid., Vol. II, 52. 
 
 5 /*«^., Vol. XII, 606. 
 « Ibid., Vol. XIII, 306. 
 
S6o COMMERCE IN WAR 
 
 It was said in Portef v. United States : — ^ 
 
 "Prize-money or bounty in lieu of it is not allowed by the laws of 
 Congress where vessels of the enemy are captured or destroyed by the 
 navy with the co-operation of the army. To win either, the navy must 
 achieve its success without the direct aid of the army by maritime force 
 only. No pecuniary reward is conferred for anything taken or destroyed 
 by the navy when it acts in conjunction with the army in the capture of a 
 fortified position of the enemy, though the meritorious services and gallant 
 conduct of its officers and men may justly entitle them to honourable 
 mention in the history of the country." 
 
 Proof of joint claim. — The burden of proof lies upon the 
 party setting up a claim of joint capture. 
 
 "The Act of Parliament," said Sir William Scott in the "Robert,"^ "has 
 been extended, for the purpose of preserving the harmony of the service, 
 to let in some remote claims ; but the facts must be proved in the most 
 direct manner." 
 
 Distribution of proceeds of prize. — Apart from municipal 
 regulations, the proceeds of prize are distributed arnongst joint 
 captors in proportion either to the numbers of their respective 
 crews, or of their respective guns, or of both in combination. 
 
 In the case of Roberts v. Hartley,^ Lord Mansfield, on the 
 authority of a case tried before him at the " Cockpit," held that 
 where there had been no special proportion of distribution agreed 
 upon the division should be made according, to the number of 
 men on board each ship. Both the captors were privateers. 
 
 This principle was also applied in the case of the " Twee 
 Gesuster,"* where the capture was made by two cutters, each 
 manned by a crew of sixteen men. Here one was commissioned 
 and the other not. One half-share was decreed to the commis- 
 sioned vessel, and the other half, which would have gone to the 
 non-commissioned vessel if she had held a letter of marque, was 
 condemned as a droit of Admiralty. The same rule was followed 
 in "Le Franc."* 
 
 Subsequently, in the case of Duckworth v. Tucker,* Lord 
 Mansfield said the rule of the law of nations had never yet been 
 stated, 
 
 " but if one might guess at it, it must be in the ratio of the strength of 
 the respective captors ; to know which the number of guns, weight of 
 metal, number of men and strength of each fleet must be stated." 
 
 Story, however, preferred the principle of distribution according 
 to the number of men, without whom the instruments of war 
 would be useless. 
 
 1 io6 U.S. Rep., 607 (1882). 2 3 Rob_^ 1^4 (i8oo). 
 ^ I Doug., 311 (1780). * 2 Rob., 284 note. 
 
 ' Ibid., 285 note. ^ 2 Taunt., 7 (1809). 
 
FORMALITIES OF CAPTURE 5.61 
 
 " Upon general principles," observed this learned judge in the 
 " Despatch," ^ " it would seem reasonable, in cases of joint capture, that 
 the distribution should be made according to the relative strength of the 
 capturing ships. In that proportion the intimidation of the enemy, which 
 would lead to a surrender, would ordinarily be supposed to exist where 
 no battle should be actually fought, and in cases of actual battle the 
 degree of injury done to the enemy would be estimated in the same 
 manner. And in a middle class of cases, where one ship was actually 
 engaged and the other only in general co-operation, the ultimate surrender 
 might be well attributed as much to the despair of escape from the com- 
 bined force as the immediate injury from the engaging force. And in- 
 deed to attempt a discrimination founded on different degrees of exertion 
 would be very difficult, if not wholly impossible. Bynkershoek therefore, 
 and he alone is a great authority, lays down the rule that the parties shall 
 in joint capture share in proportion to their respective strength.^ And 
 this I apprehend to be the rule adopted in the prize courts of England 
 and France, and perhaps forms the basis of the distribution among the 
 other maritime powers of Europe. 
 
 " In the manner of estimating the relative strength, a great diversity of 
 regulation exists. Valin, in his treatise of prize,* states that in France 
 the mode varies in three classes of cases of joint capture, (i) Between a 
 public ship and a privateer the distribution is in proportion to the number 
 of cannon. (2) Between privateers, in proportion to the force and equip- 
 ments, the number and calibre of the cannon of the respective ships ; and 
 the estimate in this case, depending upon such heterogeneous and com- 
 plex combinations, is reduced to an unity of denomination by an arbitrary 
 valuation of the component parts. (3) Between public ships in propor- 
 tion to the number and calibre of their respective batteries of cannon. 
 
 " In England, as between public ships, cases of joint capture do not 
 present any difficulty in the distribution. By the King's proclamation 
 the whole property is shared by all the officers and crews of the capturing 
 ships according to certain fixed proportions, in which all the officers of 
 equal rank obtain an equal share, ... As to privateers, no statute regula- 
 tion exists, and therefore their claims are settled by the general law of 
 relative strength. This relative strength is to be measured as has been 
 settled by solemn adjudications at the ' Cockpit ' and in the King's Bench, 
 by the number of men on board each ship.* This rule has the advantage 
 of great practical simplicity and general equity. It seems bottomed on 
 the soundest sense, and places the relative force in the power and activity 
 of animated beings, in which it must always ultimately reside, rather than 
 in. the mere instruments which without such power and activity would, be. 
 useless and unavailing." 
 
 The learned judge accordingly followed the English rule laid 
 down by Lord Mansfield in Roberts v. Hartley. 
 
 Statutory regulations. — Where joint captors are public 
 
 ships the proportion in which they share is generally settled by 
 
 statute or by statute enlarged by Proclamation, Ordinance, Decree, 
 
 or Order in Council. 
 
 1 2 Gall., I (1813). 2 Q.P. Jur. c. xviii. 
 
 3 " Des Prises," ch. XIX. * Roberts v. Hartley, supra. 
 
 2 O 
 
562 COMMERCE IN WAR 
 
 Great Britain. — By section 42 of the Naval Prize Act, 
 1864—^ 
 
 " If in relation to any war, Her Majesty is pleased to declare, by Proclama- 
 tion or Order in Council, her intention to grant prize bounty to the officers 
 and crews of her ships of war, then such of the officers and crew of any 
 of Her Majesty's ships of war as are actually present at the taking or 
 destroying of any armed ship of any of Her Majesty's enemies, shall be 
 entitled to have distributed among them as prize bounty a sum calculated 
 at the rate of five pounds for each person on board the enemy's ship at 
 the beginning of the engagement." 
 
 By section 43 — 
 
 " The number of the persons so on board the enem/s ship shall be 
 proved in a Prize Court, either by the examinations on oath of the 
 survivors of them or of any three or more survivors, or if there is no 
 survivor, by the papers of the enemy's ship or by the examinations on 
 oath of three or more of the officers and crew of Her Majesty's ship, or 
 by such other evidence as may seem to the Court sufficient in the circum- 
 stances." 
 
 The distribution of all prize money is now regulated by the 
 Royal Proclamation of 3 August, 1886.^ 
 
 United States. — By section 4630 of the Revised Statutes — 
 
 " The net proceeds of all property condemned as prize, shall, when 
 the prize was of superior or equal force to the vessel or vessels making 
 the capture, be decreed to the captors ; and when of inferior force, one- 
 half shall be decreed to the United States and the other half to the captors, 
 except that in case of privateers and letters of marque, the whole shall 
 be decreed to the captors, unless it shall be otherwise provided in the 
 commissions to such vessels." * 
 
 The question of the relative superiority or equality of the prize 
 to the capturing vessel or vessels was considered in the iron- 
 clad "Atlanta." * This vessel was considered by the Confederates 
 to be superior to two United States monitors lying in Wassau 
 Sound. On the morning of 17 June, 1863, the "Atlanta" was 
 sighted by the monitors "Weehawken" and " Nahant." The 
 former was the first to engage the " Atlanta," and with her first 
 shot, when within four hundred yards, struck the " Atlanta " upon 
 the side of her casement, doing enormous damage, and with her 
 second shot, when within two hundred yards, destroyed her pilot- 
 house. Before the " Nahant " could come up and fire a shot the 
 " Atlanta " surrendered. The Court below decided that the prize 
 was of an inferior force, and accordingly awarded only one-half 
 of the proceeds to the captors. 
 
 1 27 & 28 Vict. c. 25. 
 
 2 State Papers, Vol. LXXVII, 1189. 
 s Title LIV, p. 908. 
 
 4 3 Wall., 425 (1865). 
 
FORMALITIES OF CAPTURE 563 
 
 Upon appeal to the Supreme Court, this decision was upheld. 
 
 " The mere fact," said Field, J., " that the only shot fired and the only 
 damage done was by the ' Weehawken ' is not decisive. Other 
 circumstances must be taken into account, such as the force, position, and 
 intention of the ' Nahant.' The two vessels were known to be under the 
 same command and of nearly equal force. The ' Atlanta ' descended the 
 Sound to attack both, and governed herself with reference to their combined 
 action. It is not reasonable to suppose that her course would have been 
 the one pursued, had she had only the 'Weehawken' to encounter. 
 Besides, the fire of the ' Atlanta ' was directed entirely to the ' Nahant, ' 
 and of course diverted from her consort. It is possible that a different 
 result might have followed had the fire been turned upon the 'Wee- 
 hawken.' This diversion must be considered in every sense of the term 
 as giving aid to her. ... It cannot be affirmed, nor is it reasonable to 
 suppose, that any of the incidents of the battle would have occurred as 
 they did if the ' Nahant ' had not been pressnt in the action." 
 
 It was held by the Supreme Court (affirming the decision of 
 the Court below), in Dewey v. United States,^ that in determining 
 whether the Spanish vessels sunk or destroyed by Admiral Dewey 
 at Manila were of inferior or superior force to the American 
 vessels engaged in that battle, the land batteries, mines and 
 torpedoes not coniroiledhy those in charge of the Spanish vessels, 
 but which supported those vessels, were to be excluded altogether 
 from consideration. 
 
 In the " Mangrove" prize-money^ case, since the " Mangrove " 
 was found to be the sole captor, it remained to be considered 
 whether she was of inferior or superior force to the " Panama." 
 
 " There is no denying," said Mr. Justice Holmes, " that the ' Panama ' 
 was of force superior to the ' Mangrove.' She was of 1432 tons register, 
 with a crew of seventy-one. She had substantially what was required by 
 her contract as a mail steamship with the Spanish Government, viz. two 
 Hontoria nine-centimetre guns with thirty rounds of shot for each, one 
 Maxim gun on the bridge, two signal guns, twenty Remington rifles and 
 ten Mauser rifles, all with ammunition, also bayonets and swords. The 
 ' Mangrove ' was a steel screw lighthouse tender, of not more than 800 
 tons, with a crew of thirty men, and with two six-pound guns and no 
 small arms or cutlasses. The ' Panama ' also was much the faster boat 
 of the two. ... If the master was a timid man, who would not have 
 dared to fight under any circumstances, there would have been the same 
 certainty of surrender to one who knew the whole situation, but the law 
 would have looked only to the force and would not have gone into 
 psychology. It would not matter that because of his timidity the breech 
 blocks of the guns were left stowed below. If he had the materials for 
 resistance and the chance to use them, that is as far as the law would 
 inquire. So here. As was said by Judge Sprague, we must ' consider the 
 means the vessels possessed, and not the use they made of them.'"^ 
 
 1 178 U.S. Rep., 510(1900). 
 
 2 188 U.S. Rep., 720 (1902). 
 
 3 "Atlanta," 2 Sprague, 251. 
 
$64 COMMERCE IN WAR 
 
 In the case of the " Dos Hermanos,"^ the capture was made by 
 non-commissioned captors. 
 
 "Whatever," said Marshall, C.J., ''might have been the ancient 
 doctrine in England in respect to captures in war, it is now clearly estab- 
 lished in that kingdom that all captures jure I^elli are made for the 
 Government, and that no title of prize can be acquired but by the public 
 acts of the Government conferring rights on the captors. If the original 
 law of England authorized an individual to acquire to his own use the 
 property of an individual, without any express authority from the public, 
 that law was changed long before the settlement of this country. It 
 never was the law of this country. Before the revolution, all captures 
 from the enemy accrued to the Government to be distributed according to 
 law ; and the revolution could not strip the Government of this exclusive 
 prerogative and vest it in individuals. It is then the settled law of the 
 United States that all captures made by non-commissioned captors are 
 made for the Government ; and since the provisions of the Prize Acts as 
 to the distribution of prize proceeds are confined to public and private 
 armed vessels cruising under a regular commission, the only claim which 
 can be sustained by the captors in cases like the present must be in the 
 nature of salvage for bringing in and preserving the property." 
 
 Salvage of one-half was awarded to the captors. 
 
 The exception in the section received judicial interpretation in 
 the case of the " Sally, "^ which was an American vessel captured 
 when engaged in an illicit intercourse with the enemy. The 
 Government claimed the prize as forfeited under the Act of 
 Congress of i March, 1809. 
 
 " By the general law of prize," said Story, J., " property engaged in 
 illegal intercourse with the enemy is deemed enemy property. It is of 
 no consequence whether it belong to an ally or to a citizen ; the illegal 
 traffic stamps it with the hostile character and attaches to it all the penal 
 consequences of enemy ownership. In conformity with this rule, it has 
 been solemnly adjudged, by the same course of decisions which has 
 established the illegality of the intercourse, that the property engaged 
 therein must be condemned as prize to the captors and not to the Crown. 
 This principle has been fully recognized by Sir William Scott in the 
 ' Nelly,'* and, indeed, seems never to have admitted a serious doubt. . . . 
 The municipal forfeiture under the Non-intercourse Act was absorbed in 
 the more general operation of the law of war. The property of an 
 enemy seems hardly to be within the provision of mere municipal 
 regulations, but is confiscable under they«j gentium. 
 
 " But even if the doctrine were otherwise, we are all satisfied that the 
 Prize Act of June 26, 18 12, c. 107, operates as a grant from the United 
 States of all property rightfully captured by commissioned privateers as 
 prize of war." 
 
 The principle here laid down that a statute creating a muni- 
 cipal forfeiture does not override or displace the law of prize was 
 expressly followed in the " Hampton."* 
 
 1 10 Wheat, 306 (1825). 2 8 Cranch, 382 (1814). 
 
 3 I Rob., 219. * S Wall., 372 (1866). 
 
FORMALITIES OF CAPTURE 5^5 
 
 The manner in which the prize-money is to be distributed 
 amongst the captors is determined by section 4631 as follows : — 
 
 "First. To the commanding officer of a fleet or squadron, one- 
 twentieth of all prize-money awarded to any vessel or vessels under 
 immediate command. 
 
 "Second. To the commanding officer of a division of a fleet or 
 squadron on duty under the orders of the commander-in-chief of such 
 fleet or squadron a sum equal to one-fiftieth part of any prize-money 
 awarded to a vessel of such division for a capture made while under his 
 command, such fiftieth part to be deducted from the moiety due to the 
 United States, if there be such moiety, otherwise from the amount 
 awarded to the captors ; but such fiftieth part shall not be in addition to 
 any share which may be due to the commander of the division, and which he 
 may elect to receive, as commander of a single ship making or assisting in 
 the capture. 
 
 "Third. To the fleet-captain, one-hundredth part of all prize-money 
 awarded to any vessel or vessels of the fleet or squadron in which he is 
 serving, except in a case when the capture is made by the vessel on board 
 of which he is serving at the time of such capture ; and in such case he 
 shall share, in proportion to his pay, with the other officers and men on 
 board such vessel. 
 
 " Fourth. To the commander of a single vessel, one-tenth part of all 
 the prize-money awarded to the vessel under his command, if such vessel, 
 at the time of the capture, was under the command of the commanding 
 officer of a fleet, or squadron, or a division, and three-twentieths if his 
 vessel was acting independently of such superior officer. 
 
 " Fifth. After the foregoing deductions, the residue shall be distributed 
 and proportioned among all others doing duty on board, including the 
 fleet-captain, and borne on the books of the ship, in proportion to their 
 respective rates of pay in the service." ^ 
 
 The vessels which are entitled to share as joint captors in the 
 proceeds of the prize are determined by section 4632 : — 
 
 " All vessels of the navy within signal distance of the vessel or vessels 
 making the capture under such circumstances, and in such condition as to 
 be able to render effective aid if required, shall share in the prize ; and in 
 case of vessels not of the navy, none shall be entitled to share except the 
 vessel or vessels making the capture ; in which term shall be included 
 vessels present at and rendering actual assistance in the capture." 
 
 What constitutes signal distance within the meaning of the Act, 
 so as to entitle a ship to share in against capture, has been defined 
 in the following cases : — 
 
 In the " Aries "^ the actual captor was the "Stettin." Several 
 vessels, which, with the " Stettin," formed a blockading squadron, 
 claimed to be within signal distance. In disallowing the claim of 
 the "Memphis," Sprague, J., found that this ship did not even hear 
 a gun, but merely saw the glare of one gun and rocket as refracted 
 
 1 ^ Sprague, 262 (1864). 
 
S66 COMMERCE IN WAR 
 
 through the fog. This did not, in his opinion, constitute such a 
 system of signals by guns and rockets as to satisfy the statute. 
 
 The "St. John"^ was also captured by the "Stettin," but in 
 broad daylight. The nearest of the vessels claiming to participate 
 was the " Flag," twelve to fourteen miles distant. Although the 
 " Stettin " fired as many as eight guns, the largest on board, none 
 were heard by the " Flag." 
 
 " Without," said Sprague, J., " undertaking to decide that a system of 
 exchanging communication by guns cannot be established of such a 
 character as to entitle all vessels within its reach to share in a prize with 
 the actual captors, it is enough to repeat what I decided in the case of the 
 ' Aries ' — that the orders respecting guns and rockets in force in the 
 squadron off Charleston do not amount to such a system ; and to add 
 that in this case the ' Flag ' was not near enough to hear such guns as the 
 ' Stettin ' had in the then state of the wind and weather." 
 
 In the " Ella" and "Anna,"^ Mr. Justice Sprague said: — 
 
 " The statute confers the right of sharing in the proceeds upon any 
 vessel of the navy which 'shall be within signal distance of another making 
 a prize ' ; that is, if she be within signal distance of that vessel at that 
 time. If the state of the atmosphere from fog or haze, for example, is 
 such as to prevent signals being seen, neither the language nor the reason 
 of the statute is satisfied. Of what benefit would it be to a capturing 
 vessel that another should, without her knowledge, be within a certain 
 number of miles, but to which she could make no communication, and 
 from which she could receive no encouragement by promise of assistance 
 or otherwise ? " 
 
 It may be observed that where armed vessels are equipped, as 
 many now are, with the Marconi system of wireless telegraphy, 
 " within signal distance " will require a new definition. 
 
 In the case of Stovel v. United States,^ where a vessel which 
 had been purchased by Commodore Dewey and registered as an 
 American vessel, her armament consisting of two one-pounders 
 and some small arms, and her crew not being enlisted to fight but 
 shipped to perform manual labour, was during the battle at Manila 
 within signal distance but not near enough to the enemy to render 
 effective aid to the fleet, her crew were held not entitled to par- 
 ticipate in the distribution of bounty. 
 
 In the "Mangrove" prize-money* case, vessels were held not 
 to be within signal distance under the particular circumstances 
 of this case. Here the "Mangrove" and the "Indiana" were 
 between twelve and fifteen miles apart at the time of the capture 
 of the " Panama." 
 
 " We need not consider," said Mr. Justice Holmes, " whether in order to 
 bring a claimant within signal distance mutual communication must be 
 
 1 2 Sprague, 266. * Ibid., 267. 
 
 3 36 Ct. CI., 392 (1901). « 188 U.S. Rep., 720 (1902). 
 
FORMALITIES OF CAPTURE 567 
 
 possible, or whether it is enough if signals from the vessel making the 
 capture could be seen by the claimant. Taking it the latter way, still 
 the words 'within signal distance' must be read in connexion with the 
 further words ' under such circumstances and in such condition as to be 
 able to render effective aid if required.' The whole sentence refers to the 
 actual conditions of this particular case, not to an abstract objective 
 criterion of ideal signal distance in general. (' Ella' and ' Anna.') The ' Man- 
 grove ' had no signal flags but boat flags, about three feet by four, the 
 usual signal flags being about eight feet by eleven. Under such circum- 
 stances, we think it probably would be safe to assume five miles as an 
 outside limit of signal distance in this instance, if the facts heretofore 
 found by us rendered it necessary to be so nice. It is argued, to be sure, 
 that gun signals would have been possible. As to this suggestion we deem 
 it enough to say that we see no reason to believe that it was a practical 
 working possibility under the circumstances, and therefore need not 
 consider whether this statute would be satisfied by anything less than the 
 possibility of reading the ordinary day signals in the case at bar." 
 
 The officers who are entitled to share in the proceeds of the 
 prize are defined by section 4633 : — 
 
 " No commanding officer of a fleet or squadron shall be entitled to 
 receive any share of prizes captured by any vessel or vessels not under his 
 command, nor of such prizes as may have been captured by any vessels 
 intended to be placed under his command, before they have acted under 
 his orders. Nor shall the commanding officer of a fleet or squadron, 
 leaving the station where he had command, have any share in the prizes 
 taken by the ships left on such station after he has gone out of the limits 
 of his command, nor after he has transferred his command to his successor. 
 No officer or other person who shall have been temporarily absent on duty 
 from a vessel on the books of which he continued to be borne, while so 
 absent, shall be deprived in consequence of such absence of any prize- 
 money to which he would otherwise be entitled. And he shall continue to 
 share in the captures of the vessels to which he is attached until regularly 
 discharged therefrom." 
 
 The provisions relating to the determination of the shares are 
 to be found in section 4634 : — 
 
 " Whenever a decree of condemnation is rendered, the Court shall con- 
 sider the claims of all vessels to participate in the proceeds, and for that 
 purpose shall, at as early a stage of the cause as possible, order testimony 
 to be taken tending to show what part should be awarded to the captors 
 and what vessels are entitled to share, and such testimony may be sworn 
 to before any judge or commissioner of the Courts of the United States, 
 consul or commercial agent of the United States, or notary public, or any 
 officer of the navy highest in rank, reasonably accessible to the deponent. 
 The Court shall make a decree of distribution, determining what vessels are 
 entitled to share in the prize, and whether the prize was of superior, equal, 
 or inferior force to the vessel or vessels making the capture. The decree 
 shall recite the amount of the gross proceeds of the prize subject to the 
 order of the Court, and the amount deducted therefrom for costs and 
 
568 COMMERCE FN WAR 
 
 expenses, and the artiount remaining for distribution, and whether the 
 whole of such residue is to go to the captors, or one-half to the captors 
 and one-half to the United States." 
 
 The payment of bounty and its distribution are provided for by 
 section 4635 : — 
 
 " A bounty shall be paid by the United States for each person on board 
 any ship or vessel of war belonging ±0 an enemy at the commencement of 
 an engagement which is sunk or otherwise destroyed in such engagement 
 by any ship or vessel belonging to the United States, or which it may be 
 necessary to destroy in consequence of injuries sustained in action, of one 
 hundred dollars if the enemy's vessel was of inferior force, and of two 
 hundred dollars if of equal or superior force, to be divided among the 
 officers and crew in the same manner as prize-money, and when the actual 
 number of men on board any such vessel cannot be satisfactorily ascertained, 
 it shall be estimated according to the complement allowed to vessels of 
 its class in the Navy of the United States ; and there shall be paid as bounty 
 to the captors of any vessel of war captured from an enemy which they 
 may be instructed to destroy or which is immediately destroyed for the 
 public interest, but not in consequence of injuries received in action, fifty 
 dollars for every person who shall be on board at the time of such capture." 
 
 As it was decided in Dewey v. United States^ that, excluding 
 the land batteries, mines, and torpedoes, the American forces were 
 superior to the Spanish, Admiral Dewey's claim was held to 
 come within the clause allowing the sum of one hundred dollars 
 for each person on board at the commencement of the engage- 
 ment of the enemy's vessels sunk or destroyed. 
 
 The size and armaments of the vessels sunk or destroyed, 
 together with the number of men upon them, were alone to be 
 regarded in determining the amount of the bounty to be awarded. 
 
 The battle of Manila took place on i May, 1898, and by the 
 Act of 3 March, 1899 — 
 
 " All the provisions of law authorizing the distribution among captors of 
 the whole or any portion of the proceeds of vessels or any property here- 
 after captured, condemned as prize or providing for the payment of bounty 
 for the sinking or destruction of vessels of the enemy hereafter occurring 
 in time of war, are hereby repealed."'' 
 
 It was held in the Manila Prize Cases^ that the enemy's war 
 vessels which were run ashore and sunk by their own commanders, 
 though left in such a condition as not to be floated by any of the 
 means ordinarily possessed by a naval force, could not be said to 
 have been "sunk or otherwise destroyed" within the meaning of 
 the section, when they were afterwards raised, reconstructed, and 
 commissioned in the Navy, They were vessels captured and 
 
 > 178 U.S. Rep., 510 (1900). 
 
 2 Revised Statutes Supplement, 1892-1901, p. 969 ; 30 Stat. L. 1004, c. 413, sec. 13. 
 
 3 188 U.S. Rep., 254 (1902). 
 
FORMALITIES OF CAPTURE 569 
 
 appropriated to the use of the United States within the meaning 
 of sections 4624 and 4625, and were therefore lawful prize for the 
 benefit of the captors. 
 
 It was held in the "Infanta Maria Teresa"^ that the words 
 "ship or vessel of war belonging to the enemy" covered the entire 
 equipment, including, said Fuller, C.J., "armament, outfit, and 
 appurtenances, including provisions, money to pay the crew or for 
 necessary expenditure, everything necessary to be used for the 
 purposes of the vessel and as a vessel of war." The equipment, 
 therefore, is not subject to condemnation as prize of war. 
 
 It was also held that the captors of the " Teresa " were only 
 entitled to bounty and not to prize-money, since the vessel was 
 ultimately lost. 
 
 In the engagement at Santiago the " Teresa " was so damaged 
 that she could not be sent in for adjudication. There was no 
 survey or sale, and she was not appropriated for the use of the 
 United States under section 4625. Subsequently she was raised 
 by a wrecking company under a contract with the Government 
 and taken as far as Guantanamo, whence, after certain temporary 
 repairs, she proceeded in tow and partly under her own steam to 
 Norfolk, the nearest Government Navy-yard and the nearest point 
 where permanent repairs could be made. On this voyage she was 
 lost at Cat Island, and became a total wreck. 
 
 It was decided in the "Santo Domingo"^ that where the 
 captors of a vessel destroy it to prevent recapture, they are not 
 entitled to prize-money, but to bounty under section 4635. 
 
 "When captors," said Judge Thomas, "take a lawful prize, they have 
 alternative duties — to save it if practicable, to destroy it if it be im- 
 practicable to save it. The first duty insures prize-money and other ele- 
 ments of the right existing ; the second duty involves the sacrifice of prize- 
 money, and the pecuniary reward is in the form of bounty. But captors 
 cannot scuttle the ship captured and have her in the form of prize-money. 
 Their money reward is measured by what they deliver secure from the 
 enemy. If persons be sent to capture a vessel and thereupon destroy her, 
 the destruction precludes prize-money (Decatur v. United States);^ and if 
 the destruction ex necessitate rei must and does follow the capture, the 
 captor's status is the same. Indeed, if it is impracticable to bring the 
 property into port or to make some safe disposition of it, the captor's 
 duty is to destroy, although it result in a renunciation of prize-money. 
 The usual duty to save a capture from the enemy to earn prize-money 
 stands as does the duty to sacrifice the prize and prize-money if occasion 
 demands. The suggestion that a person bound to save against the peril of 
 recapture, if he would have prize-money, may avoid the peril by destroy- 
 ing the subject of defence, and yet recover a compensation measured by 
 
 » 188 U.S. Rep., 283 (1903). 
 ^119 Fed. Rep., 386 (1903). 
 8 Div. Ct. CI., 201. 
 
S70 COMMERCE IN WAR 
 
 the value or proceeds of the thing destroyed as if it had been defended and 
 saved, involves contradictions which forbid its adoption as a rule of war." 
 
 By section 4641, three distinct classes of vessels are mentioned 
 as being entitled to participate in the proceeds of prize. There 
 are (i) public armed ships; (2) privateers; and (3) vessels "not 
 of the Navy, but controlled by either executive department." 
 
 " The net amount decreed for distribution to the United States or to 
 vessels of the Navy shall be ordered by the Court to be paid into the 
 Treasury of the United States, to be distributed according to the decree 
 of the Court. The Treasury Department shall credit the Navy Depart- 
 ment with each amount received to be distributed to vessels of the Navy ; 
 and the persons entitled to share therein shall be severally credited in 
 their accounts with the Navy Department with the amounts to which 
 they are respectively entitled. In the case of vessels not of the Navy 
 and not controlled by any department of the Government, the distribution 
 shall be made by the Court to the several parties entitled thereto, and the 
 amounts decreed to them shall be divided between the owners and the 
 ship's company, according to any written agreement between them, and in 
 the absence of such agreement one-half to the owner and one-half to the 
 ship's company according to their respective rates of pay on board ; and 
 the Court may appoint a commissioner to make such distribution, subject 
 to the control of the Court, who shall make a due return of his doings 
 with proof of actual payments by him, and who shall receive no other 
 compensation, directly or indirectly, than such as shall be allowed him by 
 the Court. In the case of vessels not of the Navy, but controlled by 
 either Executive Department, the whole amount decreed to the captors 
 shall be divided among the ship's company." 
 
 In the case of the "Rita,"^ an unarmed merchant vessel, the 
 status of the capturing vessel under this section was determined. 
 The capture was made on 8 May, 1898, by the United States 
 cruiser "Yale," which prior to 30 April, 1898, was known as the 
 " City of Paris." She belonged to the International Navigation 
 Company, and was of the class of steamships which under the 
 provisions of the Act of 3 March, 1891, was subject to be taken 
 by the United States as a cruiser or transport upon payment of 
 her actual value. By a charter-party and supplementary agree- 
 ment of 30 April, 1898, possession of the ship was transferred to 
 the Government. She was then very heavily armed and con- 
 verted into an auxiliary cruiser. The charter-party provided that 
 the ship should be "manned, victualled, and supplied at the 
 expense of the charterer," who was also to pay all other expenses 
 whatever, and return the same in good repair less ordinary wear 
 and tear. The supplementary agreement provided that the ship 
 was "to be manned by her regular officers and crew, and in addi- 
 tion thereto was to take on board two naval officers, a marine 
 
 1 89 Fed. Rep., 763 (1898). 
 
FORMALITIES OF CAPTURE S7i 
 
 officer, and a guard of thirty marines," etc. During the continua- 
 tion of the supplementary agreement the vessel was to be under 
 the entire control of the senior naval officer. 
 
 At the time of the capture the " Yale's " company consisted of 
 two naval officers and a marine guard of twenty-five men enlisted 
 in the service of the United States, the remaining 269 officers and 
 men doing duty on board and borne on the books of the ship not 
 being commissioned by or enlisted in such service. The marine 
 guard claimed to exclude the officers and men not so commis- 
 sioned or enlisted from participation in the prize. 
 
 It was held that the "ship's company," within the meaning of 
 the section, included not only the naval officers and the marines, 
 but also the officers and men of the vessel " who were doing duty 
 on board and borne on the books of the ship," and that they were 
 entitled to share in proportion to their rate of pay from the owners 
 of the vessel ; that the words " in the service " were not limited to 
 those in the regular service. "If they were not 'in the service' 
 of the Government while performing this mission," said Judge 
 Brawley, " they incurred the hazard of being considered as 
 pirates." 
 
 It was further held that the crew were entitled by their shipping 
 articles to 50 per cent additional wages from the owners for good 
 behaviour at the end of the twelve months' service for which they 
 were shipped, and that this fact did not affect their right to share 
 in the prize-money, nor the fact that some were aliens, nor that 
 they subsequently refused to enlist in the Navy. 
 
 By section 4642 — 
 
 "All ransom-money, salvage, bounty, or proceeds of condemned 
 property accruing or awarded to any vessel of the Navy, shall be 
 distributed and paid to the officers and men entitled thereto in the 
 same manner as prize-money, under the direction of the Secretary of 
 the Navy." 
 
 REGULATIONS ISSUED TO NAVAL COMMANDERS 
 
 Spain. — The following instructions were issued by the Minister 
 of Marine on 23 April, 1898, for the information and use of naval 
 officers : — 
 
 "10. In consequence of the visit the vessel is captured in the following 
 cases : 
 
 "(i) If the nationality of the vessel proves to be that of the enemy, 
 unless covered by the immunities established by the Geneva Convention, 
 by which Spain is bound. 
 
 " (2) If active resistance is offered to the visit — that is, if force is employed 
 to escape it. 
 
S;2 COMMERCE IN WAR 
 
 " (3) If a legal document to prove the nationality cannot be produced. 
 
 " (4) If bound for the enemy's ports the vessel cannot produce a docu- 
 ment proving the nature of the cargo. 
 
 "(5) If the cargo is composed in whole or more than two-thirds of con- 
 traband of war. 
 
 "In the case of the illicit part of the cargo being less than two-thirds 
 only, the articles which are contraband of war will be confiscated, and to 
 unload them the ship will be conducted to the nearest and most convenient 
 Spanish port. 
 
 " It must be understood that goods directly and immediately affecting 
 the war are contraband only when destined for the enemy's ports, for when 
 they are consigned to a neutral port these goods are munitions of war, but 
 not contraband. 
 
 " But if a vessel is despatched for a neutral port in proper form, but 
 makes for a port of the enemy, then, if found near to one of those ports or 
 sailing in quite a different direction than the proper one shown in her 
 papers, she shall be captured if the captain cannot prove that force majeure 
 drove him from his proper course. 
 
 " (6) If she carries on behalf of the enemy officers, troops, or seamen, 
 
 " (7) If she carries letters and communications of the enemy, unless she 
 belong to a marine mail service, and these letters or communications are in 
 bags, boxes, or parcels with the public correspondence, so that the captain 
 may be ignorant of their contents. 
 
 " (8) If the vessel is employed in watching the operations of the war, 
 either freighted by the other belligerent or paid to perform this service. 
 
 " (9) If the neutral vessel takes part in this employment or assists in any 
 
 "The vessel will also be captured when during the visit duplicate or 
 way in such operations. 
 
 false papers are found, since such cases fall under the regulations contained 
 in (3) or (4) or in both, since neither false nor duplicate papers can serve 
 to justify the conditions referred to. 
 
 " Neither an attempt at flight to escape visit nor simple suspicion of 
 fraud respecting the nationality of the vessel or the nature of its cargo 
 authorize the capture of the vessel. 
 
 " The circumstances that the papers are written in a language unknown 
 to the officer making the visit does not authorize the detention of the 
 vessel. 
 
 "(11) Merchant vessels sailing under convoy, under charge of one or 
 more ships of the navy of their nation, are absolutely exempt from the 
 visit of the belligerents, being protected by the immunity enjoyed by the 
 warships. 
 
 "As the formation of a convoy is a measure emanating from the 
 Government of the State to which belong the vessels protecting the con- 
 voy, as well as the vessels under convoy, it must be taken as certain that 
 the Government in question not only will not allow fraud of any kind, but 
 has employed the strictest measures to avoid fraud being committed by 
 any of the vessels under the convoy. It is therefore useless for the belli- 
 gerent to inquire pf the chief officer of the convoy whether he guarantees 
 the neutrality of ships sailing under his charge or of the cargo they carry. 
 
 "(12) On the visit taking place, it is not permissible to give orders to 
 open the hatchways in order to examine the cargo, nor to open any article 
 
FORMALITIES OF CAPTURE 573 
 
 of furniture to search for documents. The ship's papers presented by the 
 captain to prove the legitimacy of the flag and; the nature of the cargo, are 
 the only proof which international law allows. 
 
 "(13) Although it very seldom occurs that the principal ship's papers, 
 whether those referring to her nationality or to the nature of her cargo, 
 are lost, mislaid, or left on shore by mistake, if such a case should occur, 
 and by other papers or means the captain can convince the officer visiting 
 the ship of the neutrality of the ship and her cargo, he may authorize the 
 captain to continue her voyage ; but if an explanation cannot be given, the 
 ship will be detained and conducted to the nearest Spanish port until 
 the iiecessary investigation concerning the point or points in question is 
 made. 
 
 "(14) The commander of the vessel carrying out the visit and the 
 officer commissioned to make the visit, the former in ordering and the 
 latter in carrying it out, should act without prejudice to the good faith of 
 the neutral being visited, and without losing sight of the consideration and 
 respect that nations owe to one another."^ 
 
 United States. — Regulations for the guidance of all persons 
 in the naval service were issued by the Navy Department on 
 7 August, 1876.* These were based upon the Act of 30 June, 
 1864,' and Title LIV of the Revised Statutes of 1874,* which was 
 practically a reproduction of the Act of 1864, The following in- 
 structions were issued for the information and guidance of the 
 naval service by the Navy Department on 30 June, 1898 : — ^ 
 
 SENDING IN OF PRIZES 
 
 "(20) Prizes should be sent in for adjudication, unless otherwise di- 
 rected, to the nearest home port in which a prize court may be sitting. 
 
 "(21) The prize should be delivered to the court as nearly as possible 
 in the condition in which she was at the time of seizure, and to this end 
 her papers should be sealed at the time of the seizure, and kept in the 
 custody of the prize-master. Attention is called to Articles XVI and 
 XVri for the government of the United States Navy (Exhibit A). 
 
 " (22) All witnesses whose testimony is necessary to the adjudication 
 of the prize should be detained and sent in with her, and if circumstances 
 permit it is preferable that the officer making the search should act as 
 priise-master. 
 
 " (23) As to the delivery of the prize to the judicial authority, consult 
 sections 4615, 4616, and 4617, Revised Statutes of 1874 (Exhibit B). 
 The papers, including the log-book of the prize, are delivered to the 
 commissioners ; the witnesses to the custody of the, United States 
 marshall ; and the prize itself remains in the custody of the prize-master 
 until the court issues process directing one of its own officers to take 
 
 charge. 
 
 1 U.S. Papers : Foreign Relation? (1898), 777. 
 
 2 Hallick, Vol. II, 385. 
 
 3 Statutes at Large, U.S., Vol. XIII, 306. 
 * Revised Statutes, U.S. (1873-4), 904- 
 
 5 Papers: Foreign Relations; U.S. (1898), 782. 
 
574 COMMERCE IN WAR 
 
 " (24) The title to property seized as prize changes only by the decision 
 rendered by a prize court. But if the vessel itself or its cargo is needed 
 for immediate public use, it may be converted to such use, a careful 
 inventory and appraisal being made by impartial persons and certified to 
 the prize court. 
 
 " (25) If there are controlling reasons why vessels may not be sent in 
 for adjudication, as unseaworthiness, the existence of infectious disease, or 
 the lack of a prize crew, they may be appraised and sold ; and if this 
 cannot be done, they may be destroyed. The imminent danger of re- 
 capture would justify destruction if there was no doubt that the vessel was 
 good prize. But in all such cases all the papers and other testimony 
 should be sent to the prize court in order that a decree may be duly 
 entered. 
 
 Exhibit A 
 
 " Article XVI. No person in the Navy shall take out of a prize, or vessel 
 seized as a prize, any money, plate, goods, or any part of her equipment, 
 unless it be for the better preservation thereof, or unless such articles are 
 absolutely needed for the use of any of the vessels or armed forces of the 
 United States, before the same are adjudged lawful prize by a competent 
 court ; but the whole without fraud, concealment, or embezzlement shall 
 be brought in, in order that judgment may be passed thereon, and every 
 person who offends against this Article shall be punished as a court- 
 martial may direct. 
 
 " Article XVII. If any person in the Navy strips off the clothes of or 
 pillages or in any manner maltreats any person taken on board a prize, 
 he shall suffer such punishment as a court-martial may adjudge. 
 
 Exhibit B 
 
 Sec. 4615. The commanding officer of any vessel making a capture 
 shall secure the documents of the ship and cargo, including the log-book, 
 with all other documents, letters, and other papers found on board, and 
 make an inventory of the same and seal them up and send them with the 
 inventory to the court in which proceedings are to be held, with a written 
 statement that they are all the papers found and are in the condition 
 in which they were found ; or explaining the absence of any documents or 
 papers or any change in their condition. He shall also send to such 
 court as witnesses the master, one or more of the other officers, the super- 
 cargo, purser, or agent of the prize, and any person found on board whom 
 he may suppose to be interested in, or to have knowledge respecting, the 
 title, national character, or destination of the prize. He shall send the 
 prize with the documents, papers, and witnesses, under charge of a 
 competent prize-master and prize-crew, into port for adjudication, explain- 
 ing the absence of any usual witnesses; and in the absence of instruc- 
 tions from any superior authority as to the port to which it shall be sent, 
 he shall select such port as he shall deem most convenient in view of the 
 interests of probable claimants as well as of the captors. If the captured 
 vessel or any part of the captured property is not in condition to be sent 
 in for adjudication, a survey shall be had thereon and an appraisement 
 made by persons as competent and impartial as can be obtained, and their 
 report shall be sent to the Court in which proceedings are to be held ; 
 
FORMALITIES OF CAPTURE 575 
 
 and such property, unless appropriated for the use of the Government, 
 shall be sold by the authority of the commanding officer present, and the 
 proceeds deposited with the Assistant-Treasurer of the United States most 
 accessible to such Court and subject to its order in the cause. (See 
 section 1624, article XV, whereby 'the commanding officer of every vessel 
 in the Navy entitled to or claiming an award of prize-money shall, as soon 
 as it may be practicable after the capture, transmit to the Navy Depart- 
 ment a complete list of the officers and men of his vessel entitled to share, 
 stating therein the quality of each person rating ; and every commanding 
 officer who offends against this article shall be punished as a court-martial 
 may direct ' ^). 
 
 " Sec. 4616. If any vessel of the United States shall claim to share in a 
 prize, either as having made the capture or as having been within signal 
 distance of the vessel or vessels making the capture, the commanding 
 officer of such vessel shall make out a written statement of his claim, with 
 the grounds on which it is founded, the principal facts tending to show 
 what vessels made the capture and what vessels were within signal 
 distance of those making the capture, with reasonable particularity as to 
 times, distances, localities, and signals made, seen or answered ; and such 
 statement of claim shall be signed by him, and sent to the Court in which 
 proceedings shall be held and shall be filed in the cause. 
 
 "Sec. 4617. The prize-master shall make his way diligently to the 
 selected port, and there immediately deliver to a prize-commissioner the 
 documents and papers and the inventory thereof, and make affidavit that 
 they are the same and are in the same condition as delivered to him, or 
 explaining any absence or change of condition therein, and that the prize 
 property is in the same condition as delivered to him, or explaining any 
 loss or damage thereto; and he shall further report to the district attorney 
 and give to him all the information in his possession respecting the prize 
 and her capture ; and he shall deliver over the persons sent as witnesses 
 to the custody of the marshall and shall retain the prize in his custody 
 until it shall be taken therefrom by process from the prize court. (See 
 section 5441, whereby ' every person who wilfully does any act or aids or 
 advises in the doing of any act relating to the bringing in, custody, 
 preservation, sale, or other disposition of any property captured as prize, 
 or relating to any documents or papers connected with the property 
 or to any deposition or other document or paper connected with the pro- 
 ceedings, with intent to defraud, delay, or injure the United States or any 
 captor or claimant of such property shall be punished by a fine of not 
 more than ten thousand dollars or by imprisonment not more than five 
 years or both.') " ^ 
 
 Great Britain. — The following instructions drawn up by the 
 late Mr. Godfrey Lushington, and amended by Professor Holland, 
 although not now issued to the public, are believed to be still sub- 
 stantially binding upon naval officers : — 
 
 DETENTION 
 "231, If upon visit and search of the vessel the commander has reason 
 to entertain any suspicion, he should give the master an opportunity of 
 
 ' Revised Statutes, United States, 1873-4. Title XV., chap. X., 279. 
 2 Ibid. Title LXX., chap, v., 1060. 
 
576 COMMERCE IN WAR 
 
 explanation,^ and if after such opportunity given he is satisfied that there 
 is proper evidence against her amounting to probable cause for her deten- 
 tion, he should detain her." 
 
 WHAT IS PROPER EVIDENCE AMOUNTING TO PROBABLE CAUSE 
 
 "232. Proper evidence is such evidence as will be admissible before the 
 prize court, viz. : — 
 
 "(i) Facts appearing by inspection, as the character of the 
 
 vessel, her equipment, cargo, and crew ; 
 " (2) The papers on board ; 
 " (3) The testimony of her master and crew. 
 
 " The commander should remember that no evidence by any of the 
 captors in their own behalf will, at all events in the first instance; be 
 admitted before the prize court,^ 
 
 " 233. Evidence against the vessel amounts to probable cause for her 
 detention when the circumstances connected with the vessel and cargo 
 are such as to afford reasonable ground for belief that the vessel or 
 cargo, or both or part of the cargo, might prove upon further inquiry to 
 be lawful prize ; and it is immaterial whether these circumstances arise 
 from the misconduct of the master or are beyond his control.* 
 
 " 234. The commander should bear in mind that if the Court should 
 find that the vessel has been detained without probable cause,* then, 
 although there has been nothing intentionally vexatious in his conduct,* 
 he will be condemned in costs and damages, even to the extent of making 
 good any losses that have been the result of inevitable accident to the 
 vessel and cargo while in his hands. 
 
 "235. On the other hand, if the Court comes to the conclusion that 
 there was probable cause for the detention, then, although the vessel may 
 be ordered to be restored, the commander will be held to have been in 
 lawful possession of her, and therefore not answerable for casualties."® 
 
 DETENTION UPON SECOND SEIZURE 
 
 " 236. Sometimes it happens that the vessel has been previously seized 
 by another of His Majesty's cruisers and allowed to proceed as not being 
 lawful prize ; in such case the commander should use special precaution, 
 but if he is nevertheless satisfied that there is probable cause for the 
 detention of the vessel, he should detain her.^ 
 
 DETENTION ACT OF COMMANDER ALONE 
 
 " 237. The commander of the cruiser is alone responsible for the deten- 
 tion of a vessel, unless the commander of the squadron is actually present; 
 
 1 "Anna,"s Rob., 385. 
 
 2 " Henrick and Maria," 4 Rob., 57 ; " Haabet," 6 Rob., 54 ; " Glierktigheit," 6 Rob., 
 58 ; " Fortuna," i Dods., 81 ; " Aline and Fanny," 10 Moore, P.O., 491. 
 
 ' " Ostsee," Spinks, 175. 
 
 * "Nemesis," Edw.,. 50 ; "Hoppet," Edw., 369; "Elizabeth," i Act., 10; "Qtsu," 
 Spinks, 174. 
 
 ^ "Ostsee," Spinks, 174; "Leucade," Spinks, 217. 
 
 8 " John," 2 Dods., 336. 
 
 ' " Mercurius," i Rob., 80 ; " Odessa," Spinks, 208. 
 
FORMALITIES OF CAPTURE 577 
 
 and co-operating, or himself expressly orders the detention. The authority, 
 therefore, for the formal detention of a vessel should in all cases proceed 
 from the commander. But any officer of inferior rank who, whilst 
 at a distance from his commander, falls in with a vessel, and after 
 visit and search has reason to believe that she is liable to detention, 
 should hold possession of her till he has communicated with his com- 
 mander. 
 
 DETENTION : HOW TO BE EXERCISED 
 
 "238. As soon as the commander has come to the determination to 
 detain the vessel, he should give notice to the master, and may state to 
 him the ground on which the detention is made.^ The commander should 
 then without delay secure possession of the vessel by sending on board 
 one of his officers and some of his own crew. If by reason of rough 
 weather or other circumstances this is impracticable, the commander 
 should require the vessel to lower her flag and to steer according to his 
 orders.* 
 
 PAPERS TO BE SECURED 
 
 "239. Upon obtaining 'possession of the vessel, the first duty of the 
 commander is to secure all the papers belonging to the vessel, as well as 
 those which are usually denominated ' ship's papers,' and which relate to 
 the vessel and cargo, as all other papers, of whatever description, which 
 may be either delivered up or found on board. 
 
 " 240. The vessel's papers, as soon as secured, should be arranged and 
 numbered in consecutive order, care being taken that the enclosures are 
 not separated from their envelopes. The importance of securing all the 
 vessel's papers is manifest, inasmuch as the evidence to acquit or condemn 
 the prize herself must in the first instance come solely from the, prize her- 
 self, namely, from the papers on board, and from the depositions on oath 
 of the principal persons belonging to the prize. 
 
 PAPERS TO BE VERIFIED BY AFFIDAVIT 
 
 "241. As soon as the vessel's papers have been arranged and numbered, 
 an affidavit should be prepared for their verification. The affidavit 
 may, in default of directions from the Admiralty, be in Form No. 4 
 and should always, if possible, be made by the person who found the 
 papers, or to whom they were delivered up at the time of the capture. 
 The affidavit should then be fair copied on foolscap paper, a broad margin 
 being left at the side, and the whole of the vessel's papers numbered as 
 aforesaid, should then be annexed thereto. 
 
 Form No. 4 
 
 " The , master. 
 
 " I, the undersigned, A. B. , holding the rank of in 
 
 His Britannic Majesty's Navy, and belonging to His Majesty's ship , 
 
 make oath as follows : — 
 
 "(i) I was present at the capture of the above-named vessel, the 
 
 1 "Juffrow Maria Schroeder," 3 Rob., 147. 
 
 2 "Edward and Mary," 3 Rob., 305 ; "Hercules," 2 Dod., 353. 
 
 2 P 
 
578 COMMERCE IN WAR 
 
 , whereof was master, by His Majesty's 
 
 said ship, the , on the day of . 19 • 
 
 " (2) The papers hereunto annexed and marked No. i to No. in- 
 clusive, are all the papers which were on board at the time of the capture 
 of the said vessel, and were delivered up. 
 
 " (3) The said papers are now in the very same plight, save the number- 
 ing thereof, as when the same were delivered up. 
 
 "A. B. 
 " Sworn by the said A. B. at , 
 
 "on the day of 19 • 
 
 " Before me, C. D., of 
 
 " 242. If any papers have been destroyed or thrown overboard, a 
 further separate affidavit of the fact must be prepared. The affidavit 
 may in default of directions from the Admiralty be in Form No. 5, and it 
 should, if possible, be made by one of the persons who saw the papers 
 destroyed or thrown overboard, or who succeeded in saving any of them 
 after they had been thrown overboard. All papers so saved must be 
 arranged and numbered before the affidavit is made, and after it has been 
 made must be annexed thereto. 
 
 Form No. 5 
 
 " The , master. 
 
 " I, the undersigned, A, B. , holding the rank of in 
 
 His Britannic Majesty's Navy, and belonging to His Majesty's ship 
 , make oath as follows : — 
 
 "(i) I was present at the capture of the above-named vessel, the 
 , whereof was master, by His Majesty's 
 
 ship, the , on the day of , 19 • 
 
 "(2) A few minutes before the capture aforesaid, I saw two packets 
 of papers thrown from one of the port-holes of the said vessel ; the 
 cutter was immediately lowered ; one of such packets sank and was lost, 
 but the cutter's crew succeeded in saving the other packet. 
 
 " (3) The papers hereunto annexed and marked No. i to No. in- 
 clusive are all the papers so saved, and are now in the very same plight, 
 save the numbering thereof, as when they were saved. 
 
 "A. B. 
 " Sworn, etc. 
 
 " 243. Again, should any papers be found concealed in any part of the 
 vessel, a further separate affidavit of the fact must be prepared. The 
 affidavit may, in default of directions from the Admiralty, be in Form No. 
 6, and it should, if possible, be made by the person who discovered the 
 papers. All papers so found should be arranged and numbered before 
 the affidavit is made, and after it has been made must be annexed 
 thereto. 
 
FORMALITIES OF CAPTURE 579 
 
 Form No. 6 
 
 (Same as No. 5) 
 
 " (2) In searching the vessel on the occasion of the said capture I found 
 stowed away and concealed in a packet of papers. 
 
 " (3) The papers hereunto annexed and marked No. i to No. inclu- 
 sive are all the papers so found and are now in the very same plight, save 
 the numbering thereof, as when they were so found. 
 
 A. B. 
 " Sworn, etc. 
 
 " 244. The affidavits should, on the first convenient opportunity, be 
 sworn before one of His Majesty's Consuls or Vice-Consuls abroad, or 
 before some other person duly commissioned to administer oaths in prize- 
 matters ; but no naval officer, although so commissioned, may act as com- 
 missioner or administer oaths in any case in which he himself is personally 
 interested. 
 
 ACCOUNT TO BE TAKEN OF VALUABLES 
 
 " 245. The commander should cause an account to be taken in writing 
 of all money and valuables found on board the vessel. It will be convenient 
 that this account should be taken in duplicate and duly certified, and one 
 copy given to the master. In default of directions from the Admiralty the 
 certificate may be in Form 7. 
 
 Form No. 7 
 
 " The , master. 
 
 " I, the undersigned, , holding the rank of in 
 
 His Britannic Majesty's Navy, and commanding His Majesty's ship 
 
 , do hereby certify that the following is a correct account 
 
 of all moneys and valuables found on board the above-named vessel 
 
 detained by me as lawful prize of war on the day of 
 
 19 ." 
 
 Here state 
 the several 
 
 articles,distin- 
 
 guishing 
 
 whether they 
 
 were voluft- 
 
 ■ — — tarily given up 
 
 or were found 
 concealed, 
 and where. 
 
 Signed this day of 19 
 
 Commanding His Majesty's Ship. 
 
S8o COMMERCE IN WAR 
 
 Note. — I do hereby declare that on the day of 
 
 19 , I delivered a copy, signed by me, of 
 
 the above certificate to the master of the , 
 
 Here state 
 and tha t whether or not 
 
 the master 
 , made any and 
 
 what objec- 
 tion. 
 
 Signed this day of 19 
 
 Commanding His Majesty's Ship- 
 
 IF NECESSARY THE VESSEL AFTERWARDS TO BE RELEASED 
 
 " 246. If, after the detention of the vessel, there should come to the 
 knowledge of the commander any further facts tending to show that the 
 vessel hcis been improperly detained, he should immediately release her, 
 taking care to replace, as far as possible, everything in its original 
 position. 
 
 " The following five clauses are substantially the regulations first printed 
 in 1731, and approved by His Majesty in Council. 
 
 GENERAL DUTIES ON MAKING A CAPTURE 
 
 "247. When any ship or vessel shall be captured or detained her 
 hatches are to be securely fastened and sealed and her lading and furni- 
 ture and in general everything on board are to be carefully secured from 
 embezzlement ; the oflficer placed in charge of her shall prevent anything 
 from being taken out of her until she has been tried and sentence shall 
 have been passed on her in a court of prize. 
 
 EVIDENCE AND DOCUMENTS 
 
 " 248. The captain of the capturing or detaining ship shall cause the 
 principal officers of the vessel detained, and such other persons of the crew 
 as he shall think fit to be examined as witnesses in the prize court, to 
 prove to whom the vessel and cargo belong; and he shall send to the 
 Court all passports, custom-house clearances, log-books, and all other 
 ship's papers which shall be found on board, without suffering any of 
 them to be on any pretence secreted or withheld. 
 
 TREATMENT OF PRISONERS 
 
 " 249. The captain and the prize-master are to take particular care that 
 all prisoners of war are treated with humanity; that their personal 
 property is carefully protected ; that they have their proper allowance of 
 provisions, viz. two-thirds of all species except spirit, wine, or beer, of 
 
FORMALITIES OF CAPTURE S8i 
 
 which none shall ever be issued to them ; and that every comfort of air 
 and exercise, which circumstances admit of, be allowed them ; but to 
 prevent any hostile attempts on their part, they are to be always atten- 
 tively watched and guarded, especially when many of the ship's company 
 may happen to be employed aloft." 
 
 ACTING AS A SHIP OF WAR WITHOUT A COMMISSION 
 
 " 250. If any ship or vessel shall be taken acting as a ship of war or 
 privateer, without having a commission duly authorizing her to do so, a 
 full report of all the particulars is at once to be made to the Admiralty. 
 
 BRITISH SUBJECTS SERVING IN AN ENEMY'S SHIP 
 
 " 251. If any person found serving on board an enemy^s ship of war or 
 privateer shall be suspected to be one of His Majesty's subjects, not 
 having lawfully renounced his allegiance, he shall be kept prisoner until 
 directions are received as to the mode in which he shall be dealt with. 
 The captain shall, by the first opportunity, send to the Admiralty an 
 account of such suspected person and of his place of birth if known, and 
 also any statements he may voluntarily make ; and shall likewise direct 
 some of the officers and men of the ship to notice very particularly every 
 circumstance of the case, that they may be able to give evidence. 
 
 JOINT CAPTURE 
 
 " 252. The ship to which a prize strikes her flag is the actual captor. 
 Other ships may be held by the prize court to share as joint captors on 
 the ground either of association or co-operation with the actual captor. 
 
 " 253. If ships are associated or co-operating together, a capture made 
 by one enures to the benefit of all. 
 
 ASSOCIATION 
 
 "254, The bond of association exists — 
 
 "(i) Between ships composing a blockading or cruising squadron ; 
 with the exception of those absent at the time of the capture, 
 by reason of having been detached upon a separate service. 
 
 "(2) Between ships chasing together provided that the senior of 
 the commanders of the several ships has assumed the command 
 over all. 
 
 CO-OPERATION 
 
 "255. Ships being in sight of the prize as also of the captor, under 
 circumstances to cause intimidation to the prize and encouragement to the 
 captor, are held to be co-operating with the actual captor. 
 
 " 256. In all cases of alleged joint capture, the commander, whether he 
 is the actual captor or claims to be joint captor, should, as soon as possible 
 after the capture, draw up a list of all the officers, seamen, marines, 
 soldiers, and others who were actually on board his ship on the occasion of 
 the capture ; and also a list of the names of those belonging to the crew 
 
582 COMMERCE IN WAR 
 
 who were absent on duty or otherwise at the time ; and the cause of such 
 absence should be specified. Each list should contain the quality of the 
 service of each person and their several ratings, and must be subscribed 
 by the commander and three or more of the chief officers on board. 
 
 " 257. The commander should then send these lists, together with the 
 particulars specified in section 195, and his report of the whole proceed- 
 ing to the Secretary of the Admiralty. 
 
 "258. The distribution of all prize-money is regulated by the Royal 
 Proclamation of the 3rd August, 1886. 
 
 JOINT CAPTURE BY BRITISH AND ALLIED SHIPS OF WAR 
 
 " 259. In the case of captures made jointly by British and allied ships of 
 war the duties of the respective commanders are usually regulated by 
 treaty." 
 
 Thus a convention was made between Great Britain and France during 
 the Crimean War, on 10 May, 1854,^ and a similar convention between the 
 same Powers on 22 February, 1860,^ preparatory to the war with China. 
 
 The following are the terms of the two treaties relating to joint capture, 
 which are identical : — 
 
 " Art. I. When a joint capture shall be made by the naval forces of the 
 two countries, the adjudication thereof shall belong to the jurisdiction of 
 the country whose flag shall have been borne by the officer having the 
 superior command in the action, 
 
 " Art. II. When a capture shall be made by a cruiser of either of the 
 two allied nations in the presence of and in the sight of a cruiser of 
 the other, such cruiser having thus contributed to the intimidation of the 
 enemy and encouragement of the captor, the adjudication shall belong to 
 the jurisdiction of the actual captor.. 
 
 " Art. III. In case of the capture of a merchant vessel of one of the two 
 countries, the adjudication of such capture shall always belong to the 
 jurisdiction of the country of the captured vessel. The cargo shall be 
 dealt with, as to the jurisdiction, in the same manner as the vessel. 
 
 " Art. IV. In case of condemnation under the circumstances described in 
 the preceding articles : 
 
 "(i) If the capture shall have been made by vessels of the two nations 
 whilst acting in conjunction, the net proceeds of the prize, after deducting 
 the necessary expenses, shall be divided into as many shares as there were 
 men on board the capturing vessels, without reference to rank, and the 
 shares belonging to the men on board the vessels of the ally shall be paid 
 and delivered to such person as may be duly authorized on behalf of the 
 allied Government to receive the same; and the distribution of the amount 
 belonging to each vessel shall be made by each Government according to 
 the laws and regulations of the country. 
 
 " (2) If the capture shall have been made by cruisers of either of the two 
 allied nations in the presence and in the sight of a cruiser of the other, the 
 division, the payment, and the distribution of the net proceeds of the prize, 
 after deducting the necessary expenses, shall likewise be made in the 
 manner above mentioned. 
 
 1 .State Papers, Vol. XLIV, 1 1. 2 Hertslet's " Treaties," Vol. II, 172. 
 
FORMALITIES OF CAPTURE 583 
 
 " (3) If a Capture made by a cruiser of one of the two countries shall 
 have been adjudicated by the Courts of the other, the net proceeds of the 
 prize, after deducting the necessary expenses, shall be made over in the 
 same manner to the Government of the captor, to be distributed according 
 to its laws and regulations. 
 
 " Art. V. The commanders of the vessels of war of their Majesties shall, 
 with regard to the sending in and delivering up of prizes, conform to the 
 instructions annexed to the present convention, and which the two Govern- 
 ments reserve to themselves to modify by common consent if it should 
 become necessary. 
 
 " Art. VI. When in the execution of the present convention the valua- 
 tion of a captured vessel of war shall be in question, the calculation shall 
 be according to the real value of the same ; and the allied Government 
 shall be entitled to delegate one or more competent officers to concur in 
 the valuation. In the case of disagreement, it shall be decided by lot 
 which officer shall have the casting vote. 
 
 " Art. VII. The crews of the captured vessels shall be dealt with accord- 
 ing to the laws and regulations of the country to which the present 
 convention attributes the adjudication of the prizes. 
 
 INSTRUCTIONS REFERRED TO IN ARTICLE V TO THE COMMANDERS 
 OF FRENCH AND ENGLISH SHIPS OF WAR 
 
 "Article I. Whenever in consequence of a joint action you are 
 required to draw up the report or proces-verbal of a capture, you will take 
 care to specify with exactness the names of the ships of war present 
 during the action, as well as the names of their commanding officers, and 
 as far as possible the number of men embarked on board these ships at 
 the commencement of the action without distinction of rank. 
 
 "You will deliver a copy of that report or proces-verbal to the officer of 
 the allied Power who shall have had the superior command during the 
 action, and you will conform yourself to the instructions of that officer, as 
 far as relates to the measures to be taken for the conduct and the 
 adjudication of the joint captures so made under his command. 
 
 " If the action has been commanded by an officer of your nation, you 
 will conform yourself to the regulations of your own country, and you will 
 confine yourself to handing over to the highest officer in rank of the 
 allied Power, who was present during the action, a certified copy of the 
 report or of the proces-verbal which you shall have drawn up. 
 
 " Article 1 1. When you shall have effected a capture in presence and 
 in sight of an allied ship of war, you will mention exactly, in the report 
 which you will draw up, when the capture is a ship of war, and in the 
 report or proces-verbal of the capture when the prize is a merchant vessel, 
 the number of men on board your ship at the commencement of the action 
 without distinction of rank, as well as the name of the allied ship of war 
 which was in sight, and, if possible, the number of men embarked on board 
 that ship, likewise without distinction of rank. You will deliver a certified 
 copy of your report or proces-verbal to the commander of that ship. 
 
 " Article III. Whenever in the case of a violation of a blockade of the 
 transport of contraband articles of land or sea troops of the enemy, or of 
 official despatches from or for the enemy, you find yourself under the 
 
584 COMMERCE IN WAR 
 
 necessity of stopping or seizing a merchant vessel of the allied nation, you 
 will take care — 
 
 "(i) To draw up a report or proces-verbal stating the place, the date* 
 and the motive of the arrest ; the name of the vessel, that of the captain> 
 the number of the crew ; and containing besides an exact description of 
 the state of the vessel and of the cargo. 
 
 "(2) To collect and place in a sealed packet, after having made an 
 inventory of them, all the ship's papers, such as registers, passports, 
 charter-parties, bills of lading, invoices, and other documents calculated 
 to prove the nature and the ownership of the vessel and of her cargo. 
 
 " (3) To place seals upon the hatches. 
 
 "(4) To place on board an officer with such number of men as you 
 deem advisable to take charge of the vessel and to ensure its safe conduct. 
 
 "(5) To send the vessel to the nearest port belonging to the Power 
 whose flag it carried. 
 
 " (6) To deliver up the vessel to the authorities of the port to which 
 you shall have taken her, together with a duplicate of the report or 
 proces-verbal and of the inventory above mentioned, and with the sealed 
 packet containing the ship's papers. 
 
 " Article IV. The officer who conducts the captured vessel will procure 
 a receipt proving his having delivered her upj as well as his having 
 delivered the sealed packet and the duplicate of the report ox prods-verbal 
 and of the inventory above mentioned. 
 
 " Article V. In case of distress, if the captured vessel is not in a fit 
 state to continue its voyage, or in case the distance should be too great, 
 the officer charged to conduct to a port of the allied Power a prize made 
 on the merchant service of that Power, may enter a port of his own 
 country or a neutral port, and he will deliver his prize to the local 
 authority if he enters a port of his own country, and to the Consul of the 
 allied nation if he enters a neutral port, without prejudice of the ulterior 
 measures to be taken for the adjudication of the prize. He will take care 
 in that case that the report or proch-verbal and the inventory which he 
 shall have drawn up, as well as the sealed packet containing the ship's 
 papers, be sent exactly to the proper Court of Adjudication. 
 
 " Article VI. You are not to consider as prisoners of war, and you will 
 allow freely to land all women, children, and persons not belonging to the 
 military or maritime profession who shall be found on board the captured 
 vessels. 
 
 "With this exception, and those which may be suggested by the con- 
 sideration of your own security, you will not permit any person to be 
 removed from on board the vessel, and in all cases you will retain the 
 master, supercargo, and others whose evidence may be essential to the 
 adjudication of the prize. 
 
 " You will treat as prisoners of war, with the exceptions above mentioned, 
 all persons whatever who may be found on board the enemy's vessels. 
 
 " You will place no other restriction on the liberty of allied or neutral 
 subjects found on board allied or neutral vessels than such as may be 
 necessary for the security of the vessel. 
 
 " With respect to your own countrymen, you will treat them according 
 
FORMALITIES OF CAPTURE 585 
 
 to the general instructions with which you are furnished, and you will in 
 no case deliver them up to a foreign jurisdiction. 
 
 "The persons who may have been exceptionally removed from the 
 captured vessels shall afterwards be sent back to their own country if they 
 belong to the allied nation ; if they are neutrals or enemies, they shall be 
 treated as if they had been found on board vessels captured by you 
 separately." 
 
 In default, however, of conventional regulations — 
 
 " 260 (a) If one ship is the actual captor and another the joint, the 
 charge of the prize belongs to the commander of the ship which is the 
 actual captor, whether he is the junior or senior; and he should send 
 her into a port of his own country for adjudication. 
 
 "(d) If two ships are both actual captors, the charge of the prize 
 belongs to the senior of the two commanders, and he should send her into 
 a port of his own country for adjudication. 
 
 SENDING IN FOR ADJUDICATION 
 
 "272. The commander should as soon as possible after capture send 
 the vessel and cargo in for adjudication. 
 
 RANSOM ONLY IN CERTAIN CASES 
 
 " 273. The commander is not at liberty, in lieu of sending in for adju- 
 dication, to take either ransom or bail for the ship or cargo, except in 
 such cases as may be provided for by any Order in Council. If he enter 
 into any contract or agreement for a ransom in contravention of such 
 Order in Council, he is liable for every such offence to be proceeded 
 against in the High Court of Justice at the suit of His Majesty in his 
 Office of Admiralty, and on conviction to be fined at the discretion of the 
 Court any sum not exceeding ;^500. 
 
 PENALTY FOR DELAY 
 
 " 274. If the commander is guilty of unnecessary delay in sending in 
 for adjudication, he will, in the event of restitution being decreed, be liable 
 for damages.^ 
 
 WHAT ARE PROPER PORTS OF ADJUDICATION 
 
 " 275. A port of adjudication is a port to which the vessel and cargo 
 are sent in order that they may lie theire in safety pending proceedings 
 for adjudication. 
 
 " 276. The port of adjudication should, if possible, be a British port, 
 either in the United Kingdom or elsewhere in the British Dominions ; if 
 not, an allied port ; * but in the latter case it will be necessary, in order 
 that proceedings for adjudication may be duly instituted, for the com- 
 mander to forward the witnesses, together with the vessel's papers and 
 
 1 " Peacock," 4 Rob., 185; "Susanna," 6 Rob., 48; "Gerasimo," ii Moore, P.C, 88 
 " " Christopher," 2 Rob., 209 ; " Betsy," t6zd., 310 n. 
 
586 COMMERCE IN WAR 
 
 necessary affidavits, in charge of one of the officers of his ship, to the 
 nearest British prize court. 
 
 " 277. None but a British or an allied port can be a proper port of 
 adjudication ; although in cases of necessity hereafter considered, resort 
 may be had to a neutral port.^ 
 
 CHOICE OF PORT 
 
 " 278. From the ports which are proper ports the commander should 
 select the one which under all the circumstances shall appear most con- 
 venient. He should have regard, in the first place, to the exigencies of the 
 public service, and in the second, the interests of all parties concerned,* 
 viz., the owners of the vessel and of the cargo and the captors. These 
 interests {inter alia) require — 
 
 "(i) That the port should be capable of giving security to the 
 
 vessel.* 
 " (2) That it should not necessitate unlivery of the cargo.* 
 " (3) That it should be easily accessible to the prize court* 
 " (4) That it should be as near as possible to the place of capture.* 
 
 " 279. If the commander in the selection unreasonably disregard the 
 interests of the owners of the vessel and cargo, he will be liable in 
 damages. 
 
 NAVIGATION OF THE PRIZE 
 
 " 280. Having selected the port, the commander should appoint a prize- 
 officer to take charge. 
 
 "281. The commander may invite the master and crew of the prize toi 
 assist in navigating her to the port under the order of the prize officer,*' 
 but if they refuse he will not be justified in coercing them.* 
 
 " 282. He should place under the command of the prize officer a prize 
 crew sufficient for the safe conduct of the prize, having regard to her size, 
 character, and condition, the length and nature of the voyage, the number 
 of her crew, their disposition to co-operate or resist, and all other circum- 
 stances of the case. 
 
 VS^HAT IS TO BE SENT IN WITH THE PRIZE 
 
 " 283. If possible the prize should be sent in in the same condition as 
 when she was taken, with her master, crew, and all her cargo on board. 
 Sometimes, however, it is impracticable for the commander wholly to fulfil 
 this requisition.'^ 
 
 " 284. The affidavits and ship's papers must be forwarded in the prize 
 to the port of adjudication. If the affidavits have not been sworn at the 
 time when the prize was despatched, it will be necessary that some person 
 
 1 " Henrick and Maria," 4 Rob., 43 ; « Comet," 5 Rob., 96 ; " Polka," Spinks, 57. 
 
 2 " Anna," 5 Rob., 373 ; " Hunter,'' i Dod., 482. 
 
 ^ " Washington," 6 Rob., 275 ; " Principe," Edw. 70. 
 
 ' "Peacock," 4 Rob., 185; " Wilhelmsburg," 5 Rob., 143; "Anna," 5 Rob., 373; 
 " Catherina Elizabeth," i Acton 309 ; " Maryland," i Acton, 310 ; " Hunter," i Dod., 482. 
 * "Resolution," 6 Rob., 13. « "Pennsylvania," i Acton, 33. 
 
 ' " Speculation," 2 Rob., 293 ; " Flying Fish," 2 Gall., 374. 
 
FORMALITIES OF CAPTURE 587 
 
 should be sent with her, in whose charge the papers should t^e given, and 
 who will be able upon the arrival of the prize to make the affidavits 
 verifying the papers and to depose (if required) as to all the circumstances 
 of the capture. If the affidavits have been duly sworn before the prize is 
 sent in, they should, together with the ship's papers annexed thereto, 
 be enclosed in an envelope securely sealed up and addressed to the 
 Registrar of the Court before which the case is to be adjudicated, and 
 should be given to the prize officer with directions to deliver the same 
 unopened into the Registry. 
 
 INSURANCE OF PRIZE 
 
 " 285. The risk attending the vessel and cargo until sold or released by 
 order of a prize court falls upon the captors. Accordingly it lies with the 
 commander to insure the prize and her cargo if he think any insurance 
 advisable.^ 
 
 DUTY OF CAPTOR IF UNABLE TO SEND IN THE WHOLE 
 OF THE CREW 
 
 '' 286. If it is impracticable to send in the whole of the crew in the 
 prize, the commander should at least send three or four of the principal 
 persons to be witnesses, amongst whom should be two of the following 
 officers, viz. the master, supercargo, mate or boatswain. 
 
 " 287. The commander should at the same time draw up an affidavit to 
 be made by the prize officer, stating what persons have been removed and 
 what is the cause of their removal. In default of directions from the 
 Admiralty the affidavit may be in Form 8. 
 
 Form No. 8 
 
 " The master. 
 
 " I, the undersigned, A.B. , holding the rank of in 
 
 His Britannic Majesty's Navy, and belonging to His Majesty's ship , 
 
 make oath as follows : — 
 
 "(i) On the day of 19 , Captain 
 
 the Commander of the said ship captured the said vessel, the 
 in latitude , and longitude , and detained her as lawful prize 
 
 of war. 
 
 " (2) On the day of 19 , the said Captain 
 
 previous to sending the prize in for adjudication removed from her 
 
 " (-i) The cause of the said removal was 
 
 " A.B. 
 " Sworn, etc. 
 
 " 288. All persons so removed should, as soon as possible, be forwarded 
 to the port of adjudication ; and in the meantime should be provided for 
 either on board ship or on shore as may be found most convenient. 
 
 1 " Catherine and Anna," 4 Rob., 39. 
 
S88 COMMERCE IN WAR 
 
 DUTY OF CAPTOR IF CARGO IS UNFIT TO BE SENT IN 
 
 " 289. If the cargo appears to be not in a fit condition to be sent in, the 
 commander should cause a survey thereof to be made by the officers of 
 his ship the best qualified for the duty. 
 
 "290. The surveying officer should report to the commander in 
 writing; and the report should be signed by them and entered on the 
 ship's log. 
 
 "291. If the surveying officers report that the cargo is not in a condi- 
 tion to be sent in, the commander should cause it to be sold. 
 
 " 292. The sale may be made either on the spot or in any neutral port 
 where the local, authorities may allow such sale; and for the purpose 
 of selling the cargo at a neutral port the commander may either send the 
 prize in the first instance to such port, or cause the cargo to be transhipped 
 and so forwarded. 
 
 " 293. Previous to the sale the cargo, or such part as is intended to be 
 sold, should be appraised. The appraisers should be competent persons as 
 far as possible, and should be sworn to be impartial. The appraisement 
 should be in writing. 
 
 " 294. The sale should be made by the authority and in presence of the 
 prize officer, and if possible by public auction ; and the proceeds of sale 
 should be remitted without delay in pursuance of any regulations that 
 may be made for this purpose by Order in Council, or in the absence of 
 such regulation, into the Bank of England to the credit of His Majesty's 
 Paymaster-General, or into the hands of some Government accountant ; 
 and the prize officer should draw up an affidavit of all the proceedings and 
 annex thereto the report of the surveying officers, the appraisement, 
 account sales and other documents, and take the same in the prize to the 
 port of adjudication. 
 
 "295. In default of directions from the Admiralty, the affidavit may 
 be in Form 9. 
 
 Form No. 9. 
 
 " The master. 
 
 " I, the undersigned, A.B. , holding the rank of in 
 
 His Britannic Majesty's Navy, and belonging to His Majesty's ship , 
 
 make oath as follows : — 
 
 "(i) On the day of 19 , I was appointed Prize 
 
 Officer in charge of the said vessel, the , for the purpose of 
 
 taking her to the port of for adjudication. 
 
 " (2) In the course of the said voyage, namely on the day of 
 
 , I removed from the said vessel the following, namely 
 
 " (3) The cause of the said removal was 
 
 " Sworn, etc. 
 
 " A.B. 
 
FORMALITIES OF CAPTURE 589 
 
 DUTY OF CAPTOR IF PRIZE IS UNFIT TO BE SENT IN 
 
 " 296. If the prize appears to be unfit to be sent in, the commander 
 should cause a survey to be made thereof by the officers of his ship best 
 qualified for the duty. 
 
 " 297. The surveying officers should report to the commander in writing, 
 and the report should be signed by them and entered on the ship's log. 
 
 " 298. If the surveying officers report that the prize is not in a condition 
 to be sent in, the commander should, if practicable, take her into the 
 nearest neutral port that may be willing to admit her. 
 
 " 299. The commander, however, must bear in mind that he cannot take 
 the prize into a neutral port against the will of the local authorities, and 
 that under no circumstances can proceedings for adjudication be instituted 
 in a neutral country.^ 
 
 "300. Both the cruiser and, if admitted, her prize are by the comity of 
 nations exempt from the local jurisdiction.^ 
 
 " 301. If the prize is admitted into a neutral port, then in order that 
 proceedings for adjudication may be duly instituted, the commander 
 should forward the witnesses, together with the vessel's papers and neces- 
 sary affidavits in charge of an officer of his ship, to the nearest British 
 prize court, 
 
 " 302. Amongst the affidavits must be one by the prize officer, stating 
 the circumstances under which the prize was sent to a neutral port, and 
 having the report of the surveying officers annexed thereto. 
 
 " 303. In either of the following cases — 
 
 "(i) If the surveying officers report the vessel not to be in a 
 condition to be sent in ; or 
 
 " (2) If the commander is unable to spare a prize crew to navigate 
 the prize, 
 the commander should release the prize and cargo without ransom, unless 
 there is clear proof that she belongs to the enemy? 
 
 " 304. But if in either of these cases there is clear proof that the prize 
 belongs to the enemy, the commander should remove her crew and papers, 
 and if possible her cargo, and then destroy the vessel. The crew and cargo 
 (if saved) should then be forwarded to a proper port of adjudication in 
 charge of a prize officer, together with the vessel's papers and the neces- 
 sary affidavits. An affidavit should be made by the prize officer exhibit- 
 ing the evidence that the prize belonged to the enemy, and the facts which 
 rendered it impracticable to send her in for adjudication." 
 
 CODES DES PRISES 
 
 Regulations relating to capture, and the formalities of capture, 
 proposed by the Institut de Droit International : — * 
 
 1 "FladOyen," i Rob., 135. 
 
 2 Attorney General's Opinions (U.S.), Vol. VII, 123. 
 
 3 " Actaeon," 2 Dods., 48 ; " Felicity," 2 Dods., 381 ; " Leucade," Spinks, 238. 
 * "Revue de Droit Inter.," Vol. XIX, 149. 
 
590 COMMERCE IN WAR 
 
 4. DE LA SAISIE^ 
 
 " Sec. 23. La saisie d'un navire ou d'une cargaison, ennemi ou neutre, 
 n'a lieu que dans les cas suivants. 
 
 "(i) Lorsqu'il rdsulte de la visite que les papiers de bord ne sont 
 pas en ordre ; 
 
 " (2) Dans tous les cas de soupgon mentionn^s au sec. 20 ; 
 
 " (3) Lorsqu'il rdsulte de la visite, ou de la recherche, que le navire 
 a.rTtt6 fait des transports pour le compte et k destination de 
 I'ennemi ; 
 
 " (4) Lorsque le navire a 6t6 pris en violation de blocus ; 
 
 "(S) Lorsque le navire a pris part aux hostilit^s ou est destin6 a 
 y prendre part. 
 
 S- DE LA NATIONALITY DU NAVIRE, DE LA CARGAISON ET DE L'^QUIPAGE 
 
 "Sec. 24. La nationality du navire, de sa cargaison, de son Equipage 
 doit ^tre constat6e par les papiers de bord trouvds sur le navire saisi, sans 
 exclusion, toutefois, d'une production ulterieure devant les tribunaux de 
 prise. 
 
 "Sec. 25. La question de savoir si les conditions de nationality sont 
 remplies est decid^e selon la legislation de I'Etat auquel le navire est 
 ressortissant. 
 
 " Sec. 26. L'acte juridique constatant la vente d'un navire ennemi faite 
 durant la guerre doit 6tre parfait, et le navire doit ^tre enregistre conforme- 
 ment a la legislation du pays dont il acquiert la nationality, avant qu'il 
 quitte le port de sortie. La nouvelle nationality ne pent Stre acquise au 
 navire par une vente faite en cours de voyage. 
 
 " Sec. 27. Les papiers de bord requis en vertu du droit international 
 sont les suivants : 
 
 " (i) Les documents relatifs a la propriety du navire ; 
 
 " (2) Le connaissement ; 
 
 "(3) Le role d'^quipage, avec I'indication de la nationality du 
 patron et de I'dquipage ; 
 
 "(4) Le certificat de nationality, si les documents mentionn6s 
 sous le chiffre 3 n'y suppl^ent ; 
 
 " (5) Le journal de bord. 
 
 "Sec. 28. Les documents dnonc^s au precedent article doivent, pour 
 avoir force probante, ^tre r^digds clairment et sans equivoque. 
 
 " Sec. 29. Si dans la constatation d'une circonstance d6terminante pour 
 la saisie, il y a Evidence quant a la nationality ou la destination du navire, 
 ou quant k la nature de la cargaison, ou quant a la nationalite du patron 
 et de I'^quipage, suivant le fait dont il s'agit — et qu'un papier de bord 
 ordinairement relatif k I'une de ces questions manque — la seule absence de 
 ce papier n'est pas un motif de saisie, pourvu toutefois que les autres 
 papiers de bord soient parfaitment d'accord entre eux le point en question. 
 
 1 "Revue de Droit Inter.," Vol. XIX, 149. 
 
FORMALITIES OF CAPTURE S9i 
 
 6. DES TRANSPORTS INTERDITS DURANT LA GUERRE 
 
 " Sec. 30. Sont sujets a saisie, durant la guerre, les objets susceptibles 
 d'etre employes a la guerre imm^diatement, qui sont transport's par des 
 navires de commerce nationaux, neutres ou ennemis, pour le compte ou a 
 destination de I'ennemi (contrebande de guerre). Les gouvernements 
 belligdrants auront a determiner d'avance, a I'occasion de chaque guerre, les 
 objets qu'ils tiendront pour tels. 
 
 "Sec. 31. Les objets de contrebande de guerre doivent €tre r6ellment a 
 bord au moment de la recherche. 
 
 " Sec. 32. Ne sont pas r6putds contrebande de guerre les objets n6ces- 
 saires a la defense de I'equipage et du navire, pourvu que le navire n'en ait 
 pas fait usage pour r'sister a I'arret a la visite, a la recherche ou a la saisie. 
 
 "Sec. 33. Le navire arrSte pour cause de contrebande de guerre peut 
 continuer sa route, si sa cargaison ne se compost pas exclusivement ou en 
 majeure partie de contrebande de guerre, et que la patron pret a livrer celle- 
 ci au navire des bellig'rant et que le ddchargement puisse avoir lieu sans 
 obstacle selon I'avis du commandant du croiseur. 
 
 " Sec. 34. Sont assimiles au transport interdit de contrebande de guerre 
 (sec. 30), les transports de troupes pour operations militaires, sur terre et 
 sur mer, de I'ennemi, ainsi que les transports de la correspondance officielle 
 de I'ennemi, par les navires de commerce nationaux, neutres ou ennemis. 
 
 7. DU BLOCUS 
 
 "Sec. 35. Le blocus declare et notifie est effectif lorsqu'il existe un 
 danger imminent pour I'entrde ou la sortie du port bloqu6, a cause d'un 
 nombre sufiisant de navires de guerre stationn6s ou ne s'6cartant que 
 momentan'ment de leur station. 
 
 " Sec. 36. La declaration du blocus doit determiner non seulement les 
 limites du blocus par leurs latitude et longitude, et le moment pr6cis oii le 
 blocus commencera, mais encore, eventuellement, le delai que peut etre 
 accorde aux navires de commerce pour decharger, recharger et sortir 
 du port (sec. 7). 
 
 " Sec. 37. Le commandant du blocus doit en outre, notifier la declaration 
 du blocus aux autorites et aux consuls du lieu bloque. Les mesmes 
 formalites seront remplies lors du r'tablissement d'un blocus qui a cesse 
 d'etre effectif, et lorsque le blocus sera 6tendu a des points nouveaux. 
 
 "Sec. 38. Si les navires bloquants s'dloignent de leur station pour un 
 motif autre que le mauvais temps constat', le blocus est considdre comme 
 lev6 ; il doit alors ^tre de nouveau d'clar' et notifi6. 
 
 "Sec, 39. II est interdit aux navires de commerce d'entrer dans les 
 places et ports qui se trouvent en etat de blocus effectif et d'en sortir. 
 
 " Sec. 40. Cependant il est permis aux naivres de commerce d'entrer, 
 pour cause de mauvais temps, dans le port bloqu', mais seulement apris 
 constatation, par le commandant du blocus, de la persistance de la force 
 majeuere. 
 
592 COMMERCE IN WAR 
 
 " Sec. 41. S'il est Evident qu'un navire de commerce approchant du port 
 bloqu6 n'a pas en connaissance du blocus d^cl'ard et effectif, le commandant 
 du blocus Ten avertira, inscrira I'avertissement dans les papiers de bord du 
 navire averti, tout au moins dans le certificat de nationality et dans ie 
 journal de bord, en marquant la date de I'avertissement, et invitera le 
 navire k s'eloigner du port bloqud, au I'autorisant a continuer son voyage 
 vers un port non bloqu6. 
 
 "Sec. 42. On admet I'ignorance du blocus lorsque le temps ^could 
 depuis la declaration du blocus est trop pui considerable pour que le 
 navire en cours de voyage qui atent6 d'entrer dans le port bloqu6, ait pu 
 en fitre instruit. 
 
 " Sec. 43. Un navire de commerce sera saisi pour violation de blocus 
 lorsqu'il aura essay6 par force ou par ruse de p6n6trer a travers la ligne 
 de blocus ; ou si, apr^s avoir 6t6 renvoyd une premiere fois, il a essay^ de 
 nouveau de p6n6trer dans le m^me port bloqu6. 
 
 " Sec. 44. Ni le fait qu'un navire de commerce est dirig6 sur un port 
 bloqu6, ni le simple affretement, ni la seule destination du navire pour un 
 tel port ne justifient la saisie pour violation de blocus. En aucun cas, la 
 supposition d'un voyage continu ne peut justifier la condemnation pour 
 violation de blocus. 
 
 8. DES FORMALITi:S QUI SUIVENT LA SAISIE 
 
 " Sec. 45. Apr^s la saisie, le capteur fermera les dcoutilles et la soute 
 aux poudres du navire saisi, et y apposera les scell6s. II fera de m6me a 
 regard de la cargaison, apres que celle-ci aura ^t^ inventorize. 
 
 " Sec. 46. II ne sera rien vendu, ni d6charg6 ni derange, ni en g^nZral 
 distrait consommZ ou d6terior6 de la cargaison. 
 
 " Si cependant la cargaison consiste en choses pouvant se getter 
 facilement ou si ces choses sont avarices, le capteur prendra les mesures 
 les plus convenables pour la conservation de la cargaison, du consentement 
 et en presence du patron, ainsi qu'en presence d'un consul de la nation- 
 ality du navire saisi, s'il s'en trouve un dans le voisinage du lieu de la 
 capture. Le commandant du navire capteur procddera a cet effet a 
 I'inspection de la cargaison. 
 
 " Sec. 47. Le capteur dressera I'inventaire du navire saisi et de la 
 cargaison, ainsi que la liste des personnes trouvZes a bord, et fera passer 
 a bord du navire saisi un Equipage suffisant pour s'assurer du navire et y 
 maintenir I'ordre. 
 
 " Sec. 48. Le capteur saisira tous les papiers de bord, documents et 
 lettres qui se trouvent sur le navire saisi. Ces papiers documents et 
 lettres seront rZunir dans un parquet rev^tu du cachet du commandant du 
 navire de guerre et de celui du patron du navire saisi ; il sera dressZ 
 inventaire de ces papiers, documents et lettres, et le commandant du 
 navire de guerre d^clarera par Zcrit, dans le proces-verbal que ce sont la 
 ious les papiers trouvZs sur le navire ; il y ajoutera une mention indiquant 
 quels papiers manquaient au moment de la saisie et dans quel 6tat se 
 trouvaient les papiers saisis, notamment s'ils paraissent avoir 6t6 a\t6r6s. 
 
FORMALITIES OF CAPTURE 593 
 
 " Sec. 49. Le capteur dressera proces-verbal de la saisie que de I'^tat 
 du navire, et de la cargaison, en y mentionnant le jour et I'heure de la 
 saisie ; a quelle hauteur elle a eu lieu ; la circonstance qui I'a motiv^e ; le 
 nom du navire et celui du patron ; le nombre d'hommes composant 
 I'dquipage ; sous quel pavilion naviguait le navire au moment de I'arrSt et 
 s'il y a eu resistance de la part du navire, et dequelle nature a 6t6 la 
 resistance. Seront joints au proces-verbal les inventaires du navire, de la 
 cargaison et des papiers de bord, avec mention au procfes-verbal que les 
 inventaires ont 6t6 dressds. Copie du proces-verbal sera transmise a 
 I'autorite militaire sup6rieure de laquelle releve le navire captur6. 
 
 " Sec. 50. Il sera permis au capteur de bruler ou de couler bas le navire 
 ennemi^ saisi, apres avoir fait passer sur le navire de guerre les personnes 
 qui se trouvaient a bord et d6charge autant que possible la cargaison, et 
 aprfes que le commandant du navire capteur aura a pris sa charge les papiers 
 de bord et les objets importants pour I'enquSte judiciaire et pour les 
 reclamations des propridtaires de la cargaison en dommages et int^r^ts 
 dans les cas suivants. ' 
 
 "(i) Lorsqu'il n'est pas possible de tenir le navire a flot, a cause 
 de son mauvais etat, la mer 6tant houleuse ; 
 
 "(2) Lorsque le navire marche si mal qu'il ne pent pas suivre 
 le navire de guerre et pourrait facilement ^tre repris par I'ennemi ; 
 
 "(3) Lorsque I'approche d'Une force ennemie sup6fieure fait 
 craindre la reprise dU navire saisi ; 
 
 " (4) Lorsque le navire de guerre ne peut mettre sur le navire 
 saisi un Equipage suffisaht sans trop diminuer celui qui est n^ces- 
 saire a sa propre suret6 ; 
 
 "(5) Lorsque le port oil il serait possible de conduire le navire 
 saisi est trop dloigne. 
 
 "Sec. 51. II sera dreiss^ proces-verbal de la destruction du navire saisi 
 et des motifs qui I'ont amenee: ce proces-verbal sera tfarismis a I'autorite 
 sup^rieure militaire et au tribunal d'instruction le plus proche, lequel 
 examinera et au besoin compietera les actes y relatifs et les transmettra 
 au tribunal des prises. 
 
 "Sec. 52. Des personnes se trouvant ^ bord du navire saisi, les seules 
 qui seront considerees comme prisonniers de guerre sont celles qui font 
 partie de la force militaire de I'ennemi, et celles qui ont assiste I'ennerhi 
 ou sont soupgonndes de I'avoir assist^. 
 
 "Sec. 53. Le patron, le subr^cargue, le pilote et les autres personnes 
 qu'il pourra Stre n^cessaire d'entendre pour la constatation des faits, seront 
 retenus a bord provisoirement. Ces personnes ne seront autoris^es a 
 quitter le bord, aprfes leur deposition, qu'un vertu d'une decision du tribunal 
 instructeur. 
 
 " Sec. 54. Les personnes trouvees et retenues a bord seront nourries et 
 au besoin vStues et soignees par le gouvernement de I'Etat auquel appar- 
 tient le navire capteur. Le patron fournira caution pour les frais qui en 
 resulteront, lesquels pourront etre rembourses en vertu du jugement. 
 
 1 This word was introduced after much discussion at the Congress of Heidelberg, 
 1887. 
 
 2 Q 
 
594 COMMERCE IN WAR 
 
 "Sec. 55- On laissera aux hommes de I'equipage les eflfets servant k 
 leur usage personnel. 
 
 " Sec. $6. II n'est pas permis au capteur de ddbarquer les hommes de 
 I'dquipage qui ne sont pas n^cessaires pour I'enqu^te at qu'il y a lieu de 
 renvoyer immediatement, faute de place sur le navire capteur ou faute de 
 vivres, sur des terres incultes et inhabitdes. Mais il sera permis au 
 capteur de false passer les hommes k bord de navires neutres ou allies 
 qu'il pourra rencontrer, et de les ddbarquer sur des territoires cultivds et 
 habites. 
 
 " Sec. 57. Le capitaine du navire capteur r6pond du bon traitement et 
 du bon entretien des personnes trouv^es k bord du navire saisi, par I'equipage 
 du navire capteur et par celui qui conduit le navire saisi ; il ne doit pas 
 tolerer que celles m6me d'entre ces personnes qui sont prisonniers de 
 guerre soient employees a des traveaux avilissants. 
 
 9. DU TRANSPORT DU NAVIRE SAISI EN UN PORT 
 
 "Sec. 58. Le navire saisi sera conduit dans le port le plus voisin de 
 I'Etat capteur ou dans un port d'une puissance alUie ou se trouvera un 
 tribunal pour instruire k I'egard du navire saisi. 
 
 " Sec. 59. Le navire saisi ne pourra Stre conduit dans un port d'une 
 puissance neutre que pour cause de pdril de mer, ou lorsque le navire de 
 guerre sera poursuivi par une force ennemie sup6rieure. 
 
 " Sec. 60. Lorsque, pour cause de pdril de mer, le navire de guerre s'est 
 r6fugi6 avec le navire saisi dans un port neutre, ils devront quitter ce port 
 aussitdt que possible, aprfes que le tempSte un cessd. L'Etat neutre a le 
 droit et le devoir de surveiller le navire de guerre et le navire saisi durant 
 leur sejour dans le port. 
 
 " Sec. 61. Lorsque le navire de guerre s'est rdfugie avec le navire saisi 
 dans un port neutre, parce qu'il ^tait poursuivi par une force ennemie 
 supdrieure, la prise sera reiach^e. 
 
 "Sec. 62. Le navire saisi et la cargaison seront, autant que possible, 
 conserves intacts durant leur voyage au port ; la cargaison sera close et 
 scell^e sauf dans le cas ou la lev6e des scellds et I'ouverture de la cargaison 
 seraient jug6es necessaires dans I'intdrSt de la conservation de celle-ci, 
 avec le consentement du patron." 
 
CHAPTER IX 
 RECAPTURE AND RESCUE 
 
 RECAPTURE or rescue may be made from (i) a pirate 
 or (2) from a captor clothed with a lawful commission, or 
 (3) from an enemy. 
 
 (i) Recapture or rescue from a pirate. — In the first case, 
 since the owner is never divested of his ownership in the property, 
 but only of his possession, he is entitled to restitution upon making 
 some remuneration to the recaptor in the nature of salvage. This 
 rests upon the principle derived from the civil law, that the cap- 
 ture by pirates does not, like the capture by enemies in open war- 
 fare, change the title or divest the original owner of his right to 
 the property, and consequently does not require the application of 
 the doctrine of postliminy to restore it 
 
 It is a universal principle of the law of nations, says Brown, 
 that the spoil never vests in piratical captors, and cannot be trans- 
 ferred to third persons, but must be restored to the original owners 
 on salvage.^ 
 
 Thus Grotius wrote : — 
 
 " Ea quae piratae aut latrones nobis eripuerant non opus habent post 
 liminio ut Ulpianus et Javolinus responderunt ; quia jus gentium illis non 
 concessit ut jus domini mutare possint." ^ 
 
 But, as he observes, other rules may be established by muni- 
 cipal law, as, for instance, by the law of Spain, whereby the ships 
 recaptured from pirates became the property of their captors^ if 
 the pirates had been in possession more than twenty-four hours. 
 He also cites a case in which Nicolas Verdun, President of the 
 High Court of Paris, decided that goods the property of French 
 citizens taken by the Algerines, who were accustomed to prey 
 upon all nations at sea, changed their ownership by the right 
 of war, and consequently, when recaptured by others, became the 
 property of the recaptors.* 
 
 • Civil and Adm. Law, Vol. II, 461. 
 
 2 Lib. Ill, chap. IX, sec. 17- See Dig. De Capt. et Postlim., 49, 15, 19. 
 
 3 See Ordinance of 1621, Art. X. * Lib. Ill, chap, ix, sec. 19. 
 
596 COMMERCE IN WAR 
 
 This practice was based upon the principle that private interests 
 should yield to public utility, and that the greatest possible in- 
 ducements should be held out to those who put down a public 
 nuisance. 
 
 But by the Ordonnance de la Marine, i68i,^ if any ship belong- 
 ing to the King's allies or subjects is recaptured from a pirate, it 
 shall be restored to the proprietors in consideration of one-third of 
 the value of the ship and cargo cis salvage, independently of the 
 time during which it may have been in the pirate's possession, 
 provided the claim is made within a year and a day after the 
 report of the capture to the Admiralty." In commenting upon this 
 Ordinance, Valin considers that if the recaptor is a stranger he 
 would he entitled to the whole of the property whether the prize 
 had been in his possession twenty-four hours or not, provided the 
 law of his country gave to the HPecaptors the whole of the pro- 
 perty.® In support of this opinion he cites the Decree of the 
 Parliament of Bordeaux of 8 March, 1635, confirming a sentence 
 of the Admiral of Guienne in favour of a Dutch vessel which had 
 recaptured from African pirates a Breton ship. 
 
 To this interpretation, says Wheaton, Pothier objected that the 
 laws of Holland having no power over Frenchmen and their 
 property within French territory, the French subject could not 
 thereby be deprived of the property in his vessel, which had not 
 been divested by the piratical capture according to the law of 
 nations, and that, therefore, it ought to have been restored to him 
 upon payment of salvage, as prescribed by the Ordonnance.* 
 
 (2) Recapture or rescue from a captor clothed with a 
 lawful commission. — After the capture of a neutral vessel by a 
 public ship lawfully commissioned of i belligerent, and whilst the 
 former is still in the actual possession of the latter, a rescue by 
 the crew of the neutral vessel is an act of resistance to the rights 
 of the belligerent captor, and entails upon the neutral ship and 
 cargo the penalty of condemnation, however innocent either may 
 originally have been. 
 
 The principles and policy of the law as to the rescue of 
 neutral vessels are clearly expressed by Sir William Scott in the 
 " Dispatch."® This was a Danish vessel, captured by an English 
 cruiser, and rescued out of the hands of the prize-master by the 
 former master and crew left on board. After the rescue she was 
 taken by a French privateer, from whom she was recaptured by 
 the original captor and carried to St. Domingo. 
 
 1 Title, "Des Prises," Art. X. 2 Valin, "Traitd Des Prises," Vol. I, p. 9. 
 
 3 Hid., p. 100. « Atlay's "Wheaton," p. 508 ; Pothier, "Traitd de Propri^t^," No. loi. 
 
 5 3 Rob., 278 (1801). 
 
RECAPTURE AND RESCUE 59? 
 
 _" It is admitted," said Sir William, " that a rescue had taken place ; but 
 it is now represented to have been a mere civil, peaceable rescue, by which 
 it is attempted to be distinguished from a hostile rescue. I should very 
 much like to be informed how a rescue can be anything else than, as the 
 term imports, a delivery front force by force. . . . Taking it to be, then, a 
 case of forcible rescue of a neutral ship from the hands of a lawful cruiser, 
 the law is clear, and the principle of it is founded on the soundest maxims 
 of justice and humanity. If neutral crews may be allowed to resort to 
 violence to withdraw themselves out of the possession taken by a lawful 
 cruiser for the purpose of a legal inquiry, and may (as it has been termed) 
 hustle them out of the command of the vessel, the whole business of the 
 detention of neutral ships will become a scene of neutral hostility and 
 contention ; the crews of neutral ships must be guarded with all the 
 severity and strictness practised upon actual prisoners of war, for the same 
 measures of precaution and distrust will become equally necessary; the 
 intercourse of nations, neutral and friendly towards each other, will be 
 embittered by acts of hostility mutually committed by their subjects. At 
 present, under the understanding of the law which now prevails, it is the 
 duty of the cruiser to treat the crew of an apparently neutral ship, of 
 which she takes possession for further inquiry into the real character of 
 herself and her cargo, with all reasonable indulgence ; and it is the duty 
 of neutrals under that possession to take care that they do not put them- 
 selves in the condition of enemies, by resorting to such conduct as can be 
 justified only by the character of enemies. It is the law and not the 
 force of parties that must be looked to as the redresser of wrongs that 
 may have been done by the one to the other. I have no hesitation in 
 pronouncing this ship and cargo liable to condemnation, on the ground of 
 the parties having declared themselves enemies by this act of hostile 
 opposition to lawful inquiry." 
 
 Two years previously, in the case of the " Two Friends,"^ Sir 
 William Scott had drawn the same distinction. 
 
 " For although it is meritorious to rescue by force of arms from an 
 enemy," he said, " it is quite the reverse to rescue from a neutral from 
 whom the owner would have a right to claim costs and damages for an 
 unjust seizure and detention. If instead of this a rescue by force is 
 attempted and the party takes the law into his own hands, it becomes a 
 breach of the law of nations, which would endanger the ship and cargo if 
 that attempt should be disappointed." 
 
 The " Catherina Elizabeth"^ was a French vessel under a French 
 master, and the property claimed was American. The claim was 
 resisted on the ground of a rescue by the master. But since 
 England and France were then at war, the conduct of the master 
 was that of an enemy and not of a neutral. As a prisoner of war, 
 not under parole, he had a perfect right to emancipate himself by 
 recapturing his own vessel. 
 
 " If," said Sir William Scott, " a neutral master attempts a rescue, he 
 violates a duty, which is imposed upon him by the law of nations, to 
 
 > I Rob., 271 (1799)- ^ 5 Rob., 232 (1804). 
 
598 COMMERCE IN WAR 
 
 submit to come in for inquiry 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 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 be withdrawn from the rights of war. 
 With an enemy master the case is very different. No duty is violated by 
 such an act on his part — lupum auribus teneo, and if he can withdraw 
 himself, he has a right to do so."'^ 
 
 There is, however, no duty on the part of a neutral Government 
 to restore a private vessel of one of its citizens which has been 
 rescued from a belligerent captor by her crew before condemnation 
 and which has returned to her own country. 
 
 The " Emily St. Pierre"^ was a British vessel which had been 
 captured in the act of breaking the blockade of Charleston by the 
 Federals, and had been ordered for adjudication to Philadelphia 
 in charge of a prize crew. She was rescued by her crew, taken 
 to Liverpool, and restored to her owners. Mr. Adams applied to 
 Earl Russell for her restoration, on the ground that the rescue 
 was a violation of the law of nations, which furnished a sufficient 
 cause for condemnation, and a breach of the duty of a neutral, 
 who is bound to submit to the adjudication of the prize court 
 of the captor. He relied upon the cases of the " Dispatch" and 
 the "Catherina Elizabeth." 
 
 Earl Russell refused the demand on two grounds — first, that as 
 the rescue was not a violation of any municipal law of England, 
 and as the vessel was not in the custody of the British Govern- 
 ment, that Government had no legal right to take her out of the 
 hands of her owners, or to prosecute or proceed against the vessel 
 or the owners for any violation of law; secondly, that in addition to 
 the technical objection, the offence was one solely against the laws 
 of war made in the interests of belligerents, which they could 
 assert and vindicate in their own tribunals. Admitting that rescue 
 was a ground for condemnation, he contended that the decree 
 could only be made by the belligerent prize court. No other 
 court, either of the belligerent or of a neutral country, had juris- 
 diction to condemn or restore property taken in war. If the 
 private neutral rescues his vessel by force, he takes all the risks 
 of the captor's rights of force recognized by nations, but nothing 
 more. The courts and Government of the neutral country cannot 
 decide that the title to the vessel has passed to the captor before 
 condemnation by the prize courts of the captor's country. All 
 they do is to restore to the captor the temporary possessory right 
 which he has between capture and condemnation. Such possessory 
 
 ' See also Story's judgment in the "Nereide," 9 Cranch, p. 450 ; supra, p. 367. 
 ^ Snow's Gases, p. 655 ; Dana's Wheaton, 475, n. 183. 
 
RECAPTURE AND RESCUE 599 
 
 right he held to be one of force, which the captor's Government 
 could guard and assert by condemnation or other penalty on the 
 property, if in its possession, through its prize court ; but even by 
 the courts of the captor, the neutral rescuer could not be person- 
 ally reached by criminal process. It was not incumbent on neutral 
 Governments to make laws to enforce such belligerent possessory 
 rights against their own citizens, any more than it is in the case of 
 crimes committed by their citizens abroad, whom they do not 
 even deliver up to the offended Government for trial, except by 
 treaty stipulation ; or in case of violations of the revenue or 
 embargo laws of other countries, of which they never even 
 indirectly take active cognizance, or in case of successful breach of 
 blockade. 
 
 Upon the discovery that in 1800 Great Britain had made a 
 similar claim against the United States, and had been met by 
 the same answer, the claim was dropped. 
 
 In 1799 the "Experience," an American vessel captured by a 
 British cruiser, was rescued by her crew and brought to Phila- 
 delphia. Upon the demand by Great Britain for her restitution, 
 Mr. Pickering, Secretary of State, refused to interfere upon the 
 same grounds as Earl Russell, viz. that it was an inchoate and 
 belligerent right of captors which a neutral Government could not 
 be expected to enforce against its own subjects. 
 
 In giving his opinion in the case of the " Lone,"^ the American 
 Attorney-General said that no instance was known to him in 
 which the Government had been called upon to interpose and to 
 restore to the captors property rescued from them by reason of a 
 failure on their part to make the capture sure. In 1838, the 
 "Lone" had entered the port of Matamoras, which was under 
 blockade by a French squadron, and had sailed thence for New 
 Orleans. On the homeward voyage she was captured by a 
 French cruiser, rescued by her crew, and brought to New Orleans. 
 A demand was thereupon made for her restitution by the 
 President of the French Republic. 
 
 " If it were admitted," said Grundy, Attorney-General, " that there was 
 such a violation of the blockade as to justify, according to the law of 
 nations, the original capture, and if it is further admitted that the rescue 
 of the vessel was, by the same law, an additional and lawful cause of 
 condemnation, still it is a principle equally well established and recog- 
 nized that the offence thus incurred never travels on with the vessel further 
 than the end of the return voyage. If captured or recaptured in any part 
 of that voyage, she is taken in delicto, and liable to be condemned ; but if 
 she terminates the entire voyage in safety, that liability has entirely 
 ceased, nor can the captors demand her condemnation, much less her 
 delivery to them. 
 
 * Attorney-General's Opinions, Vol. Ill, 377. 
 
6do commerce in WAR 
 
 " It is a principle of international law equally well established, that 
 the capture transfers no property in the vessel and cargo to the captors ; 
 but the title to it remains unchanged until a regular sentence of condem- 
 nation has been pronounced by some court of competent jurisdiction. 
 Upon this principle the captors in the present instance can claim no more 
 property in the vessel and cargo than they could have done had there been 
 no seizure. Their right of property, whatever it may be, does not vest 
 until the vessel shall be legally condemned ; and before that event they 
 cannot ask the delivery of the property." 
 
 He also advised that the executive had no pov^er to act before 
 the legal rights had been determined by the judicial tribunal 
 There was no constitutional right vested in the President to 
 deliver up the property of an American citizen before it had been 
 condemned and legally adjudged to another. Moreover, if the 
 captors had any legal title, and if there had been any inquiry, the 
 institutions of the United States were open to them, and would 
 afford that full satisfaction which it was the object of the French 
 Government to obtain. 
 
 " The Admit-alty Courts of the United States, whose judgments are 
 based upon the established principles of international law, as recognized 
 by all modern and civilized nations, are open to the captors and will 
 administer justice commensurate with their rights." 
 
 This point may now be considered as settled, but whether the 
 right can be vindicated by a possessory suit by the captors in the 
 Admiralty Courts of the neutral has not been judicially decided ; 
 but, says Dr. Truman Snow, the course of the political depart- 
 ments of both Governments, and the reasoning on which they 
 proceeded, seem to settle the judicial as well as the political 
 question. 
 
 Salvage.-^- As a general rule, salvage will not be decreed for 
 the rescue or recapture of a neutral vessel and qacgo, since such 
 a service confers no benefit, inasmuch as the original captor would 
 be compelled by the tribunals of his own country to restore the 
 property where it had been seized unjustly. 
 
 To this rule there is one important exception. Even in a 
 civilized country, enjoying the comity of nations, a period may 
 come when it throws aside its international obligations and no 
 longer respects the rights of neutrals. This is what happened 
 from the establishment of the French Republic in 1792. In the 
 maritime war which followed, the French Prize Court jurisdic- 
 tion was in a state of chaotic confusion. This jurisdiction was, 
 for instance, on 14 February, 1793, handed over to the ordinary 
 civil courts, and it was not until after many vicissitudes that a 
 particular court or Conseil des Prises was established on 26 March, 
 1800. 
 
RECAPTURE AND RESCUE 6oi 
 
 The result of this state of affairs was a violent encroachment 
 upon and complete disregard of the rights of neutrals, neutral 
 property being condemned upon grounds both unjust and unknown 
 to the international law. Accordingly, recapture of neutral pro- 
 perty, which, if carried into French ports, would have become 
 liable to condemnation under this incompetent and irregular 
 jurisdiction, was regarded by the courts of Great Britain and the 
 United States as a meritorious service, and was rewarded by the 
 payment of salvage. 
 
 The leading case is the "War Onskan,"^ a Swedish vessel 
 taken by the French on a voyage to Oporto and retaken by a 
 British cruiser on 26 October, 1799. 
 
 " It has certainly," said Sir William Scott, in awarding salvage to the 
 captors, "been the practice of this Court lately to grant salvage on 
 recapture of neutral property out of the hands of the French ; and I see 
 no reason to depart from it. 
 
 " I know perfectly well that it is not the modern practice of the law of 
 nations to grant salvage on recapture of neutral vessels ; and upon this 
 plain principle that the liberation of a clear neutral from the hand of the 
 enemy is no essential service rendered to him, inasmuch as that same 
 enemy would be compelled by the tribunals of his own country, after he 
 had carried the neutral in to port, to release him with costs and damages 
 for the injurious seizure and detention. This proceeds upon the supposi- 
 tion that those tribunals would duly respect the obligations of the law of 
 nations^a presumption which, in the wars of civilized States, each 
 belligerent is bound to entertain in their respective dealings with neutrals. 
 But it being notorious to all Europe in the present war that there has 
 been a constant struggle maintained between the governing powers in 
 France, for the time being, and its maritime tribunals, which should most 
 outrage the rights of neutral property — the one by its decrees, or the 
 other by its decisions — the liberation of neutral property out of their 
 possession has been deemed not only in the judgment of our Courts, but 
 in that of neutrals themselves, a most substantial benefit conferred upon 
 them in a delivery from danger, against which no clearness and innocence 
 of conduct could afford any protection ; and a salvage for such service has 
 not only been decreed but thankfully paid, ever since these wild hostilities 
 have been declared and practised by France, against all acknowledged 
 principles of the law of nations and of natural justice. When these law- 
 less and irregular practices are shown to have ceased, the rule of paying 
 salvage for the liberation of neutral property must cease likewise." 
 
 And this practice continued to be followed by the English 
 Courts in spite of the Decree of 26 March, 1800. 
 
 The " Eleonora Catherina"^ was a Russian vessel taken on a 
 voyage from Archangel to London by a French privateer, and 
 retaken by a British cruiser on 7 December, 1800. In awarding 
 salvage, Sir William Scott observed : — 
 
 1 2 Rob., 299 (1799). ^ 4 Rob., 156 (1802). 
 
6o2 COMMERCE IN WAR 
 
 " It is said that a great alteration has taken place in the French pro- 
 ceedings. , . . This Court is not informed in a satisfactory manner that any 
 such beneficial change has taken place in the administration of Prize 
 Law in the tribunals of France, and therefore it will continue to make the 
 same decree, till the instructions from a superior court shall establish a 
 different rule." 
 
 In the case of the "Carlotta,"^ which was a Spanish vessel 
 recaptured by a British cruiser from a French privateer, Sir 
 William Scott refused to award salvage. Believing that the 
 French Courts were being conducted with more regularity and 
 with a disposition more inclined to return to the established 
 principles of justice on which the prize system of ancient France, 
 in common with that of other maritime countries of Europe, was 
 built, there did not appear to him to be any ground for supposing 
 that this property would have been condemned. At the same 
 time the learned judge declared that if any edict could have been 
 appealed to or any fact established by which it could have been 
 shown that the property would have been exposed to condemna- 
 tion in the French Courts, he would have held that a sufficient 
 ground for awarding salvage in this particular case. 
 
 The full expenses of the recaptors were allowed. 
 
 Again, in the case of the " Huntress,"^ Sir William Scott 
 refused to award salvage. This was an American vessel laden 
 with stores and provisions for the use of the American commodore 
 on the Mediterranean station, with a contingent destination to 
 Malta or Syracuse, when she was taken by a Spanish privateer 
 and retaken by a British privateer. 
 
 " It is true," he said, " that during the last war the universal system of 
 plunder and violence, which was practised on the part of France, drew 
 this Court out of its usual course and induced it to decree salvage, with 
 the perfect acquiescence of the subjects of neutral States, who were fully 
 sensible of the service that was rendered to them by taking them out of 
 French hands. But this exception did not alter the established doctrine 
 of this Court. It was a deviation which originated in cases of French 
 capture. I am not aware that it has been applied in recaptures from other 
 States." 
 
 The learned judge dismissed as inconceivable the idea that 
 these goods had been sent for the use of the belligerent British 
 fleet by the Government of the United States, which had always 
 professed a most guarded neutrality, and which would thus have 
 acted in violation of an express article of its treaty with Spain. 
 
 " The property belonged to the American Government, which was not 
 engaged in traffic lucrandi causa, but was exporting the present supply 
 only for the use of its own squadron. I am to consider, then, under what 
 
 1 4 Rob., 156 (1802). 2 6 Roi3_^ 104 (1805). 
 
RECAPTURE AND RESCUE 603 
 
 aspect such a vessel would have been viewed in the Spanish Court of 
 Prize, in a fair and just light, and not under any violent or capricious 
 feeling, that for the purposes of the present argument may be im- 
 puted as likely to divert the learned person who presides in that Court 
 from the performance of his duty. There is no ground for such a 
 surmise. This Court will not lightly entertain a suspicion so injurious 
 to the honour of the Spanish tribunals, or suppose that the known and 
 established principles of justice would not meet with the same candid 
 observance in the Courts of that country as in those of our own." 
 
 Meanwhile, under the Consular Government the abuses of the 
 French tribunals, the subject of these complaints, were abated, 
 and so long as the decisions of the Conseil des Prises were enun- 
 ciated by M. Portalis, the well-known jurist, complaints as to the 
 practical administration of the law by neutrals ceased to have 
 any justification until the Berlin Protocol of 21 November, 1806. 
 
 In this document it was declared that every person or country 
 that carried on commerce with England, and thereby favoured 
 her trade, became the accomplice of Great Britain ; that the 
 British Isles should be placed in a state of blockade, and that all 
 trade and correspondence with them should be prohibited. 
 
 The "Sansom"^ was an American vessel taken on 25 June, 
 1807, on a voyage from Amsterdam to Falmouth, by a Spanish 
 privateer (the same decree had been promulgated by Napoleon in 
 Spain) and retaken by a British ship. 
 
 In awarding salvage. Sir William Scott said : — 
 
 " It is unnecessary to repeat that the general practice of this Court is not 
 to decree salvage on neutral ships recaptured upon the presumption that no 
 peril had been incurred, but that, on being carried into the Courts of the 
 original captor, they would have been restored. This is a presumption 
 which is to be entertained in favour of every State which has not sullied its 
 character by a gross violation of the law of nations. But the contrary 
 presumption takes place if States hold out decrees of condemnation, how- 
 ever unjust, and decrees in which the tribunals of the country are en- 
 joined to act, and of which there is every reason to suppose that they will 
 be carried into execution. The reasoning on which the general rule has 
 been founded is thus done away with ; the peril is obvious, and the case 
 becomes simply that of meritorious rescue from the danger of condemna- 
 tion." 
 
 It must be observed here that this decree had remained practi- 
 cally inoperative upon American property until the condemnation 
 of the "Horizon" in October, 1807, and that the Convention of 
 1800 between the United States and France, which was still in 
 force, was entirely inconsistent with the Berlin decree. 
 
 The " Horizon," which was captured before the " Sansom," 
 was condemned under the Imperial Rescript of 18 September, 
 
 1 6 Rob., 410 (1807). 
 
6o4 COMMERCE IN WAR 
 
 1807, and whether this was explanatory of or additional to the 
 Berlin decree, there appears to be little doubt that the " Sansom " 
 would have been condemned under the provisions of the latter. 
 
 The same course was taken by the Supreme Court of the United 
 States. In the case of Talbot v. Seeman,^ salvage was awarded 
 to a United States ship of war for the recapture of the " Amelia," 
 a Hamburg vessel, out of the hands of the French (France and 
 Hamburg being neutral to each other), on the ground that she 
 was in danger of condemnation under the French decree of 
 18 January, 1798. France and the United States were at this 
 time in a state of partial war. 
 
 " It is stated," said Marshall, C.J., in delivering the judgment of the 
 Court, " to be the settled doctrine of the law of nations that a neutral 
 vessel captured by a belligerent is to be discharged without paying 
 salvage ; and for this several authorities have been quoted and many more 
 might certainly be cited. That such has been a general rule is not to be 
 questioned. As little is it to be questioned that this rule is founded 
 exclusively on the supposed safety of the neutral. It is expressly stated 
 in the case of the ' War Onskan ' to be founded on this plain principle. . . . 
 The general principle is that salvage is only payable when a meritorious 
 service has been rendered. In the application of this principle it has been 
 decided that neutrals carried in by a belligerent for examination, being in 
 no danger, receive no benefit from recapture, and ought not, therefore, to 
 pay salvage. 
 
 " The principle is that without benefit salvage is not payable ; and it is 
 merely a consequence from this principle which exempts .recaptured 
 neutrals from its payment. But let a nation change its laws and its 
 practice on this subject ; let its legislation be such as to subject to con- 
 demnation all neutrals captured by its cruisers, and who will say that no 
 benefit is conferred by a recapture ? In such a course of things the state 
 of the neutral is completely changed. 
 
 " The French decree ordained that ' the character of vessels, relative to 
 their quality of neuter or enemy, should be determined by their cargo ; in 
 consequence, every vessel found at sea loaded in whole or in part with 
 merchandise the production of England or her possessions should be 
 declared good prize, whoever the owner of these goods or merchandise 
 might be.' 
 
 " Now the ' Amelia ' had sailed from Calcutta, and although the whole 
 of Bengal might not have been in possession of Great Britain, there is no 
 reason to doubt that the cargo would have been found by a French Court 
 to have been the product and manufacture of a British possession unless 
 the contrary could have been clearly proved. 
 
 " It is not necessary that the loss should be inevitably certain, but it is 
 necessary that it should be real and imminent. It is believed," said the 
 Chief Justice, " to have been so in this case. The captured vessel was of 
 such description that the law by which she was to be tried condemned her 
 as good prize to the captor. Her danger, then, was real and imminent. 
 The service rendered her was an essential service, and the Court is there- 
 fore of opinion that the recaptor is entitled to salvage." 
 
 1 I Cranch, I (1801). 
 
RECAPTURE AND RESCUE 605 
 
 In the "Actseon,"^ Sir William Scott commented upon the case of 
 Talbot V. Seeman, which had been cited for the proposition that 
 the rescue even of a neutral vessel from the possession of a French 
 captor was a sufficient ground for salvage. 
 
 The case went not upon the general principle, but upon the 
 irregular administration of maritime law in the French Courts of 
 Admiralty at that time, by which a vessel once in the hands 
 of a French captor, whether neutral or not, would be in danger of 
 confiscation. 
 
 " I cannot, therefore," said the learned judge, " take this case as furnish- 
 ing a rule on which this Court can rely for giving salvage on American 
 property rescued from the possession of the French on any principle of 
 reciprocal justice. In the early part of the last war the Court held that 
 though America was not in a state of actual warfare with France, yet that 
 American property recaptured was subject to salvage, on the ground 
 that such was the rapacity of the enemy that no vessel had a chance 
 of being liberated from their Courts of Prize under their known disregard 
 to all neutral claims. In that state of qualified hostilities (for war had not 
 been declared by France against America), the demand of salvage was 
 very readily submitted to by the Americans, and the service of recapture 
 thankfully acknowledged. Upon the breaking out of the present war an 
 expectation was entertained that the French Courts of Admiralty would 
 revert to the genuine principles of maritime law, and therefore this Court 
 did not give salvage on the recapture of American property. But if this 
 expectation was cherished for a short time, it soon became notorious that 
 the French Government has long since made it abortive. France has 
 fulminated her decrees against the commerce of the whole world, and has 
 even compelled this country defensively to have resort to measures which 
 abstractedly and originally would be unjust in the highest degree. . . . On 
 the whole of the circumstances of this case, without looking minutely at 
 the varying policy of France, I think there is a very rational ground 
 to apprehend that the French Prize Courts would have condemned these 
 ships as legal capture, and therefore I shall pronounce the usual salvage." 
 
 The same practice was followed in France before the Revolu- 
 tion, For instance, the "Nostra Signora d'Ovalle,"^ a neutral 
 Portuguese vessel captured by an English privateer and re- 
 captured by a French privateer, was restored on the ground that 
 there was no cause to presume that it would have been confiscated 
 in England, and the recapture had taken place within the twenty- 
 four hours. The French privateer was condemned in damages 
 and interest. 
 
 The " Mercury " ^ was a neutral Swedish vessel captured by an 
 English privateer and recaptured by a French privateer within 
 the twenty-four hours. It was ordered to be restored by the 
 Conseil des Prises, 
 
 1 Edw. Ad., 254 (1810). ^ Code des Prizes, t. II, p. 1021 (1781). 
 
 3 Ibid., p. 789 (1781). 
 
6o6 COMMERCE IN WAR 
 
 In the case of "L'Argos,"^ a neutral Swedish vessel captured 
 by an English privateer and recaptured nine days afterwards by 
 a French privateer, the Conseil des Prises decreed a replevy, on 
 condition of the privateer receiving one-third for salvage. On 
 appeal this decree was reversed by the King, who, on 8 April, 1782, 
 held that there was no claim for recapture, and condemned the 
 recaptor in all the costs, damages, and expenses on the ground 
 that the prize would not have been confiscated in England. 
 
 (3) Recapture or rescue from an enemy. — By the Civil 
 Law of Rome, captives who returned to their native country were 
 entitled to be reinstated in their original legal status. Of such 
 persons it was said, " Si reversi fuerint, omnia pristina jura re- 
 cipiunt." Thus on his return the father, for instance, regained his 
 potestas over his family, "Quia postliminium fingit eum, qui captus 
 est, semper in civitate fuerit." This phrase is derived from post 
 and limen, the latter term being extended from the threshold of a 
 house to the boundary of the empire.^ But things recaptured 
 from the enemy were regarded by the Civil Law as good prize, 
 since by capture the original owner lost his ownership with the 
 possession. To this rule, however, ships of war amongst other 
 things formed an exception, and to them the doctrine of jus post- 
 liminii applied.* 
 
 This principle has naturally found its way into international law, 
 but it is remarkable that of all the ancient maritime codes, the 
 Consolato del Mare alone deals with the case of recaptures. 
 
 In the case of ships recaptured before they had been taken to a 
 place of security by the original captors, it was provided by 
 chapter 287 as follows : — 
 
 " I. If a ship is taken by the enemy, and afterwards another ship of a 
 friend comes up and effects a recapture, the vessel and all that is in her 
 shall be restored to the former proprietors on payment of a reasonable 
 salvage for the expense and trouble and danger that have been incurred ; 
 but this is to be understood of recaptures effected within the seigniory or 
 territorial seas of the country to which the captured vessel belongs or 
 before the enemy had secured the vessel to himself in a place of safety." 
 
 Upon this section Grotius says : — 
 
 " It has been established as a rule of nations that he is understood to 
 have captured a thing who detains it in such a manner that the other has 
 lost probable hope of recovering it ... so that things are considered as 
 captured when they are brought within the boundaries or infra praesidia of 
 the enemy. A thing is lost in the same way in which it is recovered by 
 postliminium" * 
 
 1 Ibid., 1044 (1779)- ^ Inst. I., XII, 5. 
 
 3 Puchta, Inst. II, 687, sees. 241-2. * Lib. Ill, c. vi, sec. 3, i. 
 
RECAPTURE AND RESCUE 607 
 
 The possession of the original owner was not lost until the 
 property was brought infra praesidia of the captor, "Whence," 
 continues Grotius, " it seems to follow that at sea ships and other 
 things captured are not considered to be captured until they are 
 brought into dock or harbour, or to the place where the fleet is ; 
 for then their recovery becomes hopeless."^ 
 
 But he adds that it had recently become the established 
 European practice for twenty-four hours' possession by the captor 
 to divest the original owner of his property. And such was the 
 general rule according to Loccenius when he wrote : — ^ 
 
 " Hodie naves ab hoste captae communi inter Christianos et Europaeos 
 populos sive jure sive consuetudine postliminio non recipiuntur, si hostis 
 eas non eodem die navali pugnd iterum amisit, sed per viginti quatuor 
 horas in potestate victoris fuerint," 
 
 Vattel almost entirely follows the same view.* 
 
 In the case of ships recaptured in the enemy's territory or in a 
 place of security, the Consolato provided : — 
 
 " (2) If the recapture has been effected within the enemy's territories or 
 in a place where the enemy was in entire possession of his prize — that is, in 
 the place of security — the proprietors shall not recover, nor shall the 
 recaptors claim any salvage ; for they are entitled to the whole benefit of 
 the recapture without opposition from any rights of seigniory or the 
 claims of any person whatever." 
 
 In commenting upon these sections, Sir William Scott in the 
 " Ceylon,"* which had been recaptured from the French, said : — 
 
 " It cannot be forgotten that by the ancient law of Europe the per- 
 ductio infra praesidia, infra locum tutunt, was a sufficient conversion of the 
 property; that by a later law, a possession of twenty-four hours was 
 sufficient to divest the former owner. This is laid down in the 287th 
 article of the " Consolato del Mare," in terms not very intelligible in them- 
 selves, but which are satisfactorily explained by Grotius and by his com- 
 mentator Barbeyrac in his notes upon that article," 
 
 The following passage to the same effect is then quoted by the 
 learned judge : — 
 
 "Sane in libro qui inscribitur Consulatus Maris C. 287, ita, ut modo 
 dicebam res definita est : nam is, qui navem et onus ab hoste recuper- 
 avit, jubetur navem et onus restituere pristino domino, salvo tamen 
 servaticio, idque servaticium ut justum sit, constituitur pro modo operae 
 et impensae in recuperationem factae praeterita omni distinctione, quamdiu 
 navis onusque in potestate hostium fuerint. Recte autem ibi additur, 
 earn restitutionem dum taxat obtinere, si navis nondum fuerit deducta in 
 locum tutum, sed si in locum tutum dominio sic plane et plene in hostenl 
 translate, navem mercesque deinde recuperatas ex asse recuperatori 
 
 " Lib. Ill, c. VI, sec. 2. ^ "De Jure Marit.," lib. II, c. iv, sec. 4. 
 
 3 Tom. II, lib. Ill, ch. ix., xiii., xxiv, * i Dod. "Adm. Rep.," 105 (1811). 
 
6o8 COMMERCE IN WAR 
 
 cedere. Quae apprime conveniunt cum his quae hoc capite disputavimus. 
 Vellem omnia, quae in ilia farragine legum nauticarum reperiuntur, aequae 
 proba recta essent sed non omnia ibi sunt tam bonae frugis." ^ 
 
 " In Lord Stair's decisions ^ also," continued the learned judge, " the 
 same rule is laid down as the rule of law in Scotland. According to 
 Valin* a similar practice prevailed in France, and Crompton in his 
 " Treatise on Courts " * states it as the ancient law of this country that a 
 possession of twenty-four hours was sufficient conversion of the property, 
 and that the owner was divested of his property, unless it was reclaimed ante 
 occasum solis. So that according to the ancient law of England, which 
 was in unison with the ancient law of Europe, there was a total oblitera- 
 tion of the rights of the former owners. It is true that this rule has since 
 been receded from by this country, when its commerce increased. During 
 the time of the Usurpation, when England was becoming commercial, an 
 alteration was effected by the Ordinance of 1649, which directed a 
 restitution upon salvage to British subjects ; and the same indulgent rule 
 of law continued afterwards, when this country became still more com- 
 mercial ; but the common law still prevailed and controlled the provisions 
 of the statute, where the enemy had fitted out the prize as a ship of war. 
 In the most recent change of the law it is determined that a vessel 
 belonging to a British subject loses her character on capture by the enemy 
 and subsequent conversion into a ship of war." 
 
 Other writers have extended the principle still further, and have 
 contended that the original owner is divested of his property from 
 the moment of its capture.^ And, lastly, a fourth rule of practice 
 was adopted by England and the United States that the property 
 of the owner was only extinguished by a sentence of condemna- 
 tion in a properly constituted prize court. In the case of privateers 
 this rule wras relinquished. De Martens, on the contrary, is 
 opposed to all these views. He doubts the principle upon which 
 they are based, viz., that the law of war grants to the captor a 
 right of full property to the total exclusion of the first proprietor. 
 The maxim of civil law, quod occupatio bellica sit modus acquir- 
 endi dominium, only regarded warlike seizure as a mode of acquir- 
 ing property, and did not consider at all the rights of the original 
 proprietor. 
 
 Property legally acquired is lost only, says De Martens — 
 
 (a) By a simple abandonment or cession. 
 
 {0) By a total destruction of the object. 
 
 {c) By such a total loss of possession that every reasonable 
 hope of recovering it disappears and no further trace of the 
 original title remains. 
 
 But as long as the object exists, the proprietor always enjoys the 
 hope of regaining his property. 
 
 1 Qusest., Jur. Pub., lib. I. c. V. ^ Vol. II, g07 (1677). 
 
 ■5 Ordonnance, 1681, sec. 8. * Court d'Admiraltie d'Angleterre, 91. 
 
 ^ Chevalier D'Abreu, "Traitd des Prises," p. i, c. iii; Weskett, "Theory of Insur- 
 ances," p. 423; Burlamaqui, "Droit Politique," p. 607, n. 16; Luzac on Wolf, sec. 1204. 
 
RECAPTURE AND RESCUE 609 
 
 The captor may be entitled to dispose of the prize in the same 
 manner as the proprietor could have done, although without 
 enjoying a real property, but he cannot extinguish the rights of 
 the proprietor, and these rights lie dormant until the conclusion 
 of peace. 
 
 And this right of war, being personal to the captor, cannot 
 enure to a third person who acquires the prize during the war, 
 and the proprietor is consequently entitled to prosecute his rights 
 against him. The recaptor, therefore, having acquired no rights 
 of ownership, must restore the property to the original owner. 
 
 The following rule has been formulated by De Martens : — 
 
 " According to the law of nature, without making any distinction 
 between conquest and booty or prize, the goods taken by the enemy, how- 
 ever legal that capture may be, however certain the possession of them 
 may be, do not become his property till the moment of peace ; and that 
 during the whole course of the war it may be claimed by the first pro- 
 prietor from the hands of every third possessor." 
 
 And where the recapture is made against the will of the captor, 
 the recaptor, who can neither receive any better title from the 
 captor than he had nor urge the law of war against his own sub- 
 jects or fellow-citizens or against the subjects of a neutral or allied 
 Power, ought, on the demand of the proprietor, to restore the 
 object to which the latter has not ceased to be entitled. 
 
 And since the recaptor was under no obligation to incur danger, 
 trouble, and expense to enrich another, the proprietor ought to 
 indemnify him for them. 
 
 This reasoning is thus formulated : — 
 
 " That every recapture made at any period of the war whatever, whether 
 the capture is legal or illegal, whether the recaptor is a sovereign or a 
 privateer, ought to be restored in every case to the original proprietor, on 
 a just repayment of the costs and damages of the recaptor, unless the 
 illegality of the recapture precludes the recaptor from the privilege of 
 demanding an indemnity."^ 
 
 But although maintaining this theory, De Martens candidly 
 admitted that it was opposed to the general law and practice. 
 
 But De Martens' theory is strongly confirmed by the rule of 
 rescue. Supposing the proprietor is not on board and the crew 
 effect a rescue, the prize does not belong to the crew, although it 
 may have been in the enemy's possession more than twenty-four 
 hours, or even have been brought infra praesidia of the enemy. 
 In either case the property is restored to the proprietor, which 
 appears to prove that he had never lost his ownership. 
 
 By section 3 of c. 287 of the " Consolato " — 
 
 1 Essay on Captures and Recapture, trans. T. H. Home (1801), c. iii. 
 2 R 
 
6io COMMERCE IN WAR 
 
 " If an enemy, having made a capture, quits his prize on the appearance 
 of another vessel, either from fear or from any doubt that he may entertain 
 of her, and the vessel on whose account the captured ship was abandoned 
 takes possession of the deserted vessel and brings her into port, she must 
 be restored to the proprietor or his heirs without opposition, by agreement 
 between the parties, and if they cannot agree, by the arbitration of credit- 
 able persons." 
 
 And by section 4, w^here the owner abandons his ship through 
 fear of the enemy, but it is not taken possession of by the enemy 
 nor taken by him into a place of security, the finders are not 
 entitled to the vessel or cargo, but by the use and custom of the 
 sea they may demand a reasonable compensation to be settled by 
 agreement or arbitration — 
 
 " For it is not fit that any one should endeavour to take undue advantage 
 of the misfortunes of another, since he cannot foresee what may happen to 
 himself, and because every one should be ready to submit his disputes, 
 especially in cases like the present, to the arbitration of two unexception- 
 able persons." 
 
 Sections 5, 6, and 7 contain provisions to meet cases in which 
 persons fit out vessels with the intention of making fraudulent 
 claims for salvage, or by any deceit or fraud bring about a situa- 
 tion in which they may pose as rescuers entitled to salvage. 
 
 By section 8, if the enemy voluntarily abandoned his prize, 
 and not through fear or apprehension of any other vessel, the 
 finders on bringing the prize into a place of safety do not thereby 
 acquire any property in it, but are entitled to a reasonable salvage 
 to be fixed at the discretion of reputable persons of the place 
 to which the vessel is brought. And by section 9, if at the 
 expiration of a reasonable time no owner is forthcoming, the 
 finders receive one-half of the proceeds, and the moiety is divided 
 under c. 249 between the law of jurisdiction and pious purposes 
 for the repose of the soul of the proprietor. 
 
 By section 10, where the enemy is obliged, through stress of 
 storm or fear of another vessel, to abandon possession of his 
 prize, the rule is the same as when he abandons it voluntarily. 
 
 Finally, by sections 11 to 2 2 inclusive, where the prize is either 
 ransomed of the enemy or of others, or is purchased out of the 
 enemy's hands, it must be ascertained whether the prize had been 
 taken to a place of safety or not. In the first case, the purchaser 
 may keep the prize without restitution ; in the second, he must 
 offer it to the proprietor in consideration of receiving from him 
 the ransom or purchase-money together with a reward, if at the 
 time of the ransom the enemy was already master of the prize in 
 such a manner that no other means of saving it existed. 
 
RECAPTURE AND RESCUE 6ii 
 
 The above sections are thus summarized by De Martens : — 
 
 " I. Suppose generally the case of a ship captured by its enemy; at 
 that period so extensive a right attached to the capture of friendly ships 
 was unknown, and it is doubtless for that reason that no mention is made 
 respecting the making of restitution to allied, friendly, or neutral Powers. 
 
 " 2. That they establish generally the principle that the enemy becomes 
 proprietor of his prize as soon as he has conducted it into a place of safety 
 without respect of him ; consequently, 
 
 " 3. If before that period the ship is recaptured by force or (which 
 cannot happen in this case) if it is abandoned, it shall be restored to the 
 original proprietor in consideration of a reward ; but if after that period it 
 is recaptured or purchased, it shall belong wholly to the recaptor or 
 purchaser. 
 
 "4. That it is allowable to ransom the ship, but only in case there 
 were no other means of saving her. 
 
 " 5. That the claim of salvage is not fixed at any certain part of the 
 recapture, but in proportion to the expenses and damages. 
 
 " 6. That in case of differences between the recaptor and the proprietor 
 skilful persons {prud' hommes) shall decide."^ 
 
 Whatever universal force the "Consolato del Mare" may have 
 had originally has been impaired by municipal law and inter- 
 national agreements. It becomes necessary, therefore, to examine 
 the law of various maritime nations, and the treaties by which 
 they are mutually bound. 
 
 France. — By French law a distinction is drawn between re- 
 capture by a privateer and by a public vessel. When, therefore, 
 a French vessel is recaptured by a privateer before it has been 
 twenty-four hours in the enemy's possession, it is restored to the 
 proprietor with its cargo upon payment of one-third its value for 
 salvage, but if recaptured after twenty-four hours it belongs wholly 
 to the recaptor.^ If the capture, however, is made by a public 
 ship under the old law, if the recapture was made before the 
 twenty-four hours, one-third was adjudged to the Crown ; if after 
 that period, the whole went to the Crown, the crew being re- 
 warded in proportion to the value of the prize.^ But the practice 
 was to restore such prizes to the proprietors in consideration of a 
 bounty to the crew.* 
 
 Under the new law the proportion of salvage is one-thirtieth 
 and one- tenth respectively.^ 
 
 Where the prize is abandoned by the enemy without being 
 
 1 "Captures and Recaptures," p. 153. , . ,rTTt 
 
 2 Edict of March, 1584 ; Ord., 1681, Art. LXI ; Ord., 15 June, 1779. Art. VIII. 
 
 3 Ord., IS June, 1779 ; Ord., 9 January, 1780. „_ . , ^ , „ , 
 
 * Valin, "Traits des Prises," p. 88; Emerigon, "Trait^ de Assurances," chap. xii. sec. 
 
 23, p. 495- 
 
 6 « ArrSt^ du 2 Prairial," an XI, Art. LIV. 
 
6i2 COMMERCE IN WAR 
 
 recaptured, or if in consequence of storms or other accident it 
 comes into the possession of French subjects before it has been 
 carried into an enemy's port, it must be restored to the proprietor, 
 who may claim the same within a year and a day, although it may 
 have been more than twenty-four hours in the enemy's hands.' 
 In this case Valin contends that one-third may be demanded for 
 salvage,^ whilst Emferigon maintains the contrary.^ 
 
 These regulations, however, were silent as to recaptures belong- 
 ing to allies and auxiliaries. De Martens thinks designedly so, 
 although Emerigon, who relied on Vattel, considered that the 
 same restitution ought to be made to them as to subjects. 
 
 The matter was settled in 1801, when on 9 February the 
 Conseil des Prises condemned as good prize to the recaptor two 
 Spanish vessels recaptured from the common enemy by a French 
 privateer after the expiration of twenty-four hours. If the re- 
 capture had been effected by a public ship, whether before or after 
 the twenty-four hours, the prize would have been restored in 
 accordance with the ancient practice in the case of subjects' 
 property.* 
 
 By the treaty with the United Provinces of the Low Countries, 
 I May, 1781, ratified on the 27th, the new law was made 
 applicable. In December, 1780, war had broken out between the 
 Low Countries and Great Britain, and on 2-4 May a fleet of 
 Dutch merchantmen, captured by Admiral Rodney, were re- 
 captured by a French squadron off the Scilly Islands. The greater 
 part of the ships and cargoes were adjudged to the recaptors by 
 the Conseil des Prises, and upheld on appeal, upon the grounds 
 apparently that the character of hostile possession was indelibly 
 fixed, that the Vessels possessed English commissions, and that the 
 treaty was not retro-active. 
 
 Similar provisions to those contained in the treaty of 1781 
 appear in Article XXX I V of the treaty of 1786 with Great 
 Britain.* 
 
 In the Crimea War it was thought that Article XXXIV of 
 this treaty wbuld be applied. The Convention of 16 May, 1854, 
 was silent as to recaptures, but by Article III it was stipulated 
 that^- 
 
 " In cases of the capture of a merchant vessel of one of the two countries, 
 the adjudication of such capture shall always belong to the jurisdiction of 
 the country of the captured vessel ; the cargo shall be dealt with as to the 
 jurisdiction in the same manner as the vessel." 
 
 1 Ord., 1681, Art. IX. 2 "Traitd des Prises," p. loi. 
 
 ' " Traits de Assurances," p. 503. * Pothier, de Propridtd, No. 100. 
 
 ' De Martens, "Rec," Vol. II, p. 127. 
 
RECAPTURE AND RESCUE 613 
 
 Spain. — The old law of Spain corresponded with that of France 
 from the accession of the House of Bourbon to the Spanish throne. 
 The ordinances of 1621 and 171 8 only mention recaptures of 
 vessels belonging to subjects, and the ordinance of 1633 only 
 gives vague directions for the restitution to persons who are 
 known. By the ordinance of i July, 1779, foreigners are put on 
 the same footing as subjects : — 
 
 " The ships of neutral or allied subjects, which the enemy's privateers 
 may have captured, shall be restored to the proprietors, together with their 
 cargoes, if the recapture has been within twenty-four hours, in consideration 
 of one-third of the value, which shall be given to the recaptor." 
 
 The earliest treaty relating to recaptures is that of 25 November, 
 1676, with the United Provinces of the Low Countries, which 
 stipulated that — 
 
 " If a ship shall be recaptured from the enemy by His Majesty's ships 
 or by privateers, if the recapture is made forty-eight hours after it shall 
 have been in the enemy's power, the recaptors shall haye one-fifth of the 
 ship and cargo. And if the recapture is made forty-eight hours after the 
 first forty-eight hours, they shall have one-third of the value, and if made 
 after the said period one-half"^ 
 
 By Article XLIII of the treaty of i May, 1725, with Austria, it 
 was stipulated that when a ship belonging to the subjects of one 
 Power has been taken by any common enemy and retaken from him 
 by any ship of war or privateer of the other, if the recapture is made 
 within forty-eight hours after it shall have been in the enemy's 
 hands, the fifth part of the ship and cargo shall belong to the 
 recaptor ; that if the recapture is made within the preceding hours 
 he shall have one-third, and if made later, one-half.^ 
 
 By the treaty of alliance of 15 May, 1793, with Great Britain, 
 the two Powers agreed to make it a common cause to protect 
 mutually their vessels on both sides— to assist each other whenever 
 one of them should be attacked or injured by land or sea. So 
 long, therefore, as this alliance subsisted, each Power was bound 
 to restore vessels without any distinction between their own 
 subjects and those of its ally.^ 
 
 Just prior to this treaty the "St. Jago,"* a rich Spanish vessel 
 from Lima, was captured by the " Dum6uriez," a Ff-ench privateer, 
 on 5 April, 1793, and recaptured by H.M.S. " Edgar" on the 14th, 
 and brought into a British port. 
 
 In the suit between the recaptors and the attorney of the King 
 of Spain, the latter based his claim upon the equitable principle of 
 
 1 Dumont, VII, part I, p. 321. ^ Dumont, VIII, part 11, p. 118. 
 
 = De Martens, " Ree.," V, p. 150. * De Martens, " Captures and Recaptures," p. 189. 
 
6i4 COMMERCE IN WAR 
 
 restitution, upon the fact that Spain made no distinction between 
 its own and foreign subjects, and upon the recent treaty. 
 
 It was decreed that the "St. Jago" and its cargo should be 
 restored after deducting the costs of suit and one-eighth in lieu of 
 salvage, on condition that the King of Spain would not delay- 
 to declare by a public act, that all ships, together with their cargoes, 
 belonging to the English who are or shall be recaptured by 
 the ships of the King of Spain or by Spanish privateers, shall be 
 restored on the same footing to Great Britain ; and if not, the 
 "St. Jago" should be considered as good prize to the recaptors.^ 
 With this decision De Martens is profoundly dissatisfied. Neither 
 by Spanish law nor by treaty (for the recent treaty was not in 
 force at the date of the recapture) was it justified. But he appears 
 to have forgotten that by French practice recaptures made by 
 public ships were restored, although by law the recaptors were 
 entitled to them, and that Spain had followed the example set by 
 France. 
 
 Portugal. — The ordinances of 1704 and 1796 followed the 
 French law which had also been introduced into Spain, but by 
 the ordinance of 10 May, 1797, the rule of twenty-four hours' 
 possession was abandoned, and the property was restored on 
 payment of one-eighth to the recaptor if a public ship, and 
 one-fifth if a privateer. 
 
 The United Provinces of the Low Countries. — By the 
 
 ordinance of 14 July, 1625, a vessel and its cargo were restored 
 to the proprietor if retaken by a privateer within twenty hours on 
 payment of one-eighth, if within forty-eight hours of one-fifth, 
 and if later still of one-third. By the ordinance of 22 July, 1625, 
 these provisions were extended to recaptures made by public ships. 
 A number of ordinances were subsequently passed varying 
 these conditions, but in none is there any reference to others than 
 subjects, until the ordinance of 28 July, 1705, which directs that 
 as to recaptures of allied and neutral ships privateers shall be 
 content with what has been or may be agreed with them. The 
 only treaty, however, which unmistakably refers to such recaptures 
 is that with the United States of 8 October, 1781, by which 
 recaptures made by privateers are to be restored on payment of 
 one-third in lieu of salvage if made within twenty-four hours, and 
 if taken after that period, the whole to go to the recaptor. But 
 where the recaptor is a public ship, the prize is to be restored 
 if made within forty-eight hours on payment of one-thirtieth, and 
 if later of one-tenth.^ 
 
 1 "Public Advertiser," Nos. 18,453 and 18,506. 
 ^ De Martens, "Captures and Recaptures," 197. 
 
RECAPTURE AND RESCUE 615 
 
 Denmark. — The Danish Code of Christian V^ directs that 
 the recapture after twenty-four hours' possession shall be good 
 prize to a privateer, but if made within that period, it shall be 
 divided equally between the proprietor and the privateer. 
 
 This law only refers to the property of Danish subjects, but 
 by the ordinance of 28 March, 18 10, Danish or allied property is 
 restored upon payment of one-third in lieu of salvage, without 
 any regard to the length of time the prize may have been in the 
 enemy's hands. 
 
 The treaties with France and Spain have already been referred 
 to. The treaty with Genoa of 30 July, 17B9, calls forth from 
 De Martens unstinted applause. " Would to heaven," he ex- 
 claims, "this sound philosophy were that of all laws and of all 
 treaties." 
 
 By Article XI, it is stipulated — 
 
 " That if a neutral merchant ship, seized on the seas by a ship of war 
 or privateer, be recaptured or recovered by a ship of war or privateer of 
 the contracting party, who is at war with the nation of the first captor, 
 that ship shall be immediately set at liberty to pursue its voyage, under 
 whatever pretext it may have been detained in the first place, and without 
 its recaptor being able to claim any reward or part in the ships or their 
 cargo, whether it may have been for a longer or a shorter time in the 
 power of the first captor, since no neutral ship can ever be considered as 
 a prize until it has been legally condemned in a court of admiralty." 
 
 Sweden. — The ordinance of 1667 of Charles XI enacts that 
 in case a ship belonging to Swedish subjects after having been 
 taken by the enemy should be retaken, the recaptor shall have 
 two-thirds of its value and one-third shall be restored to the pro- 
 prietor, without respect to the time which it may have been in the 
 enemy's hands. 
 
 This law appears to refer to privateers only, but from the 
 law of 1755 public ships would appear to have had the same 
 rights. 
 
 By the ordinance of 1788, the rate of salvage was reduced to 
 one-half. 
 
 The Hanseatic Towns. — The ancient maritime laws of the 
 Society of the Hanse Towns contain no regulations relating to 
 recaptures, but the laws of the city of Lubeck directed that if a 
 ship be retaken by a private vessel the recaptor should keep the 
 prize, and if retaken by a public ship of the city, it should be 
 restored wholly to the proprietor in consideration of a reward. 
 
 Great Britain. — The earliest statute relating to recapture of 
 property of British subjects appears to be that of 1692,^ made 
 
 1 Cod. Leg. Dan., lib. IV, ch. vn., sec. 6. 2 3 & 4 W. & M„ c. 25. 
 
6i6 COMMERCE IN WAR 
 
 shortly after the treaty of 1689 with the United Provinces of the 
 Low Countries. By this statute, if the recapture were made by 
 a public ship the rate of salvage should be one-eighth ; if made 
 by a privateer or other ship one-eighth, if recaptured within 
 twenty-four hours ; one-fifth within forty-eight hours ; one-third 
 within ninety-six hours ; and one-half after that period without 
 any deduction whatsoever. 
 
 These regulations were repeated by 13 Geo. II, c. 24; 
 17 Geo. II, c. 34; and 29 Geo. II, c. 34. 
 
 In the American War of Independence a curious departure was 
 taken by the Act of 1776,^^ which restored to the proprietor of 
 British property captured by the rebels and recaptured by British 
 public ships upon payment of one-eighth, without regard to the 
 time of the enemy's possession. This was extended to privateers 
 by the Act of 1777.^ At the commencement of the war the rebels 
 were regarded as illegal enemies or pirates, and so the practice 
 followed in their case was adopted. 
 
 Nevertheless the same rule was followed in the wars with 
 France in 1778, with Spain in 1780, and with the United 
 Provinces in the same year. 
 
 Thus by the Act of 1779,^ Article IV of the Act of 1776 is re- 
 peated, and if the prize has been set forth by the enemy as a man- 
 of-war, the recaptor is entitled to one-half as salvage. The Act of 
 1 780 * further adds that with respect to recaptures not worth the 
 expense of a suit, the matter may be compromised, provided it 
 is mentioned to the Court. 
 
 The statutes of 1793,^ i794>^ ^■nd 1797^^ contained similar 
 provisions. 
 
 The present law is contained in the Prize Act, 1864,* which is 
 based upon 43 Geo. Ill, c. 160 and 45 Geo. Ill, c. 72, and 
 whereby it is provided as follows : — 
 
 "Sec. 40. When any ship or goods belonging to any of Her 
 Majesty's subjects, after being taken as prize by the enemy, is or are 
 retaken from the enemy by any of Her Majesty's ships of war, the same 
 shall be restored by decree of a Prize Court to the owner, on his paying as 
 prize salvage one-eighth part of the value of the prize, to be decreed and 
 ascertained by the Court, or such sum not exceeding one-eighth part of 
 the estimated value of the prize as may be agreed on between the owner 
 and the recaptors and approved by order of the Court : Provided that 
 where the recapture is made under circumstances of special difficulty or 
 danger, the Prize Court may, if it thinks fit, award to the recaptors as 
 prize salvage a larger part than one-eighth, but not exceeding in any case 
 one-fourth part of the value of the prize : Provided also that where a ship 
 
 1 16 Geo. Ill, c. 5. 2 17 Geo. Ill, c. 7. 
 
 ' 19 Geo. Ill, c. 67. * 20 Geo. Ill, c. 23. 
 
 ^ 33 Geo. Ill, c. 34. " 34 Geo. Ill, c. 70. 
 
 ' 37 Geo. Ill, c. 109. ' 27 & 28 Vict., c. 25. 
 
RECAPTURE AND RESCUE 617 
 
 after being so taken is set forth or used by any of Her Majesty's enemies 
 as a ship of war, this provision for restitution shall not apply, and the ship 
 shall be adjudicated on as in other cases of prize. 
 
 "Sec. 41. Where a ship belonging to any of Her Majesty's subjects, 
 after being taken as prize by the enemy, is retaken from the enemy by any 
 of Her Majesty's ships of war, she may, with the consent of the recaptors, 
 prosecute her voyage, and it shall not be necessary for the recaptors to 
 proceed to adjudication till her return to a port of the United Kingdom. 
 
 " The master or owner or his agent may, with the consent of the 
 recaptors, unload and dispose of the goods on board the ship before 
 adjudication. 
 
 " In case the ship does not, within six months, return to a port of the 
 United Kingdom, the recaptors may nevertheless institute proceedings 
 against the ship or goods in the High Court of Admiralty, and the Court 
 may thereupon award prize salvage as aforesaid to the recaptors, and may 
 enforce payment thereof, either by warrant of arrest against the ship or 
 goods, or by monition and attachment against the owner." 
 
 It was provided by the treaty of 22 October, 1691,^ with the 
 United Provinces of the Low Countries — 
 
 " That in case any ship belonging to the King of Great Britain or to 
 the States General or to their subjects, should be captured by any ships of 
 war or privateers belonging to a hostile prince or State, and recaptured by 
 the ships of the King or States General, or by a privateer duly authorized 
 by the said King or the said States, before such vessel has been conducted 
 infra praesidia, that is to say, into any enemy's port or into a fleet carry- 
 ing its flag, such ship together with all its cargo, cannons, and rigging, 
 shall be restored to the first proprietor, on his paying in, lieu of salvage as 
 follows : that is to say, if it is recaptured by a privateer before forty-eight 
 hours after the capture he shall pay one-fifth, before ninety-six hours one- 
 third, after ninety-six hours one-half of the value of the ship and of its 
 cargo, cannons, and rigging. 
 
 " In case ships are recaptured by a ship of war before the enemy has 
 conducted them infra praesidia, the eighth part shall be paid instead of 
 salvage." 
 
 The treaty of 1786 with France has already been mentioned, 
 and the treaty of 1793° with Portugal appears to contemplate 
 the mutual restitution of recaptures. That with Spain of 1 5 May, 
 1793, has also been already referred to. 
 
 Although considerable doubt has been thrown upon what rule 
 was followed in England in early times, it seems on the whole 
 more probable that the general European practice of condemning 
 property to the recaptor after twenty-four hours' possession by the 
 enemy was followed. 
 
 It was asserted by Grotius, on the authority of Albericus 
 Gentilis,^ that England had adopted the rule of twenty-four hours. 
 
 1 Dumont, VII, part II, p. 301. ^ De Martens, " Rec," V, 210. 
 
 3 Lib. I, c. III. 
 
6i8 COMMERCE IN WAR 
 
 But Gentilis was here speaking of military booty. However 
 that may be, the ancient law held — 
 
 "That if an enemy dispossessed an Englishman and another Englishman 
 took the booty from the enemy, the former owner shall lose his property 
 so gained in battle, unless he comes and claims in the same day ante 
 occasum soils, and neither the king nor the admiral nor the former owner 
 shall have any claim to it." ^ 
 
 Although the word " admiral " is used, the original dictum in 
 the Year Book in the passage to which it is applied relates to land 
 capture. It is possible that Grotius was justified in his assertion 
 by the passage in the Dutch Resident's letter of 17 March, 
 1656— 
 
 "That after many suits and afterwards appeals had in the council of 
 the king, anno 1632, it was understood 'CasX jure postllmlnll no ships ought 
 to be restored which had been twenty-four hours in the power of the 
 latter." 
 
 As Sir William Scott observed in " L'Actif," ^ as Great Britain 
 became more commercial, she departed from the old law and 
 created a new and peculiar law for herself in favour of merchant 
 property recaptured, introducing a policy not then adopted by 
 other countries, and different from her own more ancient practice. 
 By an ordinance of 1649, restitution upon salvage to British 
 subjects was recognized, and Molloy cites several cases in the 
 seventeenth century in which a recapture made by a public ship 
 was always restored to the proprietor upon salvage, whilst that 
 made by privateers or other individuals was assigned wholly to 
 the recaptors, provided it was brought infra praesidia without 
 any regard being paid to the twenty-four hours' possession by the 
 enemy.* 
 
 Park, indeed, goes further, and asserts that the proprietor was, 
 until the statute of 1692, entitled to claim his property until it 
 had been condemned, irrespective of the time of possession by 
 the enemy.* This view is supported by Sir Leoline Jenkins, 
 Judge of the Admiralty, who in 1672 said he could find no trace 
 of the twenty-four hours' possession in the earliest part of that 
 century. On a case referred to him he reports : — 
 
 " In England we have not the letter of any law for our direction ; only 
 I could never find that this Court of Admiralty, either before the late 
 troubles or since, has in these cases adjudged the ships of one subject 
 good prize to another ; and the late usurpers made a law in 1649 that all 
 ships rescued, whether by their own men-of-war or by privateers, should 
 be restored on paying one-eighth salvage, without any regard to the time 
 
 1 7 Ed. IV, 14. 
 
 2 Edw. Adm. Rep., 184 (1810). 
 
 ^ "De Jure Maritima et Navali," c. I, sec. 8. 
 * " System of Insurance," c. iv, p. 29. 
 
RECAPTURE AND RESCUE 619 
 
 such ship had been in the possession of the enemy, or to any other circum- 
 stance, unless the ship were made a man-of-war by the enemy ; and in 
 that case a moiety went for salvage, but the ship was still to be restored. 
 Whether the usurpers intended this as a novelty or an affirmance of the 
 ancient custom of England I will not take upon me to determine, only I 
 will say, condemnation upon the enemy's possession for twenty-four hours 
 is a modern usage." ^ 
 
 In Goss V. Withers,^ Lord Mansfield, after referring to the 
 conflicting opinions of jurists and the varying practice of nations, 
 says that he has taken the trouble to inform himself of the 
 practice of the Court of Admiralty in England before any Act 
 of Parliament commanded restitution or fixed a rate of salvasfe. 
 
 ■"to" 
 
 " I have talked with Sir George Lee, who has examined the books of 
 the Court of Admiralty, and he informs me that they hold the property not 
 changed, so as to bar the owner in favour of a vendee or recaptor till 
 there had been a sentence of condemnation ; and that in the reign of 
 Charles II, Sir Richard Floyd gave a solemn judgment upon the point, 
 and decreed restitution of a ship retaken by a privateer after she had 
 been fourteen weeks in the enemy's possession, because she had not been 
 condemned. Another case upon the same principle is cited at the end of 
 Assievedo v. Cambridge, 1695, after a long possession, two sales, and 
 several voyages." 
 
 In this last case Lord Mansfield was scarcely correct. The 
 vessel was retaken before being carried infrpi praesidia, and it was 
 held that — 
 
 " The law is clear that not the length of time, but the bringing infra 
 praesidia into a place of safety is that which diverts the property."* 
 
 Lord Mansfield held the same view more than twenty years 
 later. In Lindo v. Rodney,* where Admiral Rodney and 
 General Vaughan had seized the island of St. Eustatius, he said : 
 "The end of a Prize Court is to suspend the property till con- 
 demnation, and referring to the treaties between Henry VII and 
 Louis XII of 1498,° confirming that made with Charles VIII, 
 and of Henry VIII and Francis I of 1526,® he said these demon- 
 strate — 
 
 " That no property vests in any goods taken at sea or on land by 
 a ship or her crew, till a sentence of condemnation as good and lawful 
 prize." 
 
 And this appears to be the better opinion, viz., that until con- 
 demnation the jus post liminii continued, and the proprietor was 
 
 1 " Life of Sir L. Jenkins," Vol. II, ^^o. 
 
 2 2 Burr., p. 694 (17s 8). ^ Lucas, 79. 
 
 * Reported in Le Caux v. Eden, 2 Douglas, 613 (1781). 
 « Rymer, Vol. XII, 690. « Ibid., XIV, 147. 
 
620 COMMERCE IN WAR 
 
 entitled, on payment of a reasonable salvage to the recaptors, to a 
 decree of restitution.^ 
 
 But by subsequent Prize Acts, as already stated, salvage upon 
 recapture was fixed at certain rates, according to the period during 
 which the prize was in the enemy's possession, until by 43 Geo. Ill, 
 c. 160, and following Acts, the jus post liminii was continued for 
 ever, so that the original proprietor, provided he was a British 
 subject, could in all cases claim restitution even after a decree of 
 condemnation, irrespective of any period of possession by the 
 enemy, provided only the prize had not been set forth by the 
 enemy as a ship of war. And this is the law to-day. 
 
 Setting forth as a ship of war. — What is a setting forth 
 such as to disentitle the proprietor has been discussed in the case 
 of " L'Actif,"" which was a British vessel, at the time of recapture 
 sailing under French colours as a merchantman on a voyage from 
 L'Orient to Nantes with a cargo of sugar, cotton, and other goods. 
 She had no commission of war and no armament, but she had 
 previously cruised as a privateer against the commerce of Great 
 Britain. In refusing to restore the ship to the original owner, Sir 
 William Scott, in construing the words of the statute of 1805,' "if 
 such ship or vessel so taken shall appear to have been, after the 
 taking by His Majesty's enemies, by them set forth as a ship or 
 vessel of war," said : — 
 
 " I think it more probable that when the former character of a vessel 
 had been once obliterated by her conversion into a ship of war the Legis- 
 lature meant to look no further. From that moment the title of the former 
 owner and his claim to restitution were entirely extinguished, and could 
 not be revived again by any subsequent variation of the character of the 
 vessel. His title being once gone is gone for ever." 
 
 The "Ceylon"* was a British East Indiaman which had been 
 captured by some French frigates and carried to the Isle of 
 Johanna, where she was refitted and supplied with two additional 
 carronades and a French crew of seventy men. She was then 
 conveyed to the Isle of France, where she was attacked by the 
 British frigate " Nereid" and the guns of the Isle du Passe, and 
 having fired several shots in return at the frigate and fort, she 
 passed to her anchorage at Port South East, where she was again 
 attacked by the British squadron, when with the assistance of 
 other French vessels, she succeeded in repelling the attack and in 
 taking or destroying the British squadron. She was afterwards 
 carried to Port Napoleon, where she was dismantled and fitted out 
 
 ' Marshall, " Marine Insurance,'' 4th ed., 436. 
 
 2 I Edw. Adm., 185 (1810). ' 45 Geo. Ill, c. 72, s. 7. 
 
 ^ I Dods. Adm., 501 (181 1). 
 
RECAPTURE AND RESCUE 621 
 
 as a prison ship, in which state she was discovered upon the 
 capture of the island. 
 
 In condemning this vessel to the recaptors, Sir William Scott 
 said : — 
 
 " It is no necessary part of the interpretation [of the section] that she 
 should have been carried into port and sent out with a formal and regular 
 commission ; it is sufficient if she has been used in the operations of war 
 and constituted a part of the naval military force of the enemy. Non 
 constat that there was not a regular commission of war in the present case ; 
 that must remain a matter of conjecture only, since all the ship's papers 
 are lost. I hold it, however, to be unnecessary that she should have been 
 regularly commissioned ; it is enough that she was employed in the public 
 military service of the enemy by those who had competent authority so to 
 employ her." 
 
 The " Horatio"^ was a British slave ship captured on the coast 
 of Africa by three French privateers, which put men on board and 
 fitted her out, as it was suggested, as a privateer. 
 
 In restoring her to the original owner, Sir William Scott held 
 that this was not a case of setting forth within the section. There 
 was no commission, no arming of the vessel, she being originally 
 armed as a slave ship. The mere act of putting an additional 
 number of men on board in this manner by an enemy privateer 
 would not have the effect of defeating the title of the original 
 owner. 
 
 The "Georgiana"^ was a British ship with a cargo of oil, carry- 
 ing eight guns and twenty-five men, captured in the South Seas 
 by the American frigate " Essex." The captain of the " Essex," 
 without bringing the " Georgiana" into port, supplied her with ten 
 additional guns and sixty men. She then cruised under one of 
 his officers, and captured three British vessels. When recaptured 
 by the British sloop of war " Barossa," only four guns and fifteen 
 men were found on board. 
 
 In condemning this vessel as prize to the recaptors, Sir William 
 Scott said : — 
 
 " It has been usual for the Court to look in the first place for the com- 
 mission of war, because where that is to be found nothing more is wanted. 
 Where the ship has been armed without any authority, that has not of 
 itself been held sufficient to bring the case within the exception of the 
 clause ; for the Court has never gone so far as to say that a mere arming 
 will do, notwithstanding the marginal note to the Prize Act which ' seems 
 to make using as a ship of war ' sufficient. The Court has always required 
 that there should be some semblance of authority, although it has not 
 thought it necessary, in the cases which have been brought before it, to 
 look very minutely into the foundation of that authority. If sailors were 
 merely to put arms on board a vessel and go out and cruise, I think there 
 would be a deficiency of authority, and that the vessel could not be 
 
 1 6 Rob., 320 (1806). 2 I Dod. Adm., 397 (1814). 
 
622 COMMERCE IN WAR 
 
 considered as ' set forth for war ' according to the true construction of the 
 Act of Parliament. But where there is a fair semblance of authority and 
 nothing upon the face of proceedings to invalidate it, that the Court has 
 been in the habit of considering sufficient. In the case of the ' Castor ' 
 before the Lords of Appeal,^ the authority of the commander of a fleet 
 was considered as sufficient, ' the vessel was not carried into port or 
 adjudged.' " 
 
 The distinction between the authority of the commander of a 
 fleet and of the commander of a single frigate did not appear to 
 the learned judge to be very material. Either might equally be 
 presumed to be vested with sufficient authority. 
 
 Recapture of the property of allies. — This is governed 
 by the rule of reciprocity, which is fully discussed and defined by 
 Sir William Scott in the " Santa Cruz."^ This was the case of a 
 Portuguese vessel taken by the French on i August, 1796, and 
 retaken by English cruisers on the 28th. It was the test case of 
 several of the same nature as to the general law of recapture 
 between Great Britain and Portugal. 
 
 In delivering judgment. Sir William Scott said : — 
 
 " It is certainly a question of much curiosity to inquire what is the true 
 rule on this subject. When I say the true rule, I mean only the rule to 
 which civilized nations attending to just principles ought to adhere. For 
 the moment you admit, as admitted it must be, that the practice of 
 nations is various, you admit there is no rule operating with proper 
 force and authority of a general law. 
 
 " It may be fit there should be some rule, and it might be either the 
 rule of immediate possession or the rule of pernoctation and twenty-four 
 hours' possession ; or it might be the rule of bringing infra praesidia; or it 
 might be a rule requiring an actual sentence of condemnation : either of 
 these rules might be sufficient for general practical convenience, although 
 in theory perhaps one might appear more just than another ; but the fact 
 is that there is no such rule of practice. Nations concur in principle, 
 indeed, so far as to require firm and secure possession ; but their rules of 
 evidence respecting the possession are so discordant, and lead to such 
 opposite conclusions, that the mere unity of principle forms no uniform 
 rule to regulate the general practice. But were the public opinion of 
 European States more distinctly agreed on any principle as fit to form 
 the rule of law of nations on this subject, it by no means follows that any 
 one nation would lie under an obligation to observe it. That obligation 
 could arise only from a reciprocity of practice in other nations, for from 
 the very circumstances of the prevalence of a different rule among other 
 nations, it would become not only lawful, but necessary to that one nation 
 to pursue a different conduct. For instance, were there a rule prevailing 
 among other nations that the immediate possession and the very act of 
 capture should divest the property from the first owner, it would be 
 absurd in Great Britain to act towards them on a more extended prin- 
 ciple, and to lay it down as a general rule that a bringing infra praesidia, 
 
 1 May, 1795. 2 I Rojj^ 4g (1798). 
 
RECAPTURE AND RESCUE 623 
 
 though probably the true rule, should in all cases of recapture be deemed 
 necessary to divest the original proprietor of his right. The effect of 
 adhering to such a rule would be gross injustice to British subjects, and a 
 rule from which gross injustice must ensue in practice can never be the 
 true rule of law between independent nations ; for it cannot be supposed to 
 be the duty of any country to make itself a martyr to speculative pro- 
 priety were that established on clearer demonstration than such questions 
 will generally admit. Where mere abstract propriety, therefore, is on 
 one side and real practical justice on the other, the rule of substantial 
 justice must be held to be the true rule of the law of nations between 
 independent States. 
 
 " If I am asked under the known diversity of practice on this subject, 
 what is the proper rule for a State to apply to the recaptured property of 
 its allies? I should answer, that the liberal and rational proceeding 
 would be to apply, in the first instance, the rule of that country to which 
 the recaptured property belongs. I admit the practice of nations is not 
 so ; but I think such a rule would be both liberal and just. To the 
 recaptured it presents his own consent bound up in the legislative wisdom 
 of his own country ; to the recaptor it cannot be considered as injurious. 
 Where the rule of the recaptured would condemn, whilst the rule of the 
 recaptor prevailing among his own countrymen would restore, it brings an 
 obvious advantage ; and even in the case of immediate restitution under 
 the rules of the recaptured, the recapturing country would rest secure in 
 receiving reciprocal justice in its turn. 
 
 " It may be said, what if this reliance should be disappointed ? Redress 
 must then be sought from retaliation, which, in the disputes of indepen- 
 dent States, is not to be considered as vindictive retaliation, but as the 
 just and equal measure of civil retribution. This will be their ultimate 
 security, and it is a security sufficient to warrant the trust. For the 
 transactions of States cannot be balanced by minute arithmetic ; some- 
 thing must on all occasions be hazarded on just and liberal presumptions. 
 
 " Or it may be asked, what if there is no rule in the country of the 
 recaptured? I answer first, this is scarcely to be supposed ; there may 
 be no ordinance, no prize acts immediately applying to recapture, but 
 there is a law of habit, a law of usage, a standing and known principle on 
 the subject in all civilized commercial countries ; it is the common practice 
 of European States in every year to issue proclamations and edicts on 
 the subject of prize, and till they appear. Courts of Admiralty have a law 
 and usage on which they proceed from habit and ancient practice as 
 regularly as they afterwards conform to the express regulations of their 
 prize acts. But, secondly, if there should exist a country in which no 
 rule prevails, the recapturing country must then of necessity apply its 
 own rule, and rest on the presumption that that rule will be adopted and 
 administered in the future practice of its allies. 
 
 " Again, it is said that a country applying to other countries their own 
 respective rules will have a practice discordant and irregular ; it may be 
 so, but it will be a discordance proceeding from the most exact uniformity 
 of principle ; it will be idem per diversa. It is asked also, will you adopt 
 the rules of Tunis and Algiers ? If you take the people of Tunis and 
 Algiers for your allies, undoubtedly you must ; you must act towards 
 them on the same rules of relative justice on which you conduct your- 
 selves towards other nations. And upon the whole of these objections, it 
 
624 COMMERCE IN WAR 
 
 is to be observed that a rule may bear marks of apparent inconsistency, 
 and nevertheless contain much relative fitness and propriety ; a regulation 
 may be extremely unfit to be made which yet shall be extremely fit, and 
 the only fit rule to be observed towards other parties who have originally 
 established it for themselves. 
 
 " So much it might be necessary to explain myself on the mere ques- 
 tion of propriety, but it is much more material to consider what is the 
 actual rule of the maritime law of England on this subject. I understand 
 it to be clearly this, that the maritime law of England, having adopted a 
 most liberal rule of restitution on salvage with respect to the recaptured 
 property of its own subjects, gives the benefit of that rule to its allies, till 
 it appears that they act towards British property on a less liberal principle ; 
 in such case it adopts their rule and treats them according to their own 
 measure of justice. This I consider to be the true statement of the law 
 of England on this subject. It was clearly so recognized in the case of 
 the ' San lago ' — a case which was not, as has been insinuated, decided on 
 special circumstances, nor on novel principles, but on principles of estab- 
 lished use and authority in the jurisprudence of this country. In the 
 discussion of that case much attention was paid to an opinion found 
 amongst the manuscript collections of a very experienced practitioner in 
 this profession (Sir E. Simpson), which records the practice and rule as it 
 was understood to prevail in his time. ' The rule is, that England restores 
 on salvage to its allies, but if instances can be given of British property 
 retaken by them and condemned as prize, the Court Of Admiralty will 
 determine their cases according to their own rule.' 
 
 " I conceive this principle of reciprocity is by no means peculiar to 
 cases of recapture ; it is found also to operate in other cases of maritime 
 law. At the breaking out of war it is the constant practice of this country 
 to condemn property seized before the war if the enemy condemns, and 
 to restore if the enemy restores. 
 
 " It is a principle sanctioned by that great foundation of the law of 
 England, Magna Charta^ itself, which prescribes that at the commence- 
 ment of a war the enemy's merchants shall be kept and treated as our 
 own merchants are treated in their country. 
 
 " In recaptures it is observable that the liberality of this country outsteps 
 its caution ; it restores on salvage without inquiry till it appears that the 
 ally pursues a different rule. It may be said, there may be inequality and 
 hazard in this prompt liberality, and we may restore when the ally con- 
 demns ; and so the fact has been, for it is not to be denied that before the 
 case of the ' San lago ' had introduced a more accurate knowledge of 
 Spanish law, restitution of Spanish property on recapture had passed as 
 of course; the more accurate rule, however, is that which I have laid 
 down." 
 
 United States. — The law relating to recaptures is to be found 
 in Act of Congress of 3 March, 1800,^ which provides by 
 section i — 
 
 " That when any vessel other than a vessel of war or privateer, or when 
 any goods which shall hereafter be taken as prize by any vessel acting 
 under authority from the Government of the United States shall appear 
 
 1 Art. XLI. 
 
 2 C. 14, Satutes at Large, U.S.A., Vol II, 16. 
 
RECAPTURE AND RESCUE 625 
 
 to have before belonged to any person or persons resident within or under 
 the protection of the United States, and to have been taken by an enemy 
 of the United States or under authority or pretence of authority from any 
 prince, Government, or State against which the United States have 
 authorized or shall authorize defence or reprisals, such vessels or goods not 
 having been condemned as prize by competent authority before the recapture 
 thereof, the same shall be restored to the former owner or owners thereof, 
 he or they paying for and in lieu of salvage if retaken by a public vessel 
 of the United States one-eighth part, and if retaken by a private vessel 
 of the United States one-sixth part of the true value of the vessels or 
 goods so to be restored, allowing and excepting all imports and public 
 duties to which the same may be liable. And if the vessel so retaken 
 shall appear to have been set forth and armed as a vessel of war before 
 such capture or afterwards and before the retaking thereof as aforesaid, 
 the former owner or owners on the restoration thereof shall be adjudged 
 to pay for and in lieu of salvage, one moiety of the true value of such 
 vessel of war or privateer." 
 
 By section 2, if the recaptured vessel or goods belonged to the 
 Government, provided the vessel were unarmed, the salvage is to 
 be one-sixth if recaptured by a private vessel, and one-twelfth if 
 recaptured by a public vessel — 
 
 " And for the recapture as aforesaid of a public armed vessel or any 
 goods therein, one moiety of the true value thereof when made by a 
 private vessel of the United States, and one-fourth part of such value 
 when such recapture shall be made by a public armed vessel of the 
 United States." 
 
 Condemnation before recapture. — The "Star"^ was an 
 American ship which during the war with Great Britain had been 
 captured by a British cruiser, and, after condemnation in the 
 British Courts, sold to a British merchant. Whilst sailing under 
 the British flag as a trading vessel, she was recaptured by the 
 American private armed ship " Surprise." 
 
 It was contended on behalf of the original proprietors that by 
 section 5 of the Act of Congress of 26 June, i8i2,nhe property 
 of subjects and neutrals recaptured from the enemy ought to be 
 restored on payment of salvage, without reference to the fact 
 whether they had been previously condemned or not. 
 
 If the case, said Story, J., stood on the Act of 1800 alone, it 
 was perfectly clear that the right of the proprietor was barred, for 
 the Act expressly excepts from its operation all cases where the 
 property had been condemned by competent authority, and the 
 same result flowed from the principles of international law. 
 
 " It is admitted on all sides by public jurists that in cases of capture a 
 firm possession changes the title to the property ; and although there has 
 been in former times much vexed discussion as to the time at which this 
 
 1 3 Wheat., 78 (1818). 
 
 2 C. CVII, Statutes at Large, U.S.A., Vol. II, 759- 
 
 2 S 
 
626 COMMERCE IN WAR 
 
 change of property takes place, whether on the capture or on pernoctation 
 or on the carrying infra praesidia of the prize, it is universally allowed 
 that, at all events, a sentence of condemnation completely extinguishes 
 the title of the original proprietor and transfers a rightful title to the 
 captors or their sovereign. It would follow, of course, that property 
 recaptured from an enemy after condemnation would by the law of nations 
 be lawful prize of war in whomsoever the antecedent title might have 
 vested." 
 
 The learned judge then cited the fifth section of the Act of 
 1812 :— 
 
 " That all vessels, goods, and effects the property of any citizen of the 
 United States or of persons resident within and under the protection of the 
 United States or of persons permanently resident within and under 
 the protection of any foreign prince, Government, or State in amity with 
 the United States, which shall have been captured by the enemy and which 
 shall be recaptured by vessels commissioned as aforesaid, shall be restored 
 to the lawful owners upon payment by them respectively of a just and 
 reasonable salvage, to be determined by the mutual agreement of the 
 parties concerned or by the decree of any court of competent jurisdiction, 
 according to the nature of each case, agreeably to the provisions heretofore 
 established by law." 
 
 He refused to admit that the section had adopted the principle 
 oi jus postliminii reserved to British subjects by the statutes of 
 George II and George III, even after condemnation. 
 
 The section contained no repealing clause of any of the pro- 
 visions of the Act of 1800, and therefore he held that both Acts 
 were to be construed together, and except so far as there was any 
 repugnancy between them to be considered as in full force. The 
 section was not free from doubt, but every portion of it might, by 
 the fair rules of interpretation, be deemed affirmative of the exist- 
 ing law. Lawful owners meant lawful owners at the time of the 
 recapture, and they were not the original proprietor, but the persons 
 who had succeeded to the title under the decree of condemnation. 
 
 " There does not, therefore, seem any solid reason on which to rest the 
 construction contended for by the claimant. And these are the most 
 weighty reasons, founded upon public inconveniency, upon national law, 
 and upon the very terms of the Salvage and Prize Acts for the contrary 
 construction. In considering the section in question as merely affirmative, 
 every difficulty vanishes, and the symmetry of a system apparently built 
 up with great care and caution, as well as in strict accordance with the 
 received principles of public law, is maintained and enforced." 
 
 Salvage an incident to the question of prize. — In the 
 
 "Adeline,"^ American property was restored on payment of 
 salvage, although no claim for salvage had been made. 
 
 1 9 Cranch, 244 (181 5). 
 
RECAPTURE AND RESCUE 627 
 
 " Recaptures," said Story, J., " are emphatically cases of prize ; for the 
 definition of prize goods is, that they are goods taken on the high seas 
 jure belli out of the hands of the enemy. . . . The Court, then, has a legiti- 
 mate jurisdiction over the property as prize, and having it, will exert its 
 authority over all the incidents. It will decree a restoration of the whole 
 or of a part ; it will decree it absolutely or burdened with salvage, and 
 whether the salvage be held a portion of the thing itself or a mere lien 
 upon it, or a condition annexed to the principal question of prize and 
 within the scope of the regular prize allegation." 
 
 The "Adeline" was an American private armed vessel captured 
 by a British squadron, which put a prize crew on board and ordered 
 her to Gibraltar. After being six days in possession of the British, 
 she was recaptured by the American privateer " Expedition," and 
 carried to New York. The vessel was restored by consent on 
 payment of one-half for salvage. 
 
 The recaptors claimed to be entitled under the Act of 1800 to 
 one-half the value of the cargo as well. Upon this point Story, J,, 
 said : — 
 
 " We are all, however, of a different opinion. The statute is expressed 
 in clear and unambiguous terms. It does not give the salvage of one- 
 sixth part of the value upon the goods the cargo of an unarmed vessel, 
 but it gives it upon any goods recaptured, without any reference to the 
 vehicle or vessel in which they are found. We cannot interpose a limita- 
 tion or qualification upon the terms which the Legislature has not itself 
 imposed, and if there be ground for higher salvage in cases of armed 
 vessels, either upon public policy or principle, such considerations must be 
 addressed with effect to another tribunal." 
 
 Recapture of the property of allies. — By section 3 of the 
 Act of 1 800, it is provided — 
 
 " That when any vessel or goods which shall be taken as prize as afore- 
 said shall appear to have belonged to any person or persons permanently 
 resident within the territory and under the protection of any foreign 
 prince. Government, or State in amity with the United States, and to have 
 been taken by an enemy of the United States, or by authority or pretence 
 of authority from any prince. Government, or State against which the 
 United States have authorized or shall authorize defence or reprisals, then 
 such vessel or goods shall be adjudged to be restored to the former 
 owner or owners thereof, he or they paying in lieu of salvage such pro- 
 portion of the true value of the vessel or goods so to be restored as by 
 law or usage of such prince. Government, or State within whose territory 
 such former owner or owners shall be so resident, shall be required on the 
 restoration of any vessel or goods of a citizen of the United States, under 
 like circumstances of recapture made by the authority of such foreign 
 prince, Government, or State ; and where no such law or usage shall be 
 known, the same salvage shall be allowed as by the first section of this 
 Act. Provided that no such vessel or goods shall be adjudged to be 
 restored to such former owner or owners in any case where the same 
 shall have been, before the capture thereof, condemned as prize by com- 
 petent authority, nor in any case where by the law or usage of the 
 
628 COMMERCE IN WAR 
 
 prince, Government, or State within whose territory such former owner 
 or owners shall be resident as aforesaid, the vessel or goods of a 
 citizen of the United States under like circumstances of recapture 
 would not be restored to such citizens of the United States. Provided 
 also that nothing shall be construed to contravene or alter the terms of 
 restoration in cases of recapture which are or may be agreed on in any 
 treaty between the United States and any foreign prince, Government, or 
 State." 
 
 It will be thus seen that in the restitution of the property of 
 alien friends or allies as well as of neutrals the principle of 
 reciprocity is applied by American law. In the "Adeline" part 
 of the cargo was claimed by French subjects, some residing in the 
 States and some in France, and part by alien friends. 
 
 " As to the claims of the parties domiciled in France," said Story, J., 
 "whether natives or Americans or other foreigners, their rights depend 
 altogether upon the law of France as to recaptures ; for by the Act of 
 Congress as well as by the general law, in cases of recapture the rule of 
 reciprocity is to be applied. If France would restore in a like case, then 
 we are bound to restore ; if otherwise, then the whole property must be 
 condemned to the recaptors. It appears that by the law of France in 
 cases of recapture, after the property has been twenty-four hours in posses- 
 sion of the enemy, the whole is adjudged good prize to the recaptors whether 
 it belonged to her subjects, to her allies, or to neutrals. We are bound 
 therefore in this case to apply the same rule, and as the property in this 
 case was recaptured after it had been in possession of the enemy more than 
 twenty-four hours, it must so far as it belonged to persons domiciled in 
 France be condemned to the recaptors." 
 
 Actual or constructive capture. — Military salvage will 
 not be allowed unless there is an actual rescue from the enemy, 
 but it is not necessary that the prize should have been in the 
 actual possession of the enemy ; it is sufficient if it was under his 
 power. 
 
 The "Franklin"^ was a British ship and cargo, which, owing 
 to alleged distress, was recaptured when putting into a Spanish 
 enemy port whilst deviating from her course. In refusing military 
 salvage Sir William Scott said that he knew of no case 
 
 "in which military salvage had been given where the property rescued 
 was not in the possession of the enemy, or so nearly as to be cer- 
 tainly and inevitably under his grasp. There has been no case when 
 possession, if not absolute, was not almost inseparable, as when the 
 ship had struck, and was so near as to be virtually in the hands and 
 gripe of the enemy. In such cases the same hazard is incurred by the 
 salvor, and the reason exists to hold out a stimulus to recaptors. But in 
 this case there was no enemy to encounter. The danger to the parties 
 was contingent only, and though probable to occur, had not actually 
 occurred." 
 
 ' 4 Rob., 147 (1801). 
 
RECAPTURE AND RESCUE 629 
 
 The learned judge, however, awarded civil salvage — ;^500 and 
 expenses. 
 
 The " Edward and Mary"^ was a British merchantman which, 
 separated from her convoy in a storm, was brought to by a French 
 lugger, whose master ordered her to stand by until the storm 
 moderated sufficiently to send a boat on board. They continued 
 alongside for some hours, when the British frigate, the "Arethusa," 
 came up, chased, and captured the lugger. During the chase the 
 " Edward and Mary " escaped and rejoined the convoy. 
 
 Although Sir William Scott arrived at the conclusion that the 
 recapture did not come within the statute, since the prize never 
 came into the actual and bodily possession of the recaptor, yet it 
 was still a case for salvage under the general maritime law, and he 
 awarded the same rate as if it had come within the Act. On the 
 question of possession by the enemy, he said : — 
 
 " It appears that the French vessel brought him to, and declared herself 
 a French privateer, and ordered him to lie to, but owing to the boisterous 
 state of the weather she did not send a man on board. I can by no 
 means agree to what has been advanced in argument that it was on this 
 account no capture. The sending of a prize-master on board is a very 
 natural overt act of possession, but by no means essential to constitute 
 a capture. If the merchantman was obliged to lie to and obey the direction 
 of the French lugger and await her further orders, she was completely 
 under the dominion of the enemy ; there was no ability to resist and no 
 prospect of escape." 
 
 In the case of the " Pensamento Feliz,"^ a Portuguese vessel 
 with a cargo belonging to British and Portuguese merchants, Sir 
 William Scott granted military salvage to the " Endymion" frigate 
 which had sent her boats into the port of Muros, in Spain, where 
 the prize had taken refuge in distress, and brought her out. 
 Muros had been seized by the French, who had momentarily 
 retired on another expedition ; but since they might have returned 
 whenever they chose, and would certainly have seized the vessel 
 if they had done so, the learned judge found that the vessel 
 was sufficiently within their power, though not in their actual 
 possession. 
 
 Hostile recapture. — The proprietary rights of the captors are 
 as a rule divested by hostile recapture, escape, or voluntary dis- 
 charge of the prize. Consequently, the Courts of the captors 
 which by a lawful capture had acquired jurisdiction over the prize, 
 although it might happen to be lying out of their jurisdiction, 
 lose such jurisdiction by circumstances such as the law of nations 
 can notice. 
 
 1 3 Rob., 305 (1801). 2 I Edw. Adm., 115 (1809). 
 
630 COMMERCE IN WAR 
 
 " Recapture, escape, or a voluntary discharge of the captured vessel," 
 said Marshall, C.J., in Hudson v. Guestier,^ " would be such a circumstance, 
 because the sovereign would be thereby deprived of the possession of the 
 thing and of his power over it." 
 
 It is the possession of the captor which gives the jurisdiction 
 to the sovereign. 
 
 So in the case of the " Diligentia,"^ the voluntary relinquish- 
 ment by Admiral Berkley of his control over the Danish ships, 
 induced by some mistake in law or fact, completely divested all 
 the rights of himself and those under him. 
 
 Rerecapture. — Where a hostile ship is captured and after- 
 wards recaptured by the enemy and then recaptured from the 
 enemy, the original captors are not entitled to restitution on 
 paying salvage, but the last recaptors are entitled to all the rights 
 of prize, for by the first recapture the whole right of the original 
 captors has been wholly divested. 
 
 In the case of the " Lucretia" (1778), the Court was disposed, 
 though apparently in departure from more ancient precedents, to 
 consider the original taker as the captor and the subsequent taker 
 as the recaptor, entitled to a high salvage. 
 
 But in the case of the "Polly" (1780), which had been rescued by 
 the American crew and retaken and condemned to the last captor by 
 the Vice-Admiralty Court in New York, upon the appeal to the 
 Lords of Appeal by the first captor, it was held that the latter 
 had not completed his possession, that the incipient interest which 
 had been acquired by the first taker was entirely divested by 
 the subsequent rescue, and that the final British captor was the 
 efficient captor, and as such entitled to the whole benefit of the 
 prize.* 
 
 The same decision was given in the case of the "Marguerite" 
 (1781), where the first recapture was made by a French frigate. 
 
 According to Valin, by an arr^t of 1748 the same rule was 
 established in the French Courts.* 
 
 " Veut et entend sa majesty que les prises des navires ennemis faites par 
 ses vaisseaux, ou par ceux de ses sujets arm6s en course, recousses par les 
 ennemis et ensuite reprises sur eux, appartiennent en entier au dernier 
 preneur." 
 
 The law of the United States is also the same. The " Astrea"* 
 was an enemy's vessel captured by an American privateer, re- 
 captured by another enemy's vessel, and again recaptured by 
 another American privateer. 
 
 1 4 Cranch, 293 (1808) ; 6 Cranch, 281. 
 
 2 I Dod. Adm., 404(1814). ^ ^ Rob., 217, note. 
 
 ' L'Ord., ii, 257-9 ; Traitd des Prises, c. VI, sec. I ; Pothier, de Propridt^, No. 99. 
 5 I Wheat., 125 (1816). 
 
RECAPTURE AND RESCUE 631 
 
 " An interest," said Chief Justice Marshall, " acquired by possession is 
 divested by the loss of possession, from the very nature of a title acquired 
 in war. The law of our own country as to salvage settles the question." 
 
 Rights of recaptors. — The right of the recaptors to salvage 
 is extinguished by a subsequent recapture, followed by a regular 
 sentence of condemnation, carried into execution and divesting the 
 owners of their property. 
 
 The " Charlotte Caroline "^ was a Swedish vessel captured by 
 the Danes, recaptured by the British, and again recaptured by the 
 Danes, and condemned for having sailed under a British convoy. 
 She was, however, restored by royal authority, and the master 
 again put into possession of his ship, and eventually reached her 
 original destination of a British port. 
 
 " The sentences of the Prize Court," said Sir William Scott, " are abol- 
 ished by an authority which, according to the constitution of that country, 
 is perfectly competent to do such an act ; and the legal fiction of conver- 
 sion is completely done away by the fact of restitution. The master is 
 reintegrated in his rights, and the vessel sails to their country exactly in 
 the same state as if she had proceeded on her original voyage and had 
 suffered no interruption from the Danish cruiser." 
 
 The learned judge accordingly held that since the recapture 
 nothing had occurred to defeat the right of the recaptors to 
 salvage. 
 
 The " Blenden Hall"^ was a British vessel captured by a 
 French frigate, which took out the crew and attempted to scuttle 
 her. She was discovered in a derelict condition by the post-office 
 packet " Eliza," which put an officer and ten men on board to 
 navigate the ship back to England. In the hurry of leaving the 
 packet, the crew forgot to take a log-glass, a watch, and a chart of 
 the Channel. When close to Plymouth, seeing a ship, they 
 hoisted a signal of distress, which was answered by the British 
 cruiser "Challenger." The commander of the "Challenger," 
 instead of complying with the request for these implements, took 
 possession of the " Blenden Hall," brought her into Plymouth, and 
 claimed as joint salvors. 
 
 In declaring that the King's ship had no claim as joint captor, 
 since there was no such necessity as to justify her interference, Sir 
 William Scott held that recaptors who have obtained possession of 
 a ship as salvors lawfully, and have thus acquired a legal interest, 
 cannot be divested of that right until adjudication has taken place 
 in a court of competent authority. 
 
 " It is not," he said, " for the King's officers or any other persons, on 
 the ground of superior authority, to dispossess them without cause, 
 
 1 I Dods. Adm., 192 (1812). ^ Ibid., 414 (1814). 
 
632 COMMERCE IN WAR 
 
 Cases may certainly exist in which the interference of the King's 
 officers may be not only justifiable, but even laudable. They may find 
 persons in possession who are unfit from inexperience to be trusted with 
 valuable property, or who have been guilty of gross misconduct, which 
 may render their removal proper and necessary. But these necessities 
 must be made apparent to the Court ; and persons taking possession and 
 bringing in a ship under such circumstances must understand that it is 
 their duty, in the first place, to justify themselves for the steps they have 
 taken." 
 
 Abandonment by original captors. — When there is volun- 
 tary abandonment of a prize by the original captor and it is 
 captured by another vessel, the latter is entitled to the benefit 
 of prize. The origin of this principle may be traced to the civil 
 law, which distinguished between a voluntary and compulsory 
 abandonment of possession, the former changing the right of 
 property, whilst the latter had no such effect.^ 
 
 The "Lord Nelson"" was an English vessel captured by a 
 French privateer and abandoned. It appears that the English 
 master, finding escape impossible, to prevent the enemy carrying 
 the vessel into a French port, cut away her masts. Finding it 
 impossible to carry her off in this condition, and sighting another 
 prize, the " Lord Nelson," her crew having been taken out, was 
 left to her fate. She was brought in by the English sloop-of-war 
 "Cherokee," and the question for the Court was whether this 
 should be considered merely as a case of salvage on recapture, 
 or as a derelict. 
 
 In allowing a moiety to the recaptors as salvage, Sir William 
 Scott said : — 
 
 " Here there was a total abandonment of their inchoate rights as cap- 
 tors, not under terror of any British force, but solely, as it appears, in con- 
 sequence of this act of the master. Suppose, therefore, that after this 
 voluntary abandonment the ship had been met by some French cruiser, 
 and that by means of jury-masts they had succeeded in carrying her into 
 a French port ; can there be any doubt that she would have been prize to 
 the second captor ? There was a total extinction of the rights of the first 
 captor, who had quitted the prize upon finding he could not carry her into 
 port, and having at the same time another object in view better worth his 
 attention. There was no application of force or terror ; it was a volun- 
 tary quitting, and the ship was therefore found in the situation of a dere- 
 lict, abandoned by all who could pretend to any right in her." 
 
 The "John and Jane"^ was an English vessel captured by the 
 French and abandoned. In granting salvage, Sir William Scott 
 said : — 
 
 ' Just. Inst., II, I, sees. 46, 47. See also Bynkershoek, Q.J. Pub., c. 4, 35 ; 2 Azuni, 
 part 2, c. 4, art. 2, sees, i, 3, 7 ; 2 Woodeson, 454 ; Goss v. Withers, 2 Burr, 693. 
 2 I Edw. Adm., 79 (1809) ; the " Mary Ford," 3 DalL, 188 (i79S)- 
 * 4 Rob., 216 (1802). 
 
RECAPTURE AND RESCUE 633 
 
 " I do not think that this is to be taken as a case of derelict. The 
 vessel appears to have been captured by the French and deserted, but 
 there is no animus derelinquendi imputable to the owner. The French 
 captors had left the vessel because, perhaps, they did not wish to be en- 
 combered with her or delayed in their cruise. But those who were in 
 possession as agents of the proprietor had not committed any act of dere- 
 liction. The principle of derelict does not, in my opinion, apply. If the 
 enemy had kept possession and maintained a contest, the law would have 
 given only one-sixth to a recaptor. Can it be said that the merit of the 
 salvors is greater, or that they are entitled to a greater reward because no 
 person was left on board the ship to defend her ? " 
 
 Under the circumstances, the learned judge awarded one-fourth, 
 which was going further than on strict principle was warranted. 
 
 The same course was followed in the " Gage,"^ which was a 
 British vessel with a cargo of timber which had been captured by 
 a French privateer, and found at sea by a British cruiser with a 
 fire burning in her cabin. 
 
 In allowing one-fourth as salvage it was thought, upon the 
 depositions alone, that it bore the appearance of a case of 
 derelict, and there was no evidence to show why the prize had 
 been abandoned. As there was nothing to show compulsory 
 abandonment, the Court held that it was not restricted to the rate 
 of salvage prescribed on recapture by the Prize Court, since this 
 was not strictly a recapture, but was entitled to exercise discretion 
 in allowing a larger award. One-fourth was allowed. 
 
 In the case of the " Diligentia," ^ there had been a seizure of 
 some Danish vessels in a Portuguese port by one British Admiral, 
 who withdrew from possession and left the vessels under the 
 control of their Danish masters, and a second seizure by another 
 British Admiral at a subsequent date. In deciding for the second 
 captors, Sir William Scott said the question was not only 
 
 "which is the person by whom a seizure was made, but which is the 
 party legally entitled to the character of captor ; for there may be many 
 successive captors, but only one can be legally entitled as captor to the 
 benefit of prize. If one party takes a vessel and afterwards abandons 
 her, and then another takes the same vessel, the last seizor is in law the 
 only captor. To this it must be added that the act of the commander 
 is binding upon the interests of all under him, and that he alone is 
 responsible for costs and damages. He has a right to examine the ship's 
 papers and to detain or not, according to his own notions of propriety. 
 He may, perhaps, act erroneously, and relinquish what would have been 
 good prize to himself and his crew. But if he does dismiss what he had 
 before seized upon, the interest of himself and all under him is concluded 
 by his act, and the same vessel lies open to seizure by any other captor 
 who may exercise a sounder discretion." 
 
 But if the abandonment is involuntary, produced by fear or 
 
 1 6 Rob., 273 (1806). ^ I Dod., 404 (1814). 
 
634 COMMERCE IN WAR 
 
 superior force, especially if produced by the second captors, the 
 rights of the original captors are completely revived. 
 
 The "Mary"^ was an English ship seized by the privateer 
 " Cadet," abandoned by her in fear of the armed brig " Paul 
 Jones," supposed to be a British cruiser, but which was, in fact, an 
 American privateer. 
 
 In delivering the opinion of the Court, Johnson, J., said : — 
 
 " We are of opinion that the facts stated make a clear case of tortious 
 dispossession on the part of the ' Paul Jones,' The privateer ' Cadet ' 
 had with great gallantry captured the 'Mary' and been in possession 
 of her a night and a day. The prize was close in upon the American 
 coast and making for a port which was open before her. It was not 
 until the superior sailing of the ' Paul Jones ' made it manifest that the 
 prize must be cut off from this port, and until she had been repeatedly 
 fired upon, that the prize crew abandoned her. There exists not a 
 pretext that this abandonment was voluntary, or would have taken place 
 but for the hostile approach of the ' Paul Jones.' Whether the vis major 
 acted upon the force or the fears of the prize crew is immaterial, since 
 actual dispossession ensued." 
 
 By Article IX of the ordinance of i68i,^ if a captured vessel is 
 abandoned by the enemy without being recaptured, or if by storms 
 or other accident it returns into the possession of French subjects, 
 without having been carried into an enemy's port, it must be 
 restored to the owner if claimed within a year and a day, although 
 the possession of the enemy may have continued more than 
 twenty-four hours. 
 
 " Si le navire," runs the ordinance, " sans gtre recous, est abandonn^ par 
 les ennemis, ou si par tempSte ou autre cas fortuit il revient en la possession 
 de nos sujets avant qu'il ait 6t6 conduit dans aucun port ennemi, il sera 
 rendu au proprietaire qui le rdclamera dans I'an et jour quoiqu'il ait iXi 
 plus de vingt-quatre heures entre les mains des ennemis." 
 
 Pothier, as Sir Robert Phillirhore points out, considers that 
 these words, avant quil soit entre dans aucun port ennemi, are to be 
 understood not as restricting the right of restitution, on payment 
 of salvage, to the particular case mentioned, of a vessel which is 
 abandoned by the enemy before being carried into port, which 
 case is mentioned merely as an example of what ordinarily 
 happens. 
 
 " Parceque c'est le cas ordinaire auquel un vaisseau 6chappe a I'ennemi 
 qui I'apris, ne pouvant plus gu^re lui dchapper lorsqu'il a kxk. conduit dans 
 son port."^ 
 
 Valin, on the contrary, contends that the terms of the ordinance 
 
 1 2 Wheat., 123 (1817). 
 
 2 Valin, Ord., ii, p. 257-9. "Traitd des Prises,'' c. vi., sec. i. See also D'Abreu, 
 "Prize," t. II c. V, sec. 10. 
 
 ' De Propridtd, No. 99. 
 
RECAPTURE AND RESCUE 635 
 
 are to be literally construed, and that the right of the original 
 proprietor is completely divested by the carrying into the enemy's 
 port. He considers that this species of salvage is analogous to 
 that in the case of shipwreck, and that the recaptors are entitled 
 to one-third of the value of the property saved. This is the view 
 taken in the United States in the case of the " Mary Ford,"^ which 
 was a British ship captured by a French squadron and abandoned 
 and set on fire, as the latter was too weak to leave a prize crew 
 on board. It was found on the high seas by the American ship 
 "George" and brought in. One-third was allowed to the recaptors 
 in consideration of the great peril they underwent and the services 
 rendered, and two-thirds were adjudged to the French captors, 
 since the Court were not satisfied that the abandonment under the 
 circumstances revived and restored the rights of the original 
 British proprietors. Azuni, however, maintains that the rate of 
 salvage is not regulated by the ordinance, but is discretionary, to 
 be apportioned according to the nature and extent of the services 
 rendered, which can never equal the rescue of property from the 
 hands of the enemy, or the recovery of goods lost by shipwreck.^ 
 These grounds are certainly very weak. Rescue from the enemy 
 may be effected by the mere sight of superior force, whilst the 
 carrying in of a dismantled ship may be attended with great 
 hazard and labour. Emerigon' also is opposed to Valin, and 
 supports his view by citing c. 287 of the " Consolato del Mare." 
 
 Recapture by neutrals. — When a prize is abandoned by the 
 original captors and it is found and brought in by neutral salvors, 
 the neutral Court has jurisdiction to award salvage, to determine to 
 whom the residue ought to be delivered, but not to inquire into 
 the validity of the capture if there has been an actual or con- 
 structive possession by the original captors. In the " Mary 
 Ford,"* the doctrine was thus laid down as sound : — 
 
 " The principle that neutral nations ought not to decide respecting the 
 lawfulness or unlawfulness of capture if it appears that the captor and the 
 nation from whom the property is taken are at war with each other, and 
 the captors or their vendees are in possession of the property, save where 
 the territorial rights of the neutral or the rights of their citizens are 
 involved in the question ; and that neutrals are always to take the existing 
 state of things as right, so that if either of the Powers at war, or those to 
 whom they have transferred it, are in possession of a thing taken from 
 their enemy in war, neutral Powers are to suppose them lawfully possessed, 
 and ought not to inquire how long or under what circumstances they have 
 possessed them. To interfere and decide in such cases must necessarily 
 imply a partiality contrary to the idea of neutrality, for they must either 
 give greater firmness to the capture by deciding it to be lawful, or weaken 
 
 1 3 Dall., 188. ^ Pt. II, c. IV, sees. 8, 9. 
 
 3 ".Des Assurances," I, p. 504-5. * 3 Dall., 192 (7796). - 
 
636 COMMERCE IN WAR 
 
 and render it less secure by determining it to be unlawful. Neither are 
 neutral Powers to give aid to either party by conducting their prizes for 
 them when they are too weak to protect and conduct them." 
 
 Donption by original captors to neutrals. — Where the 
 original captors make a donation of the prize to neutrals who 
 carry it into a neutral port, the latter are entitled to salvage, and 
 the original proprietors to the residue. 
 
 The " Adventure " ^ was a British vessel captured by two 
 French frigates. Part of the cargo having been taken out, the 
 " Adventure " was duly presented to the American crews (then 
 neutral) of two vessels which the frigates had just taken and burnt. 
 By the time the prize was carried to an American port war had 
 also broken out between England and / iierica. 
 
 " In this case," said Mr. Justice Johnson, " the most natural mode of 
 acquiring a definite idea of the rights of the parties in the subject matter 
 will be to follow it through the successive changes of circumstances by 
 which the nature and extent of those rights were affected — the capture, 
 the donation, the arrival in the neutral country, and the subsequent state 
 of war. As between belligerents capture undoubtedly produces a complete 
 devesture of property. Nothing remains to the original proprietor but a mere 
 scintilla juris, the spes recuperandi. The modern and enlightened practice 
 of nations has subjected all captures to the scrutiny of judicial tribunals as 
 the only practical means of furnishing documentary evidence to accompany 
 vessels that have been captured for the purpose of proving that the seizure 
 was the act of sovereign authority and not of mere individual outrage. In 
 the case of a purchase made by a neutral, Great Britain demands the 
 production of such documentary evidence, issuing from a court of com- 
 petent authority, or will dispossess the purchaser of a ship originally 
 British (the ' Flad Oyen '')? Upon the donation, therefore, whatever right 
 might in the abstract have existed, the donee could acquire no more than 
 what was consistent with his neutral character to take. He could be in no 
 better situation than a prize-master, navigating the prize in pursuance of 
 orders from his commander. The vessel remained liable to British 
 recapture on the whole voyage, and on her arrival in neutral territory, the 
 donee sunk into a mere bailee for the British claimant, with those rights 
 over the thing in possession which the municipal law (civil and common) 
 gives for care and labour bestowed upon it. The question then recurs, is 
 this a case of salvage? On the negative of the proposition it was con- 
 tended that it is a case of forfeiture under the municipal law, and therefore 
 not a case of salvage as against the United States ; that it was an 
 unneutral act to assist the French belligerent in bringing the vessel 
 infra praesidia or into any situation where the rights of capture would 
 cease, and therefore not a case of salvage as against the British claimant. 
 But the Court entertains an opinion unfavourable to both these objections. 
 This could not have been a case within the view of the Legislature when 
 passing the Importation Act of March, 1809. The ship was the plank on 
 which the shipwrecked mariners reached the shore, but to have cast into 
 the sea the cargo, the property of a belligerent, would have been to do 
 
 J 1 Wheat., 127, note (1814). * I Rob., 135. 
 
RECAPTURE AND RESCUE 637 
 
 him an injury by taking away the chance of a recovery, subject to which 
 they took it into their possession. Besides, bringing it into the United 
 States does not necessarily presuppose a violation of the non-importation 
 laws. If it came within the description of property cast casually on our 
 shores, as the Court is of opinion it did, legal provision existed for dis- 
 posing of it in such a manner as would comport with the policy of those 
 laws. At last, they could but deliver it up to the hands of the Government 
 to be reshipped by the British claimants, or otherwise appropriated under 
 the sanction of judicial process. And such was the course they pursued. 
 Far from attempting any violation of the laws of the country, upon their 
 arrival they delivered it up to the custody of the laws, and left it to be 
 disposed of under judicial authority. The case has no feature of illegal 
 importation, and cannot possibly have imputed to it the violation of 
 municipal law. As to the question arising on the interest of the British 
 claimants, it will, at this time (war having supervened), be a sufficient 
 answer that they who have no rights in this Court cannot urge a violation 
 of their rights against the libellants. But there is still a much more satis- 
 factory answer. To have attempted to carry the vessel infra praesidia of 
 the enemy would, unless it could have been excused on the ground of 
 necessity, have been an unneutral act. But where every exertion is made 
 to bring it into a place of safety, in which the original right of the captured 
 would be revived and might be asserted instead of aiding his enemy, it is 
 doing an act exclusively resulting to the benefit of the claimant." 
 
 Accordingly one-half was allowed as salvage, and the residue 
 stood over till the end of the war unless previously confiscated by 
 the Government. 
 
 Donation by original captors to enemies. — By section 1 2 
 of chapter 287 of the " Consolato del Mare " — 
 
 " If an enemy on capture of a ship or cargo make a gift of it, such 
 a donation or gift shall not be valid on any account ; except that if a gift 
 is made of the ship or cargo to those to whom it belonged, such donation 
 shall be valid. But if the captor bargains with the master in these words : 
 ' We are willing to give you your ship for nothing, but must have ransom 
 for the cargo,' such a donation shall not be good ; because in the case of 
 which we are now speaking, the enemy had not carried it into a place of 
 security, so as to say that he might not lose it, notwithstanding that he 
 might so far have obtained power over his prize so as to be able to burn 
 or sink it, though in such case it would be totally lost both to him and to 
 the owner; it is to be understood, therefore, that if the cargo is ran- 
 somed, the master to whom his ship has been so given is bound to con- 
 tribute to the ransom paid for the cargo according to the value of the 
 ship, and the same rule shall be observed e contra also and applied 
 equally to the ransom of ship or cargo." 
 
 Ransom. — Just as a master may hypothecate his cargo on 
 freight in a foreign port for repairing damages sustained at sea to 
 enable him to continue his voyage, and just as he may throw 
 overboard even the whole of the cargo in cases of extreme 
 necessity, so by the general maritime law he may bind by his 
 contract for ransom the whole of his cargo as well as the ship. 
 
638 COMMERCE IN WAR 
 
 All these principles are contained in the Laws of Oleron. In a 
 note to Article IX it is said that if pirates take the ship and cargo 
 entire and both are redeemed for a sum of money, the average 
 for that shall be common, and all those concerned shall con- 
 tribute.^ These provisions have been copied into the maritime 
 codes of almost every State in Europe. For instance, " Les 
 Costumes de la Mar" of the Black Book of the Admiralty of 
 England contain the following provisions : — 
 
 " C. CLXXXV. — The managing owner of a ship or vessel who in the 
 open sea or in port or on any coast or in other place shall meet with 
 armed vessels of the enemy may parley with, and make a convention with 
 the captains and with the admiral for a quantity of money in order that 
 they may do no harm to him nor to his ship. And if there are merchants 
 on board that ship or vessel, he ought to tell them the convention which 
 he will make or has made with them, that is, with the captains and the 
 admiral of that armed fleet, and altogether ought to agree and ought to 
 pay that ransom which the managing owner of the ship or vessel has 
 agreed to with the captains and with the admiral^ of that armed fleet. And 
 they ought to pay for the goods in common by shillings and pounds or by 
 besants, and the managing owner of the ship ought to contribute for half 
 the value of the ship or vessel. And if there be no merchants on board 
 the ship or vessel, the managing owner of the ship ought to take counsel 
 with the officers of the poop and with the mate and with the officers of 
 the forecastle. And if the managing owner of the ship pays the ransom 
 of which we have spoken with the counsel and with the consent of all 
 those above mentioned, the merchants to whom the goods belong ought 
 not to dispute anything, provided the managing owner of the ship pays 
 for half of that which the ship is worth. But, nevertheless, if the 
 managing owner of the ship or vessel meets, as above said, with the 
 armed vessels which shall not be enemies, and he wishes to give them a 
 present or refreshment if there are merchants in the ship, he ought to 
 speak to them and inquire if the merchants are willing to do so, and the 
 managing owner of the ship ought to say and do this with the counsel of 
 all those above mentioned. And if the managing owner of the ship does 
 not act with the consent of the merchants or with the counsel of those 
 above mentioned, and by his own authority makes a convention or gives 
 refreshment without the knowledge of the merchants or without the 
 counsel of the above-mentioned persons, the managing owner of the ship 
 ought to pay it out of his own property, for the merchants are not 
 liable to give him anything nor to replace anything of the expense or 
 of the compact for the refreshment which he has given to those armed 
 vessels."* 
 
 Subsequent chapters deal with the necessity of communicating 
 the agreement, if possible, to the merchants, and with their con- 
 tributions to the ransom. 
 
 ' Sea Laws, 136. 
 
 2 The use of the word admiral fixes the date of this law at a period subsequent to the 
 Fourth Crusade, i.e. c. 1 195. 
 
 3 Black Book of the Adm., Vol. Ill, 351. 
 
RECAPTURE AND RESCUE 639 
 
 The provisions relating to ransom contained in the " Consolato 
 del Mare," are to be found in chapter 287. 
 
 "II. If the enemy after a capture comes to any place where he takes a 
 ransom for his prize, if the proprietors wish to have their vessel or cargo 
 again, he or they who have ransomed her are bound to deliver her up to 
 the original owners on payment of the debt and charges and some further 
 allowance besides if they choose to accept it. 
 
 "17. If the master shall redeem any part of the cargo or make any 
 agreement with the consent of the major part of his co-partners by which 
 he shall regain the ship or cargo, he may compel them to contribute, by 
 course of justice, because they are as much under an obligation to him as 
 if they had agreed to take part in building or purchasing a new ship. 
 
 " 18. But if the master makes any agreement without the consent of his 
 partners or the major part of them, they are not bound to anything 
 unless they like it ; nor is the master answerable to them for the rights 
 and interests which they had in the ship at the time of capture ; saving 
 for any previous accounts which might be still remaining unsettled 
 respecting their shares in the ship or cargo at the time it was taken by the 
 enemy. 
 
 " 19. If the original proprietors are disposed to resume their shares and 
 the master makes any opposition, the justice of the country may compel 
 him to acquiesce, for there can be no ground of reasonable resistance on 
 his part if they are willing to pay their proportion of the expense ; and it 
 would be manifestly unjust that any one should dispossess the rest of their 
 property. 
 
 " 20. But if the master or any one for him redeems his ship or cargo, 
 after the enemy has gained a just title in it, and those who were part 
 owners refuse to pay, as before specified, the master or his agent ought to 
 repeat his demand upon them several times and call upon them to pay 
 their share ; and if they still refuse, it shall be put up to auction, with 
 permission of the Government, and be disposed of to the highest bidder. 
 
 "21. If the ship or cargo shall be sold for more, after such refusal, 
 than the ransom paid, the surplus shall be paid to the owners, according 
 to their shares, if the master chooses it ; otherwise, he is not obliged. 
 And the master shall have the privilege of retaining the goods in question 
 at the price that others are willing to give for them. 
 
 " 22. If the sale shall produce so much as the ransom ; if the master 
 made the ransom without the consent of his partners, they are not bound 
 for the deficiency unless they choose it ; and therefore it is reasonable 
 that the master or his agent should have the privilege, at the price that 
 any other person would give, as the deficiency would fall upon him ; 
 saving, however, that if any of the partners are inclined to resume their 
 shares, they are bound to make good the deficiency to him pro rata. All 
 the reasonings and cases and conditions above mentioned shall be taken 
 under the supposition that the enemy had carried the prize into a place of 
 security and that the ransom or sale had been made fairiy and without 
 fraud." 
 
 It will be observed from the last paragraph that the possession 
 of the prize by the captors is conceived to be determined by 
 
640 COMMERCE IN WAR 
 
 carrying it into a place of security, the infra praesidia of modern 
 practice. Under " Les Costumes de la Mar," actual control in 
 any place by the captors is deemed sufficient. 
 
 This power of hypothecation is recognized by most of the older 
 jurists. Bynkershoek, in his treatise on bottomry, describes it as — 
 
 "Contractus quo tota navis at partes, etsi actum est, etiam onus pro 
 pecunia erogata pignori ponitur ; Haec omnia obligavit magister et obligate 
 potuit." 1 
 
 And this principle was recognized in the common law courts in 
 England, in the reign of Charles I. In Justin v, Ballam,* decided 
 in the ist of Queen Anne, it was held that — 
 
 "By the maritime law, every contract of the master implies an 
 hypothecation ; but by the common law it is not so, unless it be so 
 expressly agreed," S 
 
 And so with ransom bills, which were agreements between the 
 master of a captured vessel or cargo and the captor, by which the 
 latter permitted the former to depart with his vessel and a safe- 
 conduct or licence in consideration of a sum of money secured by 
 a document executed in duplicate, one of which is kept by the 
 captor, and which is properly called the ransom bill, and the other 
 by the master which is called his safe-conduct. 
 
 It was unanimously decided in Ricord v. Bettenham^ that an 
 action by an alien enemy upon a ransom bill was maintainable, and 
 it was agreed that such an action had been allowed in other 
 European countries and upon principles which could not be 
 disputed. 
 
 This view was subsequently overruled in the case of 
 Anthon v. Fisher,* although Lord Mansfield dissented from the 
 opinion of the majority, holding that the contract of ransom, if 
 allowed to be made by a subject, is an implied suspension of 
 the disability to sue so far as the remedies on that contract are 
 concerned. Upon appeal by the unanimous opinion, however, of 
 all the judges of the Courts of Common Pleas and Exchequer, it 
 was held that an alien enemy could not by the municipal law of 
 this country sue for the recovery of a right claimed to be acquired 
 by him in actual war. 
 
 " Even in the case of ransoms," said Sir William Scott in the " Hoop,"^ 
 "which were contracts, but contracts arising ex jure belli, and tolerated as 
 such, the enemy was not permitted to sue in his own proper person for the 
 payment of the ransom bill ; the payment was enforced by an action 
 brought by the imprisoned hostage in the courts of his own country for the 
 recovery of his freedom." 
 
 1 Q. Jur. Priv., lib. Ill, c. XVI. ^ j Salk.,.34. 
 
 3 Burr. Rep., p. 1734 (1765). * Doug. Rep., p. 649 n. (1781). 
 
 * I Rob., 196 (1799). 
 
RECAPTURE AND RESCUE 641 
 
 This is a technical objection which is supported neither by any 
 principle nor by reason, and which is opposed to the general 
 usage. 
 
 " The effect of this contract," says Wheaton, " like that of every other 
 which may be lawfully entered into between belligerents, is to suspend the 
 character of enemy so far as respects the parties to the ransom bill, and 
 consequently the technical objection of the want of a persona standi in 
 judicio, cannot on principle prevent a suit being brought by the captor 
 directly on the ransom bill." 
 
 It would appear, therefore, that Lord Mansfield's view is more 
 consonant with sound morality and good policy and with the law 
 of nations and the eternal rules of justice than the narrow and 
 selfish purpose of the British Legislature. 
 
 " The practice in France," says Kent, " when a French vessel has been 
 ransomed and a hostage given to the enemy, is for the oificers of the 
 Admiralty to seize the vessel and her cargo on her return to port, in order 
 to compel the owners to pay the ransom debt and relieve the hostage; and 
 this is a course dictated by a prompt and liberal sense of justice."^ 
 
 Public vessels of war would appear not to be prohibited from 
 ransoming ships which they have captured, but by an ordinance 
 of 1 756 privateers could only do so after they had sent three prizes 
 into port. 
 
 In Spain, a privateer after the capture of three prizes may 
 ransom any subsequent prize, apparently because she would not 
 be in a condition to spare any more men for a prize crew. 
 
 The ransom of neutral vessels has been prohibited since 1782. 
 
 The practice was utterly prohibited in Sweden by a regulation 
 of 178 1 ; in Denmark, by one of 18 10; in Holland, by an ordin- 
 ance of 178 1 ; and in Russia, apparently since 1787.^ 
 
 Hautefeuille' is opposed to the majority of French and German 
 jurists, who consider that ransom of neutral property is permitted 
 by international law on the following grounds : (i) The seizure of 
 neutral property ought to be pronounced lawful by a decision of a 
 prize court; hence neutrals would be injured by demanding a 
 ransom from them upon such a decision. To this Gessner replies 
 that — 
 
 " The neutral consents to it, and no one takes from him the right of 
 demanding that his vessel shall be seized and tried. Moreover, the ransom 
 does not deprive him of the eventual benefit of a favourable sentence. 
 The proceedings follow their course none the less, and if they end in 
 clearing the vessel the captor of course must pay the ransom back. The 
 neutral then has in this case the advantage of avoiding seizure and of 
 freely continuing his voyage with his cargo."* 
 
 1 Comm., Vol. I, io8. See also Pothier, "Traitd de Propridtd/' No. 144. 
 ' Atlay's Hall, 460, n. ; Woolsey, Intro. Int. Law, p. 449. 
 3 IV, 262-4. ^ 338-43- 
 
 2 T 
 
642 COMMERCE IN WAR 
 
 (2) That by granting ransom to neutral vessels a nation and its 
 cruisers are accessories, so to speak, to their carrying contraband 
 to the other belligerent. To this Woolsey replies that the 
 belligerent would provide for his interests in the directions given 
 to his vessels of war, and, moreover, the safe-conduct would not 
 permit the neutral vessel, if it had contraband on board, to take it 
 to a blockaded port,^ 
 
 Eventually these ransom bills were considered as contrary to 
 public policy, inasmuch as they tended to relax the energy of war 
 by depriving cruisers of the chance of recapture, and so about 
 the middle of George Ill's reign the ransoming of captured 
 vessels was discountenanced and expressly prohibited by a statute,^ 
 which inflicted a penalty on any British captor who restored upon 
 ransom, and whidi declared that all ransom bills given by British 
 subjects should be null and void. 
 
 They were, however, subsequently, in cases of necessity, allowed, 
 
 "Ransoms," said Sir William Scott in the "Ship f^aken at Genoa," ^ 
 "have been forbidden as subject to great abuse, being in the common 
 acceptation contracts entered into at sea by individual captors, and very 
 liable to be abused to the great inconvenience of neutral trade. But even 
 ransoms under circumstances of necessity are still allowed," 
 
 In the case of the " Gratitudine," * Sir William Scott, in de- 
 fining the power of the master to hypothecate his ship and 
 cargo in cases of distress and jetison, states the principle upon 
 which it is based : — 
 
 "For though in the ordinary state of things he is a stranger to the 
 cargo, beyond the purposes of safe custody and conveyance, yet in cases 
 of instant and unforeseen and unprovided necessity the character of agent 
 and supercargo is forced upon him, not by the immediate act and appoint- 
 ment by the owner, but by the general policy of the law, unless the law 
 can be supposed to mean that valuable property in his hand is to be left 
 without protection and care. It must unavoidably be admitted that in 
 some cases he must exercise the discretion of an authorized agent over 
 the cargo, as well in the prosecution of the voyage at sea as in inter- 
 mediate ports into which he may be compelled to enter." 
 
 Analogous to cases of repairs caused by distress at sea or 
 jetison is that of ransom — 
 
 "in which it is well known," says the learned judge, "that by the 
 general maritime law a master could bind by his contract the whole cargo, 
 as well as the ship ; he could not go beyond the value of the goods, but 
 up to the last farthing of their entire value, there is not a doubt but he 
 might bind the cargo as well as the vessel ; a very modern regulation of 
 our own private law has put an end to our practice of ransoming, but I 
 am speaking of the general maritime law and practice, not superseded by 
 private and positive regulation." 
 
 ' Intro. Int. Law, ,p. 449. ^ 22 Geo. Ill, c. 25, 
 
 =* 4 Rob., 388 (1803), « 3 Rob., 240 (1801). 
 
RECAPTURE AND RESCUE 643 
 
 Where a hostage is given. — The ransom bill is not dis- 
 charged by the death or recapture of the hostage^ unless there is 
 an express stipulation to that effect, since the giving of a hostage 
 is only a collateral contract. A hostage is not an equivalent, but 
 a collateral security. Giving a pledge only strengthens the 
 obligation but does not discharge the debt, therefore the loss of 
 such collateral security does not cancel the contract or discharge 
 the debtor from his obligation to meet the ransom bill. And it was 
 so held in Ricord v. Bettenham.^ 
 
 Recapture of ransom bill. — According to Valin,^ the re- 
 capture of the ransom bill puts an end to the rights of the original 
 captor. The ransom bill becomes part of the capture made by 
 the recaptor, and the persons of the hostile nations, who were the 
 debtors of the ransom, are thereby discharged from their obliga- 
 tion under the ransom bill. 
 
 But if the bill has been transmitted to a place of safety, there 
 appears to be no reason why the rights of the original captor 
 should not be retained, although in practice they are not re- 
 cognized. 
 
 Extent of safe-conduct. — The safe-conduct or passport 
 merely insures the ransomed vessel against interference from or 
 recapture by the cruisers of the captor or of its allies, but not 
 against the perils of the sea. If, therefore, the ransomed vessel is 
 lost at sea or becomes a total loss, the debtors are not thereby 
 discharged from meeting the ransom bill. 
 
 But the vessel must not deviate from her course or exceed the 
 time mentioned in the safe-conduct, except under stress of weather 
 or unavoidable necessity. Any such (deviation entails a forfeiture 
 of the safe-conduct. If retaken under such circumstances, the 
 debtors of the ransom are discharged from their obligations, which 
 is merged in the prize, and the amount is deducted from the net 
 proceeds thereof and paid to the first captor, whilst the residue is 
 paid to the second captor.^ 
 
 The present practice is governed by the Prize Act, 1864,* 
 section 45, in which power is reserved to issue regulations by 
 Order in Council, subject to which^ 
 
 " Any contract or agreement entered into, and any bill, bond, or other 
 security given for ransom of any ship or goods, shall be under the exclusive 
 jurisdiction of the High Court of Admiralty as a Prize Court (subject to 
 appeal to the Judicial Coriimittee of the Privy Council), and if entered 
 into or given in contravention of any such Order in Council shall be 
 deemed to have been entered into or given for an illegal consideration. 
 
 " If any person ransoms or enters into any contract or agreement for 
 
 1 3 Burr., 1734. 2 Liv. Ill, lit. 9. 
 
 3 Halleck, p. 672. * 27 & 28 Vict. c. 25. 
 
644 COMMERCE IN WAR 
 
 ransoming any ship or goods in contravention of any such Order in 
 Council, he shall for every such offence be liable to be proceeded against 
 in the High Court of Admiralty at the suit of Her Majesty in her Office 
 of Admiralty, and on conviction to be fined in the discretion of the Court 
 any sum not exceeding ;£^SOo." 
 
 Ransom has never been prohibited by legislation in the United 
 States, and it has been expressly held, in Goodrich v. Gordon,' 
 that the Act of Congress of 2 August, 18 13, which interdicted 
 the use of British licences or passes, did not apply to contracts of 
 ransom. 
 
 " Such contracts," said Thomson, CJ., " are sanctioned by the law of 
 nations, and are not deemed a trading with the enemy, nor was the pass- 
 port given by the captors upon the ransom and accepted by the master 
 of the captured vessel in violation of the Act of Congress. It was 
 merely a certificate given by the captors to serve as a passport and 
 protect the ransomed vessel from all other armed vessels belonging to 
 the nation of which the captors were subjects, and to prevent another 
 capture." ^ 
 
 The general principles are admirably stated by Story, J., in the 
 case of Maisonnaire v. Keating.* 
 
 "The second question is, whether it be competent for a friendly 
 belligerent to demand or to take a ransom for restoring the property 
 of a neutral after capture. It is argued by the defendant that every 
 ransom supposes a vested right in the captors ; that this does not exist 
 in respect to neutrals, for the captors have only a right to bring in for 
 adjudication ; that neutral property is liable to condemnation only in 
 case of delinquency ; and that captors have no right to remit in behalf 
 of their sovereigns a forfeiture for violation of neutral duties. 
 
 " It is not true, however, that the right to take a ransom is founded 
 in a vested title in the captors to the captured property. For whether 
 the property vest after twenty-four hours' possession or after bringing 
 infra praesidia as seems the doctrine of the civilians ; or after condemna- 
 tion, 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 ascertain 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 speaking, 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 interest and 
 benefit which the captors might acquire or consummate in the property 
 by the regular adjudications 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 difference 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 probable cause of capture, or if the delinquency be such that the 
 penalty of confiscation might be justly applied, there can be no intrinsic 
 
 1 15 John, 6 (1818). 2 See 2 Azuni, 313-16. 
 
 5 2 Gall., 325 (1815). 
 
RECAPTURE AND RESCUE 645 
 
 difficulty in supporting a contract by which the captors agree to waive 
 their rights in consideration of a sum of money voluntarily paid or 
 agreed to be paid by the captured. Indeed, the case stands upon 
 a stronger ground than that of a ransom between enemies ; for the latter 
 have not in general a capacity to enter into contracts. The very law of 
 war prohibits all commercial intercourse and suspends all existing 
 contracts between enemies ; and the case of ransoms is almost the only 
 exception which has been admitted from the general rule. If, then, 
 neither the subject matter nor the nature of the title or consideration 
 nor the capacity of the parties presents any serious objection to the 
 contract, as between a friendly belligerent and a neutral, it remains to 
 consider if there be anything in the objection that it is a remitter of the 
 right of forfeiture which belongs exclusively to the sovereign. 
 
 " The commission of the sovereign, in general, authorizes only captures 
 of enemies' property. But without any express clause, this commission 
 clearly extends to the capture of all neutral property seized in violating 
 neutral duties, for in such case the property is deemed quasi enemies' 
 property ; and for the same reason it authorizes the bringing in of pro- 
 perty under neutral passports and papers for adjudication where there is 
 probable cause to suspect its real character, for until adjudication it 
 cannot be ascertained whether it be entitled to the protection of the 
 neutral character. If, therefore, the commission gives hostile property 
 to the captors and enables them to deliver it up on ransom, it also en- 
 ables them to do the same in respect to neutral property which has 
 acquired a hostile taint, and the ransom is not, in the one case, any more 
 an exercise of the sovereign's prerogative to remit a forfeiture than it is 
 in the other. In both instances it is considered by the law of nations as 
 a mere remitter of the rights of the captors acquired jure belli, and every 
 prohibition of its exercise must expressly depend upon the municipal 
 regulations of the particular country. Upon principle, therefore, the dis- 
 tinction of the counsel for the defendant as to the incompetency of a belli- 
 gerent to deliver neutral property on ransom is unsupported, and there is 
 not a scintillation of authority in its favour." 
 
 FORMALITIES OF RECAPTURE 
 
 Great Britain — 
 
 Recapture of a British Vessel 
 
 "261. It is the duty of the commander, if possible, to rescue any 
 British vessel which he may find attacked or captured by the enemy. 
 
 " 262. If he succeed in effecting the rescue of such a vessel, he may either 
 at once send her in for adjudication, or at his option, unless she shall have 
 been already carried into an enemy's port, or set forth or used by the 
 enemy as a ship of war, allow her to prosecute her voyage and unlade 
 and dispose of her cargo. 
 
 "263. Upon adjudication the Prize Court will order the vessel and 
 cargo to be restored to their respective owners upon payment by them of 
 prize salvage. 
 
 " 264. If the commander shall have allowed the vessel so to prosecute 
 her voyage, he will be allowed to defer proceedings for adjudication till 
 the return of the vessel to a port within the United Kingdom. 
 
646 COMMERCE IN WAR 
 
 " 265. In case the vessel shall not within six months return to some 
 port within the United Kingdom, the recaptors may nevertheless institute 
 proceedings against the ship or goods in the Court exercising prize 
 jurisdiction in England, and the Court may thereupon award prize salvage 
 and may enforce the payment thereof eiliier by warrant or arrest against 
 the ship or goods or by monition and attachment against the owner.^ 
 
 " 266. The prize salvage which will be awarded to the recaptors for the 
 recapture of any British vessel before she has been carried into an enemy's 
 port is one-eighth part of the value of the prize ; or in case the recapture 
 has been made under circumstances of special difficulty or danger, a sum 
 not exceeding one-fourth part of the value.^ 
 
 " 267. If, however, the vessel has, before her recapture, been set forth or 
 used by the enemy as a ship of war, then upon recapture the original 
 owner is not entitled to restitution, but both vessel and cargo will be con- 
 demned as lawful prize to the recaptors.^ 
 
 " 268. The commander will be justified in considering a vessel to have 
 been set forth or used by the enemy as a ship of war if after capture she 
 has been commissioned by the enemy as a ship of war, or has been used 
 as a privateer, or has been armed by an enemy officer ostensibly in the 
 exercise of authority ; but not if no more has been done to her than the 
 augmentation of her crew or the arming of her by persons not in 
 authority. 
 
 Recapture of a British Prize 
 
 " 269. It may happen that an enemy vessel which has been captured by 
 a British cruiser is afterwards lost to an enemy's cruiser and finally 
 recaptured by another British cruiser. The commander effecting such a 
 recapture should send in the vessel for adjudication and the original 
 captors are not entitled to restitution, but both vessel and cargo will be 
 condemned as lawful prize to the recaptors. 
 
 Recapture of a Neutral Vessel 
 "270. If a commander recapture from the enemy a neutral vessel 
 which would not have been liable to condemnation in the Prize Court of 
 the enemy, he is not entitled to salvage ; and should without delay and 
 without taking ransom, set her free to prosecute her voyage. 
 
 Recapture of an Allied Vessel^ 
 "271. If a commander recapture from the enemy an allied vessel, his 
 duty is generally regulated by treaty. In default of treaty regulations, 
 he will send her into a British port for adjudication ; and the Prize Court 
 will award salvage or not, according as the Prize Court of the ally would 
 orj would not have awarded salvage to an allied ship for recapturing a 
 British vessel." ^ 
 
 ' See Naval Prize Act, 1864, sec. 41, Appendix. 
 2 Ibid., sec. 40. ^ Ibid. 
 
 * "War Onskan," 2 Rob., 299 (1799). 
 Holland, Manual of Naval Prize Law, 76-79. 
 
INDEX 
 
 Abandonment, 608, 610, 611, 632-5 
 Accessibility of port of adjudication, 515 
 Account of valuables seized, 579 
 Actual or constructive capture, 628-9 
 Adjudication, 
 
 release before, 5 24-8 
 Adjudication, port of, 
 
 sending in to, 573, 585 
 
 Admiralty, Manual of Prize Law, 
 
 capture, 575-89 
 
 list of contraband articles, 58 
 
 recapture, 645-6 
 
 visit and search, 322, 341, 343-5, 353- 
 60 
 Affirming gun, 338 
 "Alabama," 
 
 case of the, 445-7 
 Ambassadors, 311-15 
 Analogues of contraband, 305, 311-15 
 
 Ancipitis Usus, 
 
 destination the true test, 64, 72 
 
 doctrine of, 1 1 
 
 how applied by Court of Admiralty in 
 Great Britain, 56 
 
 ditto in France, 57 
 
 ditto in Spain, 57 
 
 ditto in United States, 56 
 Antecedent services, 550 
 Approach, the, 300, 338-41 
 Armed neutrality of lySo, 332 
 
 blockade, 99 
 
 doctrine as to contraband, 25, 289 
 
 free ships, free goods, 286, 289, 293 
 
 Armed neutrality of 1800, 
 
 doctrine as to contraband, 29, 291 
 free ships, free goods, 291 
 visiting convoyed vessels, 333 
 
 Armed belligerent carrier, 363-74 
 
 Armed private vessel, 363 
 
 Association of captors, 581 
 Asylum of criminals 
 
 on warships and other public vessels 
 abroad, 300-1 
 Augmenting ships of war, 418-32, 439 
 
 Bearers of despatches, 304-7 
 
 Beasts of burden as contraband, 48, 54-5, 
 
 59,68 
 Belligerents, 
 
 carriage of neutral goods by, 284 
 carriage of enemy's goods by neutral, 
 
 284 
 carriage of despatches in service of, 
 
 3?4 
 carriage of persons in service of, 
 
 309 
 convoy of neutrals by, 325-8 
 rights must be exercised by commis- 
 sioned ships, 542 
 right to interfere with neutral trade, 
 93 
 Bill of Health, 346-7 
 Bill of Lading, 346 
 Bill of Sale, 346 
 Black Sea, blockade of, 396 
 Black Book of the Admiralty, 638 
 Blockade, 
 
 admission of evidence of, 264 
 American doctrine of hmitation of, 
 
 126, 133 
 areas of sea made limits of, 158, 172, 
 
 181, 182 
 arbitral decision of President of Chili 
 
 on principles of, 172 
 canal transit not a breach of, 256 
 cessation of penalty, 391, 396 
 character and object of, 115 
 codes des prises, 591 
 commercial, 96 
 Declaration of Paris as to, 160 
 
 647 
 
648 
 
 COMMERCE IN WAR 
 
 Blockade, 
 
 definition of, 92, 174 
 
 definition of, under First Armed Neu- 
 trality, 123 
 
 deviation presumed in service of 
 cargo, 393 
 
 distinction between siege and, 92 
 
 distinction between, and municipal 
 right to close port, 162 
 
 doctrine of British Prize Court, 102 
 
 does not apply to ships of war, 134 
 
 effect of contingent destination, 398 
 
 effective, 95-100 
 
 effective, view of Great Britain as to, 
 164 
 
 entry from distress into blockaded 
 port, 393 
 
 evidence of destination to blockaded 
 port must be definite and positive, 
 
 255 
 fictitious, 96-7 
 instances of special notification by 
 
 Great Britain, 150, 156 
 justification for breach of, 103 
 limit of time for egress of neutral ship, 
 
 177 
 list of cases on, 185 
 mail packets exempted by France, 
 
 147. 303 
 Monroe's definition of, 126 
 neutral cannot set up treaty rights 
 
 with state blockaded, 145 
 notification of, 98-105, 122, 124 
 notification of, doctrine of British Prize 
 
 Court as to, 102 
 observance by Japan of rule in 
 
 Declaration of Paris, 100 
 of Venezuela in 1902, 113 
 of declaration of United States as to, 
 
 162 
 of seaboard of Confederate States, 100 
 origin of, 93, 144 
 pacific, 105-16 
 
 pacific, of Greece in 1886, 178 
 penalty for breaking de facto blockade, 
 
 389-98 
 power of naval officer to declare, 116, 
 
 117 
 subjection of public vessel by Porte in 
 
 1835, 143 
 termination of, 117, 145 
 theories of jurists on, 93-6 
 view of Great Britain as to, 164 
 Booty 
 
 by sea, 606-20 
 on land, 606 
 
 Bosphorus and Dardanelles, 541 
 British Foreign Enlistment Act, 463-66 
 British subjects on enemy's ship, 581 
 Bullion, 
 
 as contraband, 49, 82 
 
 Canada, 
 
 invasion of, 435, 437 
 Canals, 256 
 
 Canon d' Assurance, 338 
 Capacity of port of adjudication, 515 
 Captors, 
 
 conversion by, 523 
 
 delay by, in proceeding, 520-1 
 
 duties of, 512-17, 575-94 
 
 duty of, to preserve ship and cargo, 
 
 523 
 
 embezzlement by, 523 
 
 liable for acts of agents, 517-20 
 
 negligence by, 524 
 
 treatment by, of neutral crew, 520 
 Capture, 
 
 effect of, 361, 377-84, 391-3 
 
 mode of, 512 
 
 neutral liable to incidental loss from, 
 298 
 
 ransom after, 585, 610-11, 637-42 
 
 release of, 524-8 
 
 valid grounds for, 361 
 Cargo, 
 
 carriage of noxious despatches, 376 
 
 carriage of military and naval officers, 
 
 375 
 engaging in colonial or coasting trade 
 
 of belligerent, 398-407 
 if unfit to be sent in, 588 
 penalty for resistance to visit and 
 
 search, 361 
 penalty for breach of blockade, 391-3 
 penalty for carriage of contraband, 
 
 377-84 
 sale of, 530-8, 588 
 
 Ceremonials, maritime, 338-40 
 
 Certificate, 
 
 of build, 351 
 
 of clearance, 346 
 
 of nationality, 348-50 
 
 of registry, 345 
 
 of tonnage, 350-51 
 Charter-party, 345 
 Claimants, 
 
 delay by, 521-2 
 Clearance, certificate of 346 
 
INDEX 
 
 649 
 
 Clothing, 
 
 as contraband, 281 
 Coal, 
 
 contraband, 5, 42-4, 51, 59, 84 
 
 declared contraband by Spain, 41 
 
 held to be contraband by Supreme 
 Court of Russia, 88 
 
 protest by Bismarck against exporta- 
 tion of, 60 
 
 protest by Great Britain as to in- 
 clusion by Russia, 51 
 Coasting trade of enemy, 398-407 
 Code des Prises Maritimes, 6, 105, 116, 
 
 352. 359-60, 388, 461, 537, 589-94 
 Colonial trade of enemy, 398-405 
 Commercial blockade, 96 
 Commission, validity of, 462, 581 
 Compulsion, 
 
 transport of noxious persons by, 308 
 Confederate States, 
 
 blockade of seaboard of, 100 
 
 destruction of prizes by, 529 
 
 recognition of belligerency, 312 
 Conjunct military and naval expeditions, 
 
 557-60 
 Consolato del mare, 284, 286, 609-11, 639 
 Constructive assistance, 545-50, 
 Constructive capture, 628-9 
 Concealment of papers, 498, 504-5 
 Continuous voyage, 
 
 doctrine of, 253 
 
 interposition of neutral port, 259 
 
 judgment of Conseil des Prises, 273 
 
 judgment of Sir W. Grant, 268 
 
 real destination true test, 259 
 
 rule by Sir W. Scott, 261 
 
 suspicion of illegal destination not 
 sufficient, 225, 259 
 
 unsound doctrine of American courts, 
 254 
 Contraband, 
 
 analysis of diplomatic documents, 54 
 
 artillery, 81 
 
 balks, 73 
 
 battens, 73 
 
 barley, 385 
 
 bayonets, 281 
 
 biscuits, 78, 381 
 
 blankets, 81, 281 
 
 boots, 81 
 
 bullion, 49, 82 
 uttons, 281 
 
 canons of Lateran Council, 7 
 
 Contraband, 
 cheese, 72, 78 
 coal, 5, 42-4, 51, 59, 84 
 copper, 71, 78, 382 
 cordage, 387 
 corn, 81 
 
 cotton, 5, 49, 91 
 deals, 70, 71 
 definition of, i 
 
 despatches, 47, 66, 79, 376, 387 
 edicts of Roman emperors, 7 
 fir planks, 73 
 flour, 78, 90, 381 
 freight and expenses, 384-5 
 freight and expenses, view in U.S.A. 
 
 as to, 385-6 
 general policy of British Prize Courts, 
 
 55.58 
 
 gm, 387 
 
 grain, 80, 81 
 
 Grotius on, 4 
 
 guns, 70 
 
 harness, 81 
 
 hemp, 71, 73, 74, 76, 380 
 
 hogsheads, 71 
 
 horses, 49, 83 
 
 iron, 71, 380, 384,387 
 
 list of, in British Manual of Naval 
 Prize, 58 
 
 logs, 91 
 
 masts, by British Prize Court, 68, 71,77 
 
 money, 49, 82 
 
 naval stores, 50, 381 
 
 oats, 385 
 
 penalty attaches from commencement 
 of illicit voyage, 386-7 
 
 penalty for carriage of, 377-84 
 
 pewter, 71 
 
 pitch, 56, 58, 71, 73, 75, 380, 384 
 
 plate, 82 
 
 policy of Great Britain, France, and 
 Russia, 38 
 
 policy of Great Britain and U.S.A. 
 during American Civil War, 39 
 
 policy of various countries, 56 
 
 policy of Russia in 1877, 43 
 
 policy of Japan in 1900, 47 
 
 policy of Russia in 1900, 47 
 
 policy of France, 51, 57 
 
 powder, 70 
 
 provisions, 44, 45, 53, 61, 82, 386 
 
 pitch and tar, 56, 58, 73, 75 
 
 rice, 44, 45 
 
 right to continue voyage upon sur- 
 render of, 387-9 
 
 rosin, 76 
 
650 
 
 COMMERCE IN WAR 
 
 Contraband, 
 
 sailcloth, 71, 73, 385 
 
 saltpetre, 275 
 
 ships, 50, 77, 381, 407-14 
 
 shot, 70 
 
 swords, 281 
 
 table of cases, 67 
 
 tallow, 73 
 
 tar, 71, 73, 75, 83, 380, 382, 384 
 
 timber, ship's, 78 
 
 troops, 50, 70 
 
 wine, 76, 381, 387 
 Convoy, 
 
 by treaty, 331-37 
 
 rule as to, 322-28 
 Co-operation of captors, 581 
 Costumes de la mar, 639, 641 
 Cotton 
 
 declared contraband by Russia, 48, 61 
 
 declared contraband by United States, 
 61 
 Couriers, immunities qf,^ii 
 Crimean War, 
 
 carriage of enemy's goods, 297 
 
 destruction of enemy vessel, 534 
 
 policy of England, France, and Russia 
 as to contraband, 38 
 
 Danube, 
 
 blockade of the, 156 
 Dardanelles, 541 
 Declaration of Paris, 
 
 blockade, 160 
 
 blockade, observance by Japan of rule 
 in, as to, 100 
 
 contraband, 38, 275, 284 
 
 privateers, 317, 319, 541-2 
 Delay 
 
 by captors, 520 
 
 by claimants, 521-2 
 Despatches, 66, 79, 304-7, 31 1 
 
 character of, 307 
 
 effect of carrying, 376 
 Destination, 
 
 effect of contingent, 398 
 
 evidence of, 255 
 
 hostile, 387-7 
 Destruction of enemy vessels, 298, 528-31, 
 
 589 
 Destruction of neutral vessels, 531-8, 589 
 
 Destruction of ship's papers, ^^i, 504-5 
 
 Detention of prize, 561, 571, 577, 580 
 
 Deviation to blockaded port, 393-8 
 
 Diplomatic agents, immunities of, 311-15 
 Donation to neutrals, 636-7 
 Donation to enemies, 637 
 Droits of A dmiralty, 315, 559 
 
 Effect of treaties, 7-42, 303-4, 331-7 
 Effective blockade, 95-100 
 Embezzlement by captors, 523, 580 
 Employment 
 
 in the service of belligerents, 308-15 
 Enemy character, 
 
 of goods, 285 
 
 of persons, 308 
 Enemy's ships, enemy's goods. (See Free 
 
 ships, free goods) 
 Equipping, etc., vessels for belligerents, 
 416-66 
 
 due diligence, 459 
 
 intent as test of guilt, 460 
 
 law of U.S.A., 417-37 
 
 law of Great Britain, 437-59 
 Evidence, 
 
 documents and witnesses, 580 
 
 of nationality by papers, 347-52 
 
 probable cause for detention, 576 
 
 Expedition, 
 
 naval or military expedition, 464, 469, 
 484, 488, 490, 491-6, 557-60 
 Exterritoriality 
 
 in foreign waters, 300 
 
 of diplomatic agents, 311 
 
 of public vessels, 300-1, 457 
 
 False colours, 339, 343 
 
 False papers, 353, 498-503 
 
 Fenian raids into Canada, 437 
 
 Fictitious blockade, 96-7 
 
 First armed neutrality, 99, 286, 289, 293, 
 
 332 
 
 Flags, 
 
 commercial, 541 
 
 use of false, 339, 343 
 "Florida," 
 
 case of the, 444-5 
 Foreign enlistment, 
 
 Austria, 481 
 
 Bavaria, 481 
 
 Belgium, 472 
 
 Brazil, 481 
 
 Denmark, 479-81 
 
 France, 471-2 
 
 Great Britain, 2, 437-69 
 
INDEX 
 
 Foreign enlistments, 
 Italy, 474-s 
 Japan, 482-3 
 Netherlands, 473-4 
 Portugal, 476-8 
 Prussia, 479 
 Spain, 475-6 
 Sweden, 479 
 United States, 2, 417-37, 483-98 
 
 Foreign Enlistment Act (1870), 463-66 
 decisions on, 466-71 
 
 Fraudulent Acts, 
 
 breach of blockade, 393 
 carriage of contraband, 380 
 carriage of false papers, 381, 498-503 
 carriage of noxious despatches, 304 
 carriage of noxious persons, 308 
 
 Free ships, free goods; enemas ships, 
 
 enemy s goods, 
 Bolivia, 295 
 Brandenburg, 296 
 Brazil, 295 
 
 Central America, 295 
 Chili, 288, 29s 
 China, 295 
 Columbia, 294 
 
 Denmark, 287, 289, 290, 291, 296 
 Dominican Republic, 295 
 Ecuador, 288, 295 
 France, 284, 285, 286-8, 290, 294, 
 
 296, 297 
 Great Britain, 285, 286, 287, 288, 
 
 289, 290, 291, 294, 296-8 
 Guatemala, 288, 295 
 Hamburg, 287 
 Hanse Towns, 287 
 Hayti, 295 
 Holland, 289 
 Italy, 295 
 
 Mecklenbourg-Schwerin, 287 
 Mexico, 284, 295 
 Morocco, 294 
 Naples, 289 
 Netherlands, 293 
 New Grenada, 288, 295 
 Peru, 295 
 
 Portugal, 286, 289, 290, 296 
 Prussia, 285, 289, 290, 294 
 Russia, 287, 288, 289-91, 29s, 297 
 San Salvador, 295 
 Savoy, 296 
 
 Spain, 284, 286, 287, 288-9, 294, 296 
 Sweden, 286, 287, 289, 290, 291, 294, 
 Tripoli, 294 
 Tunis, 294 
 
 651 
 
 enemas skips. 
 
 Free ships, free goods 
 enemy's goods, 
 Turkey, 286 
 Two Sicilies, 290, 295 
 United Provinces, 286, 287, 288, 2891, 
 
 296 
 United States, 284, 289, 291-6 
 Venezuela, 284, 288, 295 
 Freight and expenses, 384-6, 401-2 
 
 Genit, M., 
 
 attempt to involve U.S.A. in war \\fith 
 Great Britain, 417 
 ''Georgia^' 
 
 case of the, 447-8 
 Grain 
 
 as contraband, 80, 81 
 
 Hemp, 
 
 as contraband, 71, 73, 74, 76, 380 
 High Seas, 
 
 right of search on, 304 
 
 Horses, 
 
 as contraband, 49, 83 
 
 Hostage, 643 
 
 Hostile destination, 386-7 
 
 Hostile recapture, 629-30 
 
 Ignorance, 
 
 of contraband, 377, 385 
 
 of noxious despatches, 304-6 
 
 of noxious persons, 308 
 Illegal enlistment, 463-5 
 Illegal intention, 387 
 Illegal prize, 465 
 
 Illtreatment by captors, 520, 574, 580-1 
 Infectious disease, 528, 574 
 Infra praesidia, 
 
 rule of, in recapture, 607, 619 
 Instituteof international law, 6, 105, 116, 
 
 352. 359, 461. 537. 589-94 
 Insurance of prize, 414, 587 
 
 Insurgents 
 
 recognized as belligerents, 312, 321-2, 
 486, 493-7 
 International Law, 
 
 distinction between, and municipal 
 law, 329, 422, 451 
 International Postal Union, 303 
 
 Inviolability, 
 
 of diplomatic agents, 311-151 
 
652 
 
 COMMERCE IN WAR 
 
 Inviolability, 
 
 of neutral property, 523 
 
 of private property at sea, 317, 320-1, 
 470 
 Invoices, 346 
 
 Jameson Raid, 469 
 Japan, 
 
 instructions to naval commanders, 537 
 
 policy as to contraband in 1900, 47 
 Joint capture, 543-71. S^i-S 
 Jurisdiction 
 
 in foreign ports, 300-1 
 
 on the high seas, 304 
 
 over pirates, 300 
 
 over slave-traders, 300 
 Jus postliminii, 
 
 rule of, 606-8 
 
 " Knight Commander" 
 case of the, 536, 541 
 
 Lawfully commissioned ship, 315-22, 
 
 541-3 
 Legate, 
 
 immunities of, 311-15 
 Letters of marque, 315, 321 
 Licence to trade, 532-3 
 Log-book, 346 
 
 Mail-bags, 301-3 
 Mail-boats, 
 
 blockade, 147 
 
 immunities of, by treaty, 303-4 
 
 search, 301-3 
 "Malacca," 
 
 case of the, 541 
 Manifest 
 
 of cargo, 346 
 Manual of Naval Prize Law, 58, 322, 
 
 341, 343-7. 354-5. 575-89. 645-6 
 Maritime ceremonials, 338-40 
 Masts, 68, 71, 77 
 Materials of naval construction, 
 
 as contraband, 68, 70, 71, 73, 77, 78, 
 83, 91, 382 
 Men-of- War 
 
 in foreign waters, 300-1 
 
 on the high seas, 304 
 Merchant vessels, 300-1 
 Messengers of ambassadors, 311 
 
 Ministers. (See Diplomatic agents) 
 Money 
 
 as contraband, 49, 82 
 Municipal law, 
 
 belligerents and, 322, 329 
 
 distinction between, and International 
 law, 329, 422, 451 
 Municipal regulations 
 
 are not International law, 537 
 Munitions of war, 275 
 Muster roll, 346 
 
 Names of vessels, 357, 507 
 Nationality, certificate of, 348-50 
 
 evidence of by ship's papers, 347-52 
 Naval Prize Act (1^6^), 559, 562 
 Naval stores, 
 
 as contraband, 50, 381 
 Navigation of prize, 586 
 Neutrality, 
 
 definition of, 2, 416 
 
 warranty of, 505-11 
 Neutrals, 
 
 definition of, 2, 416 
 
 duties of, 2 
 
 donation to, 636 
 
 recapture by, 635-6 
 
 rights of, 311 
 Notification of blockade, 91-105, 122, 
 
 124, 390 
 Noxious persons, 
 
 transport of, 308-1 1 
 
 Oliron, laws of, 6^?) 
 
 Paris, 
 
 Declaration of, 38, 100, 160, 275, 
 
 284, 317. 319. 541-2 
 Treaty of, 540 
 
 Pacific blockade, 105-16, 178 
 
 Packet-boats. {See Mail-boats) 
 
 "Parlemente Beige," 
 case of the, 301 
 
 Passport, 345 
 
 Penalty, 
 
 acting as enemy's transport, 375 
 breach of blockade, 389-98 
 carriage of enemy's military or naval 
 
 oflScers, 375 
 carriage of contraband, 377 
 carriage of enemy's despatches, 376 
 carriage of false papers, 498-503 
 
INDEX 
 
 653 
 
 Penalty, 
 
 colonial or coasting trade of enemy, 
 398-407 
 
 delayin sending inforadjudication.sSs 
 
 proceeding as vessel equipped for 
 war, 407-16 
 
 resistance to visitation or search, 
 361-74 
 "Petersburg^' 
 
 case of the, 541-2 
 Pirates, 
 
 arrest of, 300 
 
 recapture from, 594 
 Pitch, 
 
 as contraband, 56, 58, 71, 73, 75, 83, 
 380, 38r, 384 
 Possession bona fide, 516 
 Postal Union, 303 
 Prize, 
 
 abandonment of, 608, 610, 611, 632-5 
 
 destruction of, 528-38, 589 
 
 distribution of, 560-1, 611-20 
 
 ransom of, 585, 610-11, 637-42 
 
 recapture of, 595-6, 606-20, 622-4, 
 627-8 
 
 sale of, 530 
 
 statutory regulations as to, 561-71 
 Prize Courts, 513, 515 
 Prize crew, 
 
 lack of, 574 
 Port of adjudication, 515, 573, 585-6 
 Possession of prize, 516, 575 
 Pre-emption, 387 
 Prisoners, 
 
 treatment of, 520, 574, 580-1, 584 
 Private property, 
 
 inviolability of, 317-21, 470 
 Privateers, 315-21, 541-2, 544-5 
 Probable cause of capture, 
 
 evidence of, 576 
 Proceeds of prize, 
 
 distribution of, 560-1 
 
 statutory regulations, 561-71 
 Projet de Riglement des prises maritimes, 
 
 blockade, 105, 116, 591-2 
 
 capture, 461, 537, 59°-!. S92-4 
 
 contraband, 6, 388 
 
 visit and search, 352, 359-60 
 Provisions, 
 
 contraband, 44, 45. 53) ^i, 82 
 
 Ransom of prize, 585, 610-11, 637-42 
 Ransom bill, 643 
 
 Recapture or rescue, 
 
 condemnation before, 625 
 
 formalities of, 645-6 
 
 from a pirate, 595-6, 611, 613, 614, 
 615, 616 
 
 from a captor lawfully commissioned, 
 596-600 
 
 from an enemy, 606-11, 615-20 
 
 law of U.S.A., 624-5 
 
 of property of allies, 622-4, 627-8 
 Recaptors, 
 
 rights of, 631-2 
 Recognition of insurgents, 312, 321-2, 
 
 486, 493-7 
 Rlgkment des prises maritimes, 6, 1 05, 1 1 6, 
 352, 359-60, 388, 461, 537, 589-94 
 Registry, certificate of, 345 
 Regulations issued to naval officers, 
 
 capture, 571-594 
 
 contraband, 6 
 
 recapture, 645-6 
 
 visit and search, 341, 343-51 355-8. 
 358-60 
 Release by Crown of prize, 524-8 
 Re-recapture, 630-1 
 Resistance to visit and search, 328-30, 
 
 361-74, 571 
 Responsibility of a State, 598 
 Rice, as contraband, 44, 45 
 Rules, the three, 451, 463, 470 
 Rule of War of 1756, 253, 398-404 
 
 American view of, 405-7 
 Russia, 
 
 destruction of neutral vessels, 531-8 
 
 policy as to contraband, 43, 47, 48 
 
 volunteer fleet of, 538-43 
 Russian prize regulations, 83-91, 536 
 Russian volunteer fleet, 538-44 
 Russo-Japanese War, 83, 528, 541 
 
 Safe-condttci, 643-5 
 Sailcloth, 
 
 as contraband, 71, 73, 385 
 "St. Hilda," case of the, 541 
 Sale of vessels equipped for war, 407-14, 
 
 441 
 Saltpetre, 
 
 as contraband, 275 
 Salvage, 600-6, 611-20, 626-7, 631 
 Sea laws, the, 316 
 Sea-letter or sea-brief, 345 
 
PLYMOUTH 
 
 WILLIAM BRENDON AND SON, LTD. 
 
 PRINTERS