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+The Project Gutenberg eBook, The Laws Of War, Affecting Commerce And
+Shipping, by H. Byerley Thomson
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: The Laws Of War, Affecting Commerce And Shipping
+
+Author: H. Byerley Thomson
+
+Release Date: October 25, 2004  [eBook #13858]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+
+***START OF THE PROJECT GUTENBERG EBOOK THE LAWS OF WAR, AFFECTING
+COMMERCE AND SHIPPING***
+
+
+E-text prepared by Keith M. Eckrich and the Project Gutenberg Online
+Distributed Proofreading Team
+
+
+
+THE LAWS OF WAR, AFFECTING COMMERCE AND SHIPPING
+
+by
+
+
+H. BYERLEY THOMSON, ESQ., B.A.
+
+Barrister-at-Law, of Jesus College, Cambridge, and the Inner Temple
+
+A New Edition, Enlarged, With An Introduction And Index
+
+1854
+
+
+
+
+
+
+
+PREFACE TO THE SECOND EDITION.
+
+
+The success which attended the publication of the First Edition of
+this Treatise, on "The Laws of War, affecting Commerce and Shipping,"
+has confirmed the author's opinion of the utility of such a work; and
+its hearty acceptance by the mercantile world has induced him to add
+largely and materially to this edition. The general plan of the former
+work has not been departed from in the first portion of the present;
+and although a great number of fresh and popular topics have been here
+touched upon, the author has endeavoured to preserve (as far as was
+consistent with accuracy), that concise and popular character which he
+believes in no small degree contributed to the favourable reception of
+the first edition.
+
+An Introduction has also been added, discussing the origin of the Laws
+of War generally, and the utility of the work has been enhanced by an
+Index for facilitating reference.
+
+In a Second Part, which will shortly appear, the Author proposes to
+treat of the Laws of War relating to the Army, Navy, and the Militia,
+as well as the administration of the bodies governing those various
+sections of the war force of the country.
+
+H.B.T.
+
+8, SERJEANT'S INN, TEMPLE,
+
+APRIL 15, 1854.
+
+
+
+
+
+CONTENTS.
+
+
+INTRODUCTION
+
+CHAPTER I.
+
+COMMENCEMENT OF WAR.
+
+SECTION I. The Immediate Effects of War
+
+SECTION II. On Enemies and Hostile Property
+
+
+CHAPTER II.
+
+SECTION I. Actual War. Its Effects
+
+SECTION II. Prizes and Privateers
+
+SECTION III. Licences
+
+SECTION IV. Ransom, Recaptures, and Salvage
+
+
+CHAPTER III.
+
+SECTION I. Neutrality
+
+SECTION II. Contraband of War
+
+SECTION III. Blockades. Right of Search. Convoys
+
+SECTION IV. Armed Neutralities
+
+
+APPENDIX TO PART I.
+
+NOTE A. The Law of Reprisals
+
+NOTE B. War Bill Act
+
+NOTE C. Rule of 1756
+
+NOTE D. Articles that have been declared Contraband at various times
+
+NOTE E. The Late Declarations
+
+
+
+
+
+INTRODUCTION TO PART I.
+
+It would be superfluous to trouble my readers, in a concise practical
+treatise, with any theoretical discussion on the origin of the Law of
+Nations, had not questions of late been often asked, respecting the
+means of accommodating rules decided nearly half-a-century ago, to
+those larger views of international duty and universal humanity, that
+have been the natural result of a long Peace, and general progress.
+
+To commence with the question, Who is the international legislator? it
+must be observed, that there is no general body that can legislate on
+this subject; no parliament of nations that can discuss and alter the
+law already defined. The Maritime Tribunals of maritime states always
+have been, and still are, almost the sole interpreters and mouthpieces
+of the International Law. Attempts that have been made by our own
+parliaments, by individual sovereigns, and even by congressional
+assemblies of the ministers of European powers, to create new
+universal laws, have been declared by these courts to be invalid, and
+of no authority. And though it is distinctly laid down, that the Law
+of Nations forms a part of the Common Law of England, yet it is not
+subject to change by Act of Parliament, as other portions of the
+Common Law are; except so far as Parliament can change the form,
+constitution, and persons of the courts that declare the law.
+
+Lord Stowell says
+
+     "No British Act of Parliament, nor any commission founded
+     upon it, can affect the rights or interests of foreigners,
+     unless they are founded upon principles, and impose
+     regulations, that are consistent with the Law of Nations."
+
+And in another place--
+
+     "Much stress has been laid upon the solemn declaration of
+     the eminent persons (the ministers of the European powers),
+     assembled in Congress (at Vienna). Great as the reverence
+     due to such authorities may be, they cannot, I think, be
+     admitted to have the force of over-ruling the established
+     course of the general Law of Nations."
+
+It is to the Maritime Courts, then, of this and other countries, that
+the hopes of civilization must look for improvement and advance in the
+canons of international intercourse during the unhappy time of war.
+The manner, and the feeling in which they are to pronounce those
+canons cannot be more finely enunciated than in the words of Lord
+Stowell himself.
+
+     "I consider myself as stationed here, not to deliver
+     occasional and shifting opinions to serve present purposes
+     of particular national interest, but to administer with
+     indifference that justice which the _Law of Nations_ holds
+     out, without distinction, to independent states, some
+     happening to be neutral, and some belligerent.
+
+     "The seat of judicial authority is indeed locally _here_ in
+     the belligerent country, according to the known law and
+     practice of nations; _but the law itself has no locality_.
+     It is the duty of the person who sits here to determine this
+     question exactly as he would determine the same question, if
+     sitting at Stockholm; to assert no pretensions on the part
+     of Great Britain, which he would not allow to Sweden in the
+     same circumstances; and to impose no duties on Sweden, as a
+     neutral country, which he would not admit to belong to
+     _Great Britain_, in the same character. If, therefore, I
+     mistake the law in this matter, I mistake that which I
+     consider, and which I mean should be considered, as
+     UNIVERSAL LAW upon the question."
+
+When an Admiralty Judge investigates the law in this impartial spirit,
+he occupies the grand position of being in some respects the director
+of the deeds of nations; but with equal certainty does the taint of an
+unjust bias poison all his authority; his judgments are powerful then
+only for evil; they bind no one beyond the country in which he sits,
+and may become the motive and origin of reprisal and attack upon his
+native land.
+
+As the authority of the international judge depends on his integrity,
+so also does the universal law arise from, and remain supported by,
+the true principles of right and justice; in other words, by the
+fundamental distinction between right and wrong. A statute, a despotic
+prerogative, and an established principle of common law, rest upon
+different sanctions. They may be the causes of the greatest injustice,
+may sow the seeds of national ruin, and yet may even require
+revolutions for their reformation; but any one of the laws of nations
+preserves its vitality, only with the essential truth of its
+principles; a change in the feeling of mankind on the great question
+of real justice, destroys it, and it simply remains an historical
+record of departed opinion, or a point from which to date an advance
+or retreat in the career of the human mind.
+
+It is for this reason that International Law has been so differently
+defined by writers at various periods.
+
+The Law of Nations is _founded_, I have said, on the general
+principles of right and justice, on the broad fundamental distinctions
+between right and wrong, or as Montesquieu defines it, "on the
+principle that nations ought in time of peace to do each as much good,
+and in time of war as little harm as possible." These are the
+principles from which any rule must be shown to spring, before it can
+be said to be a rule for international guidance. But what are the
+principles of right and wrong? These are not left to the individual
+reason of the interpreter of the law for the time being, but are to be
+decided by the _public opinion of the civilized world_, as it stands
+at the time when the case arises.
+
+It may immediately be asked--How is that public opinion to be
+ascertained? The answer is--By ascertaining the _differences_ in
+opinion between the present and the past. For this purpose it must be
+observed, that the views of a past age are easily ascertainable, in
+matters of law, from theoretical writings, history, and judicial
+decisions; and these views may be reduced to definition. Modern
+universal intelligence will either agree or disagree in these views.
+In the mass of instances it will agree, as progress on such points is
+at all times slow; and not only will the points of _disagreement_ be
+few, but they will be salient, striking, and generally of popular
+notoriety. Present, universal, or international opinion, has therefore
+two portions. 1. That in which it accords with the views of a past
+generation, that has become historical. 2. That in which it differs
+from, or contradicts those views.
+
+In the first instance, then, we are to ascertain what _were_ the
+principles of right and justice, from any materials handed down to us;
+and if those principles agree with, or support the practical rules
+recorded by the same, or similar sources of information, such are to
+be accepted as belonging to the code of the Laws of Nations, as far as
+those principles are uncontradicted by modern opinion.
+
+In the second instance, those differences which may either overrule,
+add to, or complete the public opinion of a past age, are to be
+ascertained, (by those in whose hands such decisions rest,) by looking
+to the _wish_ of nations on these points; and this wish may be
+exhibited in various ways; either by a universal abandonment of a
+given law, in its non-execution by any nation whatever, for a length
+of time; by numerous treaties, to obtain by convention an improvement
+not yet declared by international tribunals; or by extending to the
+relations and duties of nations, the improvements in the general
+principles of right and justice, that are at the time being applied to
+the concerns of private individuals.
+
+The judges of such matters are not to ignore what is going on around
+them; all necessary knowledge is to be brought into court to discover
+what is the universal feeling of nations in respect of right and
+wrong, at the time they decide, and if they see a departure from the
+past sense of right and wrong, to make the modern, and not the
+ancient, the fountain of modern law; thence deducing the modern rules.
+
+Because a precept cannot be found to be settled by the consent or
+practice of nations at one time, it is not to be concluded that it
+cannot be incorporated into the public code of nations, at some
+subsequent period. Nor is it to be admitted, that no precept belongs
+to the law of nations which is not _universally_ recognised as such,
+by all civilized communities, or even by those constituting what may
+be called the Christian states of Europe. Some doctrines, which we, as
+well as the United States, admit to belong to the Law of Nations, are
+comparatively of recent origin and application, and even at this
+period have received no public or general sanction in other nations;
+and yet, inasmuch as they are founded on a just view of the duties and
+rights of nations, according to a modern universal sense of what is
+just, they are enforced here as ascertained laws.[1]
+
+By a similar train of reasoning, not only may the international
+tribunals of England enunciate new rules of law, as universal law, if
+founded and fairly deduced from ascertained modern, public, and
+international opinion; but they may refuse to alter settled rules,
+however much opposed by other nations, provided those rules are still
+deducible from that origin.
+
+Generally, every doctrine fairly deduced, by correct reasoning, from
+the rights and duties of nations, and the nature of moral obligation,
+may be said to exist in the Law of Nations. Those rights, duties, and
+that moral obligation, are to be ascertained from the enunciation of
+them in past times, unless they have been relaxed, waived, or altered
+by universal modern opinion.
+
+We may regard, then, the Law of Nations to be a system of political
+ethics; not reduced to a written code, but to be sought for, (not
+founded,) in the elementary writings of publicists, judicial
+precedents, and general usage and practice; but _continually_ open to
+change and improvement; as the views of men in general, change or
+improve, with regard to the questions--What is right? What is just?
+
+Now to apply the above to one example.
+
+Undoubtedly up to the present time the system of granting Letters of
+Marque to the adventurers of a power friendly to the enemy, has
+received the sanction of the world. These buccaneering adventurers
+have, under the laws of war, when taken, claimed and been allowed the
+rights of prisoners of war; have exercised all the privileges of
+regular privateers, and cast little or no responsibility on the
+countries they issued from, who still claimed to be entitled to the
+full position of neutral powers. Yet these unprincipled men differed
+from pirates in one respect only--that their infamous warfare was
+waged on one unhappy nation alone, instead of against the power of
+mankind. Uninfluenced by national feelings, their sole object was the
+plunder of the honest trader, and the means to that end--murder. Are
+there any modern principles of right and justice by which such persons
+are still to claim consideration? That there were such principles
+formerly, when the whole system of war was barbaric and unmerciful,
+cannot be doubted, unless such enemies were to be condemned when
+others equally bad were to be excused; but those reasons have now
+disappeared. Universal opinion is against these principles; numerous
+treaties have condemned the practice; the municipal laws of several
+states have made it punishable in their own subjects; America has even
+attempted, in two cases, to bring it in as piracy; and the highest
+authorities have pronounced it a crime.
+
+Are not then the foundations of the laws that governed this case
+changed? It may be going too far to declare it piracy by the Law of
+Nations, but is it asking too much, in calling upon our maritime
+tribunals to proclaim the practice contrary to the Law of Nations; to
+deprive these privateers of the protection of neutrality, when in
+their native waters, and to subject the nation that permits them to
+fit out in, or issue from their ports, to the danger of reprisals,
+from the offended belligerents.
+
+This I suggest as an example of the application of the principles of
+right and wrong, as at present understood, to the investigation of the
+continued soundness of an accepted precept of law. In the judgments of
+Lord Stowell there are many such examples; and _guided_ as he was by
+precedent and authority, he could not be said to have been _led_ by
+anything but the principles of universal justice. At no time does he
+appear for a moment to have hesitated in putting aside precedent, when
+the true doctrine was unsatisfied. Mr. Justice Story acted on the same
+plan. The granting of salvage for the recapture of neutral
+property--the denial of the right of the Danish Government to
+confiscate private debts--the declaration of Mr. Justice Story, that
+the slave trade was against the law of nations--are a few amongst many
+remarkable examples of the fundamental principle being allowed to
+alter and overrule the authoritative precept.
+
+
+
+
+THE LAWS OF WAR.
+
+
+
+PART I.
+
+
+
+THE LAWS OF WAR AFFECTING COMMERCE AND SHIPPING.
+
+
+
+CHAPTER I. COMMENCEMENT OF WAR.
+
+
+
+SECTION I.
+
+
+
+_The Immediate Effects of War_.
+
+
+For some months the state of war that has been impending between
+Russia, and the Allied Powers,--England, France, and Turkey,--has now
+become actual; and though there have been many acts of preparation and
+precaution on the part of England and France, we have not been, up to
+the present crisis, engaged in what is termed by international
+writers, Public and Solemn War; such a position of affairs has at last
+arrived.
+
+[Sidenote: Solemn War.]
+
+The War then, that England has entered into, is of the most Public and
+Solemn kind. Public War is divided into Perfect and Imperfect. The
+former is more usually called Solemn. Grotius defines Public or Solemn
+War to be such Public War as is declared or proclaimed.
+
+Imperfect Wars between nations, that is such wars as nations carry on
+one against the other, without declaring or proclaiming them, though
+they are Public Wars, are seldom called wars at all; they are more
+usually known by the name of reprisals, or acts of hostility. It has
+often been important to determine, on the re-settlement of peace, what
+time war commenced, and when reprisals ceased.[2]
+
+According to the Law of Nations, two things are required for a Solemn
+War; first, it must be a Public War; that is, the contending parties
+must be two nations, or two parties of allied nations, contending by
+force under the direction of a supreme executive; and secondly, it
+must be proclaimed, notified, or declared. And probably it must be
+general in its character, and not simply local or defensive. Presuming
+that the coming contest will be of the widest character, I shall
+proceed to examine its legal effects on Commerce, on that
+supposition.[3]
+
+[Sidenote: Declaration of War]
+
+Declarations have existed from the most ancient times, having been
+borrowed by modern nations from the manners and customs of the Romans.
+But in present times, (although they may be very properly put
+forward,) they are not necessary to a state of actual war, or as it is
+technically termed, to legalize hostilities. A Declaration of War is
+not a matter of international right.[4] Acts of hostilities, without
+such an instrument, cannot be denounced as irregular or piratical,
+unless committed in manifest bad faith. But though war may lawfully
+commence without an actual declaration, yet a declaration is of
+sufficient force to create a state of war, without any mutual attack.
+It is not a mere challenge from one country to another, to be accepted
+or refused at pleasure by the other. It proves the existence of actual
+hostilities on one side at least, and puts the other party also in a
+state of war, though, he may, perhaps, think proper to act on the
+defensive only.[5]
+
+[Sidenote: War, how commenced.]
+
+War now generally commences by Actual Hostilities, by the Recal or
+Dismissal of an Ambassador or Minister, or by a Manifesto published by
+one belligerent power to its own subjects.
+
+Manifestoes are issued to fix the date of the commencement of
+hostilities; for as a state of war has many various effects on
+commercial transactions, such as the confiscation of certain property,
+and the dissolution of certain contracts, it is very necessary that
+such a date should be accurately known. When a Manifesto or
+Declaration is issued, it is said to legalize hostilities, that is to
+say,--to make all acts done, and all breaches committed, under
+pressure of war, good and lawful acts and breaches.
+
+I have given this explanation, because it is a popular notion that a
+declaration always precedes war; but in reality, in modern times, few
+wars are solemnly declared;--they begin most often with general
+hostilities; thus the first Dutch War began upon general Letters of
+Marque, and the War with Spain, that commenced by the attempted
+invasion of the Armada in 1588, was not declared or proclaimed between
+the two crowns.[6]
+
+[Sidenote: Contents of Declaration.]
+
+The Manifesto not only announces the commencement Contents of and
+existence of hostilities, but also states the reasons of, and attempts
+the justification of the war; and it is necessary for the instruction
+and direction of the subjects of the belligerent state, with respect
+to their intercourse with the foe; it also apprizes neutral nations of
+the fact, and enables them to conform their conduct to the rights
+belonging to the new state of things.[7]
+
+Without such an official act, it might be difficult to distinguish, in
+a Treaty of Peace, those acts which are to be accounted lawful effects
+of war, from those which either nation may consider as naked wrongs,
+and for which they may, under certain circumstances, claim reparation.
+
+When war is duly declared, it is not merely a war between one
+government and another, but between nation and nation, between every
+individual of the one state with each and every individual of the
+other. The subjects of one country are all, and every one of them, the
+foes of every subject of the other, and from this principle flow many
+important consequences.[8]
+
+[Sidenote: Property of Subjects of Belligerent States in the Enemy's
+Country.]
+
+On the commencement of hostilities a natural expectation will arise
+that the Property, (if not the Persons) of the Belligerent State,
+found in the Enemy's Territory, will become liable to seizure and
+confiscation, especially as no declaration or notice of war is now
+necessary to legalize hostilities. According to strict authority, the
+Persons and Property of Subjects of the Enemy found in the belligerent
+state are liable to detention and confiscation; but even on this point
+diversity of opinion has arisen among institutional writers; and
+modern usage seems to exempt the Persons and Property of the Enemy
+found in either territory at the outbreak of the war, from its
+operations.
+
+Without entering on the long arguments that have been produced on this
+subject, and which it is not the intention of this treatise to
+reproduce, the rule may be stated very nearly as follows.[9]
+
+That though, on principle, the property of the enemy is liable to
+seizure and confiscation, yet it is now an established international
+usage that such property found within the territory of the belligerent
+state, or debts due to its subjects by the government or individuals,
+_at the commencement_ of hostilities, are not liable to be seized and
+confiscated as prize of war.
+
+This rule is often enforced by treaty, but unless thus enforced it
+cannot be considered as an inflexible, though established, rule. This
+rule is a guide which the Sovran of the belligerent state follows or
+abandons at will, and although it cannot be disregarded by him without
+obloquy, yet it may be disregarded. It is not an immutable rule, but
+depends on considerations which continually vary.[10]
+
+[Sidenote: Rule with respect to Immoveable Property.]
+
+The rule is different with respect to Immoveable Things, such as
+Landed Estates. He who declares war does not confiscate the Immoveable
+Estate possessed in his country by the enemy, but the Income may be
+sequestrated, to prevent its being remitted to the enemy.[11]
+
+[Sidenote: Public Funds.]
+
+Public Funds, or in other words, debts due from the Sovran of the
+hostile state to Private Persons, are always held protected from
+confiscation, and there is only one instance in modern times where
+this rule has been broken. It is a matter of public faith; and even
+during war, no enquiry ought to be made whether any part of the public
+debt is due to the subjects of the enemy.[12]
+
+[Sidenote: Rule of Reciprocity.]
+
+All these rules are, however, subject to the Rule of Reciprocity. This
+is thus laid down by Sir William Scott, in the case of the Santa Cruz,
+
+     "that at the commencement of a 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 commencement of a war the
+     enemy's merchants shall be kept and treated as our own
+     merchants are treated in their country."[13]
+
+[Sidenote: Droits of Admiralty.]
+
+[14]In England, at present, however, these liberal principles are
+modified by Rights of Admiralty, the foregoing rules being applied
+rather to property _upon the land_ than _within the territory_; for
+although, when captures are made in ports, havens, or rivers, within
+the body of the country of the realm, the Admiralty is in reality
+excluded, yet Prize Courts have uniformly, without objection, tried
+all such captures in ports and havens within the realm; as in the case
+of ships not knowing hostilities, coming in by mistake, before the
+declaration of war or hostilities; all the ships of the enemy are
+detained in our ports, to be confiscated as the property of the enemy,
+if no reciprocal agreement is made.[15]
+
+[Sidenote: Hostile Embargo.]
+
+This species of reprisal is termed a Hostile Embargo. It cannot well
+be distinguished from the practice of seizing property found within
+the territory upon the declaration of war. It is undoubtedly against
+the spirit of modern liberality, and has been but too justly
+reprobated as destroying that protection to property which the rule of
+faith and justice gives it, when brought into the country in the
+course of trade, and in the confidence of peace.
+
+It is not, however, as Wheaton states, peculiar to England, but common
+to modern Europe, except that England does not, in practice, appear to
+be influenced by the corresponding conduct of the enemy in that
+respect.[16]
+
+[Sidenote: Debts Due to and from an Enemy.]
+
+But with relation to Debts Due to an Enemy, previous to hostilities,
+English law follows a wiser principle.
+
+On the outbreak of war between Denmark and this country in 1807, the
+Danish Government, as a measure of retaliation for the seizure of
+their ships in our ports, issued an ordinance sequestrating all debts
+due from Danish to British subjects, causing them to be paid into the
+Danish Royal Treasury.
+
+The Court of King's Bench decided that this was not a legal defence to
+a suit in England for the debt, and that the ordinance was not
+conformable to the Law to Nations.[17] It was observed by the Court,
+that the right of confiscating debts (contended for on the authority
+of Vattel,)[18] was not recognised by Grotius,[19] and was impugned by
+Puffendorf and others; and that no instance had occurred of the
+exercise of the right, (except the ordinance in question,) for upwards
+of a century. This is undoubtedly the law in England, although it may
+be doubted if this rule still holds so strongly in the United States.
+
+[Sidenote: Interruption of Intercourse; Trading with the Enemy
+unlawful.]
+
+One of the most immediate consequences of the outbreak of hostilities
+is the complete interruption of Commercial Intercourse between the
+subjects of the countries at war, even to the extent of holding it
+unlawful, after war has begun, except under special licence of the
+government, to send a vessel to the enemy's country to bring home,
+with _their permission_, one's own property, when war has broken out.
+
+There cannot exist at the same time a war for arms and a peace for
+commerce; from the very nature of war all commercial intercourse
+ceases between enemies. This interdiction of intercourse is the result
+of the mere operation of war; for declarations of war generally enjoin
+on every subject the duty of attack on the subjects of the hostile
+state, of seizing their goods, and doing them every harm in their
+power.[20]
+
+From the very nature of war itself, all commercial intercourse ceases
+between enemies. The utility, however, of merchants, and the mutual
+wants of nations, have almost got the better of the law of war as to
+commerce. Hence, commerce is alternately permitted and forbidden in
+time of war, as princes think it most for the interest of their
+subjects. A commercial nation is anxious to trade, and accommodate the
+laws of war to the greater or lesser want that it may have for the
+goods of the other. Thus sometimes a mutual commerce is permitted
+generally; sometimes as to certain merchandizes only, while others are
+prohibited; and sometimes it is prohibited altogether. In this manner
+there is partly peace and partly war, between subjects of both
+countries.[21]
+
+In the case of the Hoop,[22] Sir Wm. Scott says,
+
+     "By the law and constitution of Great Britain, the Sovereign
+     alone has the power of declaring War and Peace. He alone,
+     therefore, who has the power of entirely removing the state
+     of war, has the power of removing it in part, by permitting,
+     when he sees proper, that commercial intercourse, which is a
+     partial suspension of the war. There may be occasions on
+     which such an intercourse may be highly expedient; but it is
+     not for individuals to determine on the expediency of such
+     occasions, on their own notions of commerce only, and
+     possibly on grounds of private advantage not very
+     reconcilable with the general interests of the state. It is
+     for the state alone, on more enlarged views of policy, and
+     of all circumstances that may be connected with such an
+     intercourse, to determine when it shall be permitted, and
+     under what regulations. No principle ought to be held more
+     sacred than that this intercourse cannot subsist on any
+     other footing than that of the direct permission of the
+     state. Who can be insensible to the consequences that might
+     follow, if every person in time of war had a right to carry
+     on a commercial intercourse with the enemy; and under colour
+     of that, had the means of carrying on any other species of
+     intercourse he might think fit? The inconvenience to the
+     public might be extreme; and where is the inconvenience on
+     the other side, that the merchants should be compelled, in
+     such a situation of the two countries, to carry on his trade
+     between them, (if necessary,) under the eye and control of
+     the Government charged with the care of public safety?"
+
+[Sidenote: Alien Enemy cannot sue in this country.]
+
+Sir William then goes on to say,
+
+     "another principle of law, of a less politic nature, but
+     equally general in its reception and direct in its
+     application, forbids this sort of communication as
+     fundamentally inconsistent with the relation at the time
+     existing between the two countries, and that is the total
+     inability to sustain any contract by an appeal to the
+     tribunals of the one country, on the part of the subjects of
+     the other. In the law of almost every country, the character
+     of an Alien Enemy carries with it a disability to sue, or to
+     sustain, in the language of the civilians, a _persona standi
+     in judicio_. The peculiar law of our own country applies
+     this principle with great rigour--the same principle is
+     received in our Courts of the Law of nations; they are so
+     far _British_ courts, that no man can sue therein who is a
+     subject of the Enemy, unless under particular circumstances
+     that _pro hac vice_ discharge him from the character of an
+     Enemy, such as his coming under a flag of truce, a cartel,
+     or a pass, or some other act of public authority that puts
+     him in the Queen's peace _pro hac vice_. But otherwise he is
+     totally _Ex lex_! Even in the case of ransom bills which
+     were contracts, but contracts arising out of _the laws of
+     war_, and tolerated as such, the Enemy was not permitted to
+     sue _in his own 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. A state in which contracts cannot
+     be enforced is not a state of legal commerce."
+
+[Sidenote: No Trade permitted except under Royal licence.]
+
+     "Upon these and similar grounds, it has been the established
+     rule of this court, confirmed by the judgment of the supreme
+     court, that a trading with the enemy, except under a Royal
+     Licence, subjects the property to confiscation.
+
+     "Where the Government has authorised, under sanction of an
+     Act of Parliament, a _homeward trade_ from the enemy's
+     possessions, but has not specifically protected an _outward_
+     _trade_ to the same, though intimately connected with that
+     homeward trade, and almost necessary to its existence, the
+     rule has been enforced, where strong claim not merely of
+     convenience, but almost of necessity, excused it on behalf
+     of the individual.
+
+     "It has been enforced, where cargoes have been laden before
+     the war, but where the parties have not used all possible
+     diligence to countermand the voyage after the first notice
+     of hostilities.[23]
+
+     "In the last war between England and America, a case
+     occurred in which an American citizen had purchased a
+     quantity of goods within the British territory, a long time
+     previous to the war, and had deposited them upon an island
+     near the frontier; upon the breaking out of hostilities, his
+     agents had hired a vessel to proceed to the spot, to bring
+     away the goods; on her return she was captured, and with the
+     cargo, condemned as prize of war."[24]
+
+So also, where goods were purchased, some time before the war, by the
+agent of an American citizen in Great Britain, but not shipped until
+nearly a year after the declaration of hostilities, they were
+pronounced liable to confiscation.[25]
+
+Where property is to be withdrawn from the country of the enemy, it is
+the more satisfactory and guarded proceeding on the part of the
+_British_ merchant to apply to his own Government for the special
+importation of the article; it is indeed the only safe way in which
+parties can proceed.[26]
+
+[Sidenote: Subjects of an Ally may not trade with the Enemy.]
+
+During a Conjoint War no Subject of an Ally can trade with the common
+enemy without liability to forfeiture in the prize courts of the Ally,
+of all his property engaged in such trade. As the former rule can be
+relaxed only by permission of the Sovran power of the state, so this
+can be relaxed only by the permission of the allied nations, according
+to their mutual consent.[27]
+
+[Sidenote: Contracts void.]
+
+On similar principles, all Contracts made with the Enemy _during War_
+are utterly _void_. This applies to Insurances on the enemy's property
+and trade; to the drawing and negociation of Bills of Exchange,
+whether the subject of this country or of the alien enemy be the
+acceptor; to the sending of Money or Bills to the enemy's country; to
+Commercial Partnerships. All endeavours to trade by third persons are
+equally illegal.[28]
+
+Thus also all Contracts made in contemplation of War, and which never
+could have existed at all, but as an insurance against the pressure of
+war, and with a view to evade the rights that arise out of war, and in
+fraud of the belligerent, are illegal, even though made by
+neutrals.[29]
+
+[Sidenote: Insurances.]
+
+The municipal or common law of every state declares all Insurances to
+be void, by which ships or merchandize of the enemy are sought to be
+protected. Also all Insurances by or on behalf of _alien_ enemies are
+wholly illegal and void, although effected before the breaking out of
+hostilities; but if both the policy had been effected and the loss
+accrued before the war, the remedy is only suspended during the war.
+
+The general principle is that the contract of assurance is vacated and
+annulled _ab initio_; wherever an insurance is made on a voyage
+expressly prohibited by the common, statute, or maritime law of the
+country; the policy is of no effect.[30]
+
+Thus, if a ship, though neutral, be insured on a voyage prohibited by
+an embargo laid on in time of war, by the prince of the country in
+whose ports the ships happen to be, such an insurance is void.[31]
+
+Similarly, all Insurances to protect the interests of British subjects
+trading without licence with the enemy are absolutely void.[32]
+
+So also, if a Licence is not strictly pursued, so that the voyage
+becomes illegal, the insurance is void.[33]
+
+I have said that all Insurances will be void which are designed to
+protect voyages or trading to hostile ports. But, for this purpose, it
+must be clearly made out, not only that the port into which the ship
+sails is hostile, but also, that she was bound with a distinct hostile
+destination at the time of loss. Thus a policy to "ports in the
+Baltic," is legal, as some may be hostile, and some not, and it is not
+certain that she was sailing to a hostile port.
+
+The general principle by which the validity of a policy is to be
+tested, is by the voyage, that it is a voyage prohibited by law, on
+some ground of public policy. The will, therefore, of the parties is
+of no account, as the prohibition is for public, and not private
+benefit. So that if the underwriter is told that the voyage is illicit
+he is not more bound than if he were not told so.[34]
+
+It is Insurances upon voyages generally prohibited by law, such as to
+an enemy's garrison, or upon a voyage directly contrary to an express
+act of parliament, or to royal proclamation in time of War, that are
+absolutely void and null;--therefore, on neutral vessels, or the
+vessels of British subjects possessing neutral rights and sailing from
+neutral ports to enemies ports are not void.[35]
+
+Similarly, with respect to Insurances on neutral vessels carrying
+_contraband goods_, for it is not the voyage, but the cargo, that is
+illegal in that case.[36]
+
+Insurances are good on Neutral Vessels engaged in the Colonial Trade
+of the Enemy, and which was closed to the Neutral in time of
+peace,[37] It must be observed, that if a voyage is illegal, and voids
+the policy for that voyage, it does not follow that it voids the
+voyage in the opposite direction, and even the goods purchased by the
+proceeds of a former illegal voyage, may be the subject of
+Insurance.[38]
+
+[Sidenote: Bills of Exchange drawn during War.]
+
+It has been stated above that all Bills drawn or negociated with the
+enemy, whether a British subject or the alien enemy be the acceptor,
+are null and void; during the last war, however, attempts were often
+made to draw and negociate bills that should pass muster in our courts
+of law, as for example:--
+
+An alien enemy, during war, drew upon a British subject resident in
+England, and who had funds of the alien in his hands; the drawer then
+indorsed the bill to an English-born subject, resident in the hostile
+country; such a bill cannot be enforced even after the restoration of
+peace, for otherwise it would enable alien enemies to take the benefit
+of all their property in this country, by allowing them to pay debts
+out of such funds, by the instrumentality of bills.[39]
+
+The principle seems to be,--that it is not every bill that bears the
+name of an alien enemy upon it that is void, but such bills only that
+are instrumental in assisting in communication with an alien
+enemy;--and a liberal application of this principle has been made use
+of to open a way for English prisoners to make use of their property
+at home for their support in the country of their captivity. Thus,
+where one of two Englishmen, detained in France on the breaking out of
+hostilities, drew in favour of the other, upon a subject here, it was
+held that he might legally draw such a bill for his _subsistence_, and
+that he might indorse it to an alien enemy, an inhabitant of the
+hostile country; for he could not avail himself of the bill except by
+negociation; and to whom could he negociate it, except to the
+inhabitants of the country in which he resided?[40]
+
+Bills, like other contracts, are only void by the policy of war; but
+the law still recognizes some extent of obligation between the
+parties, so that bills void in their concoction (as instruments of
+trade with the enemy,) are not so far void that they may not
+constitute the basis of a promise by which a party may bind himself on
+the return of peace.[41]
+
+[Sidenote: Contracts made before the War.]
+
+On the very important question of the effect of a declaration on
+Contracts with the subjects or the enemy, _entered into previous to
+the War_, the rule is, that if the performance of the contract be
+rendered unlawful by the Government of the country, the contract is
+dissolved on both sides.[42]
+
+Thus the contract of Affreightment is dissolved when the voyage
+becomes unlawful, by the commencement of war, or the interdiction of
+commerce;[43] and this whether the interdiction is complete as to the
+ship, or partial as to the receiving of goods.
+
+Similarly, if the voyage be broken up by Capture on the passage, so as
+to cause a _complete defeat_ of the undertaking, the contract is
+dissolved, notwithstanding a recapture.[44]
+
+A Blockade of the port of destination, that renders the delivery of
+the cargo impossible, and obliges the ship to return to its port of
+destination, dissolves the contract.[45]
+
+A temporary interruption of the voyage does not put an end to the
+agreement. Embargoes, hostile blockades, and investments of the port
+of departure are held to be temporary impediments only.[46]
+
+But in the case of an Embargo imposed by the government of the
+country, of which the merchant is a subject, in the nature of
+reprisals and partial hostility, against the enemy to which the ship
+belongs, the merchant may put an end to the contract, if the object of
+the voyage is likely to be defeated thereby; as if, for example, the
+cargo were of a perishable nature.[47]
+
+[Sidenote: Partnerships.]
+
+A Public War operates as a positive dissolution of Partnerships
+between subjects of the contending nations. Every Partnership is
+dissolved by the extinction of the business for which it was
+formed.[48] By a declaration of War, the respective subjects of each
+country become positive enemies to each other. They can carry on no
+commercial or other intercourse with each other; they can make no
+valid contracts with each other; they can institute no suits in the
+courts of either country; they can, properly speaking, hold no
+communication of an amicable nature, with each other; and their
+property is mutually liable to capture and confiscation by the
+subjects of the other country. The whole objects and ends of the
+Partnership, the application of the joint funds, skill, labour, and
+enterprize of all the Partners of the common business, can no longer
+be attained.[49]
+
+Thus a Partnership between alien friends, is at once defeated when
+they become alien enemies.
+
+This dissolution, however, only has respect to the future. The parties
+remain bound for all antecedent engagements. The partnership may be
+said to continue as to everything that is past, and until all
+pre-existing matters are wound up and settled. With regard to things
+past, the partnership continues, and must always continue.
+
+No notice is necessary to the world to complete the dissolution of the
+association. Notice is requisite when a partnership is dissolved by
+the act of the parties, but it is not necessary when the dissolution
+takes place by the act of law. All mankind are bound to take notice of
+the War, and its consequences. Besides, any special notice would be
+useless unless joint, and as the partners could hold no lawful
+intercourse, a lawful joint notice is impossible.
+
+It must not be supposed that peace will have any healing effect, to
+restore the parties to their rights; the co-partnership being once
+dissolved by the war, it was extinguished for ever, except as to
+matters existing prior to the war.[50]
+
+With regard to the effect of war upon partnerships, where the partners
+are severally subjects of the belligerent powers. According to Mr.
+Justice Story,
+
+     "this point does not seem to have been discussed in our
+     courts of justice until a recent period; yet it would seem
+     to be a necessary result of principles of public law, well
+     established and defined. By a declaration of war, the
+     respective subjects of each country become positive enemies
+     of each other. They can carry on no commercial or other
+     intercourse with each other; they can make no valid
+     contracts with each other; they can institute no suits in
+     the courts of either country; they can, properly speaking,
+     hold no communication of an amicable nature with each other;
+     and their property is mutually liable to capture and
+     confiscation, by the subjects of either country. Now, it is
+     obvious from these considerations, that the whole ends and
+     objects of the partnership, the application of the joint
+     funds, skill, labours, and enterprize, of all the partners
+     in the common business thereof, can no longer be attained.
+     The conclusion therefore, would seem to be absolutely that
+     this mutual supervening capacity, must, upon the very
+     principles applied to all analagous cases, amount to a
+     positive dissolution of the partnership."[51]
+
+The law of nations has not even stopped at the points already stated;
+it proceeds further. The question of enemy or no enemy, depends not
+upon the natural allegiance of the partners, but upon their domicile.
+
+[Sidenote: Partnerships.]
+
+If a partnership is established, and as it were domiciled, in a
+neutral country, and all the partners reside there, it is treated as a
+neutral establishment, and is entitled to protection accordingly. But
+if one or more of the partners is domiciled in an enemy's country, he
+or they are treated personally as enemies, and his share of the
+partnership property is liable to capture and condemnation
+accordingly, even though the partnership establishment is in the
+neutral country. The inference from these considerations is, that in
+all these cases there is an utter incompatibility from operation of
+law between the partners, as to their respective rights, duties, and
+obligations, both public and private; and therefore, that a
+dissolution must necessarily result therefrom, independent of the will
+or acts of the parties.[52]
+
+And, as a general rule, therefore, it may be laid down, that if the
+performance of a covenant be rendered unlawful by the Government of
+this country entering into war, the contract will be dissolved on both
+sides, and the offending party, as he has been compelled to abandon
+his contract, will be excused from the payment of damages for its
+non-performance; but it is otherwise, if the non-performance is
+prevented only by the prohibition of a foreign country.[53]
+
+In such cases, the remedy only is suspended; and other cases may occur
+on these principles, where, from other circumstances, the remedy only
+is suspended until the termination of the war; as for example, in most
+cases of executed contracts.
+
+[Sidenote: Trading with the Enemy punishable.]
+
+Trading with the Enemy, was at an early period an indictable offence
+in the English Court of Admiralty.[54] And in the time of King
+William, it was held to be a misdemeanor at common law, to carry corn
+to an enemy.[55]
+
+The law, as I have faintly sketched it out, is founded to some extent
+on American authorities, where the question has been as fully
+discussed as in the reports of this country; but there can be little
+doubt that the law is the same in this country: although a doubt was
+once thrown on it, by the strong political opinion of Lord Mansfield,
+as to the policy of allowing trade with an enemy, or assuring an
+enemy's property. The lustre of his talents, and his ascendancy in the
+Court of King's Bench, were calculated to continue the delusion.
+During his time, the question as to the _legality_ of such insurances
+was never mooted; for he frowned on every attempt to set up such a
+defence, as dishonest and against good faith.[56]
+
+The strict rule of interdicted intercourse has been carried so far in
+the British Admiralty, as to prohibit supplies to a British Colony
+during its partial subjection to the enemy, and when the Colony was in
+want of provisions.[57]
+
+[Sidenote: Cartel Ships]
+
+The same interdiction to trade applies to Cartel Ships, or Ships of
+Truce, that is, to Ships sent to recover prisoners of war; and there
+is but one exception to this rigorous rule of International Law;--the
+case of Ransom Bills, which are contracts of necessity, founded on a
+state of war.
+
+
+
+
+SECTION II.
+
+
+
+_On Enemies and Hostile Property_.
+
+
+During a peace of thirty-nine years, there has naturally arisen a vast
+inter-immigration throughout Europe; many complicated commercial and
+family relations have sprung up between nations of different
+countries; many Englishmen are permanently settled in various parts of
+Europe; and England, in return, is crowded with Foreigners, who look
+upon this country as their present and future home. What is the
+position of these persons at the commencement of war? Who, in fact,
+are our enemies?
+
+And the previous Section, in which the effect of War on Commercial
+Relations has been sketched out, must have made it quite evident that
+it has become important accurately to determine what relations and
+circumstances impress a hostile character upon persons and property.
+According to Chancellor Kent, "the modern International Law of the
+Commercial World is replete with refined and complicated distinctions
+on this point."
+
+       *       *       *       *       *
+
+[Sidenote: Alien Enemies]
+
+A man is said to be permanently an Alien Enemy, when he owes a
+permanent allegiance to the adverse belligerent, and his hostility is
+commensurate in point of time with his country's quarrel. But he who
+does not owe a permanent allegiance to the enemy, is an enemy only
+during the existence and continuance of certain circumstances.[58]
+
+The character of enemy arises from the party being in what the law
+looks upon as a state of allegiance to the state at war with us; if
+the allegiance is permanent (as in the case of a natural-born subject
+of the hostile Sovran), the character is permanent.
+
+But with respect to the man who is an alien enemy from what he does
+under a local or temporary allegiance to a power at war with us--when
+the allegiance ends, the character of alien enemy ceases to exist.[59]
+
+Of course all persons owing a natural allegiance to the enemy are our
+enemies; but on the same broad principles of natural justice that
+impress a temporary character upon our friends and fellow countrymen,
+under special circumstances individuals from amongst our natural
+enemies become our friends and fellow subjects.
+
+       *       *       *       *       *
+
+[Sidenote: Prisoners of War.]
+
+The first among these are Prisoners of War.
+
+A Prisoner of War is _not_ adhering to the King's enemies, for he is
+here under the protection from the King. If he conspires against the
+King's life it is high treason; if he is killed (malice aforethought),
+it is murder. He is not, therefore, in a state of actual hostility. At
+one time it was ruled, that a prisoner of war could not contract; but
+that case was thought hard. Officers on their parole must subsist like
+other men of their own rank; but if they could not contract they must
+starve; for they could gain no credit if deprived of the power of
+sueing for their own debts. A prisoner in confinement is protected as
+to his person, and if on parole he has protection in his credit
+also.[60]
+
+He is allowed to support himself, and add to his personal comfort, by
+applying himself in his trade or business, and may maintain an action
+on his contract for his wages; nor can he be compelled, when sueing
+for money necessary for his support, to give security for costs like
+any other foreigner temporarily resident in this country.[61]
+
+       *       *       *       *       *
+
+[Sidenote: Married Foreigners.]
+
+A wife generally follows the country and allegiance of her husband;
+but where she is in this country of necessity, or is here owing
+allegiance by her birth, and her husband is an alien enemy and under
+an absolute disability to come and live here, the law steps in to her
+aid, and gives her the privileges of an unmarried woman, so that she
+may sue and be sued, and make contracts for and against herself, for
+her maintenance. "Her case," says Chief Justice Holt, "does not differ
+from that of those ladies who were allowed to sue and be sued upon the
+adjuration or banishments of their lords, as if they had been
+sole."[62]
+
+Foreign ladies, who have married Englishmen, are, by their marriage,
+naturalized, and have all the rights, privileges, and duties, of
+natural-born subjects, and cease to be enemies.[63]
+
+       *       *       *       *       *
+
+[Sidenote: Enemies by Hostility.]
+
+A hostile character may be acquired by alien friends, by acts of
+actual hostility, and by alien friends and our fellow-subjects also,
+by what are termed personal and commercial domicile. Of course a
+British subject in actual hostility to his native country is more than
+enemy, he is a traitor, and has no belligerent rights; but an alien
+friend, that is a neutral engaging in war against this country, under
+the commission of a foreign prince, and in the ranks of a hostile
+army, or on board a legally commissioned enemy's vessel, is an enemy,
+and has all the rights of a prisoner of war, if taken.
+
+       *       *       *       *       *
+
+[Sidenote: Mariners.]
+
+A Mariner, by a general rule, takes the character of the country in
+whose service he is employed, and even fugitive visits to the place of
+his birth will not entitle him to retain the benefit of a neutral
+character, in opposition to a regular course of employment in the
+enemy's country and trade; nor does the fact of his wife and family
+residing in his own country enable him to retain his native
+character.[64]
+
+       *       *       *       *       *
+
+[Sidenote: Domicile, Test of Nationality.]
+
+With the exception of these special cases, in a state of war, Domicile
+is the Test of Nationality. According to Grotius,
+
+     "By the Law of Nations all the subjects of the offending
+     state, who are such from a _permanent_ cause, whether
+     natives _or emigrants from another country_, are liable to
+     reprisals; but not so those who are only travelling or
+     sojourning for a little."
+
+And he even holds that the right of killing and doing bodily harm to
+enemies extends "not only to those who bear arms, or are subjects of
+the author of the war, but to _all_ those who are found in the enemy's
+territory;" meaning all those found domiciled or adhering to the
+enemy.
+
+If, then, a native of England resides in a belligerent country, his
+property is liable to capture as enemy's property; and if he resides
+in a neutral country, he enjoys all the privileges, and is subject to
+all the inconveniences of the neutral trade.[65]
+
+He takes all the advantages and disadvantages of the country of his
+adoption; with the limitation, that he must do nothing inconsistent
+with his native allegiance;[66] as, for example, if he emigrate to a
+neutral country _during the time of war_, he will not be permitted to
+acquire the character of a neutral merchant, and trade with the enemy
+in that character, it being his duty to injure the enemy to the full
+extent of his power.[67]
+
+       *       *       *       *       *
+
+[Sidenote: Test of Domicile.]
+
+In determining the important question of Domicile, the _animus
+manendi_, or disposition to remain or settle in the land of the
+domicile, is the question to be determined.
+
+If a man goes into a foreign country upon a visit, to travel for
+health, to settle a particular business, or for similar purposes, the
+residence naturally attendant on these circumstances is not generally
+regarded as a permanent residence.
+
+But though a special purpose, such as the above, does not fix a
+domicile, yet these circumstances are not to be taken without respect
+to the _time_ they _may probably_ or _actually do_ occupy. A general
+residence may grow upon a special purpose. It is difficult to fix the
+amount of time necessary to create a domicile, and it probably must be
+determined from each particular case. Thus, if a man remained in a
+hostile state after the outbreak, employed on some great work, which
+would occupy him many years, or beyond the probable termination of the
+war, or were unable to leave that particular climate on account of
+health, or were under any disability to return to his native country,
+the amount of time he had resided there would become an element of the
+question; against such a residence, the plea of an original special
+purpose, could not be averred; but it must be inferred, in such a
+case, that other purposes forced themselves upon him, mixed themselves
+with his original design, and impressed upon him the character of the
+country where he resided.
+
+But, as an exception, a residence involuntary or constrained, however
+long, does not change the original character of the party, and give
+him a new and hostile one.
+
+Domicile is fixed by a disclosed intention of permanent residence; if
+the emigrant employs his person, his life, his industry, for the
+benefit of the state under whose protection he lives; and if, war
+breaking out, he continues to reside there, pays his proportion of
+taxes, imposts, and revenues, equally with the natural-born subjects,
+no doubt he may be said to be domiciled in that country.
+
+When these circumstances are ascertained, time ceases to be an element
+in the question, and the _animus manendi_, once ascertained, the
+recency of the establishment, though it may have been for a day only,
+is immaterial.
+
+The intention is the real subject of enquiry; and the residence, once
+the domicile, is not changed by periodical absence, or even by
+occasional visits to the native country, if the intention of foreign
+domicile remains.
+
+The native character, however, easily reverts; more so in the case of
+a native subject, than of one who is originally of another country.
+The moment an emigrant turns his back on his adopted country, with the
+intention of returning to (not simply visiting) his native country, he
+is in the act of resuming his original character, and must be again
+considered as a citizen of his native land;[68] even if he is forcibly
+detained in the country he is parting from, as was the case with
+British subjects on the breaking out of the War of 1804.[69]
+
+But it is advisable for persons so situated, on their intended
+removal, to make application to Government for a special pass, rather
+than to trust valuable property to the effect of a mere intention to
+remove, dubious as that intention may frequently appear, under the
+circumstances that prevent that act from being carried into execution.
+
+But, as we have before observed, general principles on this subject
+are scarcely sufficient; the right of domicile must depend on each
+individual case. If no express declaration has been made, and the
+secret intention has yet to be discovered, it can be evidenced by the
+acts of the party. In the first instance, these acts are removal to a
+foreign country, settlement there, and engagement in the trade of the
+country: and if a state of war brings his national character into
+question, it lies on him to explain the circumstances of his
+residence.
+
+       *       *       *       *       *
+
+[Sidenote: Domicile in Eastern Countries.]
+
+A singular exception exists in reference to the rule of domicile. In
+the Western parts of Europe, alien merchants mix in the society of the
+natives; but in the East, from almost the oldest times, an immixable
+character has been kept up; foreigners continue strangers and
+sojourners, as all their fathers were. Merchants residing in these
+countries are hence still considered British subjects.
+
+       *       *       *       *       *
+
+[Sidenote: Hostile character acquired by Trade.]
+
+Again, a National Character may be acquire by Trade, or, as it is
+called, by _commercial domicile_. In general, the national character
+of a person, as neutral or enemy, is determined by that of his
+domicile; but the property of a person may acquire a hostile character
+independently of his personal national character derived from personal
+domicile. A person carrying on trade habitually in the country of the
+enemy, though not personally resident there, should have time given
+him to withdraw from that commerce; it would press too heavily on
+neutrals to say, that immediately on the first breaking out of a war,
+their goods should become subject to confiscation. But if a person
+enters into a house of trade in the enemy's country, in time of war,
+or continued that connexion during the war, he cannot protect himself
+by mere residence in a neutral country. "It is a _doctrine_ supported
+by strong principles and equity," says Sir William Scott, "_that there
+is a traffic which stamps a National Character_ on the individual,
+independent of _that Character_ which _mere personal residence_ may
+give him."[70] The principle does not go to the extent of saying that
+a man, having a house of trade in the enemy's country, as well as in a
+neutral country, should be considered in his whole concerns as an
+enemy's merchant, as well in those which respected solely his neutral
+house, as in those which belong to his belligerent domicile.[71]
+
+His lawful trade is exonerated from the operation of his unlawful
+trade, in all cases, and under all phases. All trade that does not
+originate from the belligerent country is protected, but not so, if it
+can be traced so to arise in not too remote a degree.
+
+The same protection however is not extended to the case of a merchant
+residing in the hostile country, and having a share of a house of
+trade in an enemy's country. Residence in a neutral country will not
+protect his share in a house established in the enemy's country,
+though residence in the enemy's country will condemn his share in a
+house established in a neutral country.[72]
+
+[Sidenote: Rule of 1756.]
+
+The next mode in which a hostile character may be given to those not
+naturally bearing it, is by dealing in those branches of commerce
+which are confined in the time of peace to the subjects of the enemy:
+_i.e._ the ships and cargoes of a Neutral engaged in the colonial or
+coasting trade of the enemy (not open to foreigners in time of peace),
+are liable to the penal consequences of confiscation. This point; was
+first mooted in the war of 1756, and is called the rule of 1756.[73]
+
+       *       *       *       *       *
+
+[Sidenote: National Character of Ships.]
+
+When 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 circumstances 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 pass of a foreign country, she is considered as bearing 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
+considered as a vessel of that country. In like manner, and on similar
+principles, if a vessel, purchased in the enemy's country, is by
+constant and habitual occupation continually employed in the trade of
+that country, commencing with the war, continuing during the war, and
+evidently on account of the war, that vessel is deemed a ship of the
+country from which she is so navigating, in the same manner as if she
+evidently belonged to the inhabitants of it.[74] Further, when parties
+agree to take the pass and flag of another country, they are not
+permitted, in case any inconvenience should afterwards arise, to aver
+against the flag and pass to which they have attached themselves, and
+to claim the benefit of their real character. They are likewise
+subject to this further inconvenience, that their own real character
+may be pleaded against them by others. Such is the state of double
+disadvantage to which persons expose themselves by assuming the flag
+and pass of a foreign state.[75]
+
+       *       *       *       *       *
+
+[Sidebar: Distinction as to Cargoes]
+
+A distinction is made in England between the Ship and the Cargo. Some
+countries have gone so far as to make the flag and pass conclusive on
+the cargo also; but in England it is held that goods have no
+dependence upon the authority of the state, and may be differently
+considered. If the cargo is laden in time of peace, though documented
+as foreign property, in the same manner as the ship, the sailing under
+a foreign flag and pass has not been held conclusive as to the
+cargo.[76]
+
+       *       *       *       *       *
+
+[Sidebar: Hostile Property cannot be Transferred _in Transitu_.]
+
+Property which has a hostile character at the commencement of a
+voyage, cannot change that character by assignment while it is _in
+transitu_, so as to protect it from capture.[77]
+
+In the ordinary course of things, in the time of peace, such a
+transfer _in transitu_ can certainly be made. When war intervenes,
+another rule is set up by the Courts of Admiralty, which interferes
+with the ordinary practice. In a state of war, _existing_ or
+_imminent_, it is held that the property shall be deemed to continue
+as it was at the time of shipment, till actual delivery; this arises
+out of a state of war, which gives a belligerent a right to stop the
+goods of his enemy. If such a rule did not exist, all goods shipped in
+an enemy's country would be protected by transfers, which it would be
+impossible to detect.[78]
+
+
+
+
+CHAPTER II.
+
+
+
+SECTION I.
+
+
+
+_Actual War_.--_Its Effects_.
+
+
+
+[Sidenote: Objects of War.]
+
+Vattel tells us
+
+     "The end of a just war is to _avenge or prevent injury_;
+     that is to say, to obtain justice by force, when not
+     obtainable by any other method; to compel an unjust
+     adversary to repair an injury already done, or to give us
+     securities against any wrong with which we are threatened by
+     him. As soon therefore as we have declared war, we have a
+     right to do against the enemy whatever we find necessary for
+     the attainment of that end, for the purpose of bringing him
+     to reason, and obtaining justice and security from him.
+
+     "The lawfulness of the end does not give us any thing
+     further than barely the means necessary for the attainment
+     of that end. Whatever we do beyond that, is reprobated by
+     the law of nature--is faulty and condemnable at the tribunal
+     of conscience. Hence it is that the right to such acts
+     varies according to circumstance. What is just and perfectly
+     innocent in one situation is not always so on other
+     occasions. Right goes hand in hand with necessity and the
+     exigency of the case, but never exceeds them."
+
+Such are some of the arguments that Vattel puts forth with all the
+strength of reason and eloquence, against all unnecessary cruelty, and
+all mean and perfidious warfare.
+
+There was no limit to the career of violence and destruction,
+justified by some of the earlier writers; they considered a state of
+war as a dissolution of all moral ties, and a licence for every
+disorder and fierceness: even such authors as Bynkershoek and Wolff,
+who lived in the most learned and not the least civilized nations of
+Europe, and were the contemporaries of that galaxy of talent that
+adorned the commencement of the eighteenth century, held that every
+thing done against an enemy was lawful. He might be destroyed, though
+unarmed, harmless, defenceless; fraud, even poison, might be used
+against him. A foe was a criminal and an outlaw, who had forfeited his
+rights, and whose life, liberty, and property, lay at the mercy of the
+victor.
+
+But such was not the public opinion or practice of enlightened Europe
+at the time they wrote. Grotius had long before, even in opposition to
+his own authorities, but influenced by religion and humanity,
+mentioned that many things were not fit and commendable, though they
+might be strictly lawful. He held that the Law of Nations prohibited
+the use of poisoned arms, the employment of assassins, violence to
+women or the dead, or making slaves of prisoners. Montesquieu followed
+in the same humane spirit. He writes, that the civilians said,
+
+     "That the law of nations, to prevent prisoners being put to
+     death, has allowed them to be made slaves.... The reasons of
+     the civilians are all false. It is false, that killing in
+     war is lawful, unless in case of absolute necessity; but
+     when a man has made another his slave, he cannot be said to
+     be under a necessity of taking away his life, since he
+     actually did not take it away. War gives no other right over
+     prisoners than to disable them from doing any further harm,
+     by securing their persons. All nations concur in detesting
+     the murdering of prisoners in cold blood."[79]
+
+Thus, it is now the established Law of Nations, that necessity is the
+measure of violence in war, and humanity, its tempering spirit; or, as
+it has been otherwise enunciated, the rights of war are to be measured
+by the objects of the war.
+
+Although we have a right to kill our enemies in war; it is only when
+we find gentler methods insufficient to conquer their resistance and
+bring them to terms, that we have a right to put them to death.[80]
+
+Under the name of enemies are comprehended not only the first author
+of the war, but also those who join him and support his cause.
+
+[Sidenote: Cartel]
+
+Out of these enlightened views of war has sprung the System of Cartels
+for the exchange of prisoners. These exchanges are generally regulated
+by special convention between the hostile states. Prisoners are
+sometimes permitted to return home, upon condition not to serve again
+during the war, or until duly exchanged. Officers are frequently
+released upon their parole, on the same condition; and to carry more
+effectually into operation the arrangements necessary for these
+purposes, commissaries are permitted to reside in the respective
+hostile states.
+
+Subject to the principle of non-resistance, there are several classes
+of persons that are generally considered exempt from the operations of
+war, beyond the effects of unavoidable accident. "All the members of
+the enemy's state," says Wheaton,
+
+     "may lawfully be treated as enemies, in a Public War; but it
+     does not follow that all are to be treated alike; though we
+     may lawfully destroy some of them, it does not follow that
+     we may lawfully destroy all; for the general rule derived
+     from the natural law is still the same, that no force
+     against an enemy is lawful, unless it is necessary to
+     accomplish the purposes of war. The custom of civilised
+     nations founded on this principle, has therefore exempted
+     the persons of the Sovran and his family, the members of the
+     Civil Government, women and children, cultivators of the
+     earth, artizans, labourers, merchants, men of science and
+     letters, and generally all other public or private persons
+     engaged in the ordinary civil pursuits of life, from the
+     direct effect of military operations, unless actually taken
+     in arms, or guilty of some misconduct in violation of the
+     usages of war, by which they forfeit their immunity."[81]
+
+The same principle of moderation towards that which is non-resisting
+limits and restrains the operations of war against the territory and
+other property of the enemy. There is a marked difference in the
+rights of war carried on by land and at sea, in modification of the
+general right to seize on _all_ the enemy's property, and to
+appropriate that property to the captors.
+
+[Sidenote: Objects of a Maritime War.]
+
+The object of a Maritime War is the destruction of the enemy's
+commerce and navigation, in order to weaken and destroy the
+foundations of his naval power. The capture or destruction of
+_private_ property is necessary to that end, and is allowed in
+maritime wars, by the practice and law of nations.
+
+[Sidenote: Private Property on Land.]
+
+But _private property on land_ is exempt from confiscation, with the
+exception of such as may become booty in special cases, when taken
+from enemies in the field or in besieged towns, and of military
+contributions levied upon the inhabitants of the hostile territory.
+This exemption extends even to an absolute and unqualified conquest of
+an enemy's country. In ancient times, both real and personal property
+of the vanquished passed to the victors; but the last example of
+confiscation and partition among the conquerors in Europe, was that of
+England, by William of Normandy.
+
+Unless in special cases, private property on land is not touched,
+without making compensation; though contributions are sometimes levied
+in lieu of a necessary confiscation, or for the expenses of
+maintaining and affording protection. In other respects private rights
+are unaffected by war.
+
+[Sidenote: Government Property.]
+
+The property, however, belonging to the Government of the vanquished
+nation, passes to the victorious state, which also takes the place of
+the former Sovereign, in respect to the eminent domain.[82]
+
+[Sidenote: Limitations of the Right of making War.]
+
+The right of making War, as we have shown in the first chapter of this
+book, solely belongs to the Sovran power. Subjects cannot, therefore,
+of themselves, take any step in the affair; nor are they allowed to
+commit any act of hostility without orders from their Sovran.
+
+The Sovran's order which commands acts of hostility, is either general
+or particular. The declaration of war, which enjoins the subjects to
+attack the enemy's subjects, implies a general order. Generals,
+officers, soldiers, privateersmen, and partisans, being all.
+commissioned by the Sovran, make war by virtue of a particular order.
+
+In declarations of war, the ancient form is still retained,[83] by
+which subjects in general are ordered, not only to break off all
+intercourse with, but also to _attack_ the foe. Custom interprets this
+general order. It authorises, indeed, and even obliges every subject,
+of whatever rank, to secure the persons and things belonging to the
+enemy, when they fall into his hands; but it does not invite the
+subject to undertake any offensive expedition without a commission or
+particular order.[84]
+
+
+
+SECTION II.
+
+
+
+_Prizes and Privateers_.
+
+[Sidenote: Privateer Commissions.]
+
+During the lawless confusion of the feudal ages, the right of making
+Reprisals was claimed and exercised, with out a Public Commission. It
+was not until the fifteenth century that Commissions were held
+necessary, and were issued to private subjects in time of war, and
+that subjects were forbidden to fit out vessels to cruise against
+enemies without licence. There were ordinances in Germany, France,
+Spain, and England, to that effect.[85]
+
+[Sidenote: Non-Commissioned Captors.]
+
+Hostilities, without a Commission, are contrary to usage, and
+exceedingly irregular and dangerous, but they are not considered as
+acts of Piracy during the time of war. Noncommissioned vessels of a
+belligerent nation may at all times capture hostile ships, without
+being deemed, by the Law of Nations, Pirates. But they have no
+interest in the prizes they take, and the property so seized is
+condemned to the Government as _Droits of the Admiralty_. The reward
+of this class of captors is left to the liberality of the Admiralty,
+and is often referred to the Admiralty Court.
+
+[Sidenote: Right of Capture.]
+
+The fruits of any forcible detention or occupancy, prior to
+hostilities, are vested in the crown; similarly, _British_ property
+taken in course of trade forbidden by the laws of his country, is
+condemned to the Crown, and not to the individual captor.[86]
+
+To prevent the custom house or excise vessels, that may be
+commissioned with letters of marque, turning their attention from the
+smugglers to the more attractive adventure of privateering, all
+interest in their prizes is reserved to the crown,[87]
+
+[Sidenote: Grants to the Admiralty.]
+
+Though all rights of prize belong originally to the Crown, yet it has
+been thought expedient to grant a portion of those rights to maintain
+the dignity of the Lord High Admiral. This grant, (whatever it
+conveys,) carries with it a total and perpetual alienation of the
+rights of the crown, and nothing short of an Act of Parliament can
+restore them; whereas the grant to private captors is nothing more
+than the mere temporary transfer of a beneficial interest. The rights
+of the Admiral, as distinguished from those of the Crown, are these;
+that when vessels come in, not under any motive arising out of the
+occasions of war, but from distress of weather, or want of provisions,
+or from ignorance of war, and are seized in port, they belong to the
+Lord High Admiral; but where the hand of violence has been exercised
+upon them, where the impression arises from acts connected with war,
+from revolt of their own crews, or from being forced or driven in by
+the Queen's ships, they belong to the Crown.
+
+This includes ships and goods already come into the ports, creeks, or
+roadsteads, of all the Queen's dominions.[88]
+
+[Sidenote: Acquisition of Captures.]
+
+Persons fitting out Private Vessels under a Commission to cruise
+against the enemy, acquire the property of whatever Captures they may
+make, as a compensation for their disbursements, and for the risks
+they run; but they acquire it by grant from the Sovran who issues out
+the commission to them. The Sovran allows them either the whole, or a
+part of the capture; this entirely depends on the nature of the
+contract he has made with them.[89]
+
+This grant of prize is, in terms, a grant of the property of the
+Queen's enemies, but it is not restricted to the property of the
+nations with whom we are at war. It is held in construction and
+practice to embrace all property liable to be condemned as prize, and
+which is not particularly reserved to the Crown, or the Admiralty.[90]
+
+It depends, also, on the municipal regulations of each particular
+power: and as a necessary precaution against abuse, the owners of
+Privateers are required by the ordinances of commercial states to give
+adequate security that they will conduct the cruize according to the
+laws and usages of war, and the instructions of the Government; and
+that they will respect the rights of neutrals, and bring their prizes
+in for adjudication.
+
+[Sidenote: Commissions of Privateers.]
+
+The Commissions of Privateers do not extend to the capture of private
+property upon land; that is a right which is not even granted to
+Queen's ships. The words of the 3rd Section of the Prize Act extend
+only to capture by any of Her Majesty's ships,
+
+     "of any fortress upon the land, or any arms, ammunition,
+     stores of war, goods, merchandize, and treasure, belonging
+     to the state, or to any public trading company, of the
+     enemies of the crown of Great Britain, upon the land."
+
+Thus the interests of the Queen's cruizers are expressly limited with
+respect to the property in which the captors can acquire any interest
+of their own, the state still reserving to itself all private
+property, in order that no temptation may be held out for unauthorized
+expeditions against the subjects of the enemy on land. With regard to
+private vessels of war, the Lords of the Admiralty are empowered by
+the 9th Section, to issue Letters of Marque, to the _Commanders_ of
+any such ships or vessels,
+
+     "for the attacking and taking any place or fortress upon the
+     land, or any ship or vessel, arms, ammunition, stores of
+     war, goods, or merchandize, belonging or possessed by any of
+     Her Majesty's enemies in any sea, creek, river, or haven."
+
+It was the purpose of the persons who brought in this bill, that
+Privateers should not be allowed to make depredations upon the coasts
+of the enemy for the purpose of plundering individuals, and for that
+reason they were restricted to fortified places and fortresses, and to
+property water-borne.[91]
+
+As Privateers sometimes sail in company with Queen's vessels, and also
+in small squadrons, for the purpose of mutual assistance, the rights
+of the privateers vary. When a Privateer is sailing under the convoy
+of a Queen's ship, she takes no share in any prize taken by the ship,
+or even by herself, unless she has received orders from the convoying
+royal ship to give chase, or has acted hostilely against the enemy,
+actually aiding and assisting in the capture.[92]
+
+When Privateers have sailed in company, it has often happened that not
+every vessel has been actually engaged in the capture of the prize,
+though they may have been rendering valuable assistance in a variety
+of forms, such as watching in the offing, guarding an open outlet of
+escape to the intended prize. In the disputes arising from these joint
+captures, Sir William Scott was the first to establish a settled
+intelligible system, on principles that might become in future easily
+applicable to the various cases that might arise.
+
+[Sidenote: Constructive Captors.]
+
+He says
+
+     "the Act of Parliament (meaning the Prize Act), and the
+     proclamation, 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 name of takers, but
+     the Courts of Law have gone further, and have extended the
+     term 'takers' to those who, not having contributed actual
+     service, are supposed to have rendered a constructive
+     assistance, either by conveying encouragement to the captor,
+     or intimidation to the enemy. * * * It has been contended
+     that where ships are associated in a _common enterprize_,
+     that circumstance is sufficient to entitle them to share
+     equally and alike in the prizes that are made; but many
+     cases might be stated when ships so associated would _not_
+     share. I must ever hold that the principle of mere common
+     enterprise is not sufficient--it is not sufficiently
+     specific--it must be more limited. What is the real and true
+     criterion? She 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
+     sight of the enemy, and under preparation for chase, I
+     should have no hesitation 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_."[93]
+
+[Sidenote: Efforts to suppress Privateering.]
+
+Powerful efforts have been made by humane and enlightened individuals
+to suppress Privateering, as inconsistent with the liberal spirit of
+the age. In the language of Chancellor Kent,
+
+     "the object is not honour, or chivalric fame, but plunder
+     and profit. The discipline of the crews is not apt to be of
+     the highest order, and privateers are often guilty of
+     enormous excesses, and become the scourge of neutral
+     commerce."
+
+They are sometimes manned and officered by foreigners, having no
+permanent connection with the country, or interest in the cause. This
+was a complaint made by the United States in 1819, in relation to
+irregularities and atrocities committed by private armed vessels,
+sailing under the flag of Buenos Ayres. Under the best regulations the
+business tends strongly to blunt the sense of private right, and to
+nourish a lawless and fierce spirit of rapacity.
+
+Its abolition has generally been attempted by treaty. In the treaty of
+Prussia and the United States, in 1785, stipulations against private
+armed vessels were included. In 1675, a similar agreement was made
+between Sweden and Holland, but the agreement was not performed.
+France, soon after the breaking out of the war with Austria, in 1792,
+passed a decree for the total suppression of privateering, but that
+was a transitory act, and was soon swept away in the tempest of the
+Revolution.
+
+[Sidenote: Piratical Privateering.]
+
+On these considerations naturally follows that of the classes of
+Privateers that can be considered Pirates.
+
+A Privateer differs from a Pirate, in that--first, the former is
+provided with a Commission, or with Letters of Marque from a Sovran,
+of which the Pirate is destitute. Secondly, the Privateer supposes a
+state of war (or at least that of reprisals); the Pirate plunders in
+the midst of peace, as well as in war. Thirdly, the Privateer is
+obliged to observe the rules and instructions that have been given
+him, and to attack by virtue of them only the enemy's ships, or those
+neutral vessels which carry on an illicit commerce; the Pirate
+plunders indiscriminately the ships of all nations, without observing
+even the laws of war. But in this last point Privateers may become
+Pirates when they transgress the limits prescribed to them; and this
+is one of the reasons why we often see the former confounded with the
+latter.[94]
+
+Under these general definitions, we see that it is quite open to any
+citizen of the world to become a privateer under a foreign Sovran; and
+Martens goes on to say, that
+
+     "there is nothing that prevents the granting of Letters of
+     Marque, even to the subjects of neutral or allied powers who
+     are able to solicit them; but since it is contrary to
+     neutrality to suffer subjects to contribute by this means to
+     the reinforcement of one of the belligerent powers, and to
+     the annoyance of the other, states generally prohibit their
+     subjects from taking Letters of Marque from a power, without
+     the permission of their Sovereigns, and many treaties oblige
+     them also to prohibit their subjects from doing it, as well
+     as to forbid every species of armaments on the enemy's
+     account, in their ports. However, the enemy is not justified
+     in _punishing them as pirates_, when they have letters
+     patent from one of the powers with whom it is at war,
+     although their ship may be confiscated."[95]
+
+The laws of the United States have made ample provision on this
+subject, and they may be considered as an expression of the general
+wish of civilized nations; and they prescribed specific punishment for
+acts which were before unlawful.
+
+American citizens are prohibited from being concerned, beyond the
+limits of the United States, in fitting out or otherwise assisting any
+private vessel of war, to cruize against the subjects of friendly
+powers.[96]
+
+In the various treaties between the powers of Europe, in the two last
+centuries, and in the several treaties between the United States and
+France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia,
+Chili, &c., it is declared, that no subject or citizen of either
+nation shall accept a commission or letter of marque, to assist an
+enemy in hostilities against the other, under penalty of being treated
+as an enemy.[97]
+
+The Title to Property taken in War may, upon general Title to
+principles, be considered as immediately divested from the original
+owner, and transferred to the captor. As to personal property, the
+title is considered as lost to the former proprietor, as soon as the
+enemy has acquired a firm possession, which, as a general rule, is
+considered as taking place after the lapse of twenty-four hours.[98]
+
+Ships and goods captured _at sea_, are excepted from the operation of
+this rule. The right to all captures rests primarily in the Sovran,
+and no individual can have any interest in a prize, whether made by a
+crown or private armed vessel, but what he receives under the grant of
+the state.
+
+When a prize is taken at sea, it must be brought with due care into
+some port, for adjudication by a competent court. The condemnation
+must be pronounced by a prize court of the Government of the captor,
+sitting either in the country of the captor, or of his ally. The prize
+court of an ally cannot condemn.[99]
+
+[Sidenote: Proceedings Preliminary to Condemnation.]
+
+The Proceedings Preliminary to Condemnation may be roughly described
+as follows:--
+
+The _captor_, immediately on bringing his prize into port, sends up
+and delivers upon oath to the registry of the Court of Admiralty, all
+papers found on board the prize. The preparatory examinations of the
+captain and some of the crew of the _captured ship_ are then taken,
+upon a set of standing interrogatories, before the commissioners of
+the port to which the prize is brought. These also are forwarded to
+the registry of the Court of Admiralty. A written _notice_, called a
+_monition_, is extracted by the captor from the registry, and served
+upon the Royal Exchange, notifying the capture, and calling upon all
+persons interested, to appear and show cause why the ship and goods
+should not be condemned. At the expiration of twenty days, the
+monition is returned into the registry, with a certificate of its
+service; and if any claim has been given, the cause is then ready for
+hearing, upon evidence arising out of the ship's papers and
+preparatory examinations.
+
+The _neutral master or proprietor of the cargo_ takes measures as
+follows:--Upon being brought into port, the master usually makes a
+protest, which he forwards to London as instructions, (or with such
+further directions as he thinks proper) either to the correspondent of
+his owners, or to the consul of his nation, in order to claim the ship
+or such parts of the cargo as belong to his owners, or with which he
+was particularly entrusted; or the master himself goes to London to
+take the necessary steps, as soon as he has undergone his examination.
+
+The master, correspondent, or consul, applies to a proctor, who
+prepares a claim supported by the affidavit of the claimant, stating
+briefly to whom, as he believes, the ship and goods claimed belong;
+and that no enemy has any right or interest therein; security must be
+given to the amount of sixty pounds, to answer costs, if the case
+should appear so grossly fraudulent on the part of the claimant as to
+subject him to be condemned therein. If the captor has neglected in
+the mean time to take the usual steps, (but which seldom happens, as
+he is strictly enjoined both by his instructions and by the Prize Act
+to proceed immediately to adjudication,) a process issues against him,
+on the application of the claimant's proctor, to bring in the ship's
+papers and preparatory examinations, and to proceed in the usual way.
+
+As soon as the claim is given, copies of the ship's papers and
+examinations are procured from the registry, and upon the return of
+the monition the cause may be heard. It however seldom happens, owing
+to the great pressure of business, (especially at the commencement of
+war), that causes can possibly be prepared for hearing immediately on
+the expiration of the time for the return of the monition; in that
+case, each cause must necessarily take its regular turn. Correspondent
+measures must be taken, by the neutral master, if carried within the
+jurisdiction of a Vice-Admiralty Court, by giving a claim, supported
+by his affidavit, and offering a security for costs, if the claim
+should be pronounced grossly fraudulent.
+
+If the claimant be dissatisfied with the sentence, his proctor enters
+an appeal in the registry of the Court, where the sentence was given,
+or before a notary public (which regularly should be entered within
+fourteen days after the sentence); and he afterwards applies at the
+registry of the Lords of Appeal in prize causes, which is held at the
+same place as the registry of the High Court of Admiralty, for an
+instrument called an inhibition, and which should be taken out within
+three months, if the sentence be in the High Court of Admiralty; and
+within nine months, if in a Vice-Admiralty Court; but may be taken out
+at later periods if a reasonable cause can be alleged for the delay
+which has intervened. This instrument directs the judge, whose
+sentence is appealed from, to proceed no further in the cause; it
+directs the registrar to transmit a copy of all proceedings of the
+inferior courts; and it directs the party who has obtained the
+sentence to appear before the superior tribunal to answer to the
+appeal. On applying for the inhibition, security is given on the part
+of the appellant to the amount of two hundred pounds, to answer costs,
+in case it should appear to the Court of Appeal that the appeal is
+vexatious. The inhibition is to be served upon the judge, the
+registrar, and the adverse party, and his proctor, by shewing the
+instrument under seal, and delivering a note of its contents. If the
+party cannot be found, and his proctor will not accept the service,
+the instrument is to be served, _viis et modis_; that is, by affixing
+it to the door of the last place of residence, or by hanging it on the
+pillars of the Royal Exchange. That part of the process above
+described, which is to be executed abroad, may be performed by any
+person to whom it is committed, and the formal part at home is
+executed by the officer of the court. A certificate of the service is
+endorsed on the back of the instrument, sworn before the surrogate of
+the superior court, or before a notary public, if the service is
+abroad.
+
+If the cause be adjudged in the Vice-Admiralty Court, it is usual, on
+entering the appeal there, to procure a copy of the proceedings, which
+the appellant sends over to his correspondent in, England, who carries
+it to a proctor, and the same steps are taken to procure and send the
+inhibition as when the cause has been adjudged in the High Court of
+Admiralty. But if a copy of the proceedings cannot be procured in due
+time, an inhibition can be obtained, by sending over a copy of the
+instrument of appeal, or by writing to the correspondent an account
+only of the time and substance of the sentence.
+
+Upon an appeal, fresh evidence may be introduced, if, upon hearing,
+the Lords of Appeal should be of an opinion that the cause is of such
+doubt, or that further proof ought to have been ordered by the court
+below.
+
+Further proof usually consists of affidavits made by the asserted
+proprietors of the goods, in which they are sometimes joined with
+their clerks, and others acquainted with the real transactions, and
+with the real property of the goods claimed. In corroboration of these
+affidavits, may be annexed the original correspondence, duplicates of
+bills of lading, invoices, extracts from books, &c. These papers must
+be proved by affidavits of persons who can speak of their
+authenticity; and if copies or extracts, they should be collected and
+certified by public notaries. The affidavits are sworn before
+magistrates, or others competent to administer oaths in the country
+where they are made, and authenticated by a certificate from the
+British Consul.
+
+The degree of proof required depends upon the degree of suspicion or
+doubt that belongs to the case. In case of heavy suspicion and great
+importance, the court may order what is called "plea and proof," that
+is, instead of admitting affidavits and documents introduced by the
+claimant only, each party is at liberty to allege, in regular
+pleadings, such circumstance as may tend to acquit or condemn the
+capture, and to examine witnesses in support of the allegation, to
+whom the opposite party may administer interrogatories. The
+depositions of the witnesses are taken in writing. If the witnesses
+are to be examined abroad, a commission issues for that purpose; but
+in no case is it necessary for them to come to England. These solemn
+proceedings are seldom resorted to. Standing Commissions may be sent
+to any neutral country for the general purpose of receiving
+examinations of witnesses, in all cases where the court may find it
+necessary, for the purposes of justice, to decree an enquiry to be
+conducted in that manner.[100]
+
+[Sidenote: Prize Jurisdiction.]
+
+The Jurisdiction over Prizes is exercised by the Judge of the
+Admiralty, exclusively of every other judicature of the kind, except
+in cases of appeal.
+
+This Jurisdiction in matter of Prize, (whether it is coeval with the
+Court of Admiralty, or, which is much more probable, of a later
+institution, beyond the time of memory,) though exercised by the same
+person, is quite distinct in its nature.
+
+The Judge of the Admiralty is appointed by a commission under the
+great seal, which enumerates particularly, as well as generally, every
+object of his jurisdiction, but not a word of prize.
+
+To constitute that authority, in every war, a commission under the
+great seal issues to the Lord High Admiral to will and require the
+Court of Admiralty, and the Lieutenant and Judge of the said court,
+his surrogate or surrogates, and they are thereby authorised and
+required to proceed upon all and all manner of captures, seizures,
+prizes, and reprisals, of all ships and goods that are or shall be
+taken, and to hear and determine according to the Courts of Admiralty
+and the Law of Nations.
+
+A warrant issues to the judge accordingly.
+
+The Court of Admiralty is called the Instance Court; the other the
+Prize Court. The manner of proceeding is totally different. The whole
+system of litigation and jurisprudence in the Prize Court is peculiar
+to itself.
+
+[Sidenote: Common Law Courts not always excluded]
+
+A thing being done on the high seas does not exclude the jurisdiction
+of the Courts of Common Law. For seizure, stopping, or taking a ship
+upon the high seas, but _not as prize_, an action will lie; but for
+taking as _prize_, no action will lie. The nature of the question, not
+the locality, excludes.
+
+The end of a Prize Court is to suspend the property till condemnation,
+to punish every sort of misbehaviour in the captors; to restore
+instantly (full sail) if upon the most summary examination there does
+not appear a sufficient ground; to condemn finally, if the goods
+really are prize, against everybody; giving every body a fair
+opportunity of being heard. A captor may, and must force everybody
+interested to defend; and every person interested may force him to
+proceed to condemn without delay.[101]
+
+[Sidenote: Prize Courts.]
+
+Before the sixth of the reign of Queen Anne there were no laws made on
+this subject. Previous to that time all prizes taken in war were of
+right vested in the Crown, and questions concerning the property of
+such prizes were not the subject of discussion in courts of law. But
+in order to do justice to claimants, from the first year after the
+Restoration of Charles the Second, special commissions were issued to
+enable the Courts of Admiralty to condemn such captures as appeared to
+be lawful prizes; to give relief where there was no colour for taking;
+and generally to make satisfaction to parties injured. By the Act of
+the 13 Car. II. c. 9, (now repealed) indeed, some regulations were
+made concerning the treatment of ships taken, but no provisions
+enacted respecting any security to be given on delivery; the sole
+interest in the thing condemned being in the Crown; it was in public
+custody, and the disposition of it a mere matter of prerogative; no
+such provisions therefore were necessary.
+
+But in the sixth year of Queen Anne, it was thought proper, for the
+encouragement of seamen, to vest in them the prizes they should take;
+and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were
+passed.
+
+The first of these acts only relates to proceedings in the Courts of
+Admiralty in England, but contains no particular directions to them;
+the practice of those courts being already settled.[102]
+
+There is a long series of statutes, which follows the above, on the
+subject of the Prize Courts. The following may be taken as a general
+description of their operation.
+
+The judge should proceed, according to their form, to sentence with
+all possible expedition. If on the preparatory examination there
+arises a doubt in the breast of the judge, whether the capture is
+prize or not, and further proof appears to be necessary, the ship and
+cargo is appraised by persons named on the part of the captor, and is
+delivered up to the claimants, on their giving good and sufficient
+security to pay to the captor the full value, according to the
+appraisement, if the ship is adjudged lawful prize by the judge; by
+this the claimant is entitled to the immediate possession of the
+subject in dispute, which the captor cannot obtain but on the refusal
+of the claimant to give security for the appraised value. After a
+sentence of condemnation, the captor has a right to the possession;
+the execution of the sentence is not suspended by an appeal, but the
+party appellant gives good and sufficient security to restore the
+cargo, or its full value, in case the sentence is reversed.[103]
+
+[Sidenote: Where Prize Courts can be held.]
+
+Having explained shortly the operation of the Prize Courts, it must be
+observed, that the Prize Court of an Ally cannot condemn. Prize or no
+prize is a question belonging exclusively to the courts of the country
+of the captor. The reason is, that the Sovran has a right and is bound
+to inspect the conduct of the captors, for he is answerable to other
+states for the acts of the captor. The Prize Court of the captor may
+sit in the country of a co-belligerent or an ally, because there is a
+common interest between such on the subject, and both governments may
+be presumed to authorize any measures conducing to give effect to
+their arms, and to consider each others ports as mutually
+subservient.[104]
+
+It is not lawful for such a court to act in a neutral territory; and
+it was at one time even doubted, where property had been carried into,
+and was lying in a neutral port, whether the validity of the capture
+could be determined even by a Court of Prize established in the
+captor's country; because it was thought that the possession in reach
+of the court was essential to the exercise of a jurisdiction in a
+proceeding _in rem_. The principle was admitted by Sir Wm. Scott to be
+correct, in the case of the Henrick and the Maria;[105] but he
+considered that the English Admiralty had gone too far in supporting
+condemnations in England, of prizes abroad in neutral ports, to permit
+him to recall the vicious practice of the Court to acknowledged
+principle.
+
+[Sidenote: Judgments of Prize Courts conclusive.]
+
+The jurisdiction of the Court of the capturing nation is conclusive
+upon the question of property in the captured thing. Its sentence
+settles all further dispute between claimants; and if that sentence is
+manifestly unjust, or against the Law of Nations, the state is alone
+responsible, and not the captors. An unjust sentence is a good ground
+for issuing commissions of Reprisals. Numerous treaties between the
+different powers of Europe, regulating the subject of Reprisals,
+declare that they shall not be granted, unless in case of the _denial
+of justice_. "An unjust sentence," says Wheaton, "must certainly be
+considered as a denial of justice, unless the mere privilege of being
+heard before condemnation is all that is included in the idea of
+justice."[106]
+
+Thus the sentence of a Prize Court, it is plain, is sufficient to
+confirm the captor's title to captures at sea; but a different rule
+applies to real property or immoveables.
+
+Immoveable possessions, lands, towns, provinces, &c., become the
+property of the enemy who makes himself master of them; but it is only
+by the treaty of peace, or the entire subjugation and extinction of
+the state to which those towns and provinces belonged, that the
+acquisition is completed, and the property becomes stable and perfect.
+Thus, a third party cannot safely purchase conquered land till the
+Sovran from whom it has been taken has renounced it by a treaty of
+peace, or has irretrievably lost his sovereignty.[107] Until such
+confirmation, it continues liable to be divested by the _jus
+postliminii_. The purchaser of any portion takes it, at the peril of
+being evicted by the original Sovran owner, when he is restored to his
+dominions.[108]
+
+I now pass on to the more commercial question of Passports,
+Safe-Conducts, and Licences to Trade.
+
+
+
+SECTION III.
+
+
+
+_Licences_.
+
+
+[Sidenote: Passports and Safe Conducts]
+
+Passports, and Safe-conducts, are a kind of privilege, insuring safety
+to persons in passing and repassing, or to certain things during their
+conveyance from one place to another. All Safe-conducts, like every
+other act of Supreme Command, emanate from the Sovran authority, but
+are constantly delegated to inferior officers, either by an express
+commission, or by a natural consequence of the nature of their
+functions. The person named in the Passport cannot transfer his
+privilege to another. They generally promise security wherever the
+grantor has authority and command, and are interpreted by the same
+rules of liberality and good faith, with other acts of the Sovran
+power.[109]
+
+[Sidenote: Licences to Trade with the Enemy]
+
+A Licence granted by a state to its own subjects, or to those or the
+enemy, is a dispensation on its own side of the Laws of War, as far as
+its terms can be fairly construed. The adverse party may justly
+consider such licence as a ground of capture and confiscation _per
+se_; but the Prize Courts of the state, under whose authority they are
+issued, are bound to consider them as lawful relaxations of the
+ordinary state of war. In the country which grants them, licences to
+carry on a pacific commerce are rigidly interpreted, as being
+exceptions to a general rule; though they are not to be construed with
+pedantic accuracy, nor will every small deviation be held to vitiate
+the fair effect of them.[111]
+
+During the later period of the last century, and the earlier portion
+of this, licences were considered as privileges granted to individuals
+for their own benefit, and in which the nation at large was but
+little, or remotely, interested. They were therefore held liable to
+the same strict construction with other similar grants. Yet this rule
+was never held in a narrow captious manner; and if the apparent
+intention of Government was complied with, and there was no suspicion
+of fraud, a sufficient liberality was allowed in the construction.
+When the extraordinary mode of warfare established by the Emperor
+Napoleon, (by an attempt at a general embargo) was carried on, new
+expedients were required to counteract its evils, and licences to a
+great extent were granted to relieve the stagnant trade of the
+country; and this measure, so highly beneficial, and even necessary,
+was facilitated by the adoption of a still more liberal mode of
+construction, and which, no doubt, will again guide these cases.[112]
+
+[Sidenote: Duties of Merchants using Licences]
+
+In trading under a Licence, the merchant ought to follow the terms or
+it as strictly as possible; but if he is acting _bonâ fides_, some
+breaches of it will be permitted. Being high acts of Sovranty, they
+are necessarily the creatures of that act of power, and must not be
+carried further than the intention of the great authority that grants
+them may be supposed to extend; not that they are to be construed with
+pedantic accuracy, nor that any small deviation should be held to
+vitiate the fair effect of them. An excess in the _quantity_ of goods
+permitted might not he considered noxious to any extent. A variation
+in the quality or substance of the goods might be more significant,
+because a liberty assumed of trading in one species of goods, under a
+license to trade in another, might lead to very dangerous abuses. The
+license must be looked to for the enumeration of goods that are to be
+protected by it.[113]
+
+The principles on which courts act in treating licences is thus
+succinctly laid down by Sir William Scott.--
+
+     "I need not repeat what I have so often stated, the anxious
+     wish of this court to relieve, as much as possible, the
+     difficulties under which the commerce of the world now
+     labours (November 1812,) and to apply the most favourable
+     consideration to the construction of license cases. At the
+     same time it is to be remembered, that the court possesses
+     the mere power of interpretation; that it must confine
+     itself to a reasonable explanation of the terms made use of,
+     and cannot alter or dispense with conditions considered as
+     essential by the Government granting the license. If the
+     court assumes the power of extension by favourable
+     interpretation, it does so only where there is a total
+     absence of _bad faith_, and where unavoidable obstacles have
+     been thrown in the way of an exact compliance with the terms
+     prescribed. Where there has been a want of good faith, or a
+     departure from the terms, beyond the necessity thus imposed,
+     the court has not felt itself called upon to mitigate the
+     penalties incurred by such a deviation."[114]
+
+[Sidenote: The Vessel.]
+
+It is not an essential deviation from the licence, if ships of other
+countries than those designated in the license are employed; provided
+those other countries have the same political bearing towards this
+kingdom as those mentioned in the licence. But it is not a matter of
+indifference to substitute a ship belonging to a country at war, for a
+neutral or native ship, at the will and pleasure of the holder of the
+licence.[115]
+
+Where an enemy's ship was represented to be neutral, and under that
+disguise obtained a licence and was navigated, the ship and freight
+were condemned; and the cargo would have been involved in the same
+fate had it been shown that the owner of the cargo was privy to the
+fraud.[116]
+
+A licence to trade in neutral bottoms does not extend to British
+ships.[117]
+
+[Sidenote: The Cargo.]
+
+The exportation of the produce and manufactures of this country is
+undoubtedly of great importance; but in time of war, it may be a
+matter of serious injury to the kingdom, if the commerce of the enemy
+is to be carried on in security under the abuse of British licences.
+The Courts of Admiralty and Prize, therefore, as far as lie in their
+power, guard against the fraudulent application of licences.
+
+The following are a few practical rules for the guidance of
+merchants:--
+
+1. Where the goods are enumerated in the licence, the best endeavour
+ought to be made to follow that enumeration. It is _not_ a fatal
+departure from the licence to take on board non-enumerated articles,
+if done so by mistake, or inadvertence; but an essential and
+fraudulent departure from the conditions of the licence is a total
+defeasance of it.[118]
+
+2. When a licence is granted to _one_ person, it cannot be made to
+extend to the protection of all other persons who may be permitted by
+that person to take advantage of it.[119]
+
+3. Where A and B have obtained a licence to import, _as for
+themselves, or their agents, or the bearers of their bill of lading_,
+the only persons entitled to act under that licence, are A and B, as
+_importers_, or their agents, or persons holding their bills of
+lading, and claiming under bills of lading, which A and B, _after
+having conducted the importation from the enemy on their own account_,
+have transferred to them.[120]
+
+4. Under a licence to _import_, the British merchant must not also be
+the _exporter_. He is not permitted under such a licence to go to the
+enemy's country, and there act as an enemy's merchant, carrying on the
+export trade of that country.[121]
+
+5. Sometimes, in describing the property in licences, the privilege is
+extended to all property of a certain class, "to whomsoever the
+property may appear to belong." In such cases no enquiry is ever made
+as to the proprietary interest in the property; but if the words are
+not introduced into the licence, it does not protect enemy's
+property.[122]
+
+[Sidenote: The Voyage.]
+
+In the Voyage, also, the merchant must follow the licence. It is
+vitiated by changing the place of shipment. Thus, where a licence was
+to bring away a cargo from Bordeaux, and the party thought proper to
+change the licence, and accommodate it to another port in France, it
+was held by the English Admiralty that the licence was vitiated, and
+the vessel and cargo were condemned.[123]
+
+Enemies trading to the ports of this country must strictly comply with
+the conditions under which that permission is granted. No voluntary
+deviation from the _course_ pointed out can on any account be
+tolerated; except under the pressure of irresistible necessity. The
+character of enemy revives, when such a trader so deviates from his
+appointed course, even if there is no _malâ fides_, and he runs all
+the perils of an enemy on an English coast.[124]
+
+It is a violation of a licence to touch at an intermediate port under
+a licence for a direct voyage to this country, the presumption being
+that at the intermediate port the vessel might receive another
+destination, or might actually deliver her cargo in that port.[125]
+
+[Sidenote: Time.]
+
+Of course when the period for which a licence has been granted has
+expired, it no longer has any operation; yet in cases in which parties
+have used due diligence, but have been prevented by accident from
+carrying their intentions into effect within the time, it has been
+holden that, though their licences have expired, they are entitled to
+protection.[126]
+
+A licence cannot be _ante dated_, and if granted subsequent to capture
+it is no protection against condemnation. It is in its very nature
+prospective, pointing to something which has not yet been done, and
+cannot be done at all without such permission. Where the act has
+already been done, and requires to be upheld, it must be by an express
+confirmation of the act itself, as by an indemnity granted to the
+party; but a licence necessarily looks to that which remains to be
+done, and can extend its influence only to future operations.[127]
+
+Note.--It has been before pointed out, that the Queen has, by her
+prerogative, the power of granting licences. But the Navigation Laws
+could not, of course, be dispensed with by the royal prerogative.
+Various acts, therefore, were passed to alter or qualify them,
+according to the new condition of things which was produced in time of
+war. These acts expired with the several wars that suggested them; but
+the almost total repeal of the celebrated Navigation Laws will render
+the re-enactment of similar war measures almost unnecessary.
+
+
+
+SECTION IV.
+
+
+
+_Ransom, Recaptures, and Salvage_.
+
+[Sidenote: Ransom.]
+
+Sometimes circumstances will not permit property captured at sea to be
+sent into port; and the captor, in such cases, may either destroy it,
+or permit the original owner to redeem it.
+
+It was formerly the general custom to redeem property from the hands
+of the enemy by Ransom, and the contract is undoubtedly valid, when
+municipal regulations do not intervene. It is now but little known in
+the commercial law of England, for several statutes in the reign of
+George the Third absolutely prohibited British subjects the privilege
+of ransom of property captured at sea, unless in a case of extreme
+necessity--to be judged of by the Court of Admiralty.[128]
+
+These contracts are generally drawn up at sea, and by virtue of them,
+the captain of the captor engages for the release and safe conduct of
+the taken ship, in consideration of a sum of money, which the master
+of the captured vessel, on behalf of himself and the owners of his
+ship and cargo, engages to pay, and for the payment of which he
+delivers a hostage as security. The contract is drawn up in two parts,
+of which the captor has one, which is called the ransom bill; the
+master of the captured vessel has the other, which operates as his
+safe conduct.
+
+By the French law this safe conduct only protects the vessel to its
+own port, or its port of destination, if nearer that. In other
+countries the pass allows the ship to continue its voyage; but
+operates only to protect the vessel in the course prescribed, and
+within the time limited by the contract. It protects only against
+capture, unless by agreement it provides also against _total loss_ by
+perils of the seas.
+
+During war, and while the character of alien enemy continues, no suit
+will lie in the British Courts by the enemy, in proper person, on a
+ransom bill, notwithstanding it is a contract arising out of the law
+of war. The remedy to enforce payment of the ransom bill for the
+benefit of the enemy captor, is by an action by the imprisoned
+hostage, in the courts of his own country, for the recovery of his
+freedom.
+
+The hostage consists generally of one or two principal officers of the
+captured prize, more generally one only.
+
+As the ransom is in the nature of a pledge, the ransom cannot exceed
+the value of the ship, so that the master cannot bind his owner for a
+larger value; and on the same principle, the captor is bound to take
+the vessel or its value if abandoned by the owner, or what it sells
+for if the owner is insolvent. He is also bound to maintain the
+hostage, and that is an item in the ransom bill. In estimating the
+ransom and expenses of the hostage as a damage or loss, they are
+regarded in the nature of general average, and the several persons
+interested in the ship, freight, and cargo, must all contribute
+towards them.[129]
+
+[Sidenote: Recaptures.]
+
+Although in strictness _every_ prize legally made, may be adjudged to
+the captor, yet there are cases where he ought to restore, wholly, or
+in part, that which he may legally have taken from the enemy. This is
+the case of recaptures.
+
+According to the universal law of nations, the question whether the
+recapture ought to be restored to the first proprietor, seems to
+depend essentially on another, namely, whether the captor has become
+full proprietor of the prize, _to the total extinction_ of the rights
+of the first proprietor. If we admit that he may have become so, there
+would be no further perfect and external obligation on the _recaptor_
+to restore property which has become that of the enemy; and on which
+the first proprietor has lost all claim. There may be a thousand
+reasons of equity why he should not enrich himself by the spoil of his
+fellow citizens or friends; but then, that restitution would not be
+according to the strict rule of natural law; if indeed all claim had
+so passed away.
+
+The captor has, without doubt, a right to take away the enemy's goods.
+He may, without troubling himself with the proprietor's rights, detain
+them, with intent to appropriate to himself, in the same manner, in
+every respect, as he may seize _res nullius_ in the time of peace; but
+it does not follow from thence that the effect of these two actions is
+the same, when applied to objects of so different a condition, or that
+the right of war alone, without cession or renunciation, is a title
+sufficient for a full property.
+
+By the Laws of War the right and power _of possession_ is in the
+captor; the _right of property_ remains in the proprietor. This right
+of war, which is personal in the captor, not being capable of cession,
+cannot bind a third person, who acquires the prize by recapture during
+war; and nothing prohibits the original proprietor from prosecuting
+his rights against him; accordingly, without making any distinction
+between conquest, booty, or prize; the goods taken by the enemy,
+however legal that capture might be, however certain the possession of
+them might be, do not become his full property till the moment of
+peace; and that during the whole course of the war it may be claimed
+by the first proprietor from the hands of every third possessor. From
+this it follows that every recapture, made at any period of the war
+whatever, whether the capture may have been legal, or whether it may
+have been illegal; whether the recapture be made by a Sovran, or by a
+privateer; ought to be restored to the original owner on a just
+repayment of the costs and damages of every recaptor, unless the
+illegality of the recapture precludes the recaptor from the privilege
+of demanding the indemnification.[130]
+
+[Sidenote: Salvage.]
+
+The costs and damages paid to the recaptor are termed Salvage. It was
+the ancient law of this country, that a possession of twenty-four
+hours was a sufficient conversion of the property, and unless it was
+reclaimed before _sundown_, the owner was divested of his property.
+Thus there was a complete obliteration of the rights of former owners.
+This was the ancient law of England, and was in accordance with the
+ancient law of Europe.
+
+This rule has been receded from in this country, since the increase of
+her commerce. 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 was continued afterwards, when this
+country became still more commercial.
+
+This country, as a commercial country, has thus departed from the old
+law, and has made a new and peculiar law for itself, in favour of
+merchant property recaptured, introducing a policy not then introduced
+by other countries, and differing from its own ancient practice.
+
+[Sidenote: Recaptures converted into Ships of War are not restored.]
+
+There is one exception to this law. The Prize Act provides that if a
+recaptured ship, originally taken by her Majesty's enemies, shall
+appear to have been by them "_set forth as a ship or vessel of war_,"
+the said ship or vessel shall not be restored to the former owners or
+proprietors; but shall, in all cases, whether retaken by any of Her
+Majesty's ships, or by any privateer, be adjudged lawful prize for the
+benefit of the captors. When the former character of the vessel has
+been once obliterated by her conversion into a ship of war, the title
+of the former owner, and his claim to restitution, are extinguished,
+and cannot be revived by any subsequent variation of the character of
+the vessel.
+
+_Setting forth_ does not necessarily mean sending out of port with a
+regular commission. It is sufficient if she has been used as part of
+the _national_ force of the enemy, by those in _competent_
+authority.[131]
+
+[Sidenote: Capture a material question in cases of Recapture.]
+
+As it has been stated above, in cases of recapture, the material
+question is, whether there was such a capture made by the enemy, as to
+found a case of re-capture.
+
+This is settled by the question whether the enemy have an effectual
+possession; by this is not meant the _complete_ and firm possession
+obtained by condemnation in a Court of Prize, but that effectual
+possession, that if not interrupted by recapture, would have enabled
+the captor to exercise rights of war over her. For this purpose it is
+not necessary that the possession should be _long_ maintained. The
+following are some examples of such effectual possession.
+
+An English merchantman, separated from her convoy during a storm, was
+brought to by an enemy's lugger, which came up and told the master to
+stay by her till the storm was abated, when they would send a man on
+board; a British frigate coming up afterwards chased the lugger and
+took her, thus releasing the merchantman; the frigate was held
+entitled to salvage.[132]
+
+But when a small English vessel, armed with two swivels, forced a
+privateer row-boat from Dunkirk to strike, but was not able to board
+her, because the English vessel has only three men, and no arms but
+the swivels,--the Frenchman being filled with a well armed crew; and
+subsequently, the row-boat was forced to put into the port of Ostend,
+then the port of an ally; this might not be a capture under the act,
+so much as it was under the general maritime law.
+
+A vessel brought out of port, and which was in the power, though not
+in the actual occupation of the enemy, was thus rescued from
+considerable peril, was held to be recaptured.[133]
+
+Similarly, with a vessel abandoned by the enemy, having possession of
+her, through the terror of an approaching force.[134]
+
+There is no claim to Salvage where the property rescued was not in the
+possession of the enemy, or so nearly as to be certainly and
+inevitably under his grasp.
+
+[Sidenote: Recapture of Property of Allies.]
+
+England restores the Recaptured Property of her Allies, on the payment
+of salvage; 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.[135]
+
+[Sidenote: Recapture of Neutral Property.]
+
+It is not the practice of modern nations to grant Salvage on the
+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 to him; for the enemy would be compelled by the
+tribunals of his own country, after he had carried the neutral into
+port, to release him with costs and damages, for the injurious seizure
+and detention. This proceeds on the supposition, that those tribunals
+would duly respect 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 in the wild hostilities
+declared and practised by France in the Revolutionary War, there was a
+constant struggle between the governing powers of France and the
+maritime courts, which should most outrage the rights of neutral
+property; the liberation of neutral property out of their hands then
+came to be deemed, not only by Lord Stowell, but by the neutrals
+themselves, a substantial benefit; and salvage for such service was
+not only awarded, but thankfully paid.[136]
+
+[Sidenote: Jus Postliminii.]
+
+The rule by which things taken by the enemy are restored to their
+former owner, upon coming again under the power of the nation to which
+they formerly belonged, is termed _jus postliminii_, or the right of
+postliminy. Real property, which is easily identified, is more
+completely within the right of postliminy than moveable property,
+which is more transitory in its nature, and less easily recognized.
+During war, the right of postliminy can only be claimed in the
+tribunals of the belligerent powers, and not in the courts of
+neutrals; for by a general law of nations, neutrals have no right to
+enquire into any captures, except such as are an infringement of their
+own neutrality.[137]
+
+[Sidenote: Costs and Damages to Owners for invalid Seizures.]
+
+It often happens that captains of ships of war and privateers make
+seizures of native or neutral vessels, under the impression that such
+vessels are occupied in illicit trade or other condemnatory acts. This
+may arise from error, and in such cases the vessel is restored to the
+owner by the prize court; but still there may be circumstances
+justifying the seizure, though not condemnation; and if condemnation
+is not granted, the owner sets up a claim for any damage that may have
+occurred to his vessel.
+
+And the rule is, that where the capture is not justifiable, a captor
+is answerable for every damage.[138]
+
+But if a seizure is justifiable, all that the law requires is that the
+captor shall be held responsible for _due diligence_; it is not enough
+that the captor should use as much caution as he would in his own
+affairs, the law requires that there should be no _deficiency of due
+diligence_.[139]
+
+When property is confided by an owner to another person, the care that
+the owner would take of his own property may be a reasonable criterion
+of the care that he may expect his agent to take. But in the case of
+capture, 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 conduct of the
+prize-master. Hence, where the prize-master refused to take a pilot,
+and the ship and cargo were lost, restitution in value was decreed.
+
+
+
+
+CHAPTER III.
+
+
+
+SECTION I.
+
+
+
+_Neutrality_.
+
+[Sidenote: Rights of Neutral Nations.]
+
+It now only remains for me to place before the reader the Rights and
+Obligations of Neutral Nations, as they influence Commerce.
+
+Neutral Nations are those who, in time of war, take no part in the
+contest, but remain common friends to both parties, without favouring
+the arms of the one to the prejudice of the other.[140]
+
+Neutrality consists in--1st, Giving no assistance when there is no
+obligation to give it; nor voluntarily to furnish troops, arms,
+ammunition, or anything of direct use in war. 2ndly, In whatever does
+not relate to war, a neutral and impartial nation must not refuse to
+one of the parties (on account of his present quarrel) what she grants
+to the other.[141]
+
+[Sidenote: Qualified Neutrality.]
+
+These rules do not apply to engagements by treaty, to which the
+Neutral may be bound previous to war; as for example, an engagement to
+furnish one of the belligerent parties with a _limited_ succour in
+money, troops, ships, or munitions of war, or to open his ports to the
+armed vessels of his ally with his prizes.[142]
+
+Neutrality, again, may be qualified by treaties (antecedent to war),
+to admit vessels of war, with their prizes, of one of the belligerent
+parties, into the neutral's ports, to the complete or limited
+exclusion of the other.
+
+[Sidenote: Neutral Territory protected.]
+
+The Rights of War can be exercised only within the territory of the
+belligerent powers, upon the high seas, or in a territory belonging to
+no one. To make use of neutral territory for the _proximate_ purposes
+of war cannot be allowed, although it is to be understood that the
+prohibition does not extend to remote objects and uses, such as
+procuring provisions, and other innocent articles.[143]
+
+The sanctity of a claim of territory is very high. When the fact is
+established, it overrules every other consideration; the property
+taken must be restored, notwithstanding that it belongs to the enemy;
+and if the captors should have erred wilfully, and not merely through
+ignorance, he would be subject to further punishment. It is however, a
+point on which foreign states are very likely to be misinformed and
+abused, by the interested representations of those who are anxious to
+catch at their protection. The claim of territory is, therefore, to be
+taken according to the letter of the law, and to be made out by clear
+and unimpeached evidence. The right of seizing the property of the
+enemy is a right which extends, generally speaking, _universally_,
+wherever that property is found. The protection of neutral territory
+is an exception only to the rule; it is not therefore to be considered
+disrespectful to any government that the fact, on which such claims
+are founded, should be accurately examined.[144]
+
+The neutral territory is supposed to extend three English miles from
+the shore.[145]
+
+[Sidenote: Property of Belligerents in Neutral Territory.]
+
+But the general inviolability of neutral character goes further than
+merely the protection of neutral property. It protects the property of
+belligerents within the neutral territory. Thus, if the enemy be
+attacked, or any capture made under neutral protection, the neutral is
+bound to redress the injury, and effect restitution. As for example,
+in 1793, the English ship Grange was captured in Delaware Bay, by a
+French frigate, and upon due complaint, the American Government caused
+the British ship to be promptly restored. Similarly, in the case of
+the Anna, restoration was made of property captured by a British
+cruizer near the mouth of the Mississippi, and within the jurisdiction
+of the United States.[146]
+
+An armed ship has no right to lie in a neutral harbour, in order to
+make it an habitual _station_ for her captures, as that would be a
+continuous direct infringement on neutral trade with the enemy; but if
+she is accidentally in a neutral port, and sees an enemy coming, she
+may go out and fight, or take her, beyond the range of neutral
+ground.[147] Nor ought captors to station themselves at the mouth of a
+neutral river for exercising the rights of war from that river, much
+less in the very river itself.[148]
+
+The doctrine is carried to the extent that no use of a neutral
+territory for the purposes of war is to be permitted; this does not
+include _remote_ uses, such as procuring provisions and refreshments,
+and acts of that nature, which the law of nations universally
+tolerates; but that no _proximate_ acts of war, in any manner, are to
+be allowed to originate on neutral grounds;--thus a ship has no right
+to station herself in neutral waters, and then to send out her boats
+on hostile enterprises beyond the boundary. This is a _direct hostile
+use_ of the neutral territory, and many instances have occurred in
+which such an irregular use of neutral territory has been warmly
+resented. Nor can the neutral, in true consistency with his
+neutrality, permit such a course of war.[149]
+
+[Sidenote: Vessels chased into a Neutral Port.]
+
+Bynkershoek has maintained the anomalous principle, that vessels may
+be chased into a Neutral Territory, and there captured; but there is
+in reality no exception to the rule, that every voluntary entrance
+into a neutral territory, with hostile purposes, is absolutely
+unlawful.
+
+But this restoration takes place only on the application of the
+neutral government whose territory has been thus violated, the
+neutrality alone being the ground of the invalidity of the
+capture.[150]
+
+[Sidenote: Consent of Neutral State necessary.]
+
+Though a belligerent vessel may not enter within neutral jurisdiction
+for hostile purposes, she may, consistently with a state of neutrality
+(unless prohibited by the neutral power), bring her prize into the
+neutral port and sell it there.
+
+[Sidenote: Freedom of Neutral Commerce.]
+
+A neutral has a right to pursue his accustomed commerce, and he may
+become the carrier of the enemy's goods, without being subject to
+confiscation of the ship, or of the neutral articles on board; though
+not without the risk of having the voyage interrupted by the seizure
+of the hostile property. If we find an enemy's effects on board a
+neutral ship, we seize them by right of war; but we are naturally
+bound to pay the freight to the master of the vessel, who is not to
+suffer by such seizure.[151]
+
+The effects of neutrals found in an enemy's ship, are to be restored
+to the owners, against whom there is no right of confiscation,--but
+without allowance for detainder, decay, &c. Neutrals voluntarily
+expose themselves to these accidents by embarking their goods in a
+hostile ship.[152]
+
+We have before mentioned that neutral ships do not afford protection
+to an enemy's property. It may be seized if found on board of a
+neutral vessel, _beyond the limits of the neutral jurisdiction_. This
+is a clear and well-settled principle of the Law of Nations.
+
+When an enemy's ship, containing free goods, is taken, if the captor
+carries the goods to the port of destination, he is entitled to the
+freight. He stands in the place of the _owner of the ship_, and
+performs (by completing) the specific contract between the owner and
+charterer. But he _is not_ entitled, if he does _not_ proceed and
+perform the original voyage.[153] The specific contract is performed
+in the one case, and not in the other. But freight will be allowed to
+the captor, even though he does not carry the goods to the port of
+destination, if he carries them to his own country, and to the ports
+to which they would have been consigned, if not prevented by the
+regulations of the country of embarkation.[154]
+
+Under certain circumstances the _Captor_ is considered entitled to
+Freight, even though the goods are carried to his own country, and
+restored.
+
+If the captor does anything to injure the property, or is guilty of
+misconduct, he may remain answerable for the effect of such misconduct
+or injury, in the way of set-off against him.[155]
+
+No right of _visitation_ and search, of capture, nor any other kind of
+belligerent right, can be exercised on board a _public neutral_ vessel
+on the high seas. But _private_ vessels form no part of neutral
+territory, and when within the limits of another state, are not exempt
+from local jurisdiction.[156]
+
+The right to take enemy's property on board a neutral ship has been
+much contested by particular nations, whose interests it strongly
+opposed. This rule has been steadily maintained in Great Britain,
+though in France and other countries it has been fluctuating. For the
+first time, England has voluntarily abandoned this right in the
+present war.
+
+If a neutral vessel, having enemy's goods on board, is taken, and
+there is nothing unfair in the conduct of the neutral master, he will
+even be entitled to his reasonable demurrage. The captor pays the
+whole freight, because he represents the enemy, by possessing himself
+of the enemy's goods by right of war; and although the whole freight
+has not been earned by the completion of the voyage, yet as the
+captor, by his act of seizure, has prevented its completion, his
+seizure operates to the same effect as an actual delivery of the goods
+to the consignee, and subjects him to the payment of the full
+freight.[157] In such case, however, the neutral master must have
+acted _bonâ fide_, and with strictly neutral conduct.
+
+[Sidenote: This Rule Changed by Convention.]
+
+This Rule is often Changed by Convention; and it is generally
+stipulated that "_free ships shall make free goods_." The converse,
+though also sometimes the subject of treaty, does not of necessity
+hold, _enemy's ships do not make enemy's goods_. Goods of neutrals,
+found on enemy's ships, are bound to be restored.[158]
+
+A neutral subject 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; who has no right,
+according to modern practice, to condemn the 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.[159]
+
+[Sidenote: Neutral Goods on _Armed_ Hostile Vessels.]
+
+In America, Neutral Goods laden on an _Armed_[160] Belligerent Vessel
+are still protected, but in England it is different. "If the neutral,"
+says Sir Wm. Scott,
+
+     "puts his goods on board a ship of force, which will be
+     defended by force, he betrays an intention to resist
+     visitation and search, and so far adheres to the
+     belligerent, and withdraws himself from his protection of
+     neutrality."[161]
+
+[Sidenote: The Sale and Purchase of Vessels by Neutrals.]
+
+The Purchase of Ships from the enemy, is a liberty that has not been
+denied to neutral merchants, though by the regulation of France, it is
+entirely forbidden. The rule that this country has been content to
+apply is, that property so transferred, must be _bonâ fide_ and
+absolutely transferred; there must be a sale divesting the enemy of
+all further interest in it; and that any thing tending to continue his
+interest, vitiates a contract of this description altogether.[162]
+
+Russia is reported to have several vessels of war in different parts
+of the world; some of these vessels have been sold, and others are
+said to be in the process of sale. I shall cite what Sir Wm. Scott
+says, on a case nearly similar.
+
+     "There have been many cases of enemy _merchant vessels_
+     driven into ports out of which they could not escape, and
+     there sold, in which after much discussion, and some
+     hesitation of opinion, the validity of the purchase has been
+     sustained. But whether the purchase of a vessel, _built for
+     war_, and employed as such, and rendered incapable of acting
+     as a ship of war, by the arms of the other belligerent, and
+     driven into a neutral port for shelter; whether the purchase
+     of such a ship can be allowed, which shall enable the enemy
+     so far to rescue himself from the disadvantage into which he
+     has fallen, as to have the value restored to him by a
+     neutral purchaser, is a question on which I shall wait for
+     the authority of a superior court, before I admit the
+     validity of such a transfer."[163]
+
+It has been said that the sale must be absolute and unconditional; so
+that a sale under a condition to re-convey at the end of the war, is
+invalid.[164] Similarly, where the seller is bound by his own
+government under a penalty not to sell, except upon a condition of
+restitution at the end of the war, and the purchaser undertook to
+exonerate the seller, the sale was held invalid.[165]
+
+
+
+SECTION II.
+
+
+
+_Contraband of War_.
+
+
+[Sidenote: Contraband of War.]
+
+The general freedom of neutral commerce is subject to certain
+restrictions with respect to neutral commerce. Among these is the
+trade with the enemy in certain articles, called _Contraband of War_.
+These are generally warlike stores, and articles which are directly
+auxiliary to warlike purposes. Writers on this subject have made
+distinctions between those things useful only for the purposes of war,
+those which are not so, and those which are susceptible of
+indiscriminate use in war and peace.
+
+All seem to agree in excluding the first class from neutral trade;
+and, in general, admitting the second. The chief difference is about
+the third class. The last kind of articles--for example, money,
+provisions, ships, and naval stores, according to Grotius, are
+sometimes lawful articles of neutral trade, and sometimes not; and the
+question depends upon circumstances. This is perhaps the truest ground
+of decision, as we shall see in subsequent illustrations.[166]
+
+Thus, these articles become contraband, _ipso facto_, if carried to a
+besieged town, camp, or port. So in a _naval_ war, ships and materials
+for ships, are contraband, although timber and cordage may be used for
+other purposes, besides fitting out ships of war; and so horses and
+saddles are not of necessity warlike stores, except when comparing the
+quality, manufacture, or quantity attempted to be imported into the
+hostile state, with the circumstances and condition of the war, it
+appears (if not to be impossible) to be in the highest degree
+unlikely, that they should be designed for any other purposes besides
+the purposes of war.[167]
+
+[Sidenote: Provisions, when Contraband.]
+
+Common Provisions are not Contraband in general prize law, except in
+the single case of being sent to a beseiged or blockaded place.[168]
+
+It is a modern practice, in order to remove all possible doubt as to
+what goods are contraband, for nations at war to enumerate them
+particularly in treaties or compacts with neutral states; and such
+treaties leave the neutral, with which they are made, at liberty to
+supply the enemy with all goods that are not enumerated in them. These
+treaties do not operate as a law; but like other treaties, are binding
+only between the nations that are parties to them.[169]
+
+[Sidenote: Lord Stowell's Opinion on Contraband of War.]
+
+The Opinions of our great English authority, Lord Stowell, on this
+subject, are contained in two judgments, of which the following is the
+substance:--
+
+     "In 1673, many unwarrantable rules were laid down by public
+     authority respecting Contraband. It was expressly asserted
+     by a person of great knowledge and experience in the English
+     Admiralty, that by its practice _corn, wine, and oil_, were
+     liable to be deemed contraband. In much later times, many
+     sorts of provisions, such as butter, salted fish, and rice,
+     have been condemned as Contraband. The modern established
+     rule was, that generally they are not contraband, but may
+     become so under circumstances arising out of the peculiar
+     situation of the war, or the condition of the parties
+     engaged in it; among the causes which tend to prevent
+     provisions from being treated as contraband, one is that
+     they are of the growth of the country which exports them.
+
+     "Another circumstance, to which some indulgence, by the
+     practice of nations, is shown, is where the articles are in
+     their native and unmanufactured 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. But the most important
+     destination is, whether the articles are destined for the
+     ordinary uses of life, or for military uses. The nature and
+     quality of the port to which the articles are going, is a
+     test of the matter of fact on which the distinction is to be
+     applied. If the port is a general commercial port, it shall
+     be understood that the articles were going for civil use,
+     although occasionally a frigate or other ship of war may be
+     constructed in that port. On the contrary, if the great
+     predominant character of a port is that of a port of naval
+     equipment, it shall be contended 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 consumption; 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 immediate destination;
+     and the presumption of a hostile use, founded on its
+     destination to a military port, is very much inflamed, if at
+     the time when the articles were going, a considerable
+     armament was notoriously preparing, to which a supply of
+     those articles would be eminently useful."[170]
+
+In a later case he seems to have modified his opinion with respect to
+undoubted naval stores, either so by nature, or intended as such for
+the occasion. He says--
+
+     "The character of the port is immaterial, since naval
+     stores, if they are to be considered as contraband, are so
+     without reference to the nature of the port, and equally,
+     whether bound to a mercantile port only, or to a port of
+     military equipment. The consequences of the supply may be
+     nearly the same in either case. If sent to a mercantile
+     port, they may be applied to immediate use in the equipment
+     of privateers, or they may be conveyed from the mercantile
+     to the naval port, and there become subservient to every
+     purpose to which they could have been applied if going
+     directly to a port of naval equipment."[171]
+
+[Sidenote: Controversy between England and America on Contraband
+Provisions.]
+
+The doctrine of the English Admiralty Court, as to provisions becoming
+contraband, was adopted by the Government in the instructions given to
+their cruisers, on the 8th June, 1793, directing them to stop all
+vessels laden wholly, or in part, with corn, flour, or meal, bound for
+France, and to send them into a British port to be purchased by
+Government; or to be released on condition that the master should.
+give security to dispose of his cargo in the ports of some country in
+amity with his Britannic Majesty. This was resisted by the Neutral
+Powers, Sweden, Denmark, and especially the United States.
+
+This order was justified upon the ground, that by the modern law of
+nations, all provisions are to be considered as contraband, and as
+such liable to confiscation, wherever depriving an enemy of these
+supplies is one of the means intended to be employed for reducing him
+to terms. The actual situation of France, (it was said,) was
+notoriously such, as to lead to the employing this mode of distressing
+her by the joint operations of the various powers engaged in the war;
+and the reasonings of the text writers applying to all cases of this
+sort were more applicable to the present case, in which the distress
+resulted from the unusual mode of war adopted by the enemy himself, in
+having armed almost the whole laboring class of the French nation, for
+the purpose of commencing and supporting hostilities against almost
+all European Governments; but this reasoning was most of all
+applicable to a trade, which was in a great measure carried on by the
+then actual rulers of France, and was no longer to be regarded as a
+mercantile speculation of individuals, but as an immediate operation
+of the very persons who had declared war, and were then carrying it on
+against Great Britain.
+
+This reasoning was resisted by the neutral powers--Sweden, Denmark,
+and especially the United States. The American Government insisted,
+that when two nations go to war, other nations who choose to remain at
+peace, retain their natural right to pursue their agriculture,
+manufactures, and ordinary vocations; to carry the produce of their
+industry for exchange to all countries, belligerent or neutral, (as
+usual;) to go and come freely without injury or molestation; in short,
+that the war, (amongst other) should be for neutral purposes, as if it
+did not exist; the only exceptions being trade in implements of war,
+or to a place blockaded by its enemy. That there were sufficient
+treaties to decide what were implements of war. Corn, flour, and meal,
+were not of the class of contraband.
+
+The result of this controversy was a treaty with the United States in
+1794. It confined contraband to military and naval stores; and with
+respect to provisions not generally contraband, it was agreed,
+
+     "That whenever such articles became contraband by the Law of
+     Nations, and should for that reason be seized, the same
+     should not be confiscated, but the owners thereof should be
+     speedily and completely indemnified; and the captors, or in
+     their default, the Government under whose authority they
+     act, should pay to the masters or owners of such vessels the
+     full value of all such articles, with a reasonable
+     mercantile profit thereon, together with the freight, and
+     also the demurrage incident to such detention."
+
+The instructions of June, 1793, had been revoked previously to the
+signature of this treaty; but before its ratification, the British
+Government issued, in April, 1795, an order in council, instructing
+its cruizers to stop and detain all vessels laden wholly, or in part,
+with corn, flour, meal, and other provisions, and bound to any port in
+France, and to send them to such ports as might be most convenient, in
+order that such corn, &c., might be purchased on behalf of Government.
+
+This last order was subsequently revoked, and the question of its
+legality became the subject of discussion in a mixed commission,
+constituted under the treaty, to decide upon the claims of American
+citizens, by reason of irregular or illegal seizures of their vessels
+and cargoes, under the authority of the British Government.
+
+A full indemnification was allowed by the commissioners, under the 7th
+article of the Treaty of 1794, to the owners of vessels and cargoes
+seized under the orders in council, as well for the loss of a market
+as for the other consequences of their detention.
+
+It was, however, urged on the part of the United States, that the 18th
+article of the Treaty of 1794, manifestly intended to leave the
+question where it was before, namely, that when _the law of nations_,
+existing at the time the case arises, pronounces the articles
+contraband, they may for that reason be seized; when otherwise, not
+so. Each party was thus left free to decide what was contraband in its
+own courts of the law of nations, leaving any false appeal to that law
+to the usual remedy of reprisals and war.[172]
+
+Since the ratification of this treaty, we have a decision of Lord
+Stowell, in 1799, on this very subject, in the case of the Haabet,
+which, however, arose on a question of insurance.
+
+     "The right of taking possession of provisions is no peculiar
+     claim of this country; it belongs generally to belligerent
+     nations: the ancient practice of Europe, or at least of
+     several maritime states of Europe, was to confiscate them
+     entirely. A century has now elapsed since this claim has
+     been asserted by some of them. A more mitigated practice has
+     prevailed in later times, of holding such cargoes subject
+     only to a right of pre-emption; that is, to a right of
+     purchase, upon a reasonable compensation, to the individual
+     whose property is thus diverted. This claim on the part of
+     the belligerent cannot go beyond cargoes avowedly bound to
+     the enemy's ports, or suspected on just grounds to have a
+     concealed destination of that kind. The neutral can only
+     expect a reasonable compensation. He cannot look to the
+     price he would obtain in the enemy's port. An enemy,
+     distressed by famine, may be driven by his necessities to
+     pay a famine price; but it does not follow that the
+     belligerent, in the exercise of his rights of war, is to pay
+     the price of distress."[173]
+
+     "It is a mitigated exercise of war, on which any purchase is
+     made; and no rule has established that such a purchase shall
+     be regulated exactly on the same terms of profit which would
+     have followed the adventure, if no such exercise of war had
+     intervened; it is a _reasonable_ indemnification, and a
+     _fair profit_, that is due, reference being had to the price
+     originally paid by the exporter, and the expenses he has
+     incurred."
+
+[Sidenote: Neutral Vessels Transporting Enemy's Forces.]
+
+Transporting the _Enemy's Forces_, subjects a Neutral Vessel to
+confiscation, if captured by the opposite belligerent. Sir Wm. Scott
+says, in the leading case on this subject--
+
+     "That a vessel hired, by the enemy, for the conveyance of
+     military persons is to be considered _as a transport_,
+     subject to condemnation, has been in a recent case, held by
+     this Court, and on other occasions.[174] What is the number
+     of military persons that shall constitute such a case it may
+     be difficult to define. In the former cases there were many,
+     in the present they are fewer in number; number alone is an
+     insignificant circumstance in the considerations on which
+     the principles of law on this subject are built; since fewer
+     persons of high quality and character may be of more
+     importance than a much greater number of persons of lower
+     condition. To send out _one veteran general_ of France to
+     take command of the forces at Batavia might be a much more
+     noxious act than the conveyance of a whole regiment. The
+     consequences of such assistance are greater, and therefore
+     it is what the belligerent has a stronger right to prevent
+     and punish. In this instance the military persons are
+     three,[175] and there are besides two other persons who were
+     going to be employed in civil capacities in the Government
+     of Batavia. *** It appears to me, _on principle_, to be but
+     reasonable that, whenever it is of sufficient importance to
+     the enemy that such persons should be sent out on the public
+     service, and at the public expense, it should afford equal
+     ground of forfeiture against the vessel that may be let out
+     for a purpose so intimately connected with hostile
+     operations.[176] The fact of the vessel having been pressed
+     into the enemy's service does not exempt her. The master
+     cannot aver that he was an involuntary agent."[177]
+
+[Sidenote: Neutral Ships Carrying Enemy's Despatches.]
+
+Carrying the _Despatches of the Enemy_ is also a ground of
+condemnation.
+
+     "In the transmission of Despatches may be conveyed the
+     entire plan of a campaign, that may defeat all the plans of
+     the other belligerent, in the world. It is a service,
+     therefore, which, in whatever degree it exists, can only be
+     considered in one character--as an act of the most hostile
+     nature. The offence of _fraudulently_ carrying despatches in
+     the service of the enemy being greater than other
+     contraband, some other penalty has to be affixed. The
+     confiscation of the noxious article would be ridiculous when
+     applied to _Despatches_. There would be _no_ freight
+     dependent on their transportation. The _vehicle_ (_i.e._ the
+     ship) in which they are carried must, therefore, be
+     forfeited."[178]
+
+[Sidenote: Ambassadors excepted.]
+
+The Despatches of an Ambassador or other Public Minister of the Enemy,
+resident in a neutral country, are an exception to this rule, being
+the despatches of persons who are in a peculiar manner the favourite
+object of the Law of Nations, residing in the neutral country for the
+purpose of preserving peace and the relations of amity between that
+state and their own government.
+
+The ambassador of the enemy may be stopped on his passage, but when he
+has arrived in the neutral country, he becomes a sort of _middleman_,
+and is entitled to peculiar privileges.[179]
+
+[Sidenote: Penalty for Contraband Trade.]
+
+Under the present Law of Nations, a Contraband Cargo cannot affect the
+ship; the carrying of contraband articles is attended only with loss
+of freight and expenses, except where the ship belongs to the owner of
+the contraband cargo, or where the simple misconduct of carrying a
+contraband cargo has been connected with some malignant and
+aggravating circumstances.[180]
+
+[Sidenote: Additional Penalties.]
+
+The aggravation of fraud justifies additional Penalties; thus, the
+carriage of contraband with a false destination, will work a
+condemnation of the ship as well as the cargo; the false destination
+being intended to defeat the right of pre-emption.[181] Generally,
+_false_ papers will extend the taint of contraband to the vessel.
+
+It is also an established rule, that the transfer of contraband by a
+neutral, from one port of a country to another, where it is required
+for the purposes of war, is subject to be treated in the same manner
+as an original importation into the country itself.[182]
+
+[Sidenote: Return Voyage Free.]
+
+Generally, the proceeds of the Return Voyage cannot be taken. From the
+moment of quitting port on a hostile destination, indeed, 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 actual prosecution of
+such a voyage, the penalty is not now generally held to attach.[183]
+
+
+
+SECTION III.
+
+
+_Blockades. Right of Search. Convoys_.
+
+
+[Sidenote: Blockades.]
+
+We now pass on to the subject of Blockade, which is the next exception
+to the general freedom of neutral commerce in time of war.
+
+A blockade is a high act of Sovran authority; it cannot be assumed or
+exercised by a commander, without special authority, provided his
+Government is sufficiently near at hand to superintend and direct the
+course of operations; but a commander on a distant station is supposed
+to carry with him such a portion of the Sovran authority as may enable
+him to act with energy against the commerce of the enemy, as against
+the enemy himself.[184]
+
+Again, referring to Sir Wm. Scott's celebrated judgments, we find him
+saying,
+
+     "That to constitute a violation of a state of blockade,
+     three things must be proved: first, the existence of the
+     blockade; secondly, the knowledge of it, in the party
+     supposed to have offended; and thirdly, some act of
+     violation, either by going in, or coming out with a cargo,
+     laden after the commencement of the blockade."
+
+[Sidenote: First Rule of Blockade.]
+
+I. There is no rule of law more established than this; that the Breach
+of a Blockade subjects the property so employed to confiscation. Every
+man knows it; the subjects of all states know it.
+
+A lawful maritime blockade requires the actual presence of a
+sufficient force stationed at the entrance of the port, sufficiently
+near to prevent communication.
+
+The blockade is to be considered legally existing, although the winds
+may occasionally blow off the blockading squadron. It is an accidental
+change which must take place in every blockade; but the blockade is
+not therefore suspended.
+
+This axiom is laid down in all books of authority; and the law
+considers an attempt to take advantage of such an accidental removal
+as an attempt to break the blockade, and a mere fraud.[185]
+
+When a blockading squadron is driven off by a superior force, the
+blockade is effectually raised, and it must be renewed by fresh
+notification, before foreign nations can be affected by an obligation
+to observe it as a blockade. The mere appearance of another squadron
+will not renew it, but it must be restored by the measures required
+for the original imposition of a blockade.[186]
+
+[Sidenote: Second Rule of Blockade.]
+
+It is necessary that the evidence of a blockade should be clear and
+decisive. A blockade may exist without a public declaration; although
+a declaration, unsupported by fact, will not be sufficient to
+establish it. In the War of 1798, the West India Islands were declared
+under blockade by Admiral Jervis; but the Lords of the Supreme Court
+held, that as the fact did not support the declaration, a blockade
+could not be deemed legally to exist. But the fact, on the contrary,
+duly notified on the spot, is of itself sufficient; for public
+notifications between governments are meant for the information of
+individuals; but if the individual is _personally_ informed, that
+purpose is better obtained than by a public declaration.[187]
+
+Where the vessel sails from a country lying near enough to the
+blockaded port to have constant information of the blockade, no notice
+is necessary of its continuance or relaxation; but when the country is
+at a distance beyond constant information, they may lawfully send
+their vessels on conjecture that the blockade is broken up, after it
+has existed a long time.[188] And this is important, as it must be
+remembered that even the _intention_ to evade blockade is a fraudulent
+breach of it, and sailing towards the port is an _overt_ act of that
+intent.[189]
+
+There are two kinds of Blockade. 1. Simple Blockade, _i.e._ Blockade
+in Fact; and 2nd., Blockade in Fact, accompanied by a Notification.
+The first expires by the breaking up _intentionally_ of the blockading
+squadron. The second, _prima facie_, does not expire until the repeal
+of the notification, but it is the duty of the belligerent country
+directly the blockade ceases, _de facto_, to revoke its proclamation.
+And it would appear that a notified blockade would only expire, in
+fact, after some unnecessary and long neglect to publish this
+revocation; otherwise neutral nations are bound until such
+publication.[190]
+
+It has from time to time been stipulated, in treaties between
+belligerent and neutral countries, (as in the case of the Treaty
+between Great Britain and the United States, of 1794,) that vessels of
+the neutral country should not be considered as having notice of a
+blockade, until they have been duly and respectfully warned off; and
+it would only be on a second attempt to enter port that they would be
+liable to be seized. Under such a treaty a neutral vessel might
+lawfully sail for a blockaded port, knowing it to be blockaded.[191]
+
+[Sidenote: Third Rule of Blockade.]
+
+An act of Violation is essential to a Breach of Blockade; such as,
+either going in or coming out of the port with a cargo, laden after
+the commencement of the blockade: or being found so near to the
+blockaded port as to show, beyond a doubt, that the vessel was
+endeavouring to run into it: or where the intention is expressly
+avowed by the papers found on board.[192]
+
+The time of shipment is very material; for although it may be hard to
+refuse a Neutral, liberty to retire with a cargo already laden, and by
+that act already become neutral property,--yet, after the commencement
+of a blockade, a neutral cannot be allowed to interpose in any way to
+assist the exportation of the property of the enemy. After the
+commencement of a blockade, a Neutral is no longer at liberty to make
+any purchase in that port.[193]
+
+A _Maritime_ Blockade is not in law violated by bringing or sending
+goods to the port through the internal canal navigation or land
+carriage of the country; and thus such goods are not liable to
+confiscation on ground of the blockade.
+
+[Sidenote: Right of Search.]
+
+On the great question of the Right of Search, the International Law
+has been summed up by Lord Stowell, in the case of the _Maria_, where
+the exercise of the right was attempted to be resisted, by the
+interposition of a convoy of Swedish ships of war.[194]
+
+First, the right of visiting and searching merchant ships on the high
+seas, whatever be the ships, whatever be the cargoes, whatever be the
+destinations, is the incontestible right of the lawfully commissioned
+cruizers of a belligerent nation.
+
+Secondly, that the authority of the Sovran of the neutral country,
+being interposed in any manner of mere force, cannot legally vary the
+rights of a lawfully commissioned belligerent cruizer. It cannot be
+maintained, that if a Swedish commissioned cruizer, during the wars of
+his own country, has a right, by the Laws of Nations, to visit and
+examine neutral ships, the King of England, (being Neutral to Sweden,)
+is authorized by law to obstruct the exercise of that right with
+respect to the merchants' ships of his country.
+
+Thirdly, that the penalty for the violent contravention of this right,
+is the confiscation of the property withheld from visitation and
+search.
+
+The judgment of condemnation, pronounced in this case, was followed by
+the Treaty of Armed Neutrality entered into by the Baltic Powers to
+resist the Right of Search, in 1800, which league was dissolved by the
+death of the Emperor Paul, and the points in controversy between those
+Powers and Great Britain were finally adjusted by the Convention of
+5th of June, 1805.[195]
+
+[Sidenote: Convoys.]
+
+It now remains to say a few words on the subject of Convoy. Convoy is
+a ship or ships of war appointed by the Government, or by the
+Commander-in-Chief on a particular station, for the guard of merchant
+vessels bound to their destination. A warranty that the vessel shall
+sail with convoy, is very common in Policies of Insurance, and if not
+complied with, the Insurance becomes absolutely void.
+
+This warranty to sail with convoy, does not mean that the vessel shall
+depart with convoy immediately from the lading port, but only from the
+place of rendezvous appointed for vessels bound from that port, and
+must be strictly and impartially maintained by force, to the uniform
+universal exclusion of all vessels not privileged by law.[196]
+
+From many ports, and among others from the port of London, no convoy
+ever sails. It has therefore been held sufficient for a vessel bound
+from London to sail with convoy from the _Downs_, and even from
+_Spithead_, when there was no convoy appointed from the _Downs_.
+Neither does it require the vessel to sail with convoy bound to the
+precise place of her destination; but if the vessel sail with the only
+convoy appointed for vessels going to her place of destination, it is
+sufficient. It sometimes happens that the force first appointed, is to
+accompany the ships only for a part of their voyage, and to be
+succeeded by another; at other times a small force is detached from
+the main body to bring up to a particular point; if a vessel sail
+under the protection of a vessel thus appointed or detached, the
+warranty is satisfied.
+
+But this warranty requires not only that the vessel shall sail under
+the protection of the convoy, but also that she shall continue during
+its course under the same protection, unless prevented from so doing
+by tempest or other unavoidable accident, in which case, the master
+and owners will be excused, if the master does all that is in his
+power to keep with the convoy.
+
+The merchantman must, before sailing, obtain or endeavour to obtain,
+the sailing orders issued by the convoying squadron. The value of a
+convoy appointed by Government arises in a great degree from its
+taking the ships under control, as well as under protection; but this
+control cannot be exercised except by means of sailing orders.
+Otherwise, the master could not learn the rendezvous in case of
+dispersion by a storm, or obey signals in case of attack.
+
+The obligation to sail with convoy does not depend merely on special
+agreement; but, by act of parliament, a merchant cannot sail without a
+convoy, on a _foreign_ voyage, unless previously licensed to do
+so.[197]
+
+
+
+SECTION IV.
+
+
+[Sidenote: _Armed Neutralities_.]
+
+It is not improbable the course of events in the present war may make
+it not uninteresting to my readers to have some short account of the
+origin and meaning of _Armed Neutralities_, especially as the
+principles on which they were founded may again be open to discussion.
+The right to take enemy's property on board neutral vessels has, in
+the present war, been waived by the Queen, in a declaration, dated
+Buckingham Palace, March 29th 1854. This is however tempered by a
+reservation of the right to search for contraband. Up to the present
+time the right to take enemy's goods on board a neutral vessel has in
+this country been steadily maintained; though in France it has been
+fluctuating; the interests of another commercial power became the
+origin of the extraordinary confederacies termed _Armed Neutralities_.
+At an early period it was an object of interest with Holland, a great
+commercial and navigating country, whose permanent policy was
+essentially pacific, to obtain a relaxation of the severe rules which
+had previously been observed in maritime warfare. The States General
+of the United Provinces having complained of the provisions in the
+French Ordinance of 1538, a treaty of commerce was concluded between
+France and the Republic in 1646, by which the law, as far as respected
+the capture and confiscation of neutral vessels for carrying enemy's
+property, was suspended; but it was found impossible to obtain, at
+that time, any relaxation as to the liability to capture of enemy's
+property in neutral vessels.
+
+This latter concession, however, the United Provinces obtained from
+France by the treaty of alliance of 1662, and the commercial treaty
+signed at the same time with the peace, at Nimiguen, in 1671;
+confirmed by the treaty of Ryswick, in 1697. The maxim that _free
+ships_ make _free goods_ was coupled in these treaties with its
+correlative maxim, _enemy's ships_ make _enemy's goods_.
+
+The same concession was obtained by Holland from England in 1668 and
+1674, as the price of an alliance between the two countries against
+the ambitious designs of Louis XIV.
+
+In the subsequent war of 1756, a controversy arose between England and
+Holland, in which it was said, on the one hand, that England had
+violated the rights of neutral commerce; and on the other, that
+Holland had not fulfilled the guarantees under which those privileges
+had been granted.
+
+Afterwards, when the American Revolution gave rise to a war between
+France and Great Britain, the latter power, instead of following the
+example of her enemy, (who had issued an ordinance prohibiting the
+seizure of neutral vessels, even when bound to or from enemy ports,
+unless carrying contraband,) issued an order in council, (March,
+1780,) suspending the special stipulations respecting commerce and
+navigation contained in the Treaty of 1674.
+
+This was the crisis of many complaints made by the neutral powers
+against Great Britain; and, in 1780, the Empress of Russia proclaimed
+the principles of the Baltic Code of Neutrality, and declared she
+would maintain them by _force of arms_.
+
+This system of armed neutrality contained the following principles.
+
+1. That commerce with the ports and roads of the enemy is free to
+neutral powers.
+
+2. That the ship covers the cargo.
+
+3. That those merchandizes only be considered as contraband, which are
+declared to be such by treaties with the belligerent powers, or with
+one of them.
+
+4. That no place shall be considered as blockaded, till it is
+surrounded in such a manner by hostile ships that no person can enter
+it without manifest danger.
+
+5. That these principles shall serve as a basis for decisions
+concerning the legality of prizes.
+
+The principal powers of Europe, as Sweden, Denmark, Prussia, Germany,
+Holland, France, Spain, Portugal, Naples, and also the United States,
+acceded to the Russian principles of neutrality.
+
+The Court of London answered this declaration by appealing to "the
+principles generally acknowledged as the Law of Nations, being the
+only law between powers where no treaties subsist;" and to
+
+     "the tenor of its different engagements with other powers,
+     where those engagements had altered the primitive law by
+     neutral stipulations, according to the will and convenience
+     of the contracting parties."
+
+England, being thus opposed to all the maritime world, was at this
+time obliged to smother her resentment; only simply expostulating with
+Russia. But the want of the consent of a power of such decided
+maritime superiority as that of Great Britain, was an insuperable
+obstacle to the success of the Baltic Conventional Law of Neutrality;
+and it was abandoned in 1793 by the naval powers of Europe, as not
+sanctioned by the existing law of nations, in every case in which the
+doctrines of that code did not rest upon positive compact.
+
+During the protracted wars of the French Revolution, all the
+belligerent powers began by discarding in practice, not only the
+principles of the armed neutrality, but even the generally received
+maxims of international law by which neutral commerce in time of war
+had been previously regulated. France, on her part, revived the
+severity of her ancient prize code; decreeing not only the capture and
+condemnation of the goods of her enemies found on board neutral
+vessels, but even of the vessels themselves laden with goods of
+British growth, produce, and manufacture.
+
+In 1801, principally in consequence of the doctrines of the British
+Admiralty Courts with regard to the right of search, great efforts
+were made by the Baltic powers to recall and enforce the doctrines of
+the armed neutrality of 1780. This attempt is generally known as the
+Armed Neutrality of 1800, and was met, promptly overpowered, and the
+confederacy finally dissolved, by the naval power of England. Russia
+gave up the point, and by her convention with England of the 17th of
+June, 1801, expressly agreed, that enemy's property was not to be
+protected on board of neutral ships.[198] This settlement was ended by
+the death of the Emperor Paul.
+
+
+
+
+APPENDIX TO PART I.
+
+
+
+NOTE A.--_The Law of Reprisals_.[199]
+
+Reprisals by commission, or letters of marque and reprisal, granted to
+one or more injured persons, in the name and authority of the
+Sovereign, constitutes a case of "partial, or special reprisals," and
+is considered to be compatible with a state of peace, and was formerly
+permitted by the Law of Nations; though it may be doubted if such a
+rule would hold good now.[200] General reprisals upon the persons and
+property of the subjects of another nation are equivalent to open war.
+It is often the first step which is taken at the commencement of a
+public war, and may be considered as amounting to a declaration of
+hostilities, unless satisfaction is made by the offending state.
+
+A stoppage or seizure (in other words, an embargo), must not be
+confounded with complete reprisals. When ships are seized for the
+purpose of obtaining satisfaction for a particular injury, or security
+against a possible event, that seizure is only an embargo. The vessels
+are preserved as long as there is any hope of obtaining satisfaction
+or justice. As soon as that hope disappears, they are confiscated, and
+the reprisals are accomplished. In fact, that which was _embargo_
+becomes reprisals by the _act of confiscation_.[201]
+
+In the words of Lord Stowell:
+
+     "Upon property so detained the declaration of war is said to
+     have a retroactive effect, and to render it liable to be
+     considered as the property of enemies taken in time of war.
+     The property is seized provisionally--an act hostile enough
+     in the mere execution, but equivocal as to its effects, and
+     liable to be varied by subsequent events, and by the conduct
+     of the government, the property of whose subjects is so
+     detained. Where the first seizure is equivocal, if the
+     matter in dispute terminates in reconciliation, the seizure
+     is converted into a mere civil embargo. This would be the
+     retroactive effect of that course of circumstances. On the
+     contrary, if the transactions end in hostility, the
+     retroactive effect is directly the other way. It impresses a
+     hostile character upon the original seizure. It is declared
+     to be embargo; it is no longer an equivocal act, subject to
+     two interpretations; there is a declaration of the _animus_
+     by which it was done, that it was done _hostili animo_, and
+     is to be considered a hostile measure _ab initio_. The
+     property taken is liable to be used as the property of
+     persons, trespassers _ab initio_, and guilty of injuries
+     which they have refused to redeem by any amicable alteration
+     of their measures. This is the necessary course, if no
+     particular compact intervenes for the restitution of such
+     property taken before a formal declaration of
+     hostilities."[202]
+
+The modern rule seems to be, that tangible property, belonging to an
+enemy, ought _not_ to be _immediately confiscated_. It may be
+considered as the opinion of all who have written on the _jus belli_,
+that war gives the _right_ to confiscate, but does not of itself
+confiscate the property of an enemy.
+
+Chancellor Kent expressly terms this species of hostility--_a
+reprisal_.[203] And Lord Mansfield says, that though foreign ports or
+harbours are not the high sea any more than the shore, yet numberless
+captures made there have been condemned as prize,[204] _i.e._ can be
+the subject _of reprisal_.
+
+
+
+NOTE B.--_War Bill Act_.
+
+During the last war, the War Bill Act, 34 Geo. 3. c. 9, was passed as
+a measure of retaliation. It was passed in order to prevent the effect
+intended to be produced by an order of the French Government,
+compelling all merchants, bankers, and others, possessed of money,
+funded property, and effects, in different parts Europe, to declare
+all such property, that it might be taken by violence, and applied to
+the purposes of the war then carried on by the government of France
+against the greater part of Europe.
+
+The principal sections relating to bills, prohibited any British
+subject, from and after March 1, 1794, from wilfully and knowingly in
+any manner paying or satisfying any bill of exchange, note, draught,
+obligation, or order for money, in part or in whole, which, since
+January 1, 1794, had been or at any time during the said war should be
+drawn, accepted, or indorsed, or in any manner sent from any part of
+the dominions of France, &c.; every person so offending to forfeit
+_double_ the value, and the payment not to be effectual against any
+person who might otherwise have demanded the same; but the demands of
+all persons to remain, notwithstanding such payment, and
+notwithstanding such bills shall have been delivered up.
+
+
+
+NOTE C.--_Rule of_ 1756.
+
+During the war of 1756, the French Government, finding the trade with
+their colonies cut off by the maritime superiority of Great Britain,
+relaxed the monopoly of that trade, and allowed the Dutch, then
+neutral, to carry on the commerce between the mother country and her
+colonies, under special licences or passes, granted for this
+particular purpose, excluding at the same time, all other neutrals
+from the same trade. Many of their vessels were captured by the
+British cruizers.
+
+The policy under which they were captured is called the "Rule of
+1756;" and as, in the present war, its justice and propriety has
+already begun to be doubted, it may not be uninteresting to read the
+reasons upon which it was founded.
+
+1. They were considered as part of the French navigation, having
+adopted this otherwise exclusive commerce, and acting in the character
+of French enemy in identifying themselves with that interest, in
+direct opposition to the belligerent interests and purposes of Great
+Britain.
+
+2. Inasmuch as they were only carriers for the French, they were to be
+regarded as French transports, carrying national assistance to the
+enemy, and therefore to be condemned on the same principle as vessels
+carrying troops or despatches.
+
+3. That the property they carried being from one part of the French
+empire to the other, was so completely identified with French
+interests as to take a hostile character.
+
+4. When war comes it is necessary to shut some of the avenues of
+commerce, otherwise the belligerent rights could not be protected.
+
+5. That the neutral ought not to have _through_ and by means of the
+war, which is not his affair, that he has not in time of peace; and by
+natural justice he is only entitled to his accustomed trade. That any
+inconveniences he may suffer are quite balanced by the enlargement of
+his commerce; the trade of the belligerents is usually interrupted to
+a great degree, and falls into the lap of the neutral.[205]
+
+6. That it is a direct assistance to the enemy, and an injury to the
+belligerent interests of the other country, to carry on for the enemy
+the commerce that she has lost by the pressure of the war,--rendering
+the efforts of the successful power nugatory.
+
+
+
+NOTE D.--_Articles that have been declared Contraband at various
+times._
+
+Gunpowder, arms, military equipments, and other things peculiarly
+adapted to military purposes.
+
+Sail cloths, masts, anchors, pitch, tar, and hemp, universally
+contraband, even when destined to ports not of military equipment.
+
+Cheeses, fit for naval use; such as Dutch cheeses, when exclusively
+used in French ships of war.
+
+Rosin, tallow, and ship biscuits, if destined to ports of military or
+naval equipment.
+
+Similarly, of Wines.
+
+And ship timber, when so destined.
+
+Ships of war, or ships adapted for such service, going to a port of
+the enemy for sale.
+
+Copper in sheets, certified by government dockyard officers as fit for
+the sheathing of ships.
+
+Brimstone, destined to a port of warlike equipment.
+
+
+
+NOTE E.--_The Late Declarations_.
+
+The first manifesto or declaration of war issued by the Queen, so far
+follows the ancient form, that it gives a justification of the war,
+but differs from it in the omission of a general command to all her
+subjects to commit hostilities on the enemy. By this command (in the
+ancient form), the subjects were in general ordered, not only to break
+off all intercourse with the enemy, but also to _attack_ him. Custom
+interpreted this general order. It authorized, and even obliged every
+subject, of whatever rank, to secure the person and things belonging
+to the enemy when they fell into his hands; but it did not invite the
+subjects to undertake any offensive expedition without a commission or
+particular order. The present manifesto simply proclaims that the
+Queen of England has taken up arms against Russia, that is, has
+declared "a state of war." The omission of an injunction to break off
+intercourse, and to exercise hostility, does not relieve the subject
+from his duty in that respect; for war may commence without any
+manifesto, and any official recognition of the "state of war" casts
+upon the subject his full duties under that condition of things. The
+ancient form has been judiciously allowed to drop, leading, as it
+might have done, to misconception on the part of her majesty's lieges.
+
+The second manifesto has reference to regulations with respect to
+neutral commerce, and speaks for itself.
+
+The third is as follows, and the references to the text will be
+sufficient to explain it.
+
+
+
+DECLARATION.
+
+Her Majesty, the Queen of the United Kingdom of Great Britain and
+Ireland, having been compelled to take up arms in support of an Ally,
+is desirous of rendering the war as little onerous as possible to the
+powers with whom she remains at peace.
+
+To preserve the commerce of neutrals from all unnecessary obstruction,
+Her Majesty is willing, for the present, to waive a part of the
+belligerent rights appertaining to Her by the Law of Nations.
+
+It is impossible for Her Majesty to forego the exercise of her right
+of seizing articles contraband of war,[206] and of preventing neutrals
+from bearing the enemy's dispatches,[207] and she must maintain the
+right of a belligerent to prevent neutrals from breaking any effective
+blockade which may be established with an adequate force against the
+enemy's forts, harbours, or coasts.[208]
+
+But Her Majesty will waive the right of seizing enemy's property laden
+on board a neutral vessel, unless it be contraband of war.[209]
+
+It is not Her Majesty's intention to claim the confiscation of neutral
+property, not being contraband of war, found on board enemy's
+ships,[210] and Her Majesty further declares, that being anxious to
+lessen as much as possible the evils of war, and to restrict its
+operations to the regularly organized forces of the country, it is not
+her present intention to issue letters of marque for the commissioning
+of privateers.
+
+Westminster, March 28, 1854.
+
+
+
+THE FOURTH DECLARATION.
+
+At the Court at Buckingham Palace, the 29th day of March, 1854,
+Present, The Queen's Most Excellent Majesty in Council. Her Majesty
+having determined to afford active assistance to Her Ally, His
+Highness the Sultan of the Ottoman Empire, for the protection of his
+dominions against the encroachments and unprovoked aggression of His
+Imperial Majesty, the Emperor of all the Russias, Her Majesty,
+therefore, is pleased, by and with the advice of Her Privy Council, to
+order, and it is hereby ordered, that general reprisals[211] be
+granted against the ships, vessels, and goods of the Emperor of all
+the Russias, and of his subjects or others inhabiting within any of
+his countries, territories, or dominions, _so that Her Majesty's
+fleets and ships_ shall and may lawfully seize all ships, vessels, and
+goods, belonging to the Emperor of all the Russias, or his subjects,
+or others inhabiting within any of his countries, territories, or
+dominions, and bring the same to judgment in such Courts of Admiralty
+within Her Majesty's dominions, possessions, or colonies, as shall be
+duly commissionated to take cognizance thereof. And to that end Her
+Majesty's Advocate-General, with the Advocate of Her Majesty in Her
+Office of Admiralty, are forthwith to prepare the draft of a
+Commission, and present the same to Her Majesty at this Board,
+authorizing the Commissioners for executing the office of Lord High
+Admiral to will and require the High Court of Admiralty of England,
+and the Lieutenant and Judge of the said Court, his Surrogate or
+Surrogates, as also the several Courts of Admiralty within Her
+Majesty's dominions, which shall be duly commissionated to take
+cognizance of, and judicially proceed upon, all and all manner of
+captures, seizures, prizes, and reprisals of all ships, vessels, and
+goods, that are or shall be taken, and to hear and determine the same;
+and, according to the Courts of Admiralty and the Law of Nations, to
+adjudge and condemn all such ships, vessels, and goods, as shall
+belong to the Emperor of all the Russias or his subjects, or to any
+others inhabiting within any of his countries, territories, or
+dominions: and they are likewise to prepare and lay before Her
+Majesty, at this Board, a Draft of such Instructions as may be proper
+to be sent to the said several Courts of Admiralty in Her Majesty's
+dominions, possessions, and colonies, for their guidance herein.
+
+From the Court at Buckingham Palace, this twenty-ninth day of March,
+one thousand eight hundred and fifty-four.
+
+
+
+
+INDEX.
+
+
+
+ADMIRALTY.
+  Droits of Admiralty, 6
+
+AMBASSADORS, 85
+
+ARMED NEUTRALITY, 92
+
+AFFREIGHTMENT, 16
+
+BILLS OF EXCHANGE.
+  Drawn during war, 14
+
+BLOCKADES, 86
+  By whom Proclaimed, 86
+  Violation of, 87
+  First Rule of, 87
+  Second Rule, 87
+  Third Rule, 89
+  Simple Blockade, 88
+  Blockade in Fact, 88
+  Blockade with Notification, 88
+  Maritime Blockade not violated by Land Carriage, 90
+
+CONTRACTS.
+  With Enemy, void, 12
+  Made before the war, 15
+
+CARTEL, 20
+  Principles of Cartel, 33
+
+CARGOES.
+  Distinguished from Ships, 30
+
+CONDEMNATION.
+  Preliminary Proceedings, 44
+
+CAPTORS.
+  Answerable for Damages, 68
+  When entitled to Freight, 74
+
+CONVOYS, 91
+
+CONTRABAND OF WAR, 76
+  Provisions, when Contraband, 77
+  Lord Stowell's Opinion, 78
+  Neutral Ships transporting Enemy's Forces, 83
+  Neutral Ships carrying Enemy's Despatches, 84
+  Penalty for Contraband Trade, 85
+  Further Penalties, 85
+  Return Voyage Free, 86
+  Articles of Contraband, 101
+
+DECLARATION OF WAR, 2
+  Contents, 3
+  The Late Declarations, 101
+  When retroactive, 98
+
+DEBTS.
+  Due to or from an Enemy, 7
+
+DOMICILE.
+  Test of Nationality, 24
+  Test of Domicile, 25
+  In Eastern Countries, 27
+
+EMBARGO.
+  Hostile, 6
+  Civil and Hostile, 97
+
+ENEMY.
+  Alien Enemy cannot Sue in this Country, 9
+  Who is Enemy?, 21
+  Natural Enemies, 23
+
+FUNDS.
+  Public, 5
+
+FOREIGNERS.
+  Married in this Country, 22
+
+FREE GOODS.
+  In Enemy's Ships, 73
+  Free Goods, Free Ships, 74
+    _See_ Rule of 1756.
+
+FREIGHT.
+  Captor entitled to, 74
+  When he takes Goods to Port of Destination, 73
+  When Captor pays Freight, 74
+
+HOSTILE CHARACTER.
+  Acquired by Trade, 27
+
+HOSTILE PROPERTY.
+  Cannot be transferred _in transitu_, 30
+
+INSURANCES, 12
+
+LICENCES.
+  To Trade with Enemy, 54
+  Duties of Merchants using Licences, 55
+  What vessels may be employed under them, 56
+  The Cargo allowed, 57
+  Rules with respect thereto, 57
+  The Voyages permitted, 58
+  The time of the Licence, 59
+  Note, 60
+
+MARINERS.
+  Their position in time of War, 23
+
+NEUTRALITY.
+  Rights of Neutral Nations, 69
+  Qualified Neutrality, 69
+  Neutral territory protected, 70
+  Property of belligerents in Neutral territory, 71
+  Vessels chased into Neutral ports, 72
+  Violation of Neutrality, 72
+  Armed, 92
+
+NEUTRAL COMMERCE.
+  Freedom of, 72
+
+NEUTRAL SHIPS.
+  Enemy's property in, 73
+  Public Neutral Ships, 73
+  Private Neutral Ships, 73
+  Transporting Enemy's forces, 83
+
+NEUTRAL PROPERTY. _See_ Property.
+
+PARTNERSHIPS.
+  Dissolved by War, 16
+  In Neutral countries, 18
+
+PRISONERS OF WAR, 22
+
+PRIVATEERS, 36
+  Acquisition of captures by, 22
+  Commissions of, 39
+  Efforts to suppress Privateering, 41
+  Piratical Privateers, 42
+
+PRIZES.
+  Jurisdiction over Prizes, 48
+  Common Law Courts not always excluded, 49
+  Prize Courts, 50
+  Where held, 57
+  Their judgments conclusive, 52
+
+POSTLIMINY.
+  Right of, 53
+  Jus Postliminii, 67
+
+PASSPORTS, 54
+
+PROPERTY.
+  Of subjects of belligerent states in enemy's country, 4
+  Immoveable Property, Rule in respect of, 5
+  Private, on land, 34
+  Government Property, 35
+  Captured Property, title to, 43
+  Enemy's, in Neutral Ships, 74
+  Neutral, in Enemy's Ships, 75
+  Neutral, on _Armed_ Hostile Ships, 75
+  Hostile cannot be transferred _in transitu_, 30
+
+RECIPROCITY.
+  Rule of, 6
+
+RULE OF 1756, 25
+  Note, 99
+
+RANSOMS, 61
+
+RECAPTURES, 63
+  Of the Property of Allies, 66
+  Of Neutral Property, 67
+
+REPRISALS, 97
+
+SHIPS.
+  National Character of, 29
+  Sale and purchase of, by Neutrals, 75
+  Not restored on recapture, if set forth as Ships of War, 65
+
+SAFE-CONDUCTS, 54
+
+SALVAGE IN WAR, 64
+
+SEARCH, RIGHT OF, 90
+
+TRADE.
+  With the Enemy unlawful, 8
+  Not permitted with Enemy, except under Royal Licence, 10
+  Subjects of an Ally cannot trade with Enemy, 11
+  Trading with the Enemy punishable, 19
+  Hostile Character acquired by Trade, 27
+  _See also_ Licences, Contraband, &c.
+
+WAR.
+  Solemn, 1
+  How commenced, 3
+  Objects of, 31
+  Maritime, Objects of, 34
+  Limitations of the right of making War, 35
+
+
+
+
+POSTSCRIPT.
+
+
+
+Since the completion of the Second Edition of this work, two very
+important Orders in Council, (dated April 15th, 1854,) have been
+published. Before proceeding to explain the intended effect of these
+Orders, it will be well to state that the consent of _both_ the Allies
+of England in this war is necessary to give full validity to the
+Orders.
+
+It is a very old principle that, during a _conjoint_ War, no subject
+of an ally can trade with the common enemy without liability to
+forfeiture, in the prize courts of the ally, of all his property
+engaged in such trade. This rule can be relaxed only by the permission
+of the allied nations, according to their mutual consent.[212]
+
+Lord Stowell lays down the principle in much broader terms, thus--
+
+     "It has happened, since the world has grown more commercial,
+     that a practice has crept in of admitting particular
+     relaxations; and if _one_ state only is at war, no injury is
+     committed to any other state. It is of no importance to
+     other nations how much a _single_ belligerent chooses to
+     weaken and dilute his _own_ rights; but it is otherwise when
+     allied nations are pursuing a common cause against a common
+     enemy. Between them it must be taken as an implied, if not
+     an express contract, that one state shall not do anything to
+     defeat the general object. If one state admits its subjects
+     to carry on an uninterrupted trade with the enemy, the
+     consequence may be that it will supply aid and _comfort_ to
+     the enemy; especially if it is an enemy very materially
+     depending on the resources of foreign commerce, which may be
+     injurious to the prosecution of the common cause, _and the
+     interests of its ally_. It should seem that it is not
+     enough, therefore, to say that one state has allowed this
+     practice to its own subjects; it should appear to be at
+     least desirable, that it could be shown that the practice is
+     of such a nature that it can in no way interfere with the
+     common operations, or that it has the allowance of the
+     confederate state."[213]
+
+Trade with the enemy has always been held to be a direct interference
+with the common operations of the war, and indirect trade has been
+regarded with as much jealousy as direct trade. If Lord Stowell is to
+be trusted, this country cannot in any way waive its belligerent
+rights, without the consent of its ally; so that it is quite in the
+option of France at any time to withdraw its assent, or to modify it
+in terms, and thus bind English merchants to the terms of their
+assent.
+
+The _intended_ effect of these Orders is well described in the
+_Times_, of April 21st, 1854.
+
+     "The Order in Council of the 15th April, 1854, recites, in
+     the first instance, Her Majesty's declaration made on the
+     opening of the war; but it then goes on to enact not only
+     that enemies' property laden on board neutral vessels shall
+     not be seized, but that all neutral and friendly ships shall
+     be permitted to import into Her Majesty's dominions, all
+     goods and merchandizes whatsoever, and to export everything
+     in like manner, except to blockaded ports, and except those
+     articles which require a special permission as being
+     contraband of war. But this liberty of trade is not confined
+     to neutrals. It is further ordered, that, with the above
+     exceptions only, British subjects shall have free leave to.
+     trade 'with all ports and places wherever situate,' save
+     only that British ships are not permitted to enter the ports
+     of the enemy. The effect of this Order is, therefore, to
+     leave the trade of this country with neutrals, and even the
+     indirect trade with Russia, in the same state it was in
+     during peace, as far as the law of our courts maritime is
+     concerned; and the doctrine of illegal trading with the
+     enemy is at an end.[214] The restrictions henceforth to be
+     imposed are solely those arising out of direct naval and
+     military operations, such as blockade, and those which the
+     enemy may think fit to lay upon British and French property.
+     As far as we are concerned, except that British ships are
+     not to enter Russian ports--which it is obvious that they
+     could not do without incurring the risk of a forfeiture of
+     their property and the imprisonment of their crews--the
+     trade may be lawfully carried on in any manner which the
+     ingenuity and enterprise of our merchants can devise. In
+     order to facilitate the removal of British property from the
+     ports of the Baltic and the White Sea, which were frozen up
+     at the date of the Order of the 29th of March, further leave
+     has been given to Russian vessels to come out of those
+     ports, if not under blockade, until the 15th of May; as, in
+     fact, it is only by taking up Russian ships that British
+     property in those ports is likely to be removed, as neutrals
+     will not enter them from fear of the blockade.
+
+     "It is not easy to convey to the mind of the mercantile
+     classes of the present generation, who have had no practical
+     experience of the state of war, the extent of the change
+     which is thus effected in their favour. The vigilance of our
+     cruisers and the acuteness of our lawyers were incessantly
+     employed in all former contests in tracking out the faintest
+     scent of enemy's property on board every vessel met on the
+     seas. The character of enemy's property was regarded as an
+     infection, and reprobated with all the terms originally
+     reserved for guilty practices. The mercantile ingenuity of
+     the country, pressed by the increased demand and exorbitant
+     prices of prohibited articles, was strained to evade by
+     every species of fraud these prohibitions, and a warfare was
+     carried on within our own courts of justice between the
+     pitiless exactions of the laws of war and the irresistible
+     impulse of the laws of trade. To allay, in some degree, the
+     inconveniences of this system, and to provide by legal means
+     some of those commodities which it was for the public
+     interest to purchase, the English and French Governments
+     were driven, even during the height of the Continental
+     System, to the granting of licences. But here again fresh
+     abuses of every kind arose. These licences were an
+     authorized mode of evading that very prohibition which the
+     belligerents conceived it to be for their interest to
+     maintain. They conferred a monopoly on the holder of the
+     licence, which enabled him to sell his cargo of French wines
+     or French silks at a prohibition price; and the law books of
+     the time are still full of the endless litigation and fraud
+     to which these practices gave rise.
+
+     "From all these evils we trust that the Order in Council of
+     the 15th April has permanently relieved us, and the change
+     it is calculated to bring about in the state of war is not
+     of inferior importance to that which marked the transition
+     from Protection to Free Trade in the state of peace. The
+     system of licences is at an end, for all the liberty of
+     trade with the enemy which it is in the power of the
+     Government to confer at all, is thus conferred at once, and
+     indiscriminately upon all; and, unless the Russian
+     Government find means to maintain a prohibitive system on
+     their frontiers, we hope that the supply of raw material
+     from that country will not be reduced to scarcity."
+
+In addition, however, to this very lucid explanation, it may be added,
+that it might become necessary to grant licences to trade directly
+(with the consent of our allies) to the Russian ports.
+
+That on the part of British vessels, the
+
+     "entering or communicating with any port or place in the
+     possession or occupation of the enemy, will place the
+     English vessel in the position of an illegal trader, and
+     that the vessel will then be liable to the same penalties as
+     if this Order had not been published."
+
+With respect to Contraband, it will have to be remembered that
+contraband _to_ Russia will not be contraband to England, unless it is
+despatches, treasonable letters, enemy's forces, secret agents or
+spies. Neutral property on board an enemy's vessel is not generally
+liable to seizure, unless on an "armed vessel of force;" but even
+this, by the Order, seems to be protected. By the same Order, British
+property on Russian vessels is _not_ protected. It is quite in the
+option of neutrals, or British vessels, to break any Russian blockade.
+
+The renunciations in these Orders are a waiver only of certain parts
+of the Queen's belligerent rights, and in no way diminish the state of
+war between England and Russia. Notwithstanding these Orders,
+Russo-English partnerships are dissolved, contracts with the enemy
+invalid, and even though a free trade is permitted, an Englishman
+cannot draw a good bill on a Russian, and _vice-versâ_. All attempts
+to communicate with the enemy are still illegal. The Queen has not
+altered her belligerent rights, she merely declares that she will not
+put them into motion; but that does not alter, nor can she of her own
+authority alter, any part of the International Law, which also is a
+part of our common law. These, Orders, therefore, give no power to the
+enemy to sue or reside here, or to make a valid indorsement to any
+British subject. Insurances will become legal on cargoes that by these
+Orders may be imported.
+
+(From the _Gazette_ of Tuesday.)
+
+At the Court of Windsor, the 15th day of April, 1854, present the
+Queen's Most Excellent Majesty in Council.
+
+Whereas Her Majesty was graciously pleased, on the 28th day of March
+last, to issue her Royal declaration on the following terms--
+
+     "Her Majesty the Queen of the United Kingdom of Great
+     Britain and Ireland, having been compelled to take up arms
+     in support of an ally, is desirous of rendering the war as
+     little onerous as possible to the Powers with whom she
+     remains at peace.
+
+     "To preserve the commerce of neutrals from all unnecessary
+     obstruction, Her Majesty is willing, for the present, to
+     waive a part of the belligerent rites appertaining to her by
+     the Law of Nations.
+
+     "It is impossible for Her Majesty to forego the exercise of
+     her right of seizing articles contraband of war, and of
+     preventing neutrals from bearing the enemy's despatches, and
+     she must maintain the right of a belligerent to prevent
+     neutrals from breaking any effective blockade which may be
+     established with an adequate force against the enemy's
+     forts, harbours, or coasts.
+
+     "But Her Majesty will waive the right of seizing enemy's
+     property laden on board a neutral vessel, unless it be
+     contraband of war.[215]
+
+     "It is not her Majesty's intention to claim the confiscation
+     of neutral property, not being contraband of war, found on
+     board enemy's ships;[216] and Her Majesty further declares
+     that, being anxious to lessen as much as possible the evils
+     of war, and to restrict its operations to the regularly
+     organized forces of the country, it is not her present
+     intention to issue letters of marque for the commissioning
+     of privateers."
+
+_Now it is this day ordered_, by and with the advice of her Privy
+Council, that all vessels under a neutral or friendly flag, being
+neutral or friendly property, shall be permitted to import into any
+port or place in Her Majesty's dominions all goods and merchandize
+whatsoever, to whomsoever the same may belong,[217] and to export
+from any port or place in her Majesty's dominions to any port not
+blockaded, any cargo or goods, not being contraband of war, or not
+requiring a special permission, to _whomsoever the same may belong_.
+
+And Her Majesty is further pleased, by and with the advice of Her
+Privy Council, to order, and it is hereby further ordered, that, save
+and except only as aforesaid, _all the subjects of Her Majesty_, and
+the subjects or citizens of any neutral or friendly State, shall and
+may, during and notwithstanding the present hostilities with Russia,
+_freely trade_[218] with all ports and places wheresoever situate,
+which shall not be in a state of blockade, save and except that no
+British vessel shall, under any circumstances whatsoever, either under
+or by virtue of this order, or otherwise, be permitted or empowered to
+enter or communicate with any port or place which shall belong to or
+be in the possession or occupation of Her Majesty's enemies.
+
+And the Right Hon. the Lords Commissioners of Her Majesty's Treasury,
+the Lords Commissioners of the Admiralty, the Lord Warden of the
+Cinque Ports, and Her Majesty's Principal Secretary of State for War
+and the Colonies, are to give the necessary directions herein as to
+them may respectively appertain.--C.C. GREVILLE.
+
+At the Court at Windsor, the 15th day of April, 1854, present the
+Queen's Most Excellent Majesty in Council.
+
+Whereas, by an Order of Her Majesty in Council, of the 29th of March
+last, it was, among other things, ordered,
+
+     "that any Russian merchant vessel which, prior to the date
+     of this order, shall have sailed from any foreign port,
+     bound for any port or place in Her Majesty's, dominions,
+     shall be permitted to enter such 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 Her Majesty's ships, shall be permitted to
+     continue her voyage to any port not blockaded."
+
+And whereas Her Majesty, by and with the advice of Her said Council,
+is now pleased to alter and extend such part of the said Order, it is
+hereby ordered, by and with such advice as aforesaid, as follows--that
+is to say, that any Russian merchant vessel which, prior to the 15th
+day of May, 1854, shall have sailed from any port of Russia situated
+either in or upon the shores or coasts of the Baltic Sea or of the
+White Sea, bound for any port or place in Her Majesty'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 Her
+Majesty's ships, shall be permitted to continue her voyage to any port
+not blockaded.
+
+And Her Majesty is pleased, by and with the advice aforesaid, further
+to order, and it is hereby further ordered, that in all other respects
+Her Majesty's aforesaid Order in Council, of the 29th day of March
+last, shall be and remain in full force, effect, and operation.
+
+And the Right Hon. the Lords Commissioners of Her Majesty's Treasury,
+the Lords Commissioners of the Admiralty, and the Lord Warden of the
+Cinque Ports, are to give the necessary directions herein as to them
+may respectively appertain.--C.C. GREVILLE.
+
+H.B.T.
+
+3, SERJEANT'S INN,
+
+_22nd April, 1854_.
+
+
+
+
+NOTES
+
+
+[1: See Justice Story's Judgment in the Case of the La Jeune Eugenie.
+Life, Vol. i. 341.]
+
+[2: The Law of Reprisals; _Vide_ note (A.)]
+
+[3: Rutherford's Institutes, vol. ii. p. 509.]
+
+[4: 2 Wheaton, p. 11; 1 Kent, p. 54.]
+
+[5: Per Sir W. Scott--Case of the Eliza Ann, 4 Rob. Adm. Rep. 247.]
+
+[6: Wildman's International Law, vol. ii. p. 5.]
+
+[7: 1 Kent, p. 54; Vattel, book 3, chap. iv. sec. 64.]
+
+[8: 1 Kent, p. 55.]
+
+[9: 2 Wheaton, p. 12; 1 Kent, p. 55; Rutherford's Institutes, book 2,
+chap. 9, sec. 10.]
+
+[10: 2 Wheaton, p. 12-25; 1 Kent's Com. p. 55-6; Brown _v._ United
+States, 2 Cranch, 110; see also 228, 229.]
+
+[11: Idem.]
+
+[12: Grot, book 3, chap. 20, sec. 16.]
+
+[13: 1 Rob. Adm. Rep. 64.]
+
+[14: 2 Wheaton, p. 19.]
+
+[15: Lindo v. Rodney, Doug. 612; The Boedes Lust, 5 Rob. Rep. 233.]
+
+[16: Per Lord Mansfield, Lindo _v._ Rodney.]
+
+[17: Wolff _v._ Oxholm, 6 M. and S. 92.]
+
+[18: Grot. book 2, chap. 18, sec. 344; book 3, chap. 5, sec. 77.]
+
+[19: Whewell, Grot. vol. 3, p. 151, sec. 4; p. 165, sec. 4 (2).]
+
+[20: 1 Kent's Com. p. 65.]
+
+[21: Bynkersheok, Quæst. Sur. Pub. lib. i. cap. 3; 2 Wheaton, p. 26.]
+
+[22: Robinson's Adm. Rep. p. 196.]
+
+[23: The Hoop.]
+
+[24: The Rapid, 8 Cranche's Rep. p. 155.]
+
+[25: The St. Lawrence, 8 Cranche's Rep. p. 434.]
+
+[26: The Juffrow Catharina, 5 Rob. 141.]
+
+[27: 2 Wheaton, p. 37.]
+
+[28: 1 Kent's Com. p. 67.]
+
+[29: The Rendsborg, 4 Rob. Adm. Rep. 132.]
+
+[30: Park, p. 497.]
+
+[31: Toulmin _v._ Anderson, 1 Taunt. 227.]
+
+[32: Potter _v._ Bell, T. Rep. 548; The Hoop, _supra._]
+
+[33: Vandyck _v._ Whitmore, 1 East, 475.]
+
+[34: Park, 502.]
+
+[35: Park on Insurance; Arnold on Insurance; Gist _v_. Mason, I T. R.
+84.]
+
+[36: Idem.]
+
+[37: The Immanuel, 2 Rob. Adm. Rep. 198.]
+
+[38: Park, 502; Sewell _v_. Royal Exchange Assurance Co. 4 Taunt. 856;
+Wilson _v_. Marryat, 8 T. Rep. 31.]
+
+[39: Willison _v_. Patterson, 7 Taunt. 439; _Vide_ Note on the War
+Bill Act, at the end of this part.]
+
+[40: Per Gibbs, C.J. Antoine _v._ Morshead, 6 Taunt. 238. According to
+Mr. Serjeant Byles, a bill drawn by a British prisoner in favour of an
+alien enemy cannot be enforced by the payee. He cites no case in
+support of this assertion; but on the principle of the last case
+cited, if it were drawn for _subsistence and not for trade_, there
+seems to be no reason why it should not be legal.]
+
+[41: Duhamel _v._ Pickering, 2 Starkie, 92.]
+
+[42: Barker _v._ Hodgson, 3 M. & S. 270.]
+
+[43: Liddard _v._ Lopes, 10 East. 526; Abbot, on Shipping, 596.]
+
+[44: 1 Kent's Com. 248; The Hiram, 3 Rob. Adm. 189.]
+
+[45: 1 Kent's Com., 249.]
+
+[46: Hadley _v._ Clarke, 8 T.R. 259; 3 Kent's Com. 249.]
+
+[47: Abbot, on Shipping, 599.]
+
+[48: Pothier, Trait du Cout. de Joc. No. 140.]
+
+[49: Story, on Partnership, pp. 447, 448.]
+
+[50: Griswold _v._ Waddington, 16 Johns. Rep. U.S.]
+
+[51: Story, on Partnership, 447.]
+
+
+[52: Story, on Partnership, 449; Griswold _v._ Waddington, 15 Johns,
+57; 16 Johns, 438.]
+
+[53: Platt, on Covenants, 588; Doe _d._ Lord Anglesea _v._ Ch. Wardens
+of Rugely, 6 Q.B. 113, and cases there cited.]
+
+[54: Cosmopolite, 4 Rob. 10, 11, in note.]
+
+[55: 1 Term. R. Gist. _v._ Mason.]
+
+[56: Per Buller, J. Bell _v._ Gilson, 1 Bos. _v._. Pull.]
+
+[57: Case of Bella Guidita, cited 1 Rob. Adm. Rep. 207.]
+
+[58: 1 Kent, p. 73]
+
+[58: 1 Kent, p. 73]
+
+[59: Per Eyre, C.J. Sparenburgh _v._ Bannatyne, 1 B. & P. 168.]
+
+[60: Sparenburgh _v._ Bannatyne, 1 B. & P. 163.]
+
+[61: Maria _v_. Hall, 2 B.&P. 236.]
+
+[62: Derry _v_. Duchess of Mazarin, 1 Taunt. 147.]
+
+[63: 7 & 8 Vic. c. 66, sec. 16; Mrs. Manning's Case, 2 D.C.C. 468.]
+
+[64: The Vriendchap, 6 Rob. 166; the Embden, 1 Rob. 17; the Endraught,
+1 Rob. 23.]
+
+[65: Kent's Com. vol. i. 74.]
+
+[66: Case of the Emmanuel, 1 Rob. Adm. Rep. 302.]
+
+[67: Case of Dos Hermanos, 2 Wheaton, 76.]
+
+[68: 1 Wheaton, 46; Rob. Adm, Rep. iii. 324; the Harmony, the Indian
+Chief, 3 Rob. 12.]
+
+[69: The Ocean, 5 Rob. p. 91.]
+
+[70: The Vigilantia, 1 Rob. Adm. Rep. p. 1.]
+
+[71: The Susa, Rob. Adm. Rep. vol. ii. p. 255.]
+
+[72: Wheaton, vol. ii. p. 71, citing Cranch's Rep. vol viii. p. 253.]
+
+[73: 1 Kent's Com. 82, citing Berens _v_. Rucker, I W. Bl. 313; and
+_vide infra_ Chap. iii. under title "Rule of 1756."]
+
+[74: The Vigilantia, 1 Rob. Adm. Rep. 15.]
+
+[75: The Success, I Dodson's Adm. Rep. 132.]
+
+[76: I Kent's Com., p. 85.]
+
+[77: I Kent's Com. p. 85.]
+
+[78: Vrow Margaretha, I Rob. Adm. Rep. 338.]
+
+[79: Esprit des Loix, book 15, c. 2.]
+
+[80: Vattel, Idem.]
+
+[81: Wheaton, vol. 2, p. 79.]
+
+[82: Wheaton, vol. 2, p. 8; Kent, vol. 1, p. 91.]
+
+[83: Not so, however, in the late Declaration, March 28,1854; _sed
+vide_ App.]
+
+[84: Vattel, book 3, chap. 15.]
+
+[85: Kent, vol. I, sec. 5, p. 94.]
+
+[86: 4 Rob. Adm. Rep. p. 262 (n).]
+
+[87: Prize Acts, 45 Geo. III. c. 75.]
+
+[88: Order of Council, 1665; the Maria Francaise, 6 Rob. Adm. Rep.
+282; Rebekah, 1 Rob. 229.]
+
+[89: Vattel, book 3, chap. 15, sec. 229.]
+
+[90: The Elsebe, 5 Rob. 176.]
+
+[91: The Thorshaven, Edw. Rep. 102; 45 Goo. III. c. 72.]
+
+[92: 45 Geo. III. c. 72, sec. 25.]
+
+[93: The Vryheid, 2 Rob. 16.]
+
+[94: Martens, on Privateering, p. 2.]
+
+[95: But see the Introduction.]
+
+[96: Act of Congress, April 20, 1818, chap. 83.]
+
+[97: Kent, vol. I, p. 100.]
+
+[98: Wheaton, vol. 2, p. 88-9.]
+
+[99: Kent, sec. 5, p. 102; Rutherford's Institutes, book 2, chap. 9.]
+
+[100: This description of the preliminary proceedings in Prize is
+taken from the second volume of Wildman's Institutes of International
+Law, p. 355; cited "by that author from a letter from Sir W. Scott and
+Dr. Nicholl to Mr. Jay, the American Minister."]
+
+[101: Lindo _v._ Rodney, Doug. 614, note.]
+
+[102: Brymer _v._ Atkins, I. H. Black.]
+
+[103: Brymer _v._ Atkins, I. H. Black, p. 189.]
+
+[104: Floy Owen, I Rob. Adm. Rep. 136; Oddy _v_. Bovill, 2 East. 470.]
+
+[105: 4 Rob. Rep. 43.]
+
+[106: Wheaton, vol. 2, p. 97.]
+
+[107: Vattel, book 3, chap. 13, sec. 197.]
+
+[108: Wheaton, vol. 2, p. 112.]
+
+[109: Vattel, book 3, chap. 17, sec. 265-268.]
+
+[110: Page 6, ante.]
+
+[111: The Cosmopolite, 4 Bob. Kep. 8.]
+
+[112: The Abigail, Stewart's Adm. Rep. p. 360.]
+
+[113: Shroeder _v_. Vaux, 15 East. Rep. 52; 3 Camp. N.P. Rep. p. 83;
+the Cosmopolite, 4 Rob. 8.]
+
+[114: The Dauk Vaarhirt, 1 Dod. Adm. Rep. 187.]
+
+[115: The Dauk Vaarhirt, 1 Dod. Adm. Rep. 187.]
+
+[116: Idem.]
+
+[117: The Jonge Arend, 5 Rob. 14.]
+
+[118: The Henrietta, 1 Dod. Adm. Rep. 173.]
+
+[119: The Jonge Johannes, 4 Rob. Adm. Rep. 268.]
+
+[120: Idem.]
+
+[121: The Jonge Klassina, 5 Rob. Adm. Rep. 297.]
+
+[122: The Cousinne Marianne, Edw. 346.]
+
+[123: The Twee Gebroeders, Edw. Adm. Rep. 95.]
+
+[124: The Manly, I Dod. 257.]
+
+[125: Europa, Edw. 42.]
+
+[126: Golden Hoop, Nov. 7, 1809, 1 Edw. Rep.]
+
+[127: The St. Ivan, Edw. 376.]
+
+[128: 1 Kent, 103. The statutes are, 22 Geo. 3, c. 25; 35 Geo. 3, c.
+66, sections 35, 36; 45 Geo. 3, c. 72, sections 16, 17, 18, and 19.]
+
+[129: There are a few other general points with respect to ransoms,
+which will be found _infra_ under recaptures. Valin is the principal
+authority, and his law will be found well summed up in the 2nd volume
+of Wildman's Institutes of International Law. There are few cases on
+the subject; the chief are, Ricard _v._ Bellenham, 3 Burr, 1734; Yates
+_v._ Hall, 3 T.R. 76, 80; Authon _v._ Fisher, Corner _v._ Blackburn, 2
+Doug.]
+
+[130: Martens on Privateers and Recaptures.]
+
+[131: The Ceylon, I Dod. 105; l'Actif, Edw. 185, _vide etiam_; the
+Nostra Signora, 3 Bob. 10; the Georgiana, I Dod. 397; the Horatio,
+6 Rob. 320.]
+
+[132: The Edward and Mary, 3 Rob. 305.]
+
+[133: The Pensamento Felix, Edw. 115.]
+
+[134: The Charlotte Caroline, 1 Dod. 194.]
+
+[135: Santa Cruz, 1 Rob. 63.]
+
+[136: The War Onskan, 2 Rob. 300.]
+
+[137: 1 Kent, Com. 108.]
+
+[138: The William, 6 Rob. 316.]
+
+[139: Idem.]
+
+[140: Vattel, book iii. c. 7.]
+
+[141: Idem.]
+
+[142: 2 Wheaton, chap. iii. sec. i. p. 133.]
+
+[143: Wheaton, vol. ii. 137; Kent's Com. vol. i. p. 116.]
+
+[144: Vrow Anna Catharina, 5 Rob. 18.]
+
+[145: Idem.]
+
+[146: 1 Kent's Com. p. 117; The Anna, 5 Rob. Adm. Rep. 373.]
+
+[147: Vrow Anna Catharina, 5 Rob. 18.]
+
+[148: The Anna, 5 Rob. 385 c.]
+
+[149: The Twee Gebroeders, 3 Rob. A. R. 162.]
+
+[150: The Etrusco, 3 Rob. Adm. Rep.]
+
+[151: 1 Kent Com. p. 116; Vattel, book in, chap, vii, sec. 115. See
+also, The Immanuel, 2 Rob. Adm. Rep. 198, and the Notes on the
+Declarations, in Appendix.]
+
+[152: Vattel, book in, chap. vii, sec. 116.]
+
+[153: The Fortuna, 4 Rob. Rep. p. 278.]
+
+[154: The Diana, 5 Rob. Rep. 57.]
+
+[155: The Fortuna.]
+
+[156: _Vide_ Vattel.]
+
+[157: Kent's Com. 123; The Copenhagen, 1 Rob. Adm. Rep. 290.]
+
+[158: _Vide post_. Section IV, and Notes on the Declarations.
+Appendix.]
+
+[159: The Fancy, 1 Dod. Adm. Rep. 448.]
+
+[160: The Nereid, 9 Cranch Rep. 398.]
+
+[161: The Fancy, 1 Dodson's Adm. Rep. 448.]
+
+[162: The Sachs Gesawhistern, 4 Rob. Adm. Rep. 100.]
+
+[163: The Minerva, 6 Rob. Adm. Rep. 399.]
+
+[164: The Noydt Gedart. 2 Rob. 137, (n.)]
+
+[165: 4 Rob. 100.]
+
+[166: See in the Appendix a table of articles of commerce that have
+been declared contraband.]
+
+[167: Grotius, book in. chap. i. sec. v.; Rutherfurd's Instit. book
+ii. chap. ix. sec. xix.]
+
+[168: The Commercen, 1 Wheaton's Rep. 241.]
+
+[169: The Commereen, 1 Wheaton's Rep. 241.]
+
+[170: The Jonge Margaretha, Rob. Adm..Rep. vol. i. p. 192.]
+
+[171: The Charlotte, Rob. Adm. Rep. vol. v. p. 305.]
+
+[172: 2 Wheaton, 194, 210.]
+
+[173: The Haabet, 2 Rob. Adm. Rep. 182.]
+
+[174: The Carolina, Rob. Adm. Rep. vol. iv. p. 256.]
+
+[175: They were officers of distinction.]
+
+[176: The Orozembo, 1 Rob. Adm. Rep. p. 434.]
+
+[177: Idem.]
+
+[178: The Atalanta, Rob. Adm. Rep. vol. vi. p. 440.]
+
+[179: The Caroline. Rob. Adm. Rep. vol. vi. p. 461.]
+
+[180: The Ringende Jacob, Rob. Adm. Rep. vol. i. p. 90.]
+
+[181: The Franklin, Rob. vol. iii, p. 125.]
+
+[182: The Rolla, 6 Rob. 366.]
+
+[183: The Edward, Rob. Adm. Rep. vol. iv. p. 70.]
+
+[184: The Tonina, Rob. Adm. Rep. vol. iii. p. 168.]
+
+[185: The Betsy, The Columbia, 1 Rob. Adm. Rep. pp. 92 and 155.]
+
+[186: The Hoffnung, 6 Rob. 120; see also The Triheton, 6 Rob. 65.]
+
+[187: The Mercurius, 1 Rob. Adm. Rep. p. 83.]
+
+[188: 2 Wheaton, p. 233, citing Rob. Adm. Rep.]
+
+[189: Rob. Adm. Rep. vol. i. p. 156.]
+
+[190: Neptunus, Rob. Adm. Rep. vol. i. p. 171; Neptunus, Hempel. Rob.
+Adm. Rep. vol. ii. p. 112.]
+
+[191: 2 Wheaton, p. 239.]
+
+[192: 2 Wheaton, pp. 242, 244.]
+
+[193: The Betsey, 1 Rob. Adm. Rep. p. 93.]
+
+[194: 1 Rob. Adm. Rep. p. 340.]
+
+[195: See Section iv. on Armed Neutralities.]
+
+[196: 1 Rob. Adm. Rep. p. 340.]
+
+[197: 43 Geo. III. c. lvii. sec. 1; Abbot, on Shipping, pp. 353--356.]
+
+[198: This account of armed neutralities has been extracted
+principally from Kent's Commentaries, vol. i. pp. 126-7; Wheaton on
+International Law, vol. ii. pp. 165-184; Martens on Privateers, pp.
+230-33.
+
+There are also most excellent accounts of these celebrated
+confederacies to be found in the Annual Register, in volumes 23,
+(1780,) and 43, (1801,) in the portion called the Historical
+Chronicle.]
+
+[199: This Note was originally intended to form part of the text, but
+was accidentally omitted.]
+
+[200: Le Louis.]
+
+[201: Vattel, book ii. chap, xviii. sec. 342.]
+
+[202: The Boedes Lust, 5 Rob. Adm. Rep. p. 244.]
+
+[203: 1 Kent's Com. p. 60.]
+
+[204: Lind. _v._ Rodney, Dougl. Rep. p. 614. a.]
+
+[205: Lord Stowell argues the principles at length in the Immanuel, 2
+Rob. Adm. Rep. 198, 100.]
+
+[206: _Vide_ section ii. chap. iii. Contraband of War.]
+
+[207: _Vide_ p. 84.]
+
+[208: See section ii. chap. ii. Blockades.]
+
+[209: This is the doctrine _free ships free goods_, for the first time
+voluntarily adopted by this country, pp. 72, 74.]
+
+[210: According to Vattel, this belligerent right has no existence,
+and
+need not therefore be waived, as it could not legally be exercised;
+but
+see p. 73.]
+
+[211: This grant of general reprisals, though apparently limited in
+its address, (as to action in the war) to Her Majesty's fleets and
+ships, does not exclude non-commissioned captors from taking Russian
+ships, or goods when called upon _by necessity_ to do so. For example,
+any of our armed merchantmen, who in the present war will not be
+allowed letters of marque, would be quite justified when beating off
+the enemy, in also making a capture if possible, and although her
+prize would become a _Droit of Admiralty_, the captor would be
+entitled to apply to the court for some compensation. The second part
+of this declaration is intended to proclaim the preliminary step to
+establishing the court of prize. The declarations with respect to the
+embargo laid upon Russian goods and ships in our ports require no
+comment.]
+
+[212: See pages 11 and 12.]
+
+[213: The Neptunus, 6 Robinson's Adm. Rep. p. 406; also the Nayade,
+4 Rob. p. 251.]
+
+[214: Vide post.]
+
+[215: See page 74.]
+
+[216: See page 75.]
+
+[217: This allows free commerce in neutral bottoms to our ports, from
+Russia. It is difficult to see what is meant by "friendly flags." It
+cannot mean "a flag of the allies," for that would be giving our
+allies more than we take ourselves. It is, perhaps, intended to
+include powers that may not be friendly to Russia, but in that
+position to ourselves, without being allied to us.]
+
+[218: Free trade by British vessels in enemy's property to ports not
+hostile.]
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK THE LAWS OF WAR, AFFECTING COMMERCE
+AND SHIPPING***
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+The Project Gutenberg eBook, The Laws Of War, Affecting Commerce And
+Shipping, by H. Byerley Thomson
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: The Laws Of War, Affecting Commerce And Shipping
+
+Author: H. Byerley Thomson
+
+Release Date: October 25, 2004  [eBook #13858]
+
+Language: English
+
+Character set encoding: ISO-646-US (US-ASCII)
+
+
+***START OF THE PROJECT GUTENBERG EBOOK THE LAWS OF WAR, AFFECTING
+COMMERCE AND SHIPPING***
+
+
+E-text prepared by Keith M. Eckrich and the Project Gutenberg Online
+Distributed Proofreading Team
+
+
+
+THE LAWS OF WAR, AFFECTING COMMERCE AND SHIPPING
+
+by
+
+
+H. BYERLEY THOMSON, ESQ., B.A.
+
+Barrister-at-Law, of Jesus College, Cambridge, and the Inner Temple
+
+A New Edition, Enlarged, With An Introduction And Index
+
+1854
+
+
+
+
+
+
+
+PREFACE TO THE SECOND EDITION.
+
+
+The success which attended the publication of the First Edition of
+this Treatise, on "The Laws of War, affecting Commerce and Shipping,"
+has confirmed the author's opinion of the utility of such a work; and
+its hearty acceptance by the mercantile world has induced him to add
+largely and materially to this edition. The general plan of the former
+work has not been departed from in the first portion of the present;
+and although a great number of fresh and popular topics have been here
+touched upon, the author has endeavoured to preserve (as far as was
+consistent with accuracy), that concise and popular character which he
+believes in no small degree contributed to the favourable reception of
+the first edition.
+
+An Introduction has also been added, discussing the origin of the Laws
+of War generally, and the utility of the work has been enhanced by an
+Index for facilitating reference.
+
+In a Second Part, which will shortly appear, the Author proposes to
+treat of the Laws of War relating to the Army, Navy, and the Militia,
+as well as the administration of the bodies governing those various
+sections of the war force of the country.
+
+H.B.T.
+
+8, SERJEANT'S INN, TEMPLE,
+
+APRIL 15, 1854.
+
+
+
+
+
+CONTENTS.
+
+
+INTRODUCTION
+
+CHAPTER I.
+
+COMMENCEMENT OF WAR.
+
+SECTION I. The Immediate Effects of War
+
+SECTION II. On Enemies and Hostile Property
+
+
+CHAPTER II.
+
+SECTION I. Actual War. Its Effects
+
+SECTION II. Prizes and Privateers
+
+SECTION III. Licences
+
+SECTION IV. Ransom, Recaptures, and Salvage
+
+
+CHAPTER III.
+
+SECTION I. Neutrality
+
+SECTION II. Contraband of War
+
+SECTION III. Blockades. Right of Search. Convoys
+
+SECTION IV. Armed Neutralities
+
+
+APPENDIX TO PART I.
+
+NOTE A. The Law of Reprisals
+
+NOTE B. War Bill Act
+
+NOTE C. Rule of 1756
+
+NOTE D. Articles that have been declared Contraband at various times
+
+NOTE E. The Late Declarations
+
+
+
+
+
+INTRODUCTION TO PART I.
+
+It would be superfluous to trouble my readers, in a concise practical
+treatise, with any theoretical discussion on the origin of the Law of
+Nations, had not questions of late been often asked, respecting the
+means of accommodating rules decided nearly half-a-century ago, to
+those larger views of international duty and universal humanity, that
+have been the natural result of a long Peace, and general progress.
+
+To commence with the question, Who is the international legislator? it
+must be observed, that there is no general body that can legislate on
+this subject; no parliament of nations that can discuss and alter the
+law already defined. The Maritime Tribunals of maritime states always
+have been, and still are, almost the sole interpreters and mouthpieces
+of the International Law. Attempts that have been made by our own
+parliaments, by individual sovereigns, and even by congressional
+assemblies of the ministers of European powers, to create new
+universal laws, have been declared by these courts to be invalid, and
+of no authority. And though it is distinctly laid down, that the Law
+of Nations forms a part of the Common Law of England, yet it is not
+subject to change by Act of Parliament, as other portions of the
+Common Law are; except so far as Parliament can change the form,
+constitution, and persons of the courts that declare the law.
+
+Lord Stowell says
+
+     "No British Act of Parliament, nor any commission founded
+     upon it, can affect the rights or interests of foreigners,
+     unless they are founded upon principles, and impose
+     regulations, that are consistent with the Law of Nations."
+
+And in another place--
+
+     "Much stress has been laid upon the solemn declaration of
+     the eminent persons (the ministers of the European powers),
+     assembled in Congress (at Vienna). Great as the reverence
+     due to such authorities may be, they cannot, I think, be
+     admitted to have the force of over-ruling the established
+     course of the general Law of Nations."
+
+It is to the Maritime Courts, then, of this and other countries, that
+the hopes of civilization must look for improvement and advance in the
+canons of international intercourse during the unhappy time of war.
+The manner, and the feeling in which they are to pronounce those
+canons cannot be more finely enunciated than in the words of Lord
+Stowell himself.
+
+     "I consider myself as stationed here, not to deliver
+     occasional and shifting opinions to serve present purposes
+     of particular national interest, but to administer with
+     indifference that justice which the _Law of Nations_ holds
+     out, without distinction, to independent states, some
+     happening to be neutral, and some belligerent.
+
+     "The seat of judicial authority is indeed locally _here_ in
+     the belligerent country, according to the known law and
+     practice of nations; _but the law itself has no locality_.
+     It is the duty of the person who sits here to determine this
+     question exactly as he would determine the same question, if
+     sitting at Stockholm; to assert no pretensions on the part
+     of Great Britain, which he would not allow to Sweden in the
+     same circumstances; and to impose no duties on Sweden, as a
+     neutral country, which he would not admit to belong to
+     _Great Britain_, in the same character. If, therefore, I
+     mistake the law in this matter, I mistake that which I
+     consider, and which I mean should be considered, as
+     UNIVERSAL LAW upon the question."
+
+When an Admiralty Judge investigates the law in this impartial spirit,
+he occupies the grand position of being in some respects the director
+of the deeds of nations; but with equal certainty does the taint of an
+unjust bias poison all his authority; his judgments are powerful then
+only for evil; they bind no one beyond the country in which he sits,
+and may become the motive and origin of reprisal and attack upon his
+native land.
+
+As the authority of the international judge depends on his integrity,
+so also does the universal law arise from, and remain supported by,
+the true principles of right and justice; in other words, by the
+fundamental distinction between right and wrong. A statute, a despotic
+prerogative, and an established principle of common law, rest upon
+different sanctions. They may be the causes of the greatest injustice,
+may sow the seeds of national ruin, and yet may even require
+revolutions for their reformation; but any one of the laws of nations
+preserves its vitality, only with the essential truth of its
+principles; a change in the feeling of mankind on the great question
+of real justice, destroys it, and it simply remains an historical
+record of departed opinion, or a point from which to date an advance
+or retreat in the career of the human mind.
+
+It is for this reason that International Law has been so differently
+defined by writers at various periods.
+
+The Law of Nations is _founded_, I have said, on the general
+principles of right and justice, on the broad fundamental distinctions
+between right and wrong, or as Montesquieu defines it, "on the
+principle that nations ought in time of peace to do each as much good,
+and in time of war as little harm as possible." These are the
+principles from which any rule must be shown to spring, before it can
+be said to be a rule for international guidance. But what are the
+principles of right and wrong? These are not left to the individual
+reason of the interpreter of the law for the time being, but are to be
+decided by the _public opinion of the civilized world_, as it stands
+at the time when the case arises.
+
+It may immediately be asked--How is that public opinion to be
+ascertained? The answer is--By ascertaining the _differences_ in
+opinion between the present and the past. For this purpose it must be
+observed, that the views of a past age are easily ascertainable, in
+matters of law, from theoretical writings, history, and judicial
+decisions; and these views may be reduced to definition. Modern
+universal intelligence will either agree or disagree in these views.
+In the mass of instances it will agree, as progress on such points is
+at all times slow; and not only will the points of _disagreement_ be
+few, but they will be salient, striking, and generally of popular
+notoriety. Present, universal, or international opinion, has therefore
+two portions. 1. That in which it accords with the views of a past
+generation, that has become historical. 2. That in which it differs
+from, or contradicts those views.
+
+In the first instance, then, we are to ascertain what _were_ the
+principles of right and justice, from any materials handed down to us;
+and if those principles agree with, or support the practical rules
+recorded by the same, or similar sources of information, such are to
+be accepted as belonging to the code of the Laws of Nations, as far as
+those principles are uncontradicted by modern opinion.
+
+In the second instance, those differences which may either overrule,
+add to, or complete the public opinion of a past age, are to be
+ascertained, (by those in whose hands such decisions rest,) by looking
+to the _wish_ of nations on these points; and this wish may be
+exhibited in various ways; either by a universal abandonment of a
+given law, in its non-execution by any nation whatever, for a length
+of time; by numerous treaties, to obtain by convention an improvement
+not yet declared by international tribunals; or by extending to the
+relations and duties of nations, the improvements in the general
+principles of right and justice, that are at the time being applied to
+the concerns of private individuals.
+
+The judges of such matters are not to ignore what is going on around
+them; all necessary knowledge is to be brought into court to discover
+what is the universal feeling of nations in respect of right and
+wrong, at the time they decide, and if they see a departure from the
+past sense of right and wrong, to make the modern, and not the
+ancient, the fountain of modern law; thence deducing the modern rules.
+
+Because a precept cannot be found to be settled by the consent or
+practice of nations at one time, it is not to be concluded that it
+cannot be incorporated into the public code of nations, at some
+subsequent period. Nor is it to be admitted, that no precept belongs
+to the law of nations which is not _universally_ recognised as such,
+by all civilized communities, or even by those constituting what may
+be called the Christian states of Europe. Some doctrines, which we, as
+well as the United States, admit to belong to the Law of Nations, are
+comparatively of recent origin and application, and even at this
+period have received no public or general sanction in other nations;
+and yet, inasmuch as they are founded on a just view of the duties and
+rights of nations, according to a modern universal sense of what is
+just, they are enforced here as ascertained laws.[1]
+
+By a similar train of reasoning, not only may the international
+tribunals of England enunciate new rules of law, as universal law, if
+founded and fairly deduced from ascertained modern, public, and
+international opinion; but they may refuse to alter settled rules,
+however much opposed by other nations, provided those rules are still
+deducible from that origin.
+
+Generally, every doctrine fairly deduced, by correct reasoning, from
+the rights and duties of nations, and the nature of moral obligation,
+may be said to exist in the Law of Nations. Those rights, duties, and
+that moral obligation, are to be ascertained from the enunciation of
+them in past times, unless they have been relaxed, waived, or altered
+by universal modern opinion.
+
+We may regard, then, the Law of Nations to be a system of political
+ethics; not reduced to a written code, but to be sought for, (not
+founded,) in the elementary writings of publicists, judicial
+precedents, and general usage and practice; but _continually_ open to
+change and improvement; as the views of men in general, change or
+improve, with regard to the questions--What is right? What is just?
+
+Now to apply the above to one example.
+
+Undoubtedly up to the present time the system of granting Letters of
+Marque to the adventurers of a power friendly to the enemy, has
+received the sanction of the world. These buccaneering adventurers
+have, under the laws of war, when taken, claimed and been allowed the
+rights of prisoners of war; have exercised all the privileges of
+regular privateers, and cast little or no responsibility on the
+countries they issued from, who still claimed to be entitled to the
+full position of neutral powers. Yet these unprincipled men differed
+from pirates in one respect only--that their infamous warfare was
+waged on one unhappy nation alone, instead of against the power of
+mankind. Uninfluenced by national feelings, their sole object was the
+plunder of the honest trader, and the means to that end--murder. Are
+there any modern principles of right and justice by which such persons
+are still to claim consideration? That there were such principles
+formerly, when the whole system of war was barbaric and unmerciful,
+cannot be doubted, unless such enemies were to be condemned when
+others equally bad were to be excused; but those reasons have now
+disappeared. Universal opinion is against these principles; numerous
+treaties have condemned the practice; the municipal laws of several
+states have made it punishable in their own subjects; America has even
+attempted, in two cases, to bring it in as piracy; and the highest
+authorities have pronounced it a crime.
+
+Are not then the foundations of the laws that governed this case
+changed? It may be going too far to declare it piracy by the Law of
+Nations, but is it asking too much, in calling upon our maritime
+tribunals to proclaim the practice contrary to the Law of Nations; to
+deprive these privateers of the protection of neutrality, when in
+their native waters, and to subject the nation that permits them to
+fit out in, or issue from their ports, to the danger of reprisals,
+from the offended belligerents.
+
+This I suggest as an example of the application of the principles of
+right and wrong, as at present understood, to the investigation of the
+continued soundness of an accepted precept of law. In the judgments of
+Lord Stowell there are many such examples; and _guided_ as he was by
+precedent and authority, he could not be said to have been _led_ by
+anything but the principles of universal justice. At no time does he
+appear for a moment to have hesitated in putting aside precedent, when
+the true doctrine was unsatisfied. Mr. Justice Story acted on the same
+plan. The granting of salvage for the recapture of neutral
+property--the denial of the right of the Danish Government to
+confiscate private debts--the declaration of Mr. Justice Story, that
+the slave trade was against the law of nations--are a few amongst many
+remarkable examples of the fundamental principle being allowed to
+alter and overrule the authoritative precept.
+
+
+
+
+THE LAWS OF WAR.
+
+
+
+PART I.
+
+
+
+THE LAWS OF WAR AFFECTING COMMERCE AND SHIPPING.
+
+
+
+CHAPTER I. COMMENCEMENT OF WAR.
+
+
+
+SECTION I.
+
+
+
+_The Immediate Effects of War_.
+
+
+For some months the state of war that has been impending between
+Russia, and the Allied Powers,--England, France, and Turkey,--has now
+become actual; and though there have been many acts of preparation and
+precaution on the part of England and France, we have not been, up to
+the present crisis, engaged in what is termed by international
+writers, Public and Solemn War; such a position of affairs has at last
+arrived.
+
+[Sidenote: Solemn War.]
+
+The War then, that England has entered into, is of the most Public and
+Solemn kind. Public War is divided into Perfect and Imperfect. The
+former is more usually called Solemn. Grotius defines Public or Solemn
+War to be such Public War as is declared or proclaimed.
+
+Imperfect Wars between nations, that is such wars as nations carry on
+one against the other, without declaring or proclaiming them, though
+they are Public Wars, are seldom called wars at all; they are more
+usually known by the name of reprisals, or acts of hostility. It has
+often been important to determine, on the re-settlement of peace, what
+time war commenced, and when reprisals ceased.[2]
+
+According to the Law of Nations, two things are required for a Solemn
+War; first, it must be a Public War; that is, the contending parties
+must be two nations, or two parties of allied nations, contending by
+force under the direction of a supreme executive; and secondly, it
+must be proclaimed, notified, or declared. And probably it must be
+general in its character, and not simply local or defensive. Presuming
+that the coming contest will be of the widest character, I shall
+proceed to examine its legal effects on Commerce, on that
+supposition.[3]
+
+[Sidenote: Declaration of War]
+
+Declarations have existed from the most ancient times, having been
+borrowed by modern nations from the manners and customs of the Romans.
+But in present times, (although they may be very properly put
+forward,) they are not necessary to a state of actual war, or as it is
+technically termed, to legalize hostilities. A Declaration of War is
+not a matter of international right.[4] Acts of hostilities, without
+such an instrument, cannot be denounced as irregular or piratical,
+unless committed in manifest bad faith. But though war may lawfully
+commence without an actual declaration, yet a declaration is of
+sufficient force to create a state of war, without any mutual attack.
+It is not a mere challenge from one country to another, to be accepted
+or refused at pleasure by the other. It proves the existence of actual
+hostilities on one side at least, and puts the other party also in a
+state of war, though, he may, perhaps, think proper to act on the
+defensive only.[5]
+
+[Sidenote: War, how commenced.]
+
+War now generally commences by Actual Hostilities, by the Recal or
+Dismissal of an Ambassador or Minister, or by a Manifesto published by
+one belligerent power to its own subjects.
+
+Manifestoes are issued to fix the date of the commencement of
+hostilities; for as a state of war has many various effects on
+commercial transactions, such as the confiscation of certain property,
+and the dissolution of certain contracts, it is very necessary that
+such a date should be accurately known. When a Manifesto or
+Declaration is issued, it is said to legalize hostilities, that is to
+say,--to make all acts done, and all breaches committed, under
+pressure of war, good and lawful acts and breaches.
+
+I have given this explanation, because it is a popular notion that a
+declaration always precedes war; but in reality, in modern times, few
+wars are solemnly declared;--they begin most often with general
+hostilities; thus the first Dutch War began upon general Letters of
+Marque, and the War with Spain, that commenced by the attempted
+invasion of the Armada in 1588, was not declared or proclaimed between
+the two crowns.[6]
+
+[Sidenote: Contents of Declaration.]
+
+The Manifesto not only announces the commencement Contents of and
+existence of hostilities, but also states the reasons of, and attempts
+the justification of the war; and it is necessary for the instruction
+and direction of the subjects of the belligerent state, with respect
+to their intercourse with the foe; it also apprizes neutral nations of
+the fact, and enables them to conform their conduct to the rights
+belonging to the new state of things.[7]
+
+Without such an official act, it might be difficult to distinguish, in
+a Treaty of Peace, those acts which are to be accounted lawful effects
+of war, from those which either nation may consider as naked wrongs,
+and for which they may, under certain circumstances, claim reparation.
+
+When war is duly declared, it is not merely a war between one
+government and another, but between nation and nation, between every
+individual of the one state with each and every individual of the
+other. The subjects of one country are all, and every one of them, the
+foes of every subject of the other, and from this principle flow many
+important consequences.[8]
+
+[Sidenote: Property of Subjects of Belligerent States in the Enemy's
+Country.]
+
+On the commencement of hostilities a natural expectation will arise
+that the Property, (if not the Persons) of the Belligerent State,
+found in the Enemy's Territory, will become liable to seizure and
+confiscation, especially as no declaration or notice of war is now
+necessary to legalize hostilities. According to strict authority, the
+Persons and Property of Subjects of the Enemy found in the belligerent
+state are liable to detention and confiscation; but even on this point
+diversity of opinion has arisen among institutional writers; and
+modern usage seems to exempt the Persons and Property of the Enemy
+found in either territory at the outbreak of the war, from its
+operations.
+
+Without entering on the long arguments that have been produced on this
+subject, and which it is not the intention of this treatise to
+reproduce, the rule may be stated very nearly as follows.[9]
+
+That though, on principle, the property of the enemy is liable to
+seizure and confiscation, yet it is now an established international
+usage that such property found within the territory of the belligerent
+state, or debts due to its subjects by the government or individuals,
+_at the commencement_ of hostilities, are not liable to be seized and
+confiscated as prize of war.
+
+This rule is often enforced by treaty, but unless thus enforced it
+cannot be considered as an inflexible, though established, rule. This
+rule is a guide which the Sovran of the belligerent state follows or
+abandons at will, and although it cannot be disregarded by him without
+obloquy, yet it may be disregarded. It is not an immutable rule, but
+depends on considerations which continually vary.[10]
+
+[Sidenote: Rule with respect to Immoveable Property.]
+
+The rule is different with respect to Immoveable Things, such as
+Landed Estates. He who declares war does not confiscate the Immoveable
+Estate possessed in his country by the enemy, but the Income may be
+sequestrated, to prevent its being remitted to the enemy.[11]
+
+[Sidenote: Public Funds.]
+
+Public Funds, or in other words, debts due from the Sovran of the
+hostile state to Private Persons, are always held protected from
+confiscation, and there is only one instance in modern times where
+this rule has been broken. It is a matter of public faith; and even
+during war, no enquiry ought to be made whether any part of the public
+debt is due to the subjects of the enemy.[12]
+
+[Sidenote: Rule of Reciprocity.]
+
+All these rules are, however, subject to the Rule of Reciprocity. This
+is thus laid down by Sir William Scott, in the case of the Santa Cruz,
+
+     "that at the commencement of a 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 commencement of a war the
+     enemy's merchants shall be kept and treated as our own
+     merchants are treated in their country."[13]
+
+[Sidenote: Droits of Admiralty.]
+
+[14]In England, at present, however, these liberal principles are
+modified by Rights of Admiralty, the foregoing rules being applied
+rather to property _upon the land_ than _within the territory_; for
+although, when captures are made in ports, havens, or rivers, within
+the body of the country of the realm, the Admiralty is in reality
+excluded, yet Prize Courts have uniformly, without objection, tried
+all such captures in ports and havens within the realm; as in the case
+of ships not knowing hostilities, coming in by mistake, before the
+declaration of war or hostilities; all the ships of the enemy are
+detained in our ports, to be confiscated as the property of the enemy,
+if no reciprocal agreement is made.[15]
+
+[Sidenote: Hostile Embargo.]
+
+This species of reprisal is termed a Hostile Embargo. It cannot well
+be distinguished from the practice of seizing property found within
+the territory upon the declaration of war. It is undoubtedly against
+the spirit of modern liberality, and has been but too justly
+reprobated as destroying that protection to property which the rule of
+faith and justice gives it, when brought into the country in the
+course of trade, and in the confidence of peace.
+
+It is not, however, as Wheaton states, peculiar to England, but common
+to modern Europe, except that England does not, in practice, appear to
+be influenced by the corresponding conduct of the enemy in that
+respect.[16]
+
+[Sidenote: Debts Due to and from an Enemy.]
+
+But with relation to Debts Due to an Enemy, previous to hostilities,
+English law follows a wiser principle.
+
+On the outbreak of war between Denmark and this country in 1807, the
+Danish Government, as a measure of retaliation for the seizure of
+their ships in our ports, issued an ordinance sequestrating all debts
+due from Danish to British subjects, causing them to be paid into the
+Danish Royal Treasury.
+
+The Court of King's Bench decided that this was not a legal defence to
+a suit in England for the debt, and that the ordinance was not
+conformable to the Law to Nations.[17] It was observed by the Court,
+that the right of confiscating debts (contended for on the authority
+of Vattel,)[18] was not recognised by Grotius,[19] and was impugned by
+Puffendorf and others; and that no instance had occurred of the
+exercise of the right, (except the ordinance in question,) for upwards
+of a century. This is undoubtedly the law in England, although it may
+be doubted if this rule still holds so strongly in the United States.
+
+[Sidenote: Interruption of Intercourse; Trading with the Enemy
+unlawful.]
+
+One of the most immediate consequences of the outbreak of hostilities
+is the complete interruption of Commercial Intercourse between the
+subjects of the countries at war, even to the extent of holding it
+unlawful, after war has begun, except under special licence of the
+government, to send a vessel to the enemy's country to bring home,
+with _their permission_, one's own property, when war has broken out.
+
+There cannot exist at the same time a war for arms and a peace for
+commerce; from the very nature of war all commercial intercourse
+ceases between enemies. This interdiction of intercourse is the result
+of the mere operation of war; for declarations of war generally enjoin
+on every subject the duty of attack on the subjects of the hostile
+state, of seizing their goods, and doing them every harm in their
+power.[20]
+
+From the very nature of war itself, all commercial intercourse ceases
+between enemies. The utility, however, of merchants, and the mutual
+wants of nations, have almost got the better of the law of war as to
+commerce. Hence, commerce is alternately permitted and forbidden in
+time of war, as princes think it most for the interest of their
+subjects. A commercial nation is anxious to trade, and accommodate the
+laws of war to the greater or lesser want that it may have for the
+goods of the other. Thus sometimes a mutual commerce is permitted
+generally; sometimes as to certain merchandizes only, while others are
+prohibited; and sometimes it is prohibited altogether. In this manner
+there is partly peace and partly war, between subjects of both
+countries.[21]
+
+In the case of the Hoop,[22] Sir Wm. Scott says,
+
+     "By the law and constitution of Great Britain, the Sovereign
+     alone has the power of declaring War and Peace. He alone,
+     therefore, who has the power of entirely removing the state
+     of war, has the power of removing it in part, by permitting,
+     when he sees proper, that commercial intercourse, which is a
+     partial suspension of the war. There may be occasions on
+     which such an intercourse may be highly expedient; but it is
+     not for individuals to determine on the expediency of such
+     occasions, on their own notions of commerce only, and
+     possibly on grounds of private advantage not very
+     reconcilable with the general interests of the state. It is
+     for the state alone, on more enlarged views of policy, and
+     of all circumstances that may be connected with such an
+     intercourse, to determine when it shall be permitted, and
+     under what regulations. No principle ought to be held more
+     sacred than that this intercourse cannot subsist on any
+     other footing than that of the direct permission of the
+     state. Who can be insensible to the consequences that might
+     follow, if every person in time of war had a right to carry
+     on a commercial intercourse with the enemy; and under colour
+     of that, had the means of carrying on any other species of
+     intercourse he might think fit? The inconvenience to the
+     public might be extreme; and where is the inconvenience on
+     the other side, that the merchants should be compelled, in
+     such a situation of the two countries, to carry on his trade
+     between them, (if necessary,) under the eye and control of
+     the Government charged with the care of public safety?"
+
+[Sidenote: Alien Enemy cannot sue in this country.]
+
+Sir William then goes on to say,
+
+     "another principle of law, of a less politic nature, but
+     equally general in its reception and direct in its
+     application, forbids this sort of communication as
+     fundamentally inconsistent with the relation at the time
+     existing between the two countries, and that is the total
+     inability to sustain any contract by an appeal to the
+     tribunals of the one country, on the part of the subjects of
+     the other. In the law of almost every country, the character
+     of an Alien Enemy carries with it a disability to sue, or to
+     sustain, in the language of the civilians, a _persona standi
+     in judicio_. The peculiar law of our own country applies
+     this principle with great rigour--the same principle is
+     received in our Courts of the Law of nations; they are so
+     far _British_ courts, that no man can sue therein who is a
+     subject of the Enemy, unless under particular circumstances
+     that _pro hac vice_ discharge him from the character of an
+     Enemy, such as his coming under a flag of truce, a cartel,
+     or a pass, or some other act of public authority that puts
+     him in the Queen's peace _pro hac vice_. But otherwise he is
+     totally _Ex lex_! Even in the case of ransom bills which
+     were contracts, but contracts arising out of _the laws of
+     war_, and tolerated as such, the Enemy was not permitted to
+     sue _in his own 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. A state in which contracts cannot
+     be enforced is not a state of legal commerce."
+
+[Sidenote: No Trade permitted except under Royal licence.]
+
+     "Upon these and similar grounds, it has been the established
+     rule of this court, confirmed by the judgment of the supreme
+     court, that a trading with the enemy, except under a Royal
+     Licence, subjects the property to confiscation.
+
+     "Where the Government has authorised, under sanction of an
+     Act of Parliament, a _homeward trade_ from the enemy's
+     possessions, but has not specifically protected an _outward_
+     _trade_ to the same, though intimately connected with that
+     homeward trade, and almost necessary to its existence, the
+     rule has been enforced, where strong claim not merely of
+     convenience, but almost of necessity, excused it on behalf
+     of the individual.
+
+     "It has been enforced, where cargoes have been laden before
+     the war, but where the parties have not used all possible
+     diligence to countermand the voyage after the first notice
+     of hostilities.[23]
+
+     "In the last war between England and America, a case
+     occurred in which an American citizen had purchased a
+     quantity of goods within the British territory, a long time
+     previous to the war, and had deposited them upon an island
+     near the frontier; upon the breaking out of hostilities, his
+     agents had hired a vessel to proceed to the spot, to bring
+     away the goods; on her return she was captured, and with the
+     cargo, condemned as prize of war."[24]
+
+So also, where goods were purchased, some time before the war, by the
+agent of an American citizen in Great Britain, but not shipped until
+nearly a year after the declaration of hostilities, they were
+pronounced liable to confiscation.[25]
+
+Where property is to be withdrawn from the country of the enemy, it is
+the more satisfactory and guarded proceeding on the part of the
+_British_ merchant to apply to his own Government for the special
+importation of the article; it is indeed the only safe way in which
+parties can proceed.[26]
+
+[Sidenote: Subjects of an Ally may not trade with the Enemy.]
+
+During a Conjoint War no Subject of an Ally can trade with the common
+enemy without liability to forfeiture in the prize courts of the Ally,
+of all his property engaged in such trade. As the former rule can be
+relaxed only by permission of the Sovran power of the state, so this
+can be relaxed only by the permission of the allied nations, according
+to their mutual consent.[27]
+
+[Sidenote: Contracts void.]
+
+On similar principles, all Contracts made with the Enemy _during War_
+are utterly _void_. This applies to Insurances on the enemy's property
+and trade; to the drawing and negociation of Bills of Exchange,
+whether the subject of this country or of the alien enemy be the
+acceptor; to the sending of Money or Bills to the enemy's country; to
+Commercial Partnerships. All endeavours to trade by third persons are
+equally illegal.[28]
+
+Thus also all Contracts made in contemplation of War, and which never
+could have existed at all, but as an insurance against the pressure of
+war, and with a view to evade the rights that arise out of war, and in
+fraud of the belligerent, are illegal, even though made by
+neutrals.[29]
+
+[Sidenote: Insurances.]
+
+The municipal or common law of every state declares all Insurances to
+be void, by which ships or merchandize of the enemy are sought to be
+protected. Also all Insurances by or on behalf of _alien_ enemies are
+wholly illegal and void, although effected before the breaking out of
+hostilities; but if both the policy had been effected and the loss
+accrued before the war, the remedy is only suspended during the war.
+
+The general principle is that the contract of assurance is vacated and
+annulled _ab initio_; wherever an insurance is made on a voyage
+expressly prohibited by the common, statute, or maritime law of the
+country; the policy is of no effect.[30]
+
+Thus, if a ship, though neutral, be insured on a voyage prohibited by
+an embargo laid on in time of war, by the prince of the country in
+whose ports the ships happen to be, such an insurance is void.[31]
+
+Similarly, all Insurances to protect the interests of British subjects
+trading without licence with the enemy are absolutely void.[32]
+
+So also, if a Licence is not strictly pursued, so that the voyage
+becomes illegal, the insurance is void.[33]
+
+I have said that all Insurances will be void which are designed to
+protect voyages or trading to hostile ports. But, for this purpose, it
+must be clearly made out, not only that the port into which the ship
+sails is hostile, but also, that she was bound with a distinct hostile
+destination at the time of loss. Thus a policy to "ports in the
+Baltic," is legal, as some may be hostile, and some not, and it is not
+certain that she was sailing to a hostile port.
+
+The general principle by which the validity of a policy is to be
+tested, is by the voyage, that it is a voyage prohibited by law, on
+some ground of public policy. The will, therefore, of the parties is
+of no account, as the prohibition is for public, and not private
+benefit. So that if the underwriter is told that the voyage is illicit
+he is not more bound than if he were not told so.[34]
+
+It is Insurances upon voyages generally prohibited by law, such as to
+an enemy's garrison, or upon a voyage directly contrary to an express
+act of parliament, or to royal proclamation in time of War, that are
+absolutely void and null;--therefore, on neutral vessels, or the
+vessels of British subjects possessing neutral rights and sailing from
+neutral ports to enemies ports are not void.[35]
+
+Similarly, with respect to Insurances on neutral vessels carrying
+_contraband goods_, for it is not the voyage, but the cargo, that is
+illegal in that case.[36]
+
+Insurances are good on Neutral Vessels engaged in the Colonial Trade
+of the Enemy, and which was closed to the Neutral in time of
+peace,[37] It must be observed, that if a voyage is illegal, and voids
+the policy for that voyage, it does not follow that it voids the
+voyage in the opposite direction, and even the goods purchased by the
+proceeds of a former illegal voyage, may be the subject of
+Insurance.[38]
+
+[Sidenote: Bills of Exchange drawn during War.]
+
+It has been stated above that all Bills drawn or negociated with the
+enemy, whether a British subject or the alien enemy be the acceptor,
+are null and void; during the last war, however, attempts were often
+made to draw and negociate bills that should pass muster in our courts
+of law, as for example:--
+
+An alien enemy, during war, drew upon a British subject resident in
+England, and who had funds of the alien in his hands; the drawer then
+indorsed the bill to an English-born subject, resident in the hostile
+country; such a bill cannot be enforced even after the restoration of
+peace, for otherwise it would enable alien enemies to take the benefit
+of all their property in this country, by allowing them to pay debts
+out of such funds, by the instrumentality of bills.[39]
+
+The principle seems to be,--that it is not every bill that bears the
+name of an alien enemy upon it that is void, but such bills only that
+are instrumental in assisting in communication with an alien
+enemy;--and a liberal application of this principle has been made use
+of to open a way for English prisoners to make use of their property
+at home for their support in the country of their captivity. Thus,
+where one of two Englishmen, detained in France on the breaking out of
+hostilities, drew in favour of the other, upon a subject here, it was
+held that he might legally draw such a bill for his _subsistence_, and
+that he might indorse it to an alien enemy, an inhabitant of the
+hostile country; for he could not avail himself of the bill except by
+negociation; and to whom could he negociate it, except to the
+inhabitants of the country in which he resided?[40]
+
+Bills, like other contracts, are only void by the policy of war; but
+the law still recognizes some extent of obligation between the
+parties, so that bills void in their concoction (as instruments of
+trade with the enemy,) are not so far void that they may not
+constitute the basis of a promise by which a party may bind himself on
+the return of peace.[41]
+
+[Sidenote: Contracts made before the War.]
+
+On the very important question of the effect of a declaration on
+Contracts with the subjects or the enemy, _entered into previous to
+the War_, the rule is, that if the performance of the contract be
+rendered unlawful by the Government of the country, the contract is
+dissolved on both sides.[42]
+
+Thus the contract of Affreightment is dissolved when the voyage
+becomes unlawful, by the commencement of war, or the interdiction of
+commerce;[43] and this whether the interdiction is complete as to the
+ship, or partial as to the receiving of goods.
+
+Similarly, if the voyage be broken up by Capture on the passage, so as
+to cause a _complete defeat_ of the undertaking, the contract is
+dissolved, notwithstanding a recapture.[44]
+
+A Blockade of the port of destination, that renders the delivery of
+the cargo impossible, and obliges the ship to return to its port of
+destination, dissolves the contract.[45]
+
+A temporary interruption of the voyage does not put an end to the
+agreement. Embargoes, hostile blockades, and investments of the port
+of departure are held to be temporary impediments only.[46]
+
+But in the case of an Embargo imposed by the government of the
+country, of which the merchant is a subject, in the nature of
+reprisals and partial hostility, against the enemy to which the ship
+belongs, the merchant may put an end to the contract, if the object of
+the voyage is likely to be defeated thereby; as if, for example, the
+cargo were of a perishable nature.[47]
+
+[Sidenote: Partnerships.]
+
+A Public War operates as a positive dissolution of Partnerships
+between subjects of the contending nations. Every Partnership is
+dissolved by the extinction of the business for which it was
+formed.[48] By a declaration of War, the respective subjects of each
+country become positive enemies to each other. They can carry on no
+commercial or other intercourse with each other; they can make no
+valid contracts with each other; they can institute no suits in the
+courts of either country; they can, properly speaking, hold no
+communication of an amicable nature, with each other; and their
+property is mutually liable to capture and confiscation by the
+subjects of the other country. The whole objects and ends of the
+Partnership, the application of the joint funds, skill, labour, and
+enterprize of all the Partners of the common business, can no longer
+be attained.[49]
+
+Thus a Partnership between alien friends, is at once defeated when
+they become alien enemies.
+
+This dissolution, however, only has respect to the future. The parties
+remain bound for all antecedent engagements. The partnership may be
+said to continue as to everything that is past, and until all
+pre-existing matters are wound up and settled. With regard to things
+past, the partnership continues, and must always continue.
+
+No notice is necessary to the world to complete the dissolution of the
+association. Notice is requisite when a partnership is dissolved by
+the act of the parties, but it is not necessary when the dissolution
+takes place by the act of law. All mankind are bound to take notice of
+the War, and its consequences. Besides, any special notice would be
+useless unless joint, and as the partners could hold no lawful
+intercourse, a lawful joint notice is impossible.
+
+It must not be supposed that peace will have any healing effect, to
+restore the parties to their rights; the co-partnership being once
+dissolved by the war, it was extinguished for ever, except as to
+matters existing prior to the war.[50]
+
+With regard to the effect of war upon partnerships, where the partners
+are severally subjects of the belligerent powers. According to Mr.
+Justice Story,
+
+     "this point does not seem to have been discussed in our
+     courts of justice until a recent period; yet it would seem
+     to be a necessary result of principles of public law, well
+     established and defined. By a declaration of war, the
+     respective subjects of each country become positive enemies
+     of each other. They can carry on no commercial or other
+     intercourse with each other; they can make no valid
+     contracts with each other; they can institute no suits in
+     the courts of either country; they can, properly speaking,
+     hold no communication of an amicable nature with each other;
+     and their property is mutually liable to capture and
+     confiscation, by the subjects of either country. Now, it is
+     obvious from these considerations, that the whole ends and
+     objects of the partnership, the application of the joint
+     funds, skill, labours, and enterprize, of all the partners
+     in the common business thereof, can no longer be attained.
+     The conclusion therefore, would seem to be absolutely that
+     this mutual supervening capacity, must, upon the very
+     principles applied to all analagous cases, amount to a
+     positive dissolution of the partnership."[51]
+
+The law of nations has not even stopped at the points already stated;
+it proceeds further. The question of enemy or no enemy, depends not
+upon the natural allegiance of the partners, but upon their domicile.
+
+[Sidenote: Partnerships.]
+
+If a partnership is established, and as it were domiciled, in a
+neutral country, and all the partners reside there, it is treated as a
+neutral establishment, and is entitled to protection accordingly. But
+if one or more of the partners is domiciled in an enemy's country, he
+or they are treated personally as enemies, and his share of the
+partnership property is liable to capture and condemnation
+accordingly, even though the partnership establishment is in the
+neutral country. The inference from these considerations is, that in
+all these cases there is an utter incompatibility from operation of
+law between the partners, as to their respective rights, duties, and
+obligations, both public and private; and therefore, that a
+dissolution must necessarily result therefrom, independent of the will
+or acts of the parties.[52]
+
+And, as a general rule, therefore, it may be laid down, that if the
+performance of a covenant be rendered unlawful by the Government of
+this country entering into war, the contract will be dissolved on both
+sides, and the offending party, as he has been compelled to abandon
+his contract, will be excused from the payment of damages for its
+non-performance; but it is otherwise, if the non-performance is
+prevented only by the prohibition of a foreign country.[53]
+
+In such cases, the remedy only is suspended; and other cases may occur
+on these principles, where, from other circumstances, the remedy only
+is suspended until the termination of the war; as for example, in most
+cases of executed contracts.
+
+[Sidenote: Trading with the Enemy punishable.]
+
+Trading with the Enemy, was at an early period an indictable offence
+in the English Court of Admiralty.[54] And in the time of King
+William, it was held to be a misdemeanor at common law, to carry corn
+to an enemy.[55]
+
+The law, as I have faintly sketched it out, is founded to some extent
+on American authorities, where the question has been as fully
+discussed as in the reports of this country; but there can be little
+doubt that the law is the same in this country: although a doubt was
+once thrown on it, by the strong political opinion of Lord Mansfield,
+as to the policy of allowing trade with an enemy, or assuring an
+enemy's property. The lustre of his talents, and his ascendancy in the
+Court of King's Bench, were calculated to continue the delusion.
+During his time, the question as to the _legality_ of such insurances
+was never mooted; for he frowned on every attempt to set up such a
+defence, as dishonest and against good faith.[56]
+
+The strict rule of interdicted intercourse has been carried so far in
+the British Admiralty, as to prohibit supplies to a British Colony
+during its partial subjection to the enemy, and when the Colony was in
+want of provisions.[57]
+
+[Sidenote: Cartel Ships]
+
+The same interdiction to trade applies to Cartel Ships, or Ships of
+Truce, that is, to Ships sent to recover prisoners of war; and there
+is but one exception to this rigorous rule of International Law;--the
+case of Ransom Bills, which are contracts of necessity, founded on a
+state of war.
+
+
+
+
+SECTION II.
+
+
+
+_On Enemies and Hostile Property_.
+
+
+During a peace of thirty-nine years, there has naturally arisen a vast
+inter-immigration throughout Europe; many complicated commercial and
+family relations have sprung up between nations of different
+countries; many Englishmen are permanently settled in various parts of
+Europe; and England, in return, is crowded with Foreigners, who look
+upon this country as their present and future home. What is the
+position of these persons at the commencement of war? Who, in fact,
+are our enemies?
+
+And the previous Section, in which the effect of War on Commercial
+Relations has been sketched out, must have made it quite evident that
+it has become important accurately to determine what relations and
+circumstances impress a hostile character upon persons and property.
+According to Chancellor Kent, "the modern International Law of the
+Commercial World is replete with refined and complicated distinctions
+on this point."
+
+       *       *       *       *       *
+
+[Sidenote: Alien Enemies]
+
+A man is said to be permanently an Alien Enemy, when he owes a
+permanent allegiance to the adverse belligerent, and his hostility is
+commensurate in point of time with his country's quarrel. But he who
+does not owe a permanent allegiance to the enemy, is an enemy only
+during the existence and continuance of certain circumstances.[58]
+
+The character of enemy arises from the party being in what the law
+looks upon as a state of allegiance to the state at war with us; if
+the allegiance is permanent (as in the case of a natural-born subject
+of the hostile Sovran), the character is permanent.
+
+But with respect to the man who is an alien enemy from what he does
+under a local or temporary allegiance to a power at war with us--when
+the allegiance ends, the character of alien enemy ceases to exist.[59]
+
+Of course all persons owing a natural allegiance to the enemy are our
+enemies; but on the same broad principles of natural justice that
+impress a temporary character upon our friends and fellow countrymen,
+under special circumstances individuals from amongst our natural
+enemies become our friends and fellow subjects.
+
+       *       *       *       *       *
+
+[Sidenote: Prisoners of War.]
+
+The first among these are Prisoners of War.
+
+A Prisoner of War is _not_ adhering to the King's enemies, for he is
+here under the protection from the King. If he conspires against the
+King's life it is high treason; if he is killed (malice aforethought),
+it is murder. He is not, therefore, in a state of actual hostility. At
+one time it was ruled, that a prisoner of war could not contract; but
+that case was thought hard. Officers on their parole must subsist like
+other men of their own rank; but if they could not contract they must
+starve; for they could gain no credit if deprived of the power of
+sueing for their own debts. A prisoner in confinement is protected as
+to his person, and if on parole he has protection in his credit
+also.[60]
+
+He is allowed to support himself, and add to his personal comfort, by
+applying himself in his trade or business, and may maintain an action
+on his contract for his wages; nor can he be compelled, when sueing
+for money necessary for his support, to give security for costs like
+any other foreigner temporarily resident in this country.[61]
+
+       *       *       *       *       *
+
+[Sidenote: Married Foreigners.]
+
+A wife generally follows the country and allegiance of her husband;
+but where she is in this country of necessity, or is here owing
+allegiance by her birth, and her husband is an alien enemy and under
+an absolute disability to come and live here, the law steps in to her
+aid, and gives her the privileges of an unmarried woman, so that she
+may sue and be sued, and make contracts for and against herself, for
+her maintenance. "Her case," says Chief Justice Holt, "does not differ
+from that of those ladies who were allowed to sue and be sued upon the
+adjuration or banishments of their lords, as if they had been
+sole."[62]
+
+Foreign ladies, who have married Englishmen, are, by their marriage,
+naturalized, and have all the rights, privileges, and duties, of
+natural-born subjects, and cease to be enemies.[63]
+
+       *       *       *       *       *
+
+[Sidenote: Enemies by Hostility.]
+
+A hostile character may be acquired by alien friends, by acts of
+actual hostility, and by alien friends and our fellow-subjects also,
+by what are termed personal and commercial domicile. Of course a
+British subject in actual hostility to his native country is more than
+enemy, he is a traitor, and has no belligerent rights; but an alien
+friend, that is a neutral engaging in war against this country, under
+the commission of a foreign prince, and in the ranks of a hostile
+army, or on board a legally commissioned enemy's vessel, is an enemy,
+and has all the rights of a prisoner of war, if taken.
+
+       *       *       *       *       *
+
+[Sidenote: Mariners.]
+
+A Mariner, by a general rule, takes the character of the country in
+whose service he is employed, and even fugitive visits to the place of
+his birth will not entitle him to retain the benefit of a neutral
+character, in opposition to a regular course of employment in the
+enemy's country and trade; nor does the fact of his wife and family
+residing in his own country enable him to retain his native
+character.[64]
+
+       *       *       *       *       *
+
+[Sidenote: Domicile, Test of Nationality.]
+
+With the exception of these special cases, in a state of war, Domicile
+is the Test of Nationality. According to Grotius,
+
+     "By the Law of Nations all the subjects of the offending
+     state, who are such from a _permanent_ cause, whether
+     natives _or emigrants from another country_, are liable to
+     reprisals; but not so those who are only travelling or
+     sojourning for a little."
+
+And he even holds that the right of killing and doing bodily harm to
+enemies extends "not only to those who bear arms, or are subjects of
+the author of the war, but to _all_ those who are found in the enemy's
+territory;" meaning all those found domiciled or adhering to the
+enemy.
+
+If, then, a native of England resides in a belligerent country, his
+property is liable to capture as enemy's property; and if he resides
+in a neutral country, he enjoys all the privileges, and is subject to
+all the inconveniences of the neutral trade.[65]
+
+He takes all the advantages and disadvantages of the country of his
+adoption; with the limitation, that he must do nothing inconsistent
+with his native allegiance;[66] as, for example, if he emigrate to a
+neutral country _during the time of war_, he will not be permitted to
+acquire the character of a neutral merchant, and trade with the enemy
+in that character, it being his duty to injure the enemy to the full
+extent of his power.[67]
+
+       *       *       *       *       *
+
+[Sidenote: Test of Domicile.]
+
+In determining the important question of Domicile, the _animus
+manendi_, or disposition to remain or settle in the land of the
+domicile, is the question to be determined.
+
+If a man goes into a foreign country upon a visit, to travel for
+health, to settle a particular business, or for similar purposes, the
+residence naturally attendant on these circumstances is not generally
+regarded as a permanent residence.
+
+But though a special purpose, such as the above, does not fix a
+domicile, yet these circumstances are not to be taken without respect
+to the _time_ they _may probably_ or _actually do_ occupy. A general
+residence may grow upon a special purpose. It is difficult to fix the
+amount of time necessary to create a domicile, and it probably must be
+determined from each particular case. Thus, if a man remained in a
+hostile state after the outbreak, employed on some great work, which
+would occupy him many years, or beyond the probable termination of the
+war, or were unable to leave that particular climate on account of
+health, or were under any disability to return to his native country,
+the amount of time he had resided there would become an element of the
+question; against such a residence, the plea of an original special
+purpose, could not be averred; but it must be inferred, in such a
+case, that other purposes forced themselves upon him, mixed themselves
+with his original design, and impressed upon him the character of the
+country where he resided.
+
+But, as an exception, a residence involuntary or constrained, however
+long, does not change the original character of the party, and give
+him a new and hostile one.
+
+Domicile is fixed by a disclosed intention of permanent residence; if
+the emigrant employs his person, his life, his industry, for the
+benefit of the state under whose protection he lives; and if, war
+breaking out, he continues to reside there, pays his proportion of
+taxes, imposts, and revenues, equally with the natural-born subjects,
+no doubt he may be said to be domiciled in that country.
+
+When these circumstances are ascertained, time ceases to be an element
+in the question, and the _animus manendi_, once ascertained, the
+recency of the establishment, though it may have been for a day only,
+is immaterial.
+
+The intention is the real subject of enquiry; and the residence, once
+the domicile, is not changed by periodical absence, or even by
+occasional visits to the native country, if the intention of foreign
+domicile remains.
+
+The native character, however, easily reverts; more so in the case of
+a native subject, than of one who is originally of another country.
+The moment an emigrant turns his back on his adopted country, with the
+intention of returning to (not simply visiting) his native country, he
+is in the act of resuming his original character, and must be again
+considered as a citizen of his native land;[68] even if he is forcibly
+detained in the country he is parting from, as was the case with
+British subjects on the breaking out of the War of 1804.[69]
+
+But it is advisable for persons so situated, on their intended
+removal, to make application to Government for a special pass, rather
+than to trust valuable property to the effect of a mere intention to
+remove, dubious as that intention may frequently appear, under the
+circumstances that prevent that act from being carried into execution.
+
+But, as we have before observed, general principles on this subject
+are scarcely sufficient; the right of domicile must depend on each
+individual case. If no express declaration has been made, and the
+secret intention has yet to be discovered, it can be evidenced by the
+acts of the party. In the first instance, these acts are removal to a
+foreign country, settlement there, and engagement in the trade of the
+country: and if a state of war brings his national character into
+question, it lies on him to explain the circumstances of his
+residence.
+
+       *       *       *       *       *
+
+[Sidenote: Domicile in Eastern Countries.]
+
+A singular exception exists in reference to the rule of domicile. In
+the Western parts of Europe, alien merchants mix in the society of the
+natives; but in the East, from almost the oldest times, an immixable
+character has been kept up; foreigners continue strangers and
+sojourners, as all their fathers were. Merchants residing in these
+countries are hence still considered British subjects.
+
+       *       *       *       *       *
+
+[Sidenote: Hostile character acquired by Trade.]
+
+Again, a National Character may be acquire by Trade, or, as it is
+called, by _commercial domicile_. In general, the national character
+of a person, as neutral or enemy, is determined by that of his
+domicile; but the property of a person may acquire a hostile character
+independently of his personal national character derived from personal
+domicile. A person carrying on trade habitually in the country of the
+enemy, though not personally resident there, should have time given
+him to withdraw from that commerce; it would press too heavily on
+neutrals to say, that immediately on the first breaking out of a war,
+their goods should become subject to confiscation. But if a person
+enters into a house of trade in the enemy's country, in time of war,
+or continued that connexion during the war, he cannot protect himself
+by mere residence in a neutral country. "It is a _doctrine_ supported
+by strong principles and equity," says Sir William Scott, "_that there
+is a traffic which stamps a National Character_ on the individual,
+independent of _that Character_ which _mere personal residence_ may
+give him."[70] The principle does not go to the extent of saying that
+a man, having a house of trade in the enemy's country, as well as in a
+neutral country, should be considered in his whole concerns as an
+enemy's merchant, as well in those which respected solely his neutral
+house, as in those which belong to his belligerent domicile.[71]
+
+His lawful trade is exonerated from the operation of his unlawful
+trade, in all cases, and under all phases. All trade that does not
+originate from the belligerent country is protected, but not so, if it
+can be traced so to arise in not too remote a degree.
+
+The same protection however is not extended to the case of a merchant
+residing in the hostile country, and having a share of a house of
+trade in an enemy's country. Residence in a neutral country will not
+protect his share in a house established in the enemy's country,
+though residence in the enemy's country will condemn his share in a
+house established in a neutral country.[72]
+
+[Sidenote: Rule of 1756.]
+
+The next mode in which a hostile character may be given to those not
+naturally bearing it, is by dealing in those branches of commerce
+which are confined in the time of peace to the subjects of the enemy:
+_i.e._ the ships and cargoes of a Neutral engaged in the colonial or
+coasting trade of the enemy (not open to foreigners in time of peace),
+are liable to the penal consequences of confiscation. This point; was
+first mooted in the war of 1756, and is called the rule of 1756.[73]
+
+       *       *       *       *       *
+
+[Sidenote: National Character of Ships.]
+
+When 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 circumstances 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 pass of a foreign country, she is considered as bearing 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
+considered as a vessel of that country. In like manner, and on similar
+principles, if a vessel, purchased in the enemy's country, is by
+constant and habitual occupation continually employed in the trade of
+that country, commencing with the war, continuing during the war, and
+evidently on account of the war, that vessel is deemed a ship of the
+country from which she is so navigating, in the same manner as if she
+evidently belonged to the inhabitants of it.[74] Further, when parties
+agree to take the pass and flag of another country, they are not
+permitted, in case any inconvenience should afterwards arise, to aver
+against the flag and pass to which they have attached themselves, and
+to claim the benefit of their real character. They are likewise
+subject to this further inconvenience, that their own real character
+may be pleaded against them by others. Such is the state of double
+disadvantage to which persons expose themselves by assuming the flag
+and pass of a foreign state.[75]
+
+       *       *       *       *       *
+
+[Sidebar: Distinction as to Cargoes]
+
+A distinction is made in England between the Ship and the Cargo. Some
+countries have gone so far as to make the flag and pass conclusive on
+the cargo also; but in England it is held that goods have no
+dependence upon the authority of the state, and may be differently
+considered. If the cargo is laden in time of peace, though documented
+as foreign property, in the same manner as the ship, the sailing under
+a foreign flag and pass has not been held conclusive as to the
+cargo.[76]
+
+       *       *       *       *       *
+
+[Sidebar: Hostile Property cannot be Transferred _in Transitu_.]
+
+Property which has a hostile character at the commencement of a
+voyage, cannot change that character by assignment while it is _in
+transitu_, so as to protect it from capture.[77]
+
+In the ordinary course of things, in the time of peace, such a
+transfer _in transitu_ can certainly be made. When war intervenes,
+another rule is set up by the Courts of Admiralty, which interferes
+with the ordinary practice. In a state of war, _existing_ or
+_imminent_, it is held that the property shall be deemed to continue
+as it was at the time of shipment, till actual delivery; this arises
+out of a state of war, which gives a belligerent a right to stop the
+goods of his enemy. If such a rule did not exist, all goods shipped in
+an enemy's country would be protected by transfers, which it would be
+impossible to detect.[78]
+
+
+
+
+CHAPTER II.
+
+
+
+SECTION I.
+
+
+
+_Actual War_.--_Its Effects_.
+
+
+
+[Sidenote: Objects of War.]
+
+Vattel tells us
+
+     "The end of a just war is to _avenge or prevent injury_;
+     that is to say, to obtain justice by force, when not
+     obtainable by any other method; to compel an unjust
+     adversary to repair an injury already done, or to give us
+     securities against any wrong with which we are threatened by
+     him. As soon therefore as we have declared war, we have a
+     right to do against the enemy whatever we find necessary for
+     the attainment of that end, for the purpose of bringing him
+     to reason, and obtaining justice and security from him.
+
+     "The lawfulness of the end does not give us any thing
+     further than barely the means necessary for the attainment
+     of that end. Whatever we do beyond that, is reprobated by
+     the law of nature--is faulty and condemnable at the tribunal
+     of conscience. Hence it is that the right to such acts
+     varies according to circumstance. What is just and perfectly
+     innocent in one situation is not always so on other
+     occasions. Right goes hand in hand with necessity and the
+     exigency of the case, but never exceeds them."
+
+Such are some of the arguments that Vattel puts forth with all the
+strength of reason and eloquence, against all unnecessary cruelty, and
+all mean and perfidious warfare.
+
+There was no limit to the career of violence and destruction,
+justified by some of the earlier writers; they considered a state of
+war as a dissolution of all moral ties, and a licence for every
+disorder and fierceness: even such authors as Bynkershoek and Wolff,
+who lived in the most learned and not the least civilized nations of
+Europe, and were the contemporaries of that galaxy of talent that
+adorned the commencement of the eighteenth century, held that every
+thing done against an enemy was lawful. He might be destroyed, though
+unarmed, harmless, defenceless; fraud, even poison, might be used
+against him. A foe was a criminal and an outlaw, who had forfeited his
+rights, and whose life, liberty, and property, lay at the mercy of the
+victor.
+
+But such was not the public opinion or practice of enlightened Europe
+at the time they wrote. Grotius had long before, even in opposition to
+his own authorities, but influenced by religion and humanity,
+mentioned that many things were not fit and commendable, though they
+might be strictly lawful. He held that the Law of Nations prohibited
+the use of poisoned arms, the employment of assassins, violence to
+women or the dead, or making slaves of prisoners. Montesquieu followed
+in the same humane spirit. He writes, that the civilians said,
+
+     "That the law of nations, to prevent prisoners being put to
+     death, has allowed them to be made slaves.... The reasons of
+     the civilians are all false. It is false, that killing in
+     war is lawful, unless in case of absolute necessity; but
+     when a man has made another his slave, he cannot be said to
+     be under a necessity of taking away his life, since he
+     actually did not take it away. War gives no other right over
+     prisoners than to disable them from doing any further harm,
+     by securing their persons. All nations concur in detesting
+     the murdering of prisoners in cold blood."[79]
+
+Thus, it is now the established Law of Nations, that necessity is the
+measure of violence in war, and humanity, its tempering spirit; or, as
+it has been otherwise enunciated, the rights of war are to be measured
+by the objects of the war.
+
+Although we have a right to kill our enemies in war; it is only when
+we find gentler methods insufficient to conquer their resistance and
+bring them to terms, that we have a right to put them to death.[80]
+
+Under the name of enemies are comprehended not only the first author
+of the war, but also those who join him and support his cause.
+
+[Sidenote: Cartel]
+
+Out of these enlightened views of war has sprung the System of Cartels
+for the exchange of prisoners. These exchanges are generally regulated
+by special convention between the hostile states. Prisoners are
+sometimes permitted to return home, upon condition not to serve again
+during the war, or until duly exchanged. Officers are frequently
+released upon their parole, on the same condition; and to carry more
+effectually into operation the arrangements necessary for these
+purposes, commissaries are permitted to reside in the respective
+hostile states.
+
+Subject to the principle of non-resistance, there are several classes
+of persons that are generally considered exempt from the operations of
+war, beyond the effects of unavoidable accident. "All the members of
+the enemy's state," says Wheaton,
+
+     "may lawfully be treated as enemies, in a Public War; but it
+     does not follow that all are to be treated alike; though we
+     may lawfully destroy some of them, it does not follow that
+     we may lawfully destroy all; for the general rule derived
+     from the natural law is still the same, that no force
+     against an enemy is lawful, unless it is necessary to
+     accomplish the purposes of war. The custom of civilised
+     nations founded on this principle, has therefore exempted
+     the persons of the Sovran and his family, the members of the
+     Civil Government, women and children, cultivators of the
+     earth, artizans, labourers, merchants, men of science and
+     letters, and generally all other public or private persons
+     engaged in the ordinary civil pursuits of life, from the
+     direct effect of military operations, unless actually taken
+     in arms, or guilty of some misconduct in violation of the
+     usages of war, by which they forfeit their immunity."[81]
+
+The same principle of moderation towards that which is non-resisting
+limits and restrains the operations of war against the territory and
+other property of the enemy. There is a marked difference in the
+rights of war carried on by land and at sea, in modification of the
+general right to seize on _all_ the enemy's property, and to
+appropriate that property to the captors.
+
+[Sidenote: Objects of a Maritime War.]
+
+The object of a Maritime War is the destruction of the enemy's
+commerce and navigation, in order to weaken and destroy the
+foundations of his naval power. The capture or destruction of
+_private_ property is necessary to that end, and is allowed in
+maritime wars, by the practice and law of nations.
+
+[Sidenote: Private Property on Land.]
+
+But _private property on land_ is exempt from confiscation, with the
+exception of such as may become booty in special cases, when taken
+from enemies in the field or in besieged towns, and of military
+contributions levied upon the inhabitants of the hostile territory.
+This exemption extends even to an absolute and unqualified conquest of
+an enemy's country. In ancient times, both real and personal property
+of the vanquished passed to the victors; but the last example of
+confiscation and partition among the conquerors in Europe, was that of
+England, by William of Normandy.
+
+Unless in special cases, private property on land is not touched,
+without making compensation; though contributions are sometimes levied
+in lieu of a necessary confiscation, or for the expenses of
+maintaining and affording protection. In other respects private rights
+are unaffected by war.
+
+[Sidenote: Government Property.]
+
+The property, however, belonging to the Government of the vanquished
+nation, passes to the victorious state, which also takes the place of
+the former Sovereign, in respect to the eminent domain.[82]
+
+[Sidenote: Limitations of the Right of making War.]
+
+The right of making War, as we have shown in the first chapter of this
+book, solely belongs to the Sovran power. Subjects cannot, therefore,
+of themselves, take any step in the affair; nor are they allowed to
+commit any act of hostility without orders from their Sovran.
+
+The Sovran's order which commands acts of hostility, is either general
+or particular. The declaration of war, which enjoins the subjects to
+attack the enemy's subjects, implies a general order. Generals,
+officers, soldiers, privateersmen, and partisans, being all.
+commissioned by the Sovran, make war by virtue of a particular order.
+
+In declarations of war, the ancient form is still retained,[83] by
+which subjects in general are ordered, not only to break off all
+intercourse with, but also to _attack_ the foe. Custom interprets this
+general order. It authorises, indeed, and even obliges every subject,
+of whatever rank, to secure the persons and things belonging to the
+enemy, when they fall into his hands; but it does not invite the
+subject to undertake any offensive expedition without a commission or
+particular order.[84]
+
+
+
+SECTION II.
+
+
+
+_Prizes and Privateers_.
+
+[Sidenote: Privateer Commissions.]
+
+During the lawless confusion of the feudal ages, the right of making
+Reprisals was claimed and exercised, with out a Public Commission. It
+was not until the fifteenth century that Commissions were held
+necessary, and were issued to private subjects in time of war, and
+that subjects were forbidden to fit out vessels to cruise against
+enemies without licence. There were ordinances in Germany, France,
+Spain, and England, to that effect.[85]
+
+[Sidenote: Non-Commissioned Captors.]
+
+Hostilities, without a Commission, are contrary to usage, and
+exceedingly irregular and dangerous, but they are not considered as
+acts of Piracy during the time of war. Noncommissioned vessels of a
+belligerent nation may at all times capture hostile ships, without
+being deemed, by the Law of Nations, Pirates. But they have no
+interest in the prizes they take, and the property so seized is
+condemned to the Government as _Droits of the Admiralty_. The reward
+of this class of captors is left to the liberality of the Admiralty,
+and is often referred to the Admiralty Court.
+
+[Sidenote: Right of Capture.]
+
+The fruits of any forcible detention or occupancy, prior to
+hostilities, are vested in the crown; similarly, _British_ property
+taken in course of trade forbidden by the laws of his country, is
+condemned to the Crown, and not to the individual captor.[86]
+
+To prevent the custom house or excise vessels, that may be
+commissioned with letters of marque, turning their attention from the
+smugglers to the more attractive adventure of privateering, all
+interest in their prizes is reserved to the crown,[87]
+
+[Sidenote: Grants to the Admiralty.]
+
+Though all rights of prize belong originally to the Crown, yet it has
+been thought expedient to grant a portion of those rights to maintain
+the dignity of the Lord High Admiral. This grant, (whatever it
+conveys,) carries with it a total and perpetual alienation of the
+rights of the crown, and nothing short of an Act of Parliament can
+restore them; whereas the grant to private captors is nothing more
+than the mere temporary transfer of a beneficial interest. The rights
+of the Admiral, as distinguished from those of the Crown, are these;
+that when vessels come in, not under any motive arising out of the
+occasions of war, but from distress of weather, or want of provisions,
+or from ignorance of war, and are seized in port, they belong to the
+Lord High Admiral; but where the hand of violence has been exercised
+upon them, where the impression arises from acts connected with war,
+from revolt of their own crews, or from being forced or driven in by
+the Queen's ships, they belong to the Crown.
+
+This includes ships and goods already come into the ports, creeks, or
+roadsteads, of all the Queen's dominions.[88]
+
+[Sidenote: Acquisition of Captures.]
+
+Persons fitting out Private Vessels under a Commission to cruise
+against the enemy, acquire the property of whatever Captures they may
+make, as a compensation for their disbursements, and for the risks
+they run; but they acquire it by grant from the Sovran who issues out
+the commission to them. The Sovran allows them either the whole, or a
+part of the capture; this entirely depends on the nature of the
+contract he has made with them.[89]
+
+This grant of prize is, in terms, a grant of the property of the
+Queen's enemies, but it is not restricted to the property of the
+nations with whom we are at war. It is held in construction and
+practice to embrace all property liable to be condemned as prize, and
+which is not particularly reserved to the Crown, or the Admiralty.[90]
+
+It depends, also, on the municipal regulations of each particular
+power: and as a necessary precaution against abuse, the owners of
+Privateers are required by the ordinances of commercial states to give
+adequate security that they will conduct the cruize according to the
+laws and usages of war, and the instructions of the Government; and
+that they will respect the rights of neutrals, and bring their prizes
+in for adjudication.
+
+[Sidenote: Commissions of Privateers.]
+
+The Commissions of Privateers do not extend to the capture of private
+property upon land; that is a right which is not even granted to
+Queen's ships. The words of the 3rd Section of the Prize Act extend
+only to capture by any of Her Majesty's ships,
+
+     "of any fortress upon the land, or any arms, ammunition,
+     stores of war, goods, merchandize, and treasure, belonging
+     to the state, or to any public trading company, of the
+     enemies of the crown of Great Britain, upon the land."
+
+Thus the interests of the Queen's cruizers are expressly limited with
+respect to the property in which the captors can acquire any interest
+of their own, the state still reserving to itself all private
+property, in order that no temptation may be held out for unauthorized
+expeditions against the subjects of the enemy on land. With regard to
+private vessels of war, the Lords of the Admiralty are empowered by
+the 9th Section, to issue Letters of Marque, to the _Commanders_ of
+any such ships or vessels,
+
+     "for the attacking and taking any place or fortress upon the
+     land, or any ship or vessel, arms, ammunition, stores of
+     war, goods, or merchandize, belonging or possessed by any of
+     Her Majesty's enemies in any sea, creek, river, or haven."
+
+It was the purpose of the persons who brought in this bill, that
+Privateers should not be allowed to make depredations upon the coasts
+of the enemy for the purpose of plundering individuals, and for that
+reason they were restricted to fortified places and fortresses, and to
+property water-borne.[91]
+
+As Privateers sometimes sail in company with Queen's vessels, and also
+in small squadrons, for the purpose of mutual assistance, the rights
+of the privateers vary. When a Privateer is sailing under the convoy
+of a Queen's ship, she takes no share in any prize taken by the ship,
+or even by herself, unless she has received orders from the convoying
+royal ship to give chase, or has acted hostilely against the enemy,
+actually aiding and assisting in the capture.[92]
+
+When Privateers have sailed in company, it has often happened that not
+every vessel has been actually engaged in the capture of the prize,
+though they may have been rendering valuable assistance in a variety
+of forms, such as watching in the offing, guarding an open outlet of
+escape to the intended prize. In the disputes arising from these joint
+captures, Sir William Scott was the first to establish a settled
+intelligible system, on principles that might become in future easily
+applicable to the various cases that might arise.
+
+[Sidenote: Constructive Captors.]
+
+He says
+
+     "the Act of Parliament (meaning the Prize Act), and the
+     proclamation, 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 name of takers, but
+     the Courts of Law have gone further, and have extended the
+     term 'takers' to those who, not having contributed actual
+     service, are supposed to have rendered a constructive
+     assistance, either by conveying encouragement to the captor,
+     or intimidation to the enemy. * * * It has been contended
+     that where ships are associated in a _common enterprize_,
+     that circumstance is sufficient to entitle them to share
+     equally and alike in the prizes that are made; but many
+     cases might be stated when ships so associated would _not_
+     share. I must ever hold that the principle of mere common
+     enterprise is not sufficient--it is not sufficiently
+     specific--it must be more limited. What is the real and true
+     criterion? She 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
+     sight of the enemy, and under preparation for chase, I
+     should have no hesitation 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_."[93]
+
+[Sidenote: Efforts to suppress Privateering.]
+
+Powerful efforts have been made by humane and enlightened individuals
+to suppress Privateering, as inconsistent with the liberal spirit of
+the age. In the language of Chancellor Kent,
+
+     "the object is not honour, or chivalric fame, but plunder
+     and profit. The discipline of the crews is not apt to be of
+     the highest order, and privateers are often guilty of
+     enormous excesses, and become the scourge of neutral
+     commerce."
+
+They are sometimes manned and officered by foreigners, having no
+permanent connection with the country, or interest in the cause. This
+was a complaint made by the United States in 1819, in relation to
+irregularities and atrocities committed by private armed vessels,
+sailing under the flag of Buenos Ayres. Under the best regulations the
+business tends strongly to blunt the sense of private right, and to
+nourish a lawless and fierce spirit of rapacity.
+
+Its abolition has generally been attempted by treaty. In the treaty of
+Prussia and the United States, in 1785, stipulations against private
+armed vessels were included. In 1675, a similar agreement was made
+between Sweden and Holland, but the agreement was not performed.
+France, soon after the breaking out of the war with Austria, in 1792,
+passed a decree for the total suppression of privateering, but that
+was a transitory act, and was soon swept away in the tempest of the
+Revolution.
+
+[Sidenote: Piratical Privateering.]
+
+On these considerations naturally follows that of the classes of
+Privateers that can be considered Pirates.
+
+A Privateer differs from a Pirate, in that--first, the former is
+provided with a Commission, or with Letters of Marque from a Sovran,
+of which the Pirate is destitute. Secondly, the Privateer supposes a
+state of war (or at least that of reprisals); the Pirate plunders in
+the midst of peace, as well as in war. Thirdly, the Privateer is
+obliged to observe the rules and instructions that have been given
+him, and to attack by virtue of them only the enemy's ships, or those
+neutral vessels which carry on an illicit commerce; the Pirate
+plunders indiscriminately the ships of all nations, without observing
+even the laws of war. But in this last point Privateers may become
+Pirates when they transgress the limits prescribed to them; and this
+is one of the reasons why we often see the former confounded with the
+latter.[94]
+
+Under these general definitions, we see that it is quite open to any
+citizen of the world to become a privateer under a foreign Sovran; and
+Martens goes on to say, that
+
+     "there is nothing that prevents the granting of Letters of
+     Marque, even to the subjects of neutral or allied powers who
+     are able to solicit them; but since it is contrary to
+     neutrality to suffer subjects to contribute by this means to
+     the reinforcement of one of the belligerent powers, and to
+     the annoyance of the other, states generally prohibit their
+     subjects from taking Letters of Marque from a power, without
+     the permission of their Sovereigns, and many treaties oblige
+     them also to prohibit their subjects from doing it, as well
+     as to forbid every species of armaments on the enemy's
+     account, in their ports. However, the enemy is not justified
+     in _punishing them as pirates_, when they have letters
+     patent from one of the powers with whom it is at war,
+     although their ship may be confiscated."[95]
+
+The laws of the United States have made ample provision on this
+subject, and they may be considered as an expression of the general
+wish of civilized nations; and they prescribed specific punishment for
+acts which were before unlawful.
+
+American citizens are prohibited from being concerned, beyond the
+limits of the United States, in fitting out or otherwise assisting any
+private vessel of war, to cruize against the subjects of friendly
+powers.[96]
+
+In the various treaties between the powers of Europe, in the two last
+centuries, and in the several treaties between the United States and
+France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia,
+Chili, &c., it is declared, that no subject or citizen of either
+nation shall accept a commission or letter of marque, to assist an
+enemy in hostilities against the other, under penalty of being treated
+as an enemy.[97]
+
+The Title to Property taken in War may, upon general Title to
+principles, be considered as immediately divested from the original
+owner, and transferred to the captor. As to personal property, the
+title is considered as lost to the former proprietor, as soon as the
+enemy has acquired a firm possession, which, as a general rule, is
+considered as taking place after the lapse of twenty-four hours.[98]
+
+Ships and goods captured _at sea_, are excepted from the operation of
+this rule. The right to all captures rests primarily in the Sovran,
+and no individual can have any interest in a prize, whether made by a
+crown or private armed vessel, but what he receives under the grant of
+the state.
+
+When a prize is taken at sea, it must be brought with due care into
+some port, for adjudication by a competent court. The condemnation
+must be pronounced by a prize court of the Government of the captor,
+sitting either in the country of the captor, or of his ally. The prize
+court of an ally cannot condemn.[99]
+
+[Sidenote: Proceedings Preliminary to Condemnation.]
+
+The Proceedings Preliminary to Condemnation may be roughly described
+as follows:--
+
+The _captor_, immediately on bringing his prize into port, sends up
+and delivers upon oath to the registry of the Court of Admiralty, all
+papers found on board the prize. The preparatory examinations of the
+captain and some of the crew of the _captured ship_ are then taken,
+upon a set of standing interrogatories, before the commissioners of
+the port to which the prize is brought. These also are forwarded to
+the registry of the Court of Admiralty. A written _notice_, called a
+_monition_, is extracted by the captor from the registry, and served
+upon the Royal Exchange, notifying the capture, and calling upon all
+persons interested, to appear and show cause why the ship and goods
+should not be condemned. At the expiration of twenty days, the
+monition is returned into the registry, with a certificate of its
+service; and if any claim has been given, the cause is then ready for
+hearing, upon evidence arising out of the ship's papers and
+preparatory examinations.
+
+The _neutral master or proprietor of the cargo_ takes measures as
+follows:--Upon being brought into port, the master usually makes a
+protest, which he forwards to London as instructions, (or with such
+further directions as he thinks proper) either to the correspondent of
+his owners, or to the consul of his nation, in order to claim the ship
+or such parts of the cargo as belong to his owners, or with which he
+was particularly entrusted; or the master himself goes to London to
+take the necessary steps, as soon as he has undergone his examination.
+
+The master, correspondent, or consul, applies to a proctor, who
+prepares a claim supported by the affidavit of the claimant, stating
+briefly to whom, as he believes, the ship and goods claimed belong;
+and that no enemy has any right or interest therein; security must be
+given to the amount of sixty pounds, to answer costs, if the case
+should appear so grossly fraudulent on the part of the claimant as to
+subject him to be condemned therein. If the captor has neglected in
+the mean time to take the usual steps, (but which seldom happens, as
+he is strictly enjoined both by his instructions and by the Prize Act
+to proceed immediately to adjudication,) a process issues against him,
+on the application of the claimant's proctor, to bring in the ship's
+papers and preparatory examinations, and to proceed in the usual way.
+
+As soon as the claim is given, copies of the ship's papers and
+examinations are procured from the registry, and upon the return of
+the monition the cause may be heard. It however seldom happens, owing
+to the great pressure of business, (especially at the commencement of
+war), that causes can possibly be prepared for hearing immediately on
+the expiration of the time for the return of the monition; in that
+case, each cause must necessarily take its regular turn. Correspondent
+measures must be taken, by the neutral master, if carried within the
+jurisdiction of a Vice-Admiralty Court, by giving a claim, supported
+by his affidavit, and offering a security for costs, if the claim
+should be pronounced grossly fraudulent.
+
+If the claimant be dissatisfied with the sentence, his proctor enters
+an appeal in the registry of the Court, where the sentence was given,
+or before a notary public (which regularly should be entered within
+fourteen days after the sentence); and he afterwards applies at the
+registry of the Lords of Appeal in prize causes, which is held at the
+same place as the registry of the High Court of Admiralty, for an
+instrument called an inhibition, and which should be taken out within
+three months, if the sentence be in the High Court of Admiralty; and
+within nine months, if in a Vice-Admiralty Court; but may be taken out
+at later periods if a reasonable cause can be alleged for the delay
+which has intervened. This instrument directs the judge, whose
+sentence is appealed from, to proceed no further in the cause; it
+directs the registrar to transmit a copy of all proceedings of the
+inferior courts; and it directs the party who has obtained the
+sentence to appear before the superior tribunal to answer to the
+appeal. On applying for the inhibition, security is given on the part
+of the appellant to the amount of two hundred pounds, to answer costs,
+in case it should appear to the Court of Appeal that the appeal is
+vexatious. The inhibition is to be served upon the judge, the
+registrar, and the adverse party, and his proctor, by shewing the
+instrument under seal, and delivering a note of its contents. If the
+party cannot be found, and his proctor will not accept the service,
+the instrument is to be served, _viis et modis_; that is, by affixing
+it to the door of the last place of residence, or by hanging it on the
+pillars of the Royal Exchange. That part of the process above
+described, which is to be executed abroad, may be performed by any
+person to whom it is committed, and the formal part at home is
+executed by the officer of the court. A certificate of the service is
+endorsed on the back of the instrument, sworn before the surrogate of
+the superior court, or before a notary public, if the service is
+abroad.
+
+If the cause be adjudged in the Vice-Admiralty Court, it is usual, on
+entering the appeal there, to procure a copy of the proceedings, which
+the appellant sends over to his correspondent in, England, who carries
+it to a proctor, and the same steps are taken to procure and send the
+inhibition as when the cause has been adjudged in the High Court of
+Admiralty. But if a copy of the proceedings cannot be procured in due
+time, an inhibition can be obtained, by sending over a copy of the
+instrument of appeal, or by writing to the correspondent an account
+only of the time and substance of the sentence.
+
+Upon an appeal, fresh evidence may be introduced, if, upon hearing,
+the Lords of Appeal should be of an opinion that the cause is of such
+doubt, or that further proof ought to have been ordered by the court
+below.
+
+Further proof usually consists of affidavits made by the asserted
+proprietors of the goods, in which they are sometimes joined with
+their clerks, and others acquainted with the real transactions, and
+with the real property of the goods claimed. In corroboration of these
+affidavits, may be annexed the original correspondence, duplicates of
+bills of lading, invoices, extracts from books, &c. These papers must
+be proved by affidavits of persons who can speak of their
+authenticity; and if copies or extracts, they should be collected and
+certified by public notaries. The affidavits are sworn before
+magistrates, or others competent to administer oaths in the country
+where they are made, and authenticated by a certificate from the
+British Consul.
+
+The degree of proof required depends upon the degree of suspicion or
+doubt that belongs to the case. In case of heavy suspicion and great
+importance, the court may order what is called "plea and proof," that
+is, instead of admitting affidavits and documents introduced by the
+claimant only, each party is at liberty to allege, in regular
+pleadings, such circumstance as may tend to acquit or condemn the
+capture, and to examine witnesses in support of the allegation, to
+whom the opposite party may administer interrogatories. The
+depositions of the witnesses are taken in writing. If the witnesses
+are to be examined abroad, a commission issues for that purpose; but
+in no case is it necessary for them to come to England. These solemn
+proceedings are seldom resorted to. Standing Commissions may be sent
+to any neutral country for the general purpose of receiving
+examinations of witnesses, in all cases where the court may find it
+necessary, for the purposes of justice, to decree an enquiry to be
+conducted in that manner.[100]
+
+[Sidenote: Prize Jurisdiction.]
+
+The Jurisdiction over Prizes is exercised by the Judge of the
+Admiralty, exclusively of every other judicature of the kind, except
+in cases of appeal.
+
+This Jurisdiction in matter of Prize, (whether it is coeval with the
+Court of Admiralty, or, which is much more probable, of a later
+institution, beyond the time of memory,) though exercised by the same
+person, is quite distinct in its nature.
+
+The Judge of the Admiralty is appointed by a commission under the
+great seal, which enumerates particularly, as well as generally, every
+object of his jurisdiction, but not a word of prize.
+
+To constitute that authority, in every war, a commission under the
+great seal issues to the Lord High Admiral to will and require the
+Court of Admiralty, and the Lieutenant and Judge of the said court,
+his surrogate or surrogates, and they are thereby authorised and
+required to proceed upon all and all manner of captures, seizures,
+prizes, and reprisals, of all ships and goods that are or shall be
+taken, and to hear and determine according to the Courts of Admiralty
+and the Law of Nations.
+
+A warrant issues to the judge accordingly.
+
+The Court of Admiralty is called the Instance Court; the other the
+Prize Court. The manner of proceeding is totally different. The whole
+system of litigation and jurisprudence in the Prize Court is peculiar
+to itself.
+
+[Sidenote: Common Law Courts not always excluded]
+
+A thing being done on the high seas does not exclude the jurisdiction
+of the Courts of Common Law. For seizure, stopping, or taking a ship
+upon the high seas, but _not as prize_, an action will lie; but for
+taking as _prize_, no action will lie. The nature of the question, not
+the locality, excludes.
+
+The end of a Prize Court is to suspend the property till condemnation,
+to punish every sort of misbehaviour in the captors; to restore
+instantly (full sail) if upon the most summary examination there does
+not appear a sufficient ground; to condemn finally, if the goods
+really are prize, against everybody; giving every body a fair
+opportunity of being heard. A captor may, and must force everybody
+interested to defend; and every person interested may force him to
+proceed to condemn without delay.[101]
+
+[Sidenote: Prize Courts.]
+
+Before the sixth of the reign of Queen Anne there were no laws made on
+this subject. Previous to that time all prizes taken in war were of
+right vested in the Crown, and questions concerning the property of
+such prizes were not the subject of discussion in courts of law. But
+in order to do justice to claimants, from the first year after the
+Restoration of Charles the Second, special commissions were issued to
+enable the Courts of Admiralty to condemn such captures as appeared to
+be lawful prizes; to give relief where there was no colour for taking;
+and generally to make satisfaction to parties injured. By the Act of
+the 13 Car. II. c. 9, (now repealed) indeed, some regulations were
+made concerning the treatment of ships taken, but no provisions
+enacted respecting any security to be given on delivery; the sole
+interest in the thing condemned being in the Crown; it was in public
+custody, and the disposition of it a mere matter of prerogative; no
+such provisions therefore were necessary.
+
+But in the sixth year of Queen Anne, it was thought proper, for the
+encouragement of seamen, to vest in them the prizes they should take;
+and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were
+passed.
+
+The first of these acts only relates to proceedings in the Courts of
+Admiralty in England, but contains no particular directions to them;
+the practice of those courts being already settled.[102]
+
+There is a long series of statutes, which follows the above, on the
+subject of the Prize Courts. The following may be taken as a general
+description of their operation.
+
+The judge should proceed, according to their form, to sentence with
+all possible expedition. If on the preparatory examination there
+arises a doubt in the breast of the judge, whether the capture is
+prize or not, and further proof appears to be necessary, the ship and
+cargo is appraised by persons named on the part of the captor, and is
+delivered up to the claimants, on their giving good and sufficient
+security to pay to the captor the full value, according to the
+appraisement, if the ship is adjudged lawful prize by the judge; by
+this the claimant is entitled to the immediate possession of the
+subject in dispute, which the captor cannot obtain but on the refusal
+of the claimant to give security for the appraised value. After a
+sentence of condemnation, the captor has a right to the possession;
+the execution of the sentence is not suspended by an appeal, but the
+party appellant gives good and sufficient security to restore the
+cargo, or its full value, in case the sentence is reversed.[103]
+
+[Sidenote: Where Prize Courts can be held.]
+
+Having explained shortly the operation of the Prize Courts, it must be
+observed, that the Prize Court of an Ally cannot condemn. Prize or no
+prize is a question belonging exclusively to the courts of the country
+of the captor. The reason is, that the Sovran has a right and is bound
+to inspect the conduct of the captors, for he is answerable to other
+states for the acts of the captor. The Prize Court of the captor may
+sit in the country of a co-belligerent or an ally, because there is a
+common interest between such on the subject, and both governments may
+be presumed to authorize any measures conducing to give effect to
+their arms, and to consider each others ports as mutually
+subservient.[104]
+
+It is not lawful for such a court to act in a neutral territory; and
+it was at one time even doubted, where property had been carried into,
+and was lying in a neutral port, whether the validity of the capture
+could be determined even by a Court of Prize established in the
+captor's country; because it was thought that the possession in reach
+of the court was essential to the exercise of a jurisdiction in a
+proceeding _in rem_. The principle was admitted by Sir Wm. Scott to be
+correct, in the case of the Henrick and the Maria;[105] but he
+considered that the English Admiralty had gone too far in supporting
+condemnations in England, of prizes abroad in neutral ports, to permit
+him to recall the vicious practice of the Court to acknowledged
+principle.
+
+[Sidenote: Judgments of Prize Courts conclusive.]
+
+The jurisdiction of the Court of the capturing nation is conclusive
+upon the question of property in the captured thing. Its sentence
+settles all further dispute between claimants; and if that sentence is
+manifestly unjust, or against the Law of Nations, the state is alone
+responsible, and not the captors. An unjust sentence is a good ground
+for issuing commissions of Reprisals. Numerous treaties between the
+different powers of Europe, regulating the subject of Reprisals,
+declare that they shall not be granted, unless in case of the _denial
+of justice_. "An unjust sentence," says Wheaton, "must certainly be
+considered as a denial of justice, unless the mere privilege of being
+heard before condemnation is all that is included in the idea of
+justice."[106]
+
+Thus the sentence of a Prize Court, it is plain, is sufficient to
+confirm the captor's title to captures at sea; but a different rule
+applies to real property or immoveables.
+
+Immoveable possessions, lands, towns, provinces, &c., become the
+property of the enemy who makes himself master of them; but it is only
+by the treaty of peace, or the entire subjugation and extinction of
+the state to which those towns and provinces belonged, that the
+acquisition is completed, and the property becomes stable and perfect.
+Thus, a third party cannot safely purchase conquered land till the
+Sovran from whom it has been taken has renounced it by a treaty of
+peace, or has irretrievably lost his sovereignty.[107] Until such
+confirmation, it continues liable to be divested by the _jus
+postliminii_. The purchaser of any portion takes it, at the peril of
+being evicted by the original Sovran owner, when he is restored to his
+dominions.[108]
+
+I now pass on to the more commercial question of Passports,
+Safe-Conducts, and Licences to Trade.
+
+
+
+SECTION III.
+
+
+
+_Licences_.
+
+
+[Sidenote: Passports and Safe Conducts]
+
+Passports, and Safe-conducts, are a kind of privilege, insuring safety
+to persons in passing and repassing, or to certain things during their
+conveyance from one place to another. All Safe-conducts, like every
+other act of Supreme Command, emanate from the Sovran authority, but
+are constantly delegated to inferior officers, either by an express
+commission, or by a natural consequence of the nature of their
+functions. The person named in the Passport cannot transfer his
+privilege to another. They generally promise security wherever the
+grantor has authority and command, and are interpreted by the same
+rules of liberality and good faith, with other acts of the Sovran
+power.[109]
+
+[Sidenote: Licences to Trade with the Enemy]
+
+A Licence granted by a state to its own subjects, or to those or the
+enemy, is a dispensation on its own side of the Laws of War, as far as
+its terms can be fairly construed. The adverse party may justly
+consider such licence as a ground of capture and confiscation _per
+se_; but the Prize Courts of the state, under whose authority they are
+issued, are bound to consider them as lawful relaxations of the
+ordinary state of war. In the country which grants them, licences to
+carry on a pacific commerce are rigidly interpreted, as being
+exceptions to a general rule; though they are not to be construed with
+pedantic accuracy, nor will every small deviation be held to vitiate
+the fair effect of them.[111]
+
+During the later period of the last century, and the earlier portion
+of this, licences were considered as privileges granted to individuals
+for their own benefit, and in which the nation at large was but
+little, or remotely, interested. They were therefore held liable to
+the same strict construction with other similar grants. Yet this rule
+was never held in a narrow captious manner; and if the apparent
+intention of Government was complied with, and there was no suspicion
+of fraud, a sufficient liberality was allowed in the construction.
+When the extraordinary mode of warfare established by the Emperor
+Napoleon, (by an attempt at a general embargo) was carried on, new
+expedients were required to counteract its evils, and licences to a
+great extent were granted to relieve the stagnant trade of the
+country; and this measure, so highly beneficial, and even necessary,
+was facilitated by the adoption of a still more liberal mode of
+construction, and which, no doubt, will again guide these cases.[112]
+
+[Sidenote: Duties of Merchants using Licences]
+
+In trading under a Licence, the merchant ought to follow the terms or
+it as strictly as possible; but if he is acting _bona fides_, some
+breaches of it will be permitted. Being high acts of Sovranty, they
+are necessarily the creatures of that act of power, and must not be
+carried further than the intention of the great authority that grants
+them may be supposed to extend; not that they are to be construed with
+pedantic accuracy, nor that any small deviation should be held to
+vitiate the fair effect of them. An excess in the _quantity_ of goods
+permitted might not he considered noxious to any extent. A variation
+in the quality or substance of the goods might be more significant,
+because a liberty assumed of trading in one species of goods, under a
+license to trade in another, might lead to very dangerous abuses. The
+license must be looked to for the enumeration of goods that are to be
+protected by it.[113]
+
+The principles on which courts act in treating licences is thus
+succinctly laid down by Sir William Scott.--
+
+     "I need not repeat what I have so often stated, the anxious
+     wish of this court to relieve, as much as possible, the
+     difficulties under which the commerce of the world now
+     labours (November 1812,) and to apply the most favourable
+     consideration to the construction of license cases. At the
+     same time it is to be remembered, that the court possesses
+     the mere power of interpretation; that it must confine
+     itself to a reasonable explanation of the terms made use of,
+     and cannot alter or dispense with conditions considered as
+     essential by the Government granting the license. If the
+     court assumes the power of extension by favourable
+     interpretation, it does so only where there is a total
+     absence of _bad faith_, and where unavoidable obstacles have
+     been thrown in the way of an exact compliance with the terms
+     prescribed. Where there has been a want of good faith, or a
+     departure from the terms, beyond the necessity thus imposed,
+     the court has not felt itself called upon to mitigate the
+     penalties incurred by such a deviation."[114]
+
+[Sidenote: The Vessel.]
+
+It is not an essential deviation from the licence, if ships of other
+countries than those designated in the license are employed; provided
+those other countries have the same political bearing towards this
+kingdom as those mentioned in the licence. But it is not a matter of
+indifference to substitute a ship belonging to a country at war, for a
+neutral or native ship, at the will and pleasure of the holder of the
+licence.[115]
+
+Where an enemy's ship was represented to be neutral, and under that
+disguise obtained a licence and was navigated, the ship and freight
+were condemned; and the cargo would have been involved in the same
+fate had it been shown that the owner of the cargo was privy to the
+fraud.[116]
+
+A licence to trade in neutral bottoms does not extend to British
+ships.[117]
+
+[Sidenote: The Cargo.]
+
+The exportation of the produce and manufactures of this country is
+undoubtedly of great importance; but in time of war, it may be a
+matter of serious injury to the kingdom, if the commerce of the enemy
+is to be carried on in security under the abuse of British licences.
+The Courts of Admiralty and Prize, therefore, as far as lie in their
+power, guard against the fraudulent application of licences.
+
+The following are a few practical rules for the guidance of
+merchants:--
+
+1. Where the goods are enumerated in the licence, the best endeavour
+ought to be made to follow that enumeration. It is _not_ a fatal
+departure from the licence to take on board non-enumerated articles,
+if done so by mistake, or inadvertence; but an essential and
+fraudulent departure from the conditions of the licence is a total
+defeasance of it.[118]
+
+2. When a licence is granted to _one_ person, it cannot be made to
+extend to the protection of all other persons who may be permitted by
+that person to take advantage of it.[119]
+
+3. Where A and B have obtained a licence to import, _as for
+themselves, or their agents, or the bearers of their bill of lading_,
+the only persons entitled to act under that licence, are A and B, as
+_importers_, or their agents, or persons holding their bills of
+lading, and claiming under bills of lading, which A and B, _after
+having conducted the importation from the enemy on their own account_,
+have transferred to them.[120]
+
+4. Under a licence to _import_, the British merchant must not also be
+the _exporter_. He is not permitted under such a licence to go to the
+enemy's country, and there act as an enemy's merchant, carrying on the
+export trade of that country.[121]
+
+5. Sometimes, in describing the property in licences, the privilege is
+extended to all property of a certain class, "to whomsoever the
+property may appear to belong." In such cases no enquiry is ever made
+as to the proprietary interest in the property; but if the words are
+not introduced into the licence, it does not protect enemy's
+property.[122]
+
+[Sidenote: The Voyage.]
+
+In the Voyage, also, the merchant must follow the licence. It is
+vitiated by changing the place of shipment. Thus, where a licence was
+to bring away a cargo from Bordeaux, and the party thought proper to
+change the licence, and accommodate it to another port in France, it
+was held by the English Admiralty that the licence was vitiated, and
+the vessel and cargo were condemned.[123]
+
+Enemies trading to the ports of this country must strictly comply with
+the conditions under which that permission is granted. No voluntary
+deviation from the _course_ pointed out can on any account be
+tolerated; except under the pressure of irresistible necessity. The
+character of enemy revives, when such a trader so deviates from his
+appointed course, even if there is no _mala fides_, and he runs all
+the perils of an enemy on an English coast.[124]
+
+It is a violation of a licence to touch at an intermediate port under
+a licence for a direct voyage to this country, the presumption being
+that at the intermediate port the vessel might receive another
+destination, or might actually deliver her cargo in that port.[125]
+
+[Sidenote: Time.]
+
+Of course when the period for which a licence has been granted has
+expired, it no longer has any operation; yet in cases in which parties
+have used due diligence, but have been prevented by accident from
+carrying their intentions into effect within the time, it has been
+holden that, though their licences have expired, they are entitled to
+protection.[126]
+
+A licence cannot be _ante dated_, and if granted subsequent to capture
+it is no protection against condemnation. It is in its very nature
+prospective, pointing to something which has not yet been done, and
+cannot be done at all without such permission. Where the act has
+already been done, and requires to be upheld, it must be by an express
+confirmation of the act itself, as by an indemnity granted to the
+party; but a licence necessarily looks to that which remains to be
+done, and can extend its influence only to future operations.[127]
+
+Note.--It has been before pointed out, that the Queen has, by her
+prerogative, the power of granting licences. But the Navigation Laws
+could not, of course, be dispensed with by the royal prerogative.
+Various acts, therefore, were passed to alter or qualify them,
+according to the new condition of things which was produced in time of
+war. These acts expired with the several wars that suggested them; but
+the almost total repeal of the celebrated Navigation Laws will render
+the re-enactment of similar war measures almost unnecessary.
+
+
+
+SECTION IV.
+
+
+
+_Ransom, Recaptures, and Salvage_.
+
+[Sidenote: Ransom.]
+
+Sometimes circumstances will not permit property captured at sea to be
+sent into port; and the captor, in such cases, may either destroy it,
+or permit the original owner to redeem it.
+
+It was formerly the general custom to redeem property from the hands
+of the enemy by Ransom, and the contract is undoubtedly valid, when
+municipal regulations do not intervene. It is now but little known in
+the commercial law of England, for several statutes in the reign of
+George the Third absolutely prohibited British subjects the privilege
+of ransom of property captured at sea, unless in a case of extreme
+necessity--to be judged of by the Court of Admiralty.[128]
+
+These contracts are generally drawn up at sea, and by virtue of them,
+the captain of the captor engages for the release and safe conduct of
+the taken ship, in consideration of a sum of money, which the master
+of the captured vessel, on behalf of himself and the owners of his
+ship and cargo, engages to pay, and for the payment of which he
+delivers a hostage as security. The contract is drawn up in two parts,
+of which the captor has one, which is called the ransom bill; the
+master of the captured vessel has the other, which operates as his
+safe conduct.
+
+By the French law this safe conduct only protects the vessel to its
+own port, or its port of destination, if nearer that. In other
+countries the pass allows the ship to continue its voyage; but
+operates only to protect the vessel in the course prescribed, and
+within the time limited by the contract. It protects only against
+capture, unless by agreement it provides also against _total loss_ by
+perils of the seas.
+
+During war, and while the character of alien enemy continues, no suit
+will lie in the British Courts by the enemy, in proper person, on a
+ransom bill, notwithstanding it is a contract arising out of the law
+of war. The remedy to enforce payment of the ransom bill for the
+benefit of the enemy captor, is by an action by the imprisoned
+hostage, in the courts of his own country, for the recovery of his
+freedom.
+
+The hostage consists generally of one or two principal officers of the
+captured prize, more generally one only.
+
+As the ransom is in the nature of a pledge, the ransom cannot exceed
+the value of the ship, so that the master cannot bind his owner for a
+larger value; and on the same principle, the captor is bound to take
+the vessel or its value if abandoned by the owner, or what it sells
+for if the owner is insolvent. He is also bound to maintain the
+hostage, and that is an item in the ransom bill. In estimating the
+ransom and expenses of the hostage as a damage or loss, they are
+regarded in the nature of general average, and the several persons
+interested in the ship, freight, and cargo, must all contribute
+towards them.[129]
+
+[Sidenote: Recaptures.]
+
+Although in strictness _every_ prize legally made, may be adjudged to
+the captor, yet there are cases where he ought to restore, wholly, or
+in part, that which he may legally have taken from the enemy. This is
+the case of recaptures.
+
+According to the universal law of nations, the question whether the
+recapture ought to be restored to the first proprietor, seems to
+depend essentially on another, namely, whether the captor has become
+full proprietor of the prize, _to the total extinction_ of the rights
+of the first proprietor. If we admit that he may have become so, there
+would be no further perfect and external obligation on the _recaptor_
+to restore property which has become that of the enemy; and on which
+the first proprietor has lost all claim. There may be a thousand
+reasons of equity why he should not enrich himself by the spoil of his
+fellow citizens or friends; but then, that restitution would not be
+according to the strict rule of natural law; if indeed all claim had
+so passed away.
+
+The captor has, without doubt, a right to take away the enemy's goods.
+He may, without troubling himself with the proprietor's rights, detain
+them, with intent to appropriate to himself, in the same manner, in
+every respect, as he may seize _res nullius_ in the time of peace; but
+it does not follow from thence that the effect of these two actions is
+the same, when applied to objects of so different a condition, or that
+the right of war alone, without cession or renunciation, is a title
+sufficient for a full property.
+
+By the Laws of War the right and power _of possession_ is in the
+captor; the _right of property_ remains in the proprietor. This right
+of war, which is personal in the captor, not being capable of cession,
+cannot bind a third person, who acquires the prize by recapture during
+war; and nothing prohibits the original proprietor from prosecuting
+his rights against him; accordingly, without making any distinction
+between conquest, booty, or prize; the goods taken by the enemy,
+however legal that capture might be, however certain the possession of
+them might be, do not become his full property till the moment of
+peace; and that during the whole course of the war it may be claimed
+by the first proprietor from the hands of every third possessor. From
+this it follows that every recapture, made at any period of the war
+whatever, whether the capture may have been legal, or whether it may
+have been illegal; whether the recapture be made by a Sovran, or by a
+privateer; ought to be restored to the original owner on a just
+repayment of the costs and damages of every recaptor, unless the
+illegality of the recapture precludes the recaptor from the privilege
+of demanding the indemnification.[130]
+
+[Sidenote: Salvage.]
+
+The costs and damages paid to the recaptor are termed Salvage. It was
+the ancient law of this country, that a possession of twenty-four
+hours was a sufficient conversion of the property, and unless it was
+reclaimed before _sundown_, the owner was divested of his property.
+Thus there was a complete obliteration of the rights of former owners.
+This was the ancient law of England, and was in accordance with the
+ancient law of Europe.
+
+This rule has been receded from in this country, since the increase of
+her commerce. 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 was continued afterwards, when this
+country became still more commercial.
+
+This country, as a commercial country, has thus departed from the old
+law, and has made a new and peculiar law for itself, in favour of
+merchant property recaptured, introducing a policy not then introduced
+by other countries, and differing from its own ancient practice.
+
+[Sidenote: Recaptures converted into Ships of War are not restored.]
+
+There is one exception to this law. The Prize Act provides that if a
+recaptured ship, originally taken by her Majesty's enemies, shall
+appear to have been by them "_set forth as a ship or vessel of war_,"
+the said ship or vessel shall not be restored to the former owners or
+proprietors; but shall, in all cases, whether retaken by any of Her
+Majesty's ships, or by any privateer, be adjudged lawful prize for the
+benefit of the captors. When the former character of the vessel has
+been once obliterated by her conversion into a ship of war, the title
+of the former owner, and his claim to restitution, are extinguished,
+and cannot be revived by any subsequent variation of the character of
+the vessel.
+
+_Setting forth_ does not necessarily mean sending out of port with a
+regular commission. It is sufficient if she has been used as part of
+the _national_ force of the enemy, by those in _competent_
+authority.[131]
+
+[Sidenote: Capture a material question in cases of Recapture.]
+
+As it has been stated above, in cases of recapture, the material
+question is, whether there was such a capture made by the enemy, as to
+found a case of re-capture.
+
+This is settled by the question whether the enemy have an effectual
+possession; by this is not meant the _complete_ and firm possession
+obtained by condemnation in a Court of Prize, but that effectual
+possession, that if not interrupted by recapture, would have enabled
+the captor to exercise rights of war over her. For this purpose it is
+not necessary that the possession should be _long_ maintained. The
+following are some examples of such effectual possession.
+
+An English merchantman, separated from her convoy during a storm, was
+brought to by an enemy's lugger, which came up and told the master to
+stay by her till the storm was abated, when they would send a man on
+board; a British frigate coming up afterwards chased the lugger and
+took her, thus releasing the merchantman; the frigate was held
+entitled to salvage.[132]
+
+But when a small English vessel, armed with two swivels, forced a
+privateer row-boat from Dunkirk to strike, but was not able to board
+her, because the English vessel has only three men, and no arms but
+the swivels,--the Frenchman being filled with a well armed crew; and
+subsequently, the row-boat was forced to put into the port of Ostend,
+then the port of an ally; this might not be a capture under the act,
+so much as it was under the general maritime law.
+
+A vessel brought out of port, and which was in the power, though not
+in the actual occupation of the enemy, was thus rescued from
+considerable peril, was held to be recaptured.[133]
+
+Similarly, with a vessel abandoned by the enemy, having possession of
+her, through the terror of an approaching force.[134]
+
+There is no claim to Salvage where the property rescued was not in the
+possession of the enemy, or so nearly as to be certainly and
+inevitably under his grasp.
+
+[Sidenote: Recapture of Property of Allies.]
+
+England restores the Recaptured Property of her Allies, on the payment
+of salvage; 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.[135]
+
+[Sidenote: Recapture of Neutral Property.]
+
+It is not the practice of modern nations to grant Salvage on the
+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 to him; for the enemy would be compelled by the
+tribunals of his own country, after he had carried the neutral into
+port, to release him with costs and damages, for the injurious seizure
+and detention. This proceeds on the supposition, that those tribunals
+would duly respect 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 in the wild hostilities
+declared and practised by France in the Revolutionary War, there was a
+constant struggle between the governing powers of France and the
+maritime courts, which should most outrage the rights of neutral
+property; the liberation of neutral property out of their hands then
+came to be deemed, not only by Lord Stowell, but by the neutrals
+themselves, a substantial benefit; and salvage for such service was
+not only awarded, but thankfully paid.[136]
+
+[Sidenote: Jus Postliminii.]
+
+The rule by which things taken by the enemy are restored to their
+former owner, upon coming again under the power of the nation to which
+they formerly belonged, is termed _jus postliminii_, or the right of
+postliminy. Real property, which is easily identified, is more
+completely within the right of postliminy than moveable property,
+which is more transitory in its nature, and less easily recognized.
+During war, the right of postliminy can only be claimed in the
+tribunals of the belligerent powers, and not in the courts of
+neutrals; for by a general law of nations, neutrals have no right to
+enquire into any captures, except such as are an infringement of their
+own neutrality.[137]
+
+[Sidenote: Costs and Damages to Owners for invalid Seizures.]
+
+It often happens that captains of ships of war and privateers make
+seizures of native or neutral vessels, under the impression that such
+vessels are occupied in illicit trade or other condemnatory acts. This
+may arise from error, and in such cases the vessel is restored to the
+owner by the prize court; but still there may be circumstances
+justifying the seizure, though not condemnation; and if condemnation
+is not granted, the owner sets up a claim for any damage that may have
+occurred to his vessel.
+
+And the rule is, that where the capture is not justifiable, a captor
+is answerable for every damage.[138]
+
+But if a seizure is justifiable, all that the law requires is that the
+captor shall be held responsible for _due diligence_; it is not enough
+that the captor should use as much caution as he would in his own
+affairs, the law requires that there should be no _deficiency of due
+diligence_.[139]
+
+When property is confided by an owner to another person, the care that
+the owner would take of his own property may be a reasonable criterion
+of the care that he may expect his agent to take. But in the case of
+capture, 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 conduct of the
+prize-master. Hence, where the prize-master refused to take a pilot,
+and the ship and cargo were lost, restitution in value was decreed.
+
+
+
+
+CHAPTER III.
+
+
+
+SECTION I.
+
+
+
+_Neutrality_.
+
+[Sidenote: Rights of Neutral Nations.]
+
+It now only remains for me to place before the reader the Rights and
+Obligations of Neutral Nations, as they influence Commerce.
+
+Neutral Nations are those who, in time of war, take no part in the
+contest, but remain common friends to both parties, without favouring
+the arms of the one to the prejudice of the other.[140]
+
+Neutrality consists in--1st, Giving no assistance when there is no
+obligation to give it; nor voluntarily to furnish troops, arms,
+ammunition, or anything of direct use in war. 2ndly, In whatever does
+not relate to war, a neutral and impartial nation must not refuse to
+one of the parties (on account of his present quarrel) what she grants
+to the other.[141]
+
+[Sidenote: Qualified Neutrality.]
+
+These rules do not apply to engagements by treaty, to which the
+Neutral may be bound previous to war; as for example, an engagement to
+furnish one of the belligerent parties with a _limited_ succour in
+money, troops, ships, or munitions of war, or to open his ports to the
+armed vessels of his ally with his prizes.[142]
+
+Neutrality, again, may be qualified by treaties (antecedent to war),
+to admit vessels of war, with their prizes, of one of the belligerent
+parties, into the neutral's ports, to the complete or limited
+exclusion of the other.
+
+[Sidenote: Neutral Territory protected.]
+
+The Rights of War can be exercised only within the territory of the
+belligerent powers, upon the high seas, or in a territory belonging to
+no one. To make use of neutral territory for the _proximate_ purposes
+of war cannot be allowed, although it is to be understood that the
+prohibition does not extend to remote objects and uses, such as
+procuring provisions, and other innocent articles.[143]
+
+The sanctity of a claim of territory is very high. When the fact is
+established, it overrules every other consideration; the property
+taken must be restored, notwithstanding that it belongs to the enemy;
+and if the captors should have erred wilfully, and not merely through
+ignorance, he would be subject to further punishment. It is however, a
+point on which foreign states are very likely to be misinformed and
+abused, by the interested representations of those who are anxious to
+catch at their protection. The claim of territory is, therefore, to be
+taken according to the letter of the law, and to be made out by clear
+and unimpeached evidence. The right of seizing the property of the
+enemy is a right which extends, generally speaking, _universally_,
+wherever that property is found. The protection of neutral territory
+is an exception only to the rule; it is not therefore to be considered
+disrespectful to any government that the fact, on which such claims
+are founded, should be accurately examined.[144]
+
+The neutral territory is supposed to extend three English miles from
+the shore.[145]
+
+[Sidenote: Property of Belligerents in Neutral Territory.]
+
+But the general inviolability of neutral character goes further than
+merely the protection of neutral property. It protects the property of
+belligerents within the neutral territory. Thus, if the enemy be
+attacked, or any capture made under neutral protection, the neutral is
+bound to redress the injury, and effect restitution. As for example,
+in 1793, the English ship Grange was captured in Delaware Bay, by a
+French frigate, and upon due complaint, the American Government caused
+the British ship to be promptly restored. Similarly, in the case of
+the Anna, restoration was made of property captured by a British
+cruizer near the mouth of the Mississippi, and within the jurisdiction
+of the United States.[146]
+
+An armed ship has no right to lie in a neutral harbour, in order to
+make it an habitual _station_ for her captures, as that would be a
+continuous direct infringement on neutral trade with the enemy; but if
+she is accidentally in a neutral port, and sees an enemy coming, she
+may go out and fight, or take her, beyond the range of neutral
+ground.[147] Nor ought captors to station themselves at the mouth of a
+neutral river for exercising the rights of war from that river, much
+less in the very river itself.[148]
+
+The doctrine is carried to the extent that no use of a neutral
+territory for the purposes of war is to be permitted; this does not
+include _remote_ uses, such as procuring provisions and refreshments,
+and acts of that nature, which the law of nations universally
+tolerates; but that no _proximate_ acts of war, in any manner, are to
+be allowed to originate on neutral grounds;--thus a ship has no right
+to station herself in neutral waters, and then to send out her boats
+on hostile enterprises beyond the boundary. This is a _direct hostile
+use_ of the neutral territory, and many instances have occurred in
+which such an irregular use of neutral territory has been warmly
+resented. Nor can the neutral, in true consistency with his
+neutrality, permit such a course of war.[149]
+
+[Sidenote: Vessels chased into a Neutral Port.]
+
+Bynkershoek has maintained the anomalous principle, that vessels may
+be chased into a Neutral Territory, and there captured; but there is
+in reality no exception to the rule, that every voluntary entrance
+into a neutral territory, with hostile purposes, is absolutely
+unlawful.
+
+But this restoration takes place only on the application of the
+neutral government whose territory has been thus violated, the
+neutrality alone being the ground of the invalidity of the
+capture.[150]
+
+[Sidenote: Consent of Neutral State necessary.]
+
+Though a belligerent vessel may not enter within neutral jurisdiction
+for hostile purposes, she may, consistently with a state of neutrality
+(unless prohibited by the neutral power), bring her prize into the
+neutral port and sell it there.
+
+[Sidenote: Freedom of Neutral Commerce.]
+
+A neutral has a right to pursue his accustomed commerce, and he may
+become the carrier of the enemy's goods, without being subject to
+confiscation of the ship, or of the neutral articles on board; though
+not without the risk of having the voyage interrupted by the seizure
+of the hostile property. If we find an enemy's effects on board a
+neutral ship, we seize them by right of war; but we are naturally
+bound to pay the freight to the master of the vessel, who is not to
+suffer by such seizure.[151]
+
+The effects of neutrals found in an enemy's ship, are to be restored
+to the owners, against whom there is no right of confiscation,--but
+without allowance for detainder, decay, &c. Neutrals voluntarily
+expose themselves to these accidents by embarking their goods in a
+hostile ship.[152]
+
+We have before mentioned that neutral ships do not afford protection
+to an enemy's property. It may be seized if found on board of a
+neutral vessel, _beyond the limits of the neutral jurisdiction_. This
+is a clear and well-settled principle of the Law of Nations.
+
+When an enemy's ship, containing free goods, is taken, if the captor
+carries the goods to the port of destination, he is entitled to the
+freight. He stands in the place of the _owner of the ship_, and
+performs (by completing) the specific contract between the owner and
+charterer. But he _is not_ entitled, if he does _not_ proceed and
+perform the original voyage.[153] The specific contract is performed
+in the one case, and not in the other. But freight will be allowed to
+the captor, even though he does not carry the goods to the port of
+destination, if he carries them to his own country, and to the ports
+to which they would have been consigned, if not prevented by the
+regulations of the country of embarkation.[154]
+
+Under certain circumstances the _Captor_ is considered entitled to
+Freight, even though the goods are carried to his own country, and
+restored.
+
+If the captor does anything to injure the property, or is guilty of
+misconduct, he may remain answerable for the effect of such misconduct
+or injury, in the way of set-off against him.[155]
+
+No right of _visitation_ and search, of capture, nor any other kind of
+belligerent right, can be exercised on board a _public neutral_ vessel
+on the high seas. But _private_ vessels form no part of neutral
+territory, and when within the limits of another state, are not exempt
+from local jurisdiction.[156]
+
+The right to take enemy's property on board a neutral ship has been
+much contested by particular nations, whose interests it strongly
+opposed. This rule has been steadily maintained in Great Britain,
+though in France and other countries it has been fluctuating. For the
+first time, England has voluntarily abandoned this right in the
+present war.
+
+If a neutral vessel, having enemy's goods on board, is taken, and
+there is nothing unfair in the conduct of the neutral master, he will
+even be entitled to his reasonable demurrage. The captor pays the
+whole freight, because he represents the enemy, by possessing himself
+of the enemy's goods by right of war; and although the whole freight
+has not been earned by the completion of the voyage, yet as the
+captor, by his act of seizure, has prevented its completion, his
+seizure operates to the same effect as an actual delivery of the goods
+to the consignee, and subjects him to the payment of the full
+freight.[157] In such case, however, the neutral master must have
+acted _bona fide_, and with strictly neutral conduct.
+
+[Sidenote: This Rule Changed by Convention.]
+
+This Rule is often Changed by Convention; and it is generally
+stipulated that "_free ships shall make free goods_." The converse,
+though also sometimes the subject of treaty, does not of necessity
+hold, _enemy's ships do not make enemy's goods_. Goods of neutrals,
+found on enemy's ships, are bound to be restored.[158]
+
+A neutral subject 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; who has no right,
+according to modern practice, to condemn the 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.[159]
+
+[Sidenote: Neutral Goods on _Armed_ Hostile Vessels.]
+
+In America, Neutral Goods laden on an _Armed_[160] Belligerent Vessel
+are still protected, but in England it is different. "If the neutral,"
+says Sir Wm. Scott,
+
+     "puts his goods on board a ship of force, which will be
+     defended by force, he betrays an intention to resist
+     visitation and search, and so far adheres to the
+     belligerent, and withdraws himself from his protection of
+     neutrality."[161]
+
+[Sidenote: The Sale and Purchase of Vessels by Neutrals.]
+
+The Purchase of Ships from the enemy, is a liberty that has not been
+denied to neutral merchants, though by the regulation of France, it is
+entirely forbidden. The rule that this country has been content to
+apply is, that property so transferred, must be _bona fide_ and
+absolutely transferred; there must be a sale divesting the enemy of
+all further interest in it; and that any thing tending to continue his
+interest, vitiates a contract of this description altogether.[162]
+
+Russia is reported to have several vessels of war in different parts
+of the world; some of these vessels have been sold, and others are
+said to be in the process of sale. I shall cite what Sir Wm. Scott
+says, on a case nearly similar.
+
+     "There have been many cases of enemy _merchant vessels_
+     driven into ports out of which they could not escape, and
+     there sold, in which after much discussion, and some
+     hesitation of opinion, the validity of the purchase has been
+     sustained. But whether the purchase of a vessel, _built for
+     war_, and employed as such, and rendered incapable of acting
+     as a ship of war, by the arms of the other belligerent, and
+     driven into a neutral port for shelter; whether the purchase
+     of such a ship can be allowed, which shall enable the enemy
+     so far to rescue himself from the disadvantage into which he
+     has fallen, as to have the value restored to him by a
+     neutral purchaser, is a question on which I shall wait for
+     the authority of a superior court, before I admit the
+     validity of such a transfer."[163]
+
+It has been said that the sale must be absolute and unconditional; so
+that a sale under a condition to re-convey at the end of the war, is
+invalid.[164] Similarly, where the seller is bound by his own
+government under a penalty not to sell, except upon a condition of
+restitution at the end of the war, and the purchaser undertook to
+exonerate the seller, the sale was held invalid.[165]
+
+
+
+SECTION II.
+
+
+
+_Contraband of War_.
+
+
+[Sidenote: Contraband of War.]
+
+The general freedom of neutral commerce is subject to certain
+restrictions with respect to neutral commerce. Among these is the
+trade with the enemy in certain articles, called _Contraband of War_.
+These are generally warlike stores, and articles which are directly
+auxiliary to warlike purposes. Writers on this subject have made
+distinctions between those things useful only for the purposes of war,
+those which are not so, and those which are susceptible of
+indiscriminate use in war and peace.
+
+All seem to agree in excluding the first class from neutral trade;
+and, in general, admitting the second. The chief difference is about
+the third class. The last kind of articles--for example, money,
+provisions, ships, and naval stores, according to Grotius, are
+sometimes lawful articles of neutral trade, and sometimes not; and the
+question depends upon circumstances. This is perhaps the truest ground
+of decision, as we shall see in subsequent illustrations.[166]
+
+Thus, these articles become contraband, _ipso facto_, if carried to a
+besieged town, camp, or port. So in a _naval_ war, ships and materials
+for ships, are contraband, although timber and cordage may be used for
+other purposes, besides fitting out ships of war; and so horses and
+saddles are not of necessity warlike stores, except when comparing the
+quality, manufacture, or quantity attempted to be imported into the
+hostile state, with the circumstances and condition of the war, it
+appears (if not to be impossible) to be in the highest degree
+unlikely, that they should be designed for any other purposes besides
+the purposes of war.[167]
+
+[Sidenote: Provisions, when Contraband.]
+
+Common Provisions are not Contraband in general prize law, except in
+the single case of being sent to a beseiged or blockaded place.[168]
+
+It is a modern practice, in order to remove all possible doubt as to
+what goods are contraband, for nations at war to enumerate them
+particularly in treaties or compacts with neutral states; and such
+treaties leave the neutral, with which they are made, at liberty to
+supply the enemy with all goods that are not enumerated in them. These
+treaties do not operate as a law; but like other treaties, are binding
+only between the nations that are parties to them.[169]
+
+[Sidenote: Lord Stowell's Opinion on Contraband of War.]
+
+The Opinions of our great English authority, Lord Stowell, on this
+subject, are contained in two judgments, of which the following is the
+substance:--
+
+     "In 1673, many unwarrantable rules were laid down by public
+     authority respecting Contraband. It was expressly asserted
+     by a person of great knowledge and experience in the English
+     Admiralty, that by its practice _corn, wine, and oil_, were
+     liable to be deemed contraband. In much later times, many
+     sorts of provisions, such as butter, salted fish, and rice,
+     have been condemned as Contraband. The modern established
+     rule was, that generally they are not contraband, but may
+     become so under circumstances arising out of the peculiar
+     situation of the war, or the condition of the parties
+     engaged in it; among the causes which tend to prevent
+     provisions from being treated as contraband, one is that
+     they are of the growth of the country which exports them.
+
+     "Another circumstance, to which some indulgence, by the
+     practice of nations, is shown, is where the articles are in
+     their native and unmanufactured 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. But the most important
+     destination is, whether the articles are destined for the
+     ordinary uses of life, or for military uses. The nature and
+     quality of the port to which the articles are going, is a
+     test of the matter of fact on which the distinction is to be
+     applied. If the port is a general commercial port, it shall
+     be understood that the articles were going for civil use,
+     although occasionally a frigate or other ship of war may be
+     constructed in that port. On the contrary, if the great
+     predominant character of a port is that of a port of naval
+     equipment, it shall be contended 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 consumption; 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 immediate destination;
+     and the presumption of a hostile use, founded on its
+     destination to a military port, is very much inflamed, if at
+     the time when the articles were going, a considerable
+     armament was notoriously preparing, to which a supply of
+     those articles would be eminently useful."[170]
+
+In a later case he seems to have modified his opinion with respect to
+undoubted naval stores, either so by nature, or intended as such for
+the occasion. He says--
+
+     "The character of the port is immaterial, since naval
+     stores, if they are to be considered as contraband, are so
+     without reference to the nature of the port, and equally,
+     whether bound to a mercantile port only, or to a port of
+     military equipment. The consequences of the supply may be
+     nearly the same in either case. If sent to a mercantile
+     port, they may be applied to immediate use in the equipment
+     of privateers, or they may be conveyed from the mercantile
+     to the naval port, and there become subservient to every
+     purpose to which they could have been applied if going
+     directly to a port of naval equipment."[171]
+
+[Sidenote: Controversy between England and America on Contraband
+Provisions.]
+
+The doctrine of the English Admiralty Court, as to provisions becoming
+contraband, was adopted by the Government in the instructions given to
+their cruisers, on the 8th June, 1793, directing them to stop all
+vessels laden wholly, or in part, with corn, flour, or meal, bound for
+France, and to send them into a British port to be purchased by
+Government; or to be released on condition that the master should.
+give security to dispose of his cargo in the ports of some country in
+amity with his Britannic Majesty. This was resisted by the Neutral
+Powers, Sweden, Denmark, and especially the United States.
+
+This order was justified upon the ground, that by the modern law of
+nations, all provisions are to be considered as contraband, and as
+such liable to confiscation, wherever depriving an enemy of these
+supplies is one of the means intended to be employed for reducing him
+to terms. The actual situation of France, (it was said,) was
+notoriously such, as to lead to the employing this mode of distressing
+her by the joint operations of the various powers engaged in the war;
+and the reasonings of the text writers applying to all cases of this
+sort were more applicable to the present case, in which the distress
+resulted from the unusual mode of war adopted by the enemy himself, in
+having armed almost the whole laboring class of the French nation, for
+the purpose of commencing and supporting hostilities against almost
+all European Governments; but this reasoning was most of all
+applicable to a trade, which was in a great measure carried on by the
+then actual rulers of France, and was no longer to be regarded as a
+mercantile speculation of individuals, but as an immediate operation
+of the very persons who had declared war, and were then carrying it on
+against Great Britain.
+
+This reasoning was resisted by the neutral powers--Sweden, Denmark,
+and especially the United States. The American Government insisted,
+that when two nations go to war, other nations who choose to remain at
+peace, retain their natural right to pursue their agriculture,
+manufactures, and ordinary vocations; to carry the produce of their
+industry for exchange to all countries, belligerent or neutral, (as
+usual;) to go and come freely without injury or molestation; in short,
+that the war, (amongst other) should be for neutral purposes, as if it
+did not exist; the only exceptions being trade in implements of war,
+or to a place blockaded by its enemy. That there were sufficient
+treaties to decide what were implements of war. Corn, flour, and meal,
+were not of the class of contraband.
+
+The result of this controversy was a treaty with the United States in
+1794. It confined contraband to military and naval stores; and with
+respect to provisions not generally contraband, it was agreed,
+
+     "That whenever such articles became contraband by the Law of
+     Nations, and should for that reason be seized, the same
+     should not be confiscated, but the owners thereof should be
+     speedily and completely indemnified; and the captors, or in
+     their default, the Government under whose authority they
+     act, should pay to the masters or owners of such vessels the
+     full value of all such articles, with a reasonable
+     mercantile profit thereon, together with the freight, and
+     also the demurrage incident to such detention."
+
+The instructions of June, 1793, had been revoked previously to the
+signature of this treaty; but before its ratification, the British
+Government issued, in April, 1795, an order in council, instructing
+its cruizers to stop and detain all vessels laden wholly, or in part,
+with corn, flour, meal, and other provisions, and bound to any port in
+France, and to send them to such ports as might be most convenient, in
+order that such corn, &c., might be purchased on behalf of Government.
+
+This last order was subsequently revoked, and the question of its
+legality became the subject of discussion in a mixed commission,
+constituted under the treaty, to decide upon the claims of American
+citizens, by reason of irregular or illegal seizures of their vessels
+and cargoes, under the authority of the British Government.
+
+A full indemnification was allowed by the commissioners, under the 7th
+article of the Treaty of 1794, to the owners of vessels and cargoes
+seized under the orders in council, as well for the loss of a market
+as for the other consequences of their detention.
+
+It was, however, urged on the part of the United States, that the 18th
+article of the Treaty of 1794, manifestly intended to leave the
+question where it was before, namely, that when _the law of nations_,
+existing at the time the case arises, pronounces the articles
+contraband, they may for that reason be seized; when otherwise, not
+so. Each party was thus left free to decide what was contraband in its
+own courts of the law of nations, leaving any false appeal to that law
+to the usual remedy of reprisals and war.[172]
+
+Since the ratification of this treaty, we have a decision of Lord
+Stowell, in 1799, on this very subject, in the case of the Haabet,
+which, however, arose on a question of insurance.
+
+     "The right of taking possession of provisions is no peculiar
+     claim of this country; it belongs generally to belligerent
+     nations: the ancient practice of Europe, or at least of
+     several maritime states of Europe, was to confiscate them
+     entirely. A century has now elapsed since this claim has
+     been asserted by some of them. A more mitigated practice has
+     prevailed in later times, of holding such cargoes subject
+     only to a right of pre-emption; that is, to a right of
+     purchase, upon a reasonable compensation, to the individual
+     whose property is thus diverted. This claim on the part of
+     the belligerent cannot go beyond cargoes avowedly bound to
+     the enemy's ports, or suspected on just grounds to have a
+     concealed destination of that kind. The neutral can only
+     expect a reasonable compensation. He cannot look to the
+     price he would obtain in the enemy's port. An enemy,
+     distressed by famine, may be driven by his necessities to
+     pay a famine price; but it does not follow that the
+     belligerent, in the exercise of his rights of war, is to pay
+     the price of distress."[173]
+
+     "It is a mitigated exercise of war, on which any purchase is
+     made; and no rule has established that such a purchase shall
+     be regulated exactly on the same terms of profit which would
+     have followed the adventure, if no such exercise of war had
+     intervened; it is a _reasonable_ indemnification, and a
+     _fair profit_, that is due, reference being had to the price
+     originally paid by the exporter, and the expenses he has
+     incurred."
+
+[Sidenote: Neutral Vessels Transporting Enemy's Forces.]
+
+Transporting the _Enemy's Forces_, subjects a Neutral Vessel to
+confiscation, if captured by the opposite belligerent. Sir Wm. Scott
+says, in the leading case on this subject--
+
+     "That a vessel hired, by the enemy, for the conveyance of
+     military persons is to be considered _as a transport_,
+     subject to condemnation, has been in a recent case, held by
+     this Court, and on other occasions.[174] What is the number
+     of military persons that shall constitute such a case it may
+     be difficult to define. In the former cases there were many,
+     in the present they are fewer in number; number alone is an
+     insignificant circumstance in the considerations on which
+     the principles of law on this subject are built; since fewer
+     persons of high quality and character may be of more
+     importance than a much greater number of persons of lower
+     condition. To send out _one veteran general_ of France to
+     take command of the forces at Batavia might be a much more
+     noxious act than the conveyance of a whole regiment. The
+     consequences of such assistance are greater, and therefore
+     it is what the belligerent has a stronger right to prevent
+     and punish. In this instance the military persons are
+     three,[175] and there are besides two other persons who were
+     going to be employed in civil capacities in the Government
+     of Batavia. *** It appears to me, _on principle_, to be but
+     reasonable that, whenever it is of sufficient importance to
+     the enemy that such persons should be sent out on the public
+     service, and at the public expense, it should afford equal
+     ground of forfeiture against the vessel that may be let out
+     for a purpose so intimately connected with hostile
+     operations.[176] The fact of the vessel having been pressed
+     into the enemy's service does not exempt her. The master
+     cannot aver that he was an involuntary agent."[177]
+
+[Sidenote: Neutral Ships Carrying Enemy's Despatches.]
+
+Carrying the _Despatches of the Enemy_ is also a ground of
+condemnation.
+
+     "In the transmission of Despatches may be conveyed the
+     entire plan of a campaign, that may defeat all the plans of
+     the other belligerent, in the world. It is a service,
+     therefore, which, in whatever degree it exists, can only be
+     considered in one character--as an act of the most hostile
+     nature. The offence of _fraudulently_ carrying despatches in
+     the service of the enemy being greater than other
+     contraband, some other penalty has to be affixed. The
+     confiscation of the noxious article would be ridiculous when
+     applied to _Despatches_. There would be _no_ freight
+     dependent on their transportation. The _vehicle_ (_i.e._ the
+     ship) in which they are carried must, therefore, be
+     forfeited."[178]
+
+[Sidenote: Ambassadors excepted.]
+
+The Despatches of an Ambassador or other Public Minister of the Enemy,
+resident in a neutral country, are an exception to this rule, being
+the despatches of persons who are in a peculiar manner the favourite
+object of the Law of Nations, residing in the neutral country for the
+purpose of preserving peace and the relations of amity between that
+state and their own government.
+
+The ambassador of the enemy may be stopped on his passage, but when he
+has arrived in the neutral country, he becomes a sort of _middleman_,
+and is entitled to peculiar privileges.[179]
+
+[Sidenote: Penalty for Contraband Trade.]
+
+Under the present Law of Nations, a Contraband Cargo cannot affect the
+ship; the carrying of contraband articles is attended only with loss
+of freight and expenses, except where the ship belongs to the owner of
+the contraband cargo, or where the simple misconduct of carrying a
+contraband cargo has been connected with some malignant and
+aggravating circumstances.[180]
+
+[Sidenote: Additional Penalties.]
+
+The aggravation of fraud justifies additional Penalties; thus, the
+carriage of contraband with a false destination, will work a
+condemnation of the ship as well as the cargo; the false destination
+being intended to defeat the right of pre-emption.[181] Generally,
+_false_ papers will extend the taint of contraband to the vessel.
+
+It is also an established rule, that the transfer of contraband by a
+neutral, from one port of a country to another, where it is required
+for the purposes of war, is subject to be treated in the same manner
+as an original importation into the country itself.[182]
+
+[Sidenote: Return Voyage Free.]
+
+Generally, the proceeds of the Return Voyage cannot be taken. From the
+moment of quitting port on a hostile destination, indeed, 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 actual prosecution of
+such a voyage, the penalty is not now generally held to attach.[183]
+
+
+
+SECTION III.
+
+
+_Blockades. Right of Search. Convoys_.
+
+
+[Sidenote: Blockades.]
+
+We now pass on to the subject of Blockade, which is the next exception
+to the general freedom of neutral commerce in time of war.
+
+A blockade is a high act of Sovran authority; it cannot be assumed or
+exercised by a commander, without special authority, provided his
+Government is sufficiently near at hand to superintend and direct the
+course of operations; but a commander on a distant station is supposed
+to carry with him such a portion of the Sovran authority as may enable
+him to act with energy against the commerce of the enemy, as against
+the enemy himself.[184]
+
+Again, referring to Sir Wm. Scott's celebrated judgments, we find him
+saying,
+
+     "That to constitute a violation of a state of blockade,
+     three things must be proved: first, the existence of the
+     blockade; secondly, the knowledge of it, in the party
+     supposed to have offended; and thirdly, some act of
+     violation, either by going in, or coming out with a cargo,
+     laden after the commencement of the blockade."
+
+[Sidenote: First Rule of Blockade.]
+
+I. There is no rule of law more established than this; that the Breach
+of a Blockade subjects the property so employed to confiscation. Every
+man knows it; the subjects of all states know it.
+
+A lawful maritime blockade requires the actual presence of a
+sufficient force stationed at the entrance of the port, sufficiently
+near to prevent communication.
+
+The blockade is to be considered legally existing, although the winds
+may occasionally blow off the blockading squadron. It is an accidental
+change which must take place in every blockade; but the blockade is
+not therefore suspended.
+
+This axiom is laid down in all books of authority; and the law
+considers an attempt to take advantage of such an accidental removal
+as an attempt to break the blockade, and a mere fraud.[185]
+
+When a blockading squadron is driven off by a superior force, the
+blockade is effectually raised, and it must be renewed by fresh
+notification, before foreign nations can be affected by an obligation
+to observe it as a blockade. The mere appearance of another squadron
+will not renew it, but it must be restored by the measures required
+for the original imposition of a blockade.[186]
+
+[Sidenote: Second Rule of Blockade.]
+
+It is necessary that the evidence of a blockade should be clear and
+decisive. A blockade may exist without a public declaration; although
+a declaration, unsupported by fact, will not be sufficient to
+establish it. In the War of 1798, the West India Islands were declared
+under blockade by Admiral Jervis; but the Lords of the Supreme Court
+held, that as the fact did not support the declaration, a blockade
+could not be deemed legally to exist. But the fact, on the contrary,
+duly notified on the spot, is of itself sufficient; for public
+notifications between governments are meant for the information of
+individuals; but if the individual is _personally_ informed, that
+purpose is better obtained than by a public declaration.[187]
+
+Where the vessel sails from a country lying near enough to the
+blockaded port to have constant information of the blockade, no notice
+is necessary of its continuance or relaxation; but when the country is
+at a distance beyond constant information, they may lawfully send
+their vessels on conjecture that the blockade is broken up, after it
+has existed a long time.[188] And this is important, as it must be
+remembered that even the _intention_ to evade blockade is a fraudulent
+breach of it, and sailing towards the port is an _overt_ act of that
+intent.[189]
+
+There are two kinds of Blockade. 1. Simple Blockade, _i.e._ Blockade
+in Fact; and 2nd., Blockade in Fact, accompanied by a Notification.
+The first expires by the breaking up _intentionally_ of the blockading
+squadron. The second, _prima facie_, does not expire until the repeal
+of the notification, but it is the duty of the belligerent country
+directly the blockade ceases, _de facto_, to revoke its proclamation.
+And it would appear that a notified blockade would only expire, in
+fact, after some unnecessary and long neglect to publish this
+revocation; otherwise neutral nations are bound until such
+publication.[190]
+
+It has from time to time been stipulated, in treaties between
+belligerent and neutral countries, (as in the case of the Treaty
+between Great Britain and the United States, of 1794,) that vessels of
+the neutral country should not be considered as having notice of a
+blockade, until they have been duly and respectfully warned off; and
+it would only be on a second attempt to enter port that they would be
+liable to be seized. Under such a treaty a neutral vessel might
+lawfully sail for a blockaded port, knowing it to be blockaded.[191]
+
+[Sidenote: Third Rule of Blockade.]
+
+An act of Violation is essential to a Breach of Blockade; such as,
+either going in or coming out of the port with a cargo, laden after
+the commencement of the blockade: or being found so near to the
+blockaded port as to show, beyond a doubt, that the vessel was
+endeavouring to run into it: or where the intention is expressly
+avowed by the papers found on board.[192]
+
+The time of shipment is very material; for although it may be hard to
+refuse a Neutral, liberty to retire with a cargo already laden, and by
+that act already become neutral property,--yet, after the commencement
+of a blockade, a neutral cannot be allowed to interpose in any way to
+assist the exportation of the property of the enemy. After the
+commencement of a blockade, a Neutral is no longer at liberty to make
+any purchase in that port.[193]
+
+A _Maritime_ Blockade is not in law violated by bringing or sending
+goods to the port through the internal canal navigation or land
+carriage of the country; and thus such goods are not liable to
+confiscation on ground of the blockade.
+
+[Sidenote: Right of Search.]
+
+On the great question of the Right of Search, the International Law
+has been summed up by Lord Stowell, in the case of the _Maria_, where
+the exercise of the right was attempted to be resisted, by the
+interposition of a convoy of Swedish ships of war.[194]
+
+First, the right of visiting and searching merchant ships on the high
+seas, whatever be the ships, whatever be the cargoes, whatever be the
+destinations, is the incontestible right of the lawfully commissioned
+cruizers of a belligerent nation.
+
+Secondly, that the authority of the Sovran of the neutral country,
+being interposed in any manner of mere force, cannot legally vary the
+rights of a lawfully commissioned belligerent cruizer. It cannot be
+maintained, that if a Swedish commissioned cruizer, during the wars of
+his own country, has a right, by the Laws of Nations, to visit and
+examine neutral ships, the King of England, (being Neutral to Sweden,)
+is authorized by law to obstruct the exercise of that right with
+respect to the merchants' ships of his country.
+
+Thirdly, that the penalty for the violent contravention of this right,
+is the confiscation of the property withheld from visitation and
+search.
+
+The judgment of condemnation, pronounced in this case, was followed by
+the Treaty of Armed Neutrality entered into by the Baltic Powers to
+resist the Right of Search, in 1800, which league was dissolved by the
+death of the Emperor Paul, and the points in controversy between those
+Powers and Great Britain were finally adjusted by the Convention of
+5th of June, 1805.[195]
+
+[Sidenote: Convoys.]
+
+It now remains to say a few words on the subject of Convoy. Convoy is
+a ship or ships of war appointed by the Government, or by the
+Commander-in-Chief on a particular station, for the guard of merchant
+vessels bound to their destination. A warranty that the vessel shall
+sail with convoy, is very common in Policies of Insurance, and if not
+complied with, the Insurance becomes absolutely void.
+
+This warranty to sail with convoy, does not mean that the vessel shall
+depart with convoy immediately from the lading port, but only from the
+place of rendezvous appointed for vessels bound from that port, and
+must be strictly and impartially maintained by force, to the uniform
+universal exclusion of all vessels not privileged by law.[196]
+
+From many ports, and among others from the port of London, no convoy
+ever sails. It has therefore been held sufficient for a vessel bound
+from London to sail with convoy from the _Downs_, and even from
+_Spithead_, when there was no convoy appointed from the _Downs_.
+Neither does it require the vessel to sail with convoy bound to the
+precise place of her destination; but if the vessel sail with the only
+convoy appointed for vessels going to her place of destination, it is
+sufficient. It sometimes happens that the force first appointed, is to
+accompany the ships only for a part of their voyage, and to be
+succeeded by another; at other times a small force is detached from
+the main body to bring up to a particular point; if a vessel sail
+under the protection of a vessel thus appointed or detached, the
+warranty is satisfied.
+
+But this warranty requires not only that the vessel shall sail under
+the protection of the convoy, but also that she shall continue during
+its course under the same protection, unless prevented from so doing
+by tempest or other unavoidable accident, in which case, the master
+and owners will be excused, if the master does all that is in his
+power to keep with the convoy.
+
+The merchantman must, before sailing, obtain or endeavour to obtain,
+the sailing orders issued by the convoying squadron. The value of a
+convoy appointed by Government arises in a great degree from its
+taking the ships under control, as well as under protection; but this
+control cannot be exercised except by means of sailing orders.
+Otherwise, the master could not learn the rendezvous in case of
+dispersion by a storm, or obey signals in case of attack.
+
+The obligation to sail with convoy does not depend merely on special
+agreement; but, by act of parliament, a merchant cannot sail without a
+convoy, on a _foreign_ voyage, unless previously licensed to do
+so.[197]
+
+
+
+SECTION IV.
+
+
+[Sidenote: _Armed Neutralities_.]
+
+It is not improbable the course of events in the present war may make
+it not uninteresting to my readers to have some short account of the
+origin and meaning of _Armed Neutralities_, especially as the
+principles on which they were founded may again be open to discussion.
+The right to take enemy's property on board neutral vessels has, in
+the present war, been waived by the Queen, in a declaration, dated
+Buckingham Palace, March 29th 1854. This is however tempered by a
+reservation of the right to search for contraband. Up to the present
+time the right to take enemy's goods on board a neutral vessel has in
+this country been steadily maintained; though in France it has been
+fluctuating; the interests of another commercial power became the
+origin of the extraordinary confederacies termed _Armed Neutralities_.
+At an early period it was an object of interest with Holland, a great
+commercial and navigating country, whose permanent policy was
+essentially pacific, to obtain a relaxation of the severe rules which
+had previously been observed in maritime warfare. The States General
+of the United Provinces having complained of the provisions in the
+French Ordinance of 1538, a treaty of commerce was concluded between
+France and the Republic in 1646, by which the law, as far as respected
+the capture and confiscation of neutral vessels for carrying enemy's
+property, was suspended; but it was found impossible to obtain, at
+that time, any relaxation as to the liability to capture of enemy's
+property in neutral vessels.
+
+This latter concession, however, the United Provinces obtained from
+France by the treaty of alliance of 1662, and the commercial treaty
+signed at the same time with the peace, at Nimiguen, in 1671;
+confirmed by the treaty of Ryswick, in 1697. The maxim that _free
+ships_ make _free goods_ was coupled in these treaties with its
+correlative maxim, _enemy's ships_ make _enemy's goods_.
+
+The same concession was obtained by Holland from England in 1668 and
+1674, as the price of an alliance between the two countries against
+the ambitious designs of Louis XIV.
+
+In the subsequent war of 1756, a controversy arose between England and
+Holland, in which it was said, on the one hand, that England had
+violated the rights of neutral commerce; and on the other, that
+Holland had not fulfilled the guarantees under which those privileges
+had been granted.
+
+Afterwards, when the American Revolution gave rise to a war between
+France and Great Britain, the latter power, instead of following the
+example of her enemy, (who had issued an ordinance prohibiting the
+seizure of neutral vessels, even when bound to or from enemy ports,
+unless carrying contraband,) issued an order in council, (March,
+1780,) suspending the special stipulations respecting commerce and
+navigation contained in the Treaty of 1674.
+
+This was the crisis of many complaints made by the neutral powers
+against Great Britain; and, in 1780, the Empress of Russia proclaimed
+the principles of the Baltic Code of Neutrality, and declared she
+would maintain them by _force of arms_.
+
+This system of armed neutrality contained the following principles.
+
+1. That commerce with the ports and roads of the enemy is free to
+neutral powers.
+
+2. That the ship covers the cargo.
+
+3. That those merchandizes only be considered as contraband, which are
+declared to be such by treaties with the belligerent powers, or with
+one of them.
+
+4. That no place shall be considered as blockaded, till it is
+surrounded in such a manner by hostile ships that no person can enter
+it without manifest danger.
+
+5. That these principles shall serve as a basis for decisions
+concerning the legality of prizes.
+
+The principal powers of Europe, as Sweden, Denmark, Prussia, Germany,
+Holland, France, Spain, Portugal, Naples, and also the United States,
+acceded to the Russian principles of neutrality.
+
+The Court of London answered this declaration by appealing to "the
+principles generally acknowledged as the Law of Nations, being the
+only law between powers where no treaties subsist;" and to
+
+     "the tenor of its different engagements with other powers,
+     where those engagements had altered the primitive law by
+     neutral stipulations, according to the will and convenience
+     of the contracting parties."
+
+England, being thus opposed to all the maritime world, was at this
+time obliged to smother her resentment; only simply expostulating with
+Russia. But the want of the consent of a power of such decided
+maritime superiority as that of Great Britain, was an insuperable
+obstacle to the success of the Baltic Conventional Law of Neutrality;
+and it was abandoned in 1793 by the naval powers of Europe, as not
+sanctioned by the existing law of nations, in every case in which the
+doctrines of that code did not rest upon positive compact.
+
+During the protracted wars of the French Revolution, all the
+belligerent powers began by discarding in practice, not only the
+principles of the armed neutrality, but even the generally received
+maxims of international law by which neutral commerce in time of war
+had been previously regulated. France, on her part, revived the
+severity of her ancient prize code; decreeing not only the capture and
+condemnation of the goods of her enemies found on board neutral
+vessels, but even of the vessels themselves laden with goods of
+British growth, produce, and manufacture.
+
+In 1801, principally in consequence of the doctrines of the British
+Admiralty Courts with regard to the right of search, great efforts
+were made by the Baltic powers to recall and enforce the doctrines of
+the armed neutrality of 1780. This attempt is generally known as the
+Armed Neutrality of 1800, and was met, promptly overpowered, and the
+confederacy finally dissolved, by the naval power of England. Russia
+gave up the point, and by her convention with England of the 17th of
+June, 1801, expressly agreed, that enemy's property was not to be
+protected on board of neutral ships.[198] This settlement was ended by
+the death of the Emperor Paul.
+
+
+
+
+APPENDIX TO PART I.
+
+
+
+NOTE A.--_The Law of Reprisals_.[199]
+
+Reprisals by commission, or letters of marque and reprisal, granted to
+one or more injured persons, in the name and authority of the
+Sovereign, constitutes a case of "partial, or special reprisals," and
+is considered to be compatible with a state of peace, and was formerly
+permitted by the Law of Nations; though it may be doubted if such a
+rule would hold good now.[200] General reprisals upon the persons and
+property of the subjects of another nation are equivalent to open war.
+It is often the first step which is taken at the commencement of a
+public war, and may be considered as amounting to a declaration of
+hostilities, unless satisfaction is made by the offending state.
+
+A stoppage or seizure (in other words, an embargo), must not be
+confounded with complete reprisals. When ships are seized for the
+purpose of obtaining satisfaction for a particular injury, or security
+against a possible event, that seizure is only an embargo. The vessels
+are preserved as long as there is any hope of obtaining satisfaction
+or justice. As soon as that hope disappears, they are confiscated, and
+the reprisals are accomplished. In fact, that which was _embargo_
+becomes reprisals by the _act of confiscation_.[201]
+
+In the words of Lord Stowell:
+
+     "Upon property so detained the declaration of war is said to
+     have a retroactive effect, and to render it liable to be
+     considered as the property of enemies taken in time of war.
+     The property is seized provisionally--an act hostile enough
+     in the mere execution, but equivocal as to its effects, and
+     liable to be varied by subsequent events, and by the conduct
+     of the government, the property of whose subjects is so
+     detained. Where the first seizure is equivocal, if the
+     matter in dispute terminates in reconciliation, the seizure
+     is converted into a mere civil embargo. This would be the
+     retroactive effect of that course of circumstances. On the
+     contrary, if the transactions end in hostility, the
+     retroactive effect is directly the other way. It impresses a
+     hostile character upon the original seizure. It is declared
+     to be embargo; it is no longer an equivocal act, subject to
+     two interpretations; there is a declaration of the _animus_
+     by which it was done, that it was done _hostili animo_, and
+     is to be considered a hostile measure _ab initio_. The
+     property taken is liable to be used as the property of
+     persons, trespassers _ab initio_, and guilty of injuries
+     which they have refused to redeem by any amicable alteration
+     of their measures. This is the necessary course, if no
+     particular compact intervenes for the restitution of such
+     property taken before a formal declaration of
+     hostilities."[202]
+
+The modern rule seems to be, that tangible property, belonging to an
+enemy, ought _not_ to be _immediately confiscated_. It may be
+considered as the opinion of all who have written on the _jus belli_,
+that war gives the _right_ to confiscate, but does not of itself
+confiscate the property of an enemy.
+
+Chancellor Kent expressly terms this species of hostility--_a
+reprisal_.[203] And Lord Mansfield says, that though foreign ports or
+harbours are not the high sea any more than the shore, yet numberless
+captures made there have been condemned as prize,[204] _i.e._ can be
+the subject _of reprisal_.
+
+
+
+NOTE B.--_War Bill Act_.
+
+During the last war, the War Bill Act, 34 Geo. 3. c. 9, was passed as
+a measure of retaliation. It was passed in order to prevent the effect
+intended to be produced by an order of the French Government,
+compelling all merchants, bankers, and others, possessed of money,
+funded property, and effects, in different parts Europe, to declare
+all such property, that it might be taken by violence, and applied to
+the purposes of the war then carried on by the government of France
+against the greater part of Europe.
+
+The principal sections relating to bills, prohibited any British
+subject, from and after March 1, 1794, from wilfully and knowingly in
+any manner paying or satisfying any bill of exchange, note, draught,
+obligation, or order for money, in part or in whole, which, since
+January 1, 1794, had been or at any time during the said war should be
+drawn, accepted, or indorsed, or in any manner sent from any part of
+the dominions of France, &c.; every person so offending to forfeit
+_double_ the value, and the payment not to be effectual against any
+person who might otherwise have demanded the same; but the demands of
+all persons to remain, notwithstanding such payment, and
+notwithstanding such bills shall have been delivered up.
+
+
+
+NOTE C.--_Rule of_ 1756.
+
+During the war of 1756, the French Government, finding the trade with
+their colonies cut off by the maritime superiority of Great Britain,
+relaxed the monopoly of that trade, and allowed the Dutch, then
+neutral, to carry on the commerce between the mother country and her
+colonies, under special licences or passes, granted for this
+particular purpose, excluding at the same time, all other neutrals
+from the same trade. Many of their vessels were captured by the
+British cruizers.
+
+The policy under which they were captured is called the "Rule of
+1756;" and as, in the present war, its justice and propriety has
+already begun to be doubted, it may not be uninteresting to read the
+reasons upon which it was founded.
+
+1. They were considered as part of the French navigation, having
+adopted this otherwise exclusive commerce, and acting in the character
+of French enemy in identifying themselves with that interest, in
+direct opposition to the belligerent interests and purposes of Great
+Britain.
+
+2. Inasmuch as they were only carriers for the French, they were to be
+regarded as French transports, carrying national assistance to the
+enemy, and therefore to be condemned on the same principle as vessels
+carrying troops or despatches.
+
+3. That the property they carried being from one part of the French
+empire to the other, was so completely identified with French
+interests as to take a hostile character.
+
+4. When war comes it is necessary to shut some of the avenues of
+commerce, otherwise the belligerent rights could not be protected.
+
+5. That the neutral ought not to have _through_ and by means of the
+war, which is not his affair, that he has not in time of peace; and by
+natural justice he is only entitled to his accustomed trade. That any
+inconveniences he may suffer are quite balanced by the enlargement of
+his commerce; the trade of the belligerents is usually interrupted to
+a great degree, and falls into the lap of the neutral.[205]
+
+6. That it is a direct assistance to the enemy, and an injury to the
+belligerent interests of the other country, to carry on for the enemy
+the commerce that she has lost by the pressure of the war,--rendering
+the efforts of the successful power nugatory.
+
+
+
+NOTE D.--_Articles that have been declared Contraband at various
+times._
+
+Gunpowder, arms, military equipments, and other things peculiarly
+adapted to military purposes.
+
+Sail cloths, masts, anchors, pitch, tar, and hemp, universally
+contraband, even when destined to ports not of military equipment.
+
+Cheeses, fit for naval use; such as Dutch cheeses, when exclusively
+used in French ships of war.
+
+Rosin, tallow, and ship biscuits, if destined to ports of military or
+naval equipment.
+
+Similarly, of Wines.
+
+And ship timber, when so destined.
+
+Ships of war, or ships adapted for such service, going to a port of
+the enemy for sale.
+
+Copper in sheets, certified by government dockyard officers as fit for
+the sheathing of ships.
+
+Brimstone, destined to a port of warlike equipment.
+
+
+
+NOTE E.--_The Late Declarations_.
+
+The first manifesto or declaration of war issued by the Queen, so far
+follows the ancient form, that it gives a justification of the war,
+but differs from it in the omission of a general command to all her
+subjects to commit hostilities on the enemy. By this command (in the
+ancient form), the subjects were in general ordered, not only to break
+off all intercourse with the enemy, but also to _attack_ him. Custom
+interpreted this general order. It authorized, and even obliged every
+subject, of whatever rank, to secure the person and things belonging
+to the enemy when they fell into his hands; but it did not invite the
+subjects to undertake any offensive expedition without a commission or
+particular order. The present manifesto simply proclaims that the
+Queen of England has taken up arms against Russia, that is, has
+declared "a state of war." The omission of an injunction to break off
+intercourse, and to exercise hostility, does not relieve the subject
+from his duty in that respect; for war may commence without any
+manifesto, and any official recognition of the "state of war" casts
+upon the subject his full duties under that condition of things. The
+ancient form has been judiciously allowed to drop, leading, as it
+might have done, to misconception on the part of her majesty's lieges.
+
+The second manifesto has reference to regulations with respect to
+neutral commerce, and speaks for itself.
+
+The third is as follows, and the references to the text will be
+sufficient to explain it.
+
+
+
+DECLARATION.
+
+Her Majesty, the Queen of the United Kingdom of Great Britain and
+Ireland, having been compelled to take up arms in support of an Ally,
+is desirous of rendering the war as little onerous as possible to the
+powers with whom she remains at peace.
+
+To preserve the commerce of neutrals from all unnecessary obstruction,
+Her Majesty is willing, for the present, to waive a part of the
+belligerent rights appertaining to Her by the Law of Nations.
+
+It is impossible for Her Majesty to forego the exercise of her right
+of seizing articles contraband of war,[206] and of preventing neutrals
+from bearing the enemy's dispatches,[207] and she must maintain the
+right of a belligerent to prevent neutrals from breaking any effective
+blockade which may be established with an adequate force against the
+enemy's forts, harbours, or coasts.[208]
+
+But Her Majesty will waive the right of seizing enemy's property laden
+on board a neutral vessel, unless it be contraband of war.[209]
+
+It is not Her Majesty's intention to claim the confiscation of neutral
+property, not being contraband of war, found on board enemy's
+ships,[210] and Her Majesty further declares, that being anxious to
+lessen as much as possible the evils of war, and to restrict its
+operations to the regularly organized forces of the country, it is not
+her present intention to issue letters of marque for the commissioning
+of privateers.
+
+Westminster, March 28, 1854.
+
+
+
+THE FOURTH DECLARATION.
+
+At the Court at Buckingham Palace, the 29th day of March, 1854,
+Present, The Queen's Most Excellent Majesty in Council. Her Majesty
+having determined to afford active assistance to Her Ally, His
+Highness the Sultan of the Ottoman Empire, for the protection of his
+dominions against the encroachments and unprovoked aggression of His
+Imperial Majesty, the Emperor of all the Russias, Her Majesty,
+therefore, is pleased, by and with the advice of Her Privy Council, to
+order, and it is hereby ordered, that general reprisals[211] be
+granted against the ships, vessels, and goods of the Emperor of all
+the Russias, and of his subjects or others inhabiting within any of
+his countries, territories, or dominions, _so that Her Majesty's
+fleets and ships_ shall and may lawfully seize all ships, vessels, and
+goods, belonging to the Emperor of all the Russias, or his subjects,
+or others inhabiting within any of his countries, territories, or
+dominions, and bring the same to judgment in such Courts of Admiralty
+within Her Majesty's dominions, possessions, or colonies, as shall be
+duly commissionated to take cognizance thereof. And to that end Her
+Majesty's Advocate-General, with the Advocate of Her Majesty in Her
+Office of Admiralty, are forthwith to prepare the draft of a
+Commission, and present the same to Her Majesty at this Board,
+authorizing the Commissioners for executing the office of Lord High
+Admiral to will and require the High Court of Admiralty of England,
+and the Lieutenant and Judge of the said Court, his Surrogate or
+Surrogates, as also the several Courts of Admiralty within Her
+Majesty's dominions, which shall be duly commissionated to take
+cognizance of, and judicially proceed upon, all and all manner of
+captures, seizures, prizes, and reprisals of all ships, vessels, and
+goods, that are or shall be taken, and to hear and determine the same;
+and, according to the Courts of Admiralty and the Law of Nations, to
+adjudge and condemn all such ships, vessels, and goods, as shall
+belong to the Emperor of all the Russias or his subjects, or to any
+others inhabiting within any of his countries, territories, or
+dominions: and they are likewise to prepare and lay before Her
+Majesty, at this Board, a Draft of such Instructions as may be proper
+to be sent to the said several Courts of Admiralty in Her Majesty's
+dominions, possessions, and colonies, for their guidance herein.
+
+From the Court at Buckingham Palace, this twenty-ninth day of March,
+one thousand eight hundred and fifty-four.
+
+
+
+
+INDEX.
+
+
+
+ADMIRALTY.
+  Droits of Admiralty, 6
+
+AMBASSADORS, 85
+
+ARMED NEUTRALITY, 92
+
+AFFREIGHTMENT, 16
+
+BILLS OF EXCHANGE.
+  Drawn during war, 14
+
+BLOCKADES, 86
+  By whom Proclaimed, 86
+  Violation of, 87
+  First Rule of, 87
+  Second Rule, 87
+  Third Rule, 89
+  Simple Blockade, 88
+  Blockade in Fact, 88
+  Blockade with Notification, 88
+  Maritime Blockade not violated by Land Carriage, 90
+
+CONTRACTS.
+  With Enemy, void, 12
+  Made before the war, 15
+
+CARTEL, 20
+  Principles of Cartel, 33
+
+CARGOES.
+  Distinguished from Ships, 30
+
+CONDEMNATION.
+  Preliminary Proceedings, 44
+
+CAPTORS.
+  Answerable for Damages, 68
+  When entitled to Freight, 74
+
+CONVOYS, 91
+
+CONTRABAND OF WAR, 76
+  Provisions, when Contraband, 77
+  Lord Stowell's Opinion, 78
+  Neutral Ships transporting Enemy's Forces, 83
+  Neutral Ships carrying Enemy's Despatches, 84
+  Penalty for Contraband Trade, 85
+  Further Penalties, 85
+  Return Voyage Free, 86
+  Articles of Contraband, 101
+
+DECLARATION OF WAR, 2
+  Contents, 3
+  The Late Declarations, 101
+  When retroactive, 98
+
+DEBTS.
+  Due to or from an Enemy, 7
+
+DOMICILE.
+  Test of Nationality, 24
+  Test of Domicile, 25
+  In Eastern Countries, 27
+
+EMBARGO.
+  Hostile, 6
+  Civil and Hostile, 97
+
+ENEMY.
+  Alien Enemy cannot Sue in this Country, 9
+  Who is Enemy?, 21
+  Natural Enemies, 23
+
+FUNDS.
+  Public, 5
+
+FOREIGNERS.
+  Married in this Country, 22
+
+FREE GOODS.
+  In Enemy's Ships, 73
+  Free Goods, Free Ships, 74
+    _See_ Rule of 1756.
+
+FREIGHT.
+  Captor entitled to, 74
+  When he takes Goods to Port of Destination, 73
+  When Captor pays Freight, 74
+
+HOSTILE CHARACTER.
+  Acquired by Trade, 27
+
+HOSTILE PROPERTY.
+  Cannot be transferred _in transitu_, 30
+
+INSURANCES, 12
+
+LICENCES.
+  To Trade with Enemy, 54
+  Duties of Merchants using Licences, 55
+  What vessels may be employed under them, 56
+  The Cargo allowed, 57
+  Rules with respect thereto, 57
+  The Voyages permitted, 58
+  The time of the Licence, 59
+  Note, 60
+
+MARINERS.
+  Their position in time of War, 23
+
+NEUTRALITY.
+  Rights of Neutral Nations, 69
+  Qualified Neutrality, 69
+  Neutral territory protected, 70
+  Property of belligerents in Neutral territory, 71
+  Vessels chased into Neutral ports, 72
+  Violation of Neutrality, 72
+  Armed, 92
+
+NEUTRAL COMMERCE.
+  Freedom of, 72
+
+NEUTRAL SHIPS.
+  Enemy's property in, 73
+  Public Neutral Ships, 73
+  Private Neutral Ships, 73
+  Transporting Enemy's forces, 83
+
+NEUTRAL PROPERTY. _See_ Property.
+
+PARTNERSHIPS.
+  Dissolved by War, 16
+  In Neutral countries, 18
+
+PRISONERS OF WAR, 22
+
+PRIVATEERS, 36
+  Acquisition of captures by, 22
+  Commissions of, 39
+  Efforts to suppress Privateering, 41
+  Piratical Privateers, 42
+
+PRIZES.
+  Jurisdiction over Prizes, 48
+  Common Law Courts not always excluded, 49
+  Prize Courts, 50
+  Where held, 57
+  Their judgments conclusive, 52
+
+POSTLIMINY.
+  Right of, 53
+  Jus Postliminii, 67
+
+PASSPORTS, 54
+
+PROPERTY.
+  Of subjects of belligerent states in enemy's country, 4
+  Immoveable Property, Rule in respect of, 5
+  Private, on land, 34
+  Government Property, 35
+  Captured Property, title to, 43
+  Enemy's, in Neutral Ships, 74
+  Neutral, in Enemy's Ships, 75
+  Neutral, on _Armed_ Hostile Ships, 75
+  Hostile cannot be transferred _in transitu_, 30
+
+RECIPROCITY.
+  Rule of, 6
+
+RULE OF 1756, 25
+  Note, 99
+
+RANSOMS, 61
+
+RECAPTURES, 63
+  Of the Property of Allies, 66
+  Of Neutral Property, 67
+
+REPRISALS, 97
+
+SHIPS.
+  National Character of, 29
+  Sale and purchase of, by Neutrals, 75
+  Not restored on recapture, if set forth as Ships of War, 65
+
+SAFE-CONDUCTS, 54
+
+SALVAGE IN WAR, 64
+
+SEARCH, RIGHT OF, 90
+
+TRADE.
+  With the Enemy unlawful, 8
+  Not permitted with Enemy, except under Royal Licence, 10
+  Subjects of an Ally cannot trade with Enemy, 11
+  Trading with the Enemy punishable, 19
+  Hostile Character acquired by Trade, 27
+  _See also_ Licences, Contraband, &c.
+
+WAR.
+  Solemn, 1
+  How commenced, 3
+  Objects of, 31
+  Maritime, Objects of, 34
+  Limitations of the right of making War, 35
+
+
+
+
+POSTSCRIPT.
+
+
+
+Since the completion of the Second Edition of this work, two very
+important Orders in Council, (dated April 15th, 1854,) have been
+published. Before proceeding to explain the intended effect of these
+Orders, it will be well to state that the consent of _both_ the Allies
+of England in this war is necessary to give full validity to the
+Orders.
+
+It is a very old principle that, during a _conjoint_ War, no subject
+of an ally can trade with the common enemy without liability to
+forfeiture, in the prize courts of the ally, of all his property
+engaged in such trade. This rule can be relaxed only by the permission
+of the allied nations, according to their mutual consent.[212]
+
+Lord Stowell lays down the principle in much broader terms, thus--
+
+     "It has happened, since the world has grown more commercial,
+     that a practice has crept in of admitting particular
+     relaxations; and if _one_ state only is at war, no injury is
+     committed to any other state. It is of no importance to
+     other nations how much a _single_ belligerent chooses to
+     weaken and dilute his _own_ rights; but it is otherwise when
+     allied nations are pursuing a common cause against a common
+     enemy. Between them it must be taken as an implied, if not
+     an express contract, that one state shall not do anything to
+     defeat the general object. If one state admits its subjects
+     to carry on an uninterrupted trade with the enemy, the
+     consequence may be that it will supply aid and _comfort_ to
+     the enemy; especially if it is an enemy very materially
+     depending on the resources of foreign commerce, which may be
+     injurious to the prosecution of the common cause, _and the
+     interests of its ally_. It should seem that it is not
+     enough, therefore, to say that one state has allowed this
+     practice to its own subjects; it should appear to be at
+     least desirable, that it could be shown that the practice is
+     of such a nature that it can in no way interfere with the
+     common operations, or that it has the allowance of the
+     confederate state."[213]
+
+Trade with the enemy has always been held to be a direct interference
+with the common operations of the war, and indirect trade has been
+regarded with as much jealousy as direct trade. If Lord Stowell is to
+be trusted, this country cannot in any way waive its belligerent
+rights, without the consent of its ally; so that it is quite in the
+option of France at any time to withdraw its assent, or to modify it
+in terms, and thus bind English merchants to the terms of their
+assent.
+
+The _intended_ effect of these Orders is well described in the
+_Times_, of April 21st, 1854.
+
+     "The Order in Council of the 15th April, 1854, recites, in
+     the first instance, Her Majesty's declaration made on the
+     opening of the war; but it then goes on to enact not only
+     that enemies' property laden on board neutral vessels shall
+     not be seized, but that all neutral and friendly ships shall
+     be permitted to import into Her Majesty's dominions, all
+     goods and merchandizes whatsoever, and to export everything
+     in like manner, except to blockaded ports, and except those
+     articles which require a special permission as being
+     contraband of war. But this liberty of trade is not confined
+     to neutrals. It is further ordered, that, with the above
+     exceptions only, British subjects shall have free leave to.
+     trade 'with all ports and places wherever situate,' save
+     only that British ships are not permitted to enter the ports
+     of the enemy. The effect of this Order is, therefore, to
+     leave the trade of this country with neutrals, and even the
+     indirect trade with Russia, in the same state it was in
+     during peace, as far as the law of our courts maritime is
+     concerned; and the doctrine of illegal trading with the
+     enemy is at an end.[214] The restrictions henceforth to be
+     imposed are solely those arising out of direct naval and
+     military operations, such as blockade, and those which the
+     enemy may think fit to lay upon British and French property.
+     As far as we are concerned, except that British ships are
+     not to enter Russian ports--which it is obvious that they
+     could not do without incurring the risk of a forfeiture of
+     their property and the imprisonment of their crews--the
+     trade may be lawfully carried on in any manner which the
+     ingenuity and enterprise of our merchants can devise. In
+     order to facilitate the removal of British property from the
+     ports of the Baltic and the White Sea, which were frozen up
+     at the date of the Order of the 29th of March, further leave
+     has been given to Russian vessels to come out of those
+     ports, if not under blockade, until the 15th of May; as, in
+     fact, it is only by taking up Russian ships that British
+     property in those ports is likely to be removed, as neutrals
+     will not enter them from fear of the blockade.
+
+     "It is not easy to convey to the mind of the mercantile
+     classes of the present generation, who have had no practical
+     experience of the state of war, the extent of the change
+     which is thus effected in their favour. The vigilance of our
+     cruisers and the acuteness of our lawyers were incessantly
+     employed in all former contests in tracking out the faintest
+     scent of enemy's property on board every vessel met on the
+     seas. The character of enemy's property was regarded as an
+     infection, and reprobated with all the terms originally
+     reserved for guilty practices. The mercantile ingenuity of
+     the country, pressed by the increased demand and exorbitant
+     prices of prohibited articles, was strained to evade by
+     every species of fraud these prohibitions, and a warfare was
+     carried on within our own courts of justice between the
+     pitiless exactions of the laws of war and the irresistible
+     impulse of the laws of trade. To allay, in some degree, the
+     inconveniences of this system, and to provide by legal means
+     some of those commodities which it was for the public
+     interest to purchase, the English and French Governments
+     were driven, even during the height of the Continental
+     System, to the granting of licences. But here again fresh
+     abuses of every kind arose. These licences were an
+     authorized mode of evading that very prohibition which the
+     belligerents conceived it to be for their interest to
+     maintain. They conferred a monopoly on the holder of the
+     licence, which enabled him to sell his cargo of French wines
+     or French silks at a prohibition price; and the law books of
+     the time are still full of the endless litigation and fraud
+     to which these practices gave rise.
+
+     "From all these evils we trust that the Order in Council of
+     the 15th April has permanently relieved us, and the change
+     it is calculated to bring about in the state of war is not
+     of inferior importance to that which marked the transition
+     from Protection to Free Trade in the state of peace. The
+     system of licences is at an end, for all the liberty of
+     trade with the enemy which it is in the power of the
+     Government to confer at all, is thus conferred at once, and
+     indiscriminately upon all; and, unless the Russian
+     Government find means to maintain a prohibitive system on
+     their frontiers, we hope that the supply of raw material
+     from that country will not be reduced to scarcity."
+
+In addition, however, to this very lucid explanation, it may be added,
+that it might become necessary to grant licences to trade directly
+(with the consent of our allies) to the Russian ports.
+
+That on the part of British vessels, the
+
+     "entering or communicating with any port or place in the
+     possession or occupation of the enemy, will place the
+     English vessel in the position of an illegal trader, and
+     that the vessel will then be liable to the same penalties as
+     if this Order had not been published."
+
+With respect to Contraband, it will have to be remembered that
+contraband _to_ Russia will not be contraband to England, unless it is
+despatches, treasonable letters, enemy's forces, secret agents or
+spies. Neutral property on board an enemy's vessel is not generally
+liable to seizure, unless on an "armed vessel of force;" but even
+this, by the Order, seems to be protected. By the same Order, British
+property on Russian vessels is _not_ protected. It is quite in the
+option of neutrals, or British vessels, to break any Russian blockade.
+
+The renunciations in these Orders are a waiver only of certain parts
+of the Queen's belligerent rights, and in no way diminish the state of
+war between England and Russia. Notwithstanding these Orders,
+Russo-English partnerships are dissolved, contracts with the enemy
+invalid, and even though a free trade is permitted, an Englishman
+cannot draw a good bill on a Russian, and _vice-versa_. All attempts
+to communicate with the enemy are still illegal. The Queen has not
+altered her belligerent rights, she merely declares that she will not
+put them into motion; but that does not alter, nor can she of her own
+authority alter, any part of the International Law, which also is a
+part of our common law. These, Orders, therefore, give no power to the
+enemy to sue or reside here, or to make a valid indorsement to any
+British subject. Insurances will become legal on cargoes that by these
+Orders may be imported.
+
+(From the _Gazette_ of Tuesday.)
+
+At the Court of Windsor, the 15th day of April, 1854, present the
+Queen's Most Excellent Majesty in Council.
+
+Whereas Her Majesty was graciously pleased, on the 28th day of March
+last, to issue her Royal declaration on the following terms--
+
+     "Her Majesty the Queen of the United Kingdom of Great
+     Britain and Ireland, having been compelled to take up arms
+     in support of an ally, is desirous of rendering the war as
+     little onerous as possible to the Powers with whom she
+     remains at peace.
+
+     "To preserve the commerce of neutrals from all unnecessary
+     obstruction, Her Majesty is willing, for the present, to
+     waive a part of the belligerent rites appertaining to her by
+     the Law of Nations.
+
+     "It is impossible for Her Majesty to forego the exercise of
+     her right of seizing articles contraband of war, and of
+     preventing neutrals from bearing the enemy's despatches, and
+     she must maintain the right of a belligerent to prevent
+     neutrals from breaking any effective blockade which may be
+     established with an adequate force against the enemy's
+     forts, harbours, or coasts.
+
+     "But Her Majesty will waive the right of seizing enemy's
+     property laden on board a neutral vessel, unless it be
+     contraband of war.[215]
+
+     "It is not her Majesty's intention to claim the confiscation
+     of neutral property, not being contraband of war, found on
+     board enemy's ships;[216] and Her Majesty further declares
+     that, being anxious to lessen as much as possible the evils
+     of war, and to restrict its operations to the regularly
+     organized forces of the country, it is not her present
+     intention to issue letters of marque for the commissioning
+     of privateers."
+
+_Now it is this day ordered_, by and with the advice of her Privy
+Council, that all vessels under a neutral or friendly flag, being
+neutral or friendly property, shall be permitted to import into any
+port or place in Her Majesty's dominions all goods and merchandize
+whatsoever, to whomsoever the same may belong,[217] and to export
+from any port or place in her Majesty's dominions to any port not
+blockaded, any cargo or goods, not being contraband of war, or not
+requiring a special permission, to _whomsoever the same may belong_.
+
+And Her Majesty is further pleased, by and with the advice of Her
+Privy Council, to order, and it is hereby further ordered, that, save
+and except only as aforesaid, _all the subjects of Her Majesty_, and
+the subjects or citizens of any neutral or friendly State, shall and
+may, during and notwithstanding the present hostilities with Russia,
+_freely trade_[218] with all ports and places wheresoever situate,
+which shall not be in a state of blockade, save and except that no
+British vessel shall, under any circumstances whatsoever, either under
+or by virtue of this order, or otherwise, be permitted or empowered to
+enter or communicate with any port or place which shall belong to or
+be in the possession or occupation of Her Majesty's enemies.
+
+And the Right Hon. the Lords Commissioners of Her Majesty's Treasury,
+the Lords Commissioners of the Admiralty, the Lord Warden of the
+Cinque Ports, and Her Majesty's Principal Secretary of State for War
+and the Colonies, are to give the necessary directions herein as to
+them may respectively appertain.--C.C. GREVILLE.
+
+At the Court at Windsor, the 15th day of April, 1854, present the
+Queen's Most Excellent Majesty in Council.
+
+Whereas, by an Order of Her Majesty in Council, of the 29th of March
+last, it was, among other things, ordered,
+
+     "that any Russian merchant vessel which, prior to the date
+     of this order, shall have sailed from any foreign port,
+     bound for any port or place in Her Majesty's, dominions,
+     shall be permitted to enter such 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 Her Majesty's ships, shall be permitted to
+     continue her voyage to any port not blockaded."
+
+And whereas Her Majesty, by and with the advice of Her said Council,
+is now pleased to alter and extend such part of the said Order, it is
+hereby ordered, by and with such advice as aforesaid, as follows--that
+is to say, that any Russian merchant vessel which, prior to the 15th
+day of May, 1854, shall have sailed from any port of Russia situated
+either in or upon the shores or coasts of the Baltic Sea or of the
+White Sea, bound for any port or place in Her Majesty'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 Her
+Majesty's ships, shall be permitted to continue her voyage to any port
+not blockaded.
+
+And Her Majesty is pleased, by and with the advice aforesaid, further
+to order, and it is hereby further ordered, that in all other respects
+Her Majesty's aforesaid Order in Council, of the 29th day of March
+last, shall be and remain in full force, effect, and operation.
+
+And the Right Hon. the Lords Commissioners of Her Majesty's Treasury,
+the Lords Commissioners of the Admiralty, and the Lord Warden of the
+Cinque Ports, are to give the necessary directions herein as to them
+may respectively appertain.--C.C. GREVILLE.
+
+H.B.T.
+
+3, SERJEANT'S INN,
+
+_22nd April, 1854_.
+
+
+
+
+NOTES
+
+
+[1: See Justice Story's Judgment in the Case of the La Jeune Eugenie.
+Life, Vol. i. 341.]
+
+[2: The Law of Reprisals; _Vide_ note (A.)]
+
+[3: Rutherford's Institutes, vol. ii. p. 509.]
+
+[4: 2 Wheaton, p. 11; 1 Kent, p. 54.]
+
+[5: Per Sir W. Scott--Case of the Eliza Ann, 4 Rob. Adm. Rep. 247.]
+
+[6: Wildman's International Law, vol. ii. p. 5.]
+
+[7: 1 Kent, p. 54; Vattel, book 3, chap. iv. sec. 64.]
+
+[8: 1 Kent, p. 55.]
+
+[9: 2 Wheaton, p. 12; 1 Kent, p. 55; Rutherford's Institutes, book 2,
+chap. 9, sec. 10.]
+
+[10: 2 Wheaton, p. 12-25; 1 Kent's Com. p. 55-6; Brown _v._ United
+States, 2 Cranch, 110; see also 228, 229.]
+
+[11: Idem.]
+
+[12: Grot, book 3, chap. 20, sec. 16.]
+
+[13: 1 Rob. Adm. Rep. 64.]
+
+[14: 2 Wheaton, p. 19.]
+
+[15: Lindo v. Rodney, Doug. 612; The Boedes Lust, 5 Rob. Rep. 233.]
+
+[16: Per Lord Mansfield, Lindo _v._ Rodney.]
+
+[17: Wolff _v._ Oxholm, 6 M. and S. 92.]
+
+[18: Grot. book 2, chap. 18, sec. 344; book 3, chap. 5, sec. 77.]
+
+[19: Whewell, Grot. vol. 3, p. 151, sec. 4; p. 165, sec. 4 (2).]
+
+[20: 1 Kent's Com. p. 65.]
+
+[21: Bynkersheok, Quaest. Sur. Pub. lib. i. cap. 3; 2 Wheaton, p. 26.]
+
+[22: Robinson's Adm. Rep. p. 196.]
+
+[23: The Hoop.]
+
+[24: The Rapid, 8 Cranche's Rep. p. 155.]
+
+[25: The St. Lawrence, 8 Cranche's Rep. p. 434.]
+
+[26: The Juffrow Catharina, 5 Rob. 141.]
+
+[27: 2 Wheaton, p. 37.]
+
+[28: 1 Kent's Com. p. 67.]
+
+[29: The Rendsborg, 4 Rob. Adm. Rep. 132.]
+
+[30: Park, p. 497.]
+
+[31: Toulmin _v._ Anderson, 1 Taunt. 227.]
+
+[32: Potter _v._ Bell, T. Rep. 548; The Hoop, _supra._]
+
+[33: Vandyck _v._ Whitmore, 1 East, 475.]
+
+[34: Park, 502.]
+
+[35: Park on Insurance; Arnold on Insurance; Gist _v_. Mason, I T. R.
+84.]
+
+[36: Idem.]
+
+[37: The Immanuel, 2 Rob. Adm. Rep. 198.]
+
+[38: Park, 502; Sewell _v_. Royal Exchange Assurance Co. 4 Taunt. 856;
+Wilson _v_. Marryat, 8 T. Rep. 31.]
+
+[39: Willison _v_. Patterson, 7 Taunt. 439; _Vide_ Note on the War
+Bill Act, at the end of this part.]
+
+[40: Per Gibbs, C.J. Antoine _v._ Morshead, 6 Taunt. 238. According to
+Mr. Serjeant Byles, a bill drawn by a British prisoner in favour of an
+alien enemy cannot be enforced by the payee. He cites no case in
+support of this assertion; but on the principle of the last case
+cited, if it were drawn for _subsistence and not for trade_, there
+seems to be no reason why it should not be legal.]
+
+[41: Duhamel _v._ Pickering, 2 Starkie, 92.]
+
+[42: Barker _v._ Hodgson, 3 M. & S. 270.]
+
+[43: Liddard _v._ Lopes, 10 East. 526; Abbot, on Shipping, 596.]
+
+[44: 1 Kent's Com. 248; The Hiram, 3 Rob. Adm. 189.]
+
+[45: 1 Kent's Com., 249.]
+
+[46: Hadley _v._ Clarke, 8 T.R. 259; 3 Kent's Com. 249.]
+
+[47: Abbot, on Shipping, 599.]
+
+[48: Pothier, Trait du Cout. de Joc. No. 140.]
+
+[49: Story, on Partnership, pp. 447, 448.]
+
+[50: Griswold _v._ Waddington, 16 Johns. Rep. U.S.]
+
+[51: Story, on Partnership, 447.]
+
+
+[52: Story, on Partnership, 449; Griswold _v._ Waddington, 15 Johns,
+57; 16 Johns, 438.]
+
+[53: Platt, on Covenants, 588; Doe _d._ Lord Anglesea _v._ Ch. Wardens
+of Rugely, 6 Q.B. 113, and cases there cited.]
+
+[54: Cosmopolite, 4 Rob. 10, 11, in note.]
+
+[55: 1 Term. R. Gist. _v._ Mason.]
+
+[56: Per Buller, J. Bell _v._ Gilson, 1 Bos. _v._. Pull.]
+
+[57: Case of Bella Guidita, cited 1 Rob. Adm. Rep. 207.]
+
+[58: 1 Kent, p. 73]
+
+[58: 1 Kent, p. 73]
+
+[59: Per Eyre, C.J. Sparenburgh _v._ Bannatyne, 1 B. & P. 168.]
+
+[60: Sparenburgh _v._ Bannatyne, 1 B. & P. 163.]
+
+[61: Maria _v_. Hall, 2 B.&P. 236.]
+
+[62: Derry _v_. Duchess of Mazarin, 1 Taunt. 147.]
+
+[63: 7 & 8 Vic. c. 66, sec. 16; Mrs. Manning's Case, 2 D.C.C. 468.]
+
+[64: The Vriendchap, 6 Rob. 166; the Embden, 1 Rob. 17; the Endraught,
+1 Rob. 23.]
+
+[65: Kent's Com. vol. i. 74.]
+
+[66: Case of the Emmanuel, 1 Rob. Adm. Rep. 302.]
+
+[67: Case of Dos Hermanos, 2 Wheaton, 76.]
+
+[68: 1 Wheaton, 46; Rob. Adm, Rep. iii. 324; the Harmony, the Indian
+Chief, 3 Rob. 12.]
+
+[69: The Ocean, 5 Rob. p. 91.]
+
+[70: The Vigilantia, 1 Rob. Adm. Rep. p. 1.]
+
+[71: The Susa, Rob. Adm. Rep. vol. ii. p. 255.]
+
+[72: Wheaton, vol. ii. p. 71, citing Cranch's Rep. vol viii. p. 253.]
+
+[73: 1 Kent's Com. 82, citing Berens _v_. Rucker, I W. Bl. 313; and
+_vide infra_ Chap. iii. under title "Rule of 1756."]
+
+[74: The Vigilantia, 1 Rob. Adm. Rep. 15.]
+
+[75: The Success, I Dodson's Adm. Rep. 132.]
+
+[76: I Kent's Com., p. 85.]
+
+[77: I Kent's Com. p. 85.]
+
+[78: Vrow Margaretha, I Rob. Adm. Rep. 338.]
+
+[79: Esprit des Loix, book 15, c. 2.]
+
+[80: Vattel, Idem.]
+
+[81: Wheaton, vol. 2, p. 79.]
+
+[82: Wheaton, vol. 2, p. 8; Kent, vol. 1, p. 91.]
+
+[83: Not so, however, in the late Declaration, March 28,1854; _sed
+vide_ App.]
+
+[84: Vattel, book 3, chap. 15.]
+
+[85: Kent, vol. I, sec. 5, p. 94.]
+
+[86: 4 Rob. Adm. Rep. p. 262 (n).]
+
+[87: Prize Acts, 45 Geo. III. c. 75.]
+
+[88: Order of Council, 1665; the Maria Francaise, 6 Rob. Adm. Rep.
+282; Rebekah, 1 Rob. 229.]
+
+[89: Vattel, book 3, chap. 15, sec. 229.]
+
+[90: The Elsebe, 5 Rob. 176.]
+
+[91: The Thorshaven, Edw. Rep. 102; 45 Goo. III. c. 72.]
+
+[92: 45 Geo. III. c. 72, sec. 25.]
+
+[93: The Vryheid, 2 Rob. 16.]
+
+[94: Martens, on Privateering, p. 2.]
+
+[95: But see the Introduction.]
+
+[96: Act of Congress, April 20, 1818, chap. 83.]
+
+[97: Kent, vol. I, p. 100.]
+
+[98: Wheaton, vol. 2, p. 88-9.]
+
+[99: Kent, sec. 5, p. 102; Rutherford's Institutes, book 2, chap. 9.]
+
+[100: This description of the preliminary proceedings in Prize is
+taken from the second volume of Wildman's Institutes of International
+Law, p. 355; cited "by that author from a letter from Sir W. Scott and
+Dr. Nicholl to Mr. Jay, the American Minister."]
+
+[101: Lindo _v._ Rodney, Doug. 614, note.]
+
+[102: Brymer _v._ Atkins, I. H. Black.]
+
+[103: Brymer _v._ Atkins, I. H. Black, p. 189.]
+
+[104: Floy Owen, I Rob. Adm. Rep. 136; Oddy _v_. Bovill, 2 East. 470.]
+
+[105: 4 Rob. Rep. 43.]
+
+[106: Wheaton, vol. 2, p. 97.]
+
+[107: Vattel, book 3, chap. 13, sec. 197.]
+
+[108: Wheaton, vol. 2, p. 112.]
+
+[109: Vattel, book 3, chap. 17, sec. 265-268.]
+
+[110: Page 6, ante.]
+
+[111: The Cosmopolite, 4 Bob. Kep. 8.]
+
+[112: The Abigail, Stewart's Adm. Rep. p. 360.]
+
+[113: Shroeder _v_. Vaux, 15 East. Rep. 52; 3 Camp. N.P. Rep. p. 83;
+the Cosmopolite, 4 Rob. 8.]
+
+[114: The Dauk Vaarhirt, 1 Dod. Adm. Rep. 187.]
+
+[115: The Dauk Vaarhirt, 1 Dod. Adm. Rep. 187.]
+
+[116: Idem.]
+
+[117: The Jonge Arend, 5 Rob. 14.]
+
+[118: The Henrietta, 1 Dod. Adm. Rep. 173.]
+
+[119: The Jonge Johannes, 4 Rob. Adm. Rep. 268.]
+
+[120: Idem.]
+
+[121: The Jonge Klassina, 5 Rob. Adm. Rep. 297.]
+
+[122: The Cousinne Marianne, Edw. 346.]
+
+[123: The Twee Gebroeders, Edw. Adm. Rep. 95.]
+
+[124: The Manly, I Dod. 257.]
+
+[125: Europa, Edw. 42.]
+
+[126: Golden Hoop, Nov. 7, 1809, 1 Edw. Rep.]
+
+[127: The St. Ivan, Edw. 376.]
+
+[128: 1 Kent, 103. The statutes are, 22 Geo. 3, c. 25; 35 Geo. 3, c.
+66, sections 35, 36; 45 Geo. 3, c. 72, sections 16, 17, 18, and 19.]
+
+[129: There are a few other general points with respect to ransoms,
+which will be found _infra_ under recaptures. Valin is the principal
+authority, and his law will be found well summed up in the 2nd volume
+of Wildman's Institutes of International Law. There are few cases on
+the subject; the chief are, Ricard _v._ Bellenham, 3 Burr, 1734; Yates
+_v._ Hall, 3 T.R. 76, 80; Authon _v._ Fisher, Corner _v._ Blackburn, 2
+Doug.]
+
+[130: Martens on Privateers and Recaptures.]
+
+[131: The Ceylon, I Dod. 105; l'Actif, Edw. 185, _vide etiam_; the
+Nostra Signora, 3 Bob. 10; the Georgiana, I Dod. 397; the Horatio,
+6 Rob. 320.]
+
+[132: The Edward and Mary, 3 Rob. 305.]
+
+[133: The Pensamento Felix, Edw. 115.]
+
+[134: The Charlotte Caroline, 1 Dod. 194.]
+
+[135: Santa Cruz, 1 Rob. 63.]
+
+[136: The War Onskan, 2 Rob. 300.]
+
+[137: 1 Kent, Com. 108.]
+
+[138: The William, 6 Rob. 316.]
+
+[139: Idem.]
+
+[140: Vattel, book iii. c. 7.]
+
+[141: Idem.]
+
+[142: 2 Wheaton, chap. iii. sec. i. p. 133.]
+
+[143: Wheaton, vol. ii. 137; Kent's Com. vol. i. p. 116.]
+
+[144: Vrow Anna Catharina, 5 Rob. 18.]
+
+[145: Idem.]
+
+[146: 1 Kent's Com. p. 117; The Anna, 5 Rob. Adm. Rep. 373.]
+
+[147: Vrow Anna Catharina, 5 Rob. 18.]
+
+[148: The Anna, 5 Rob. 385 c.]
+
+[149: The Twee Gebroeders, 3 Rob. A. R. 162.]
+
+[150: The Etrusco, 3 Rob. Adm. Rep.]
+
+[151: 1 Kent Com. p. 116; Vattel, book in, chap, vii, sec. 115. See
+also, The Immanuel, 2 Rob. Adm. Rep. 198, and the Notes on the
+Declarations, in Appendix.]
+
+[152: Vattel, book in, chap. vii, sec. 116.]
+
+[153: The Fortuna, 4 Rob. Rep. p. 278.]
+
+[154: The Diana, 5 Rob. Rep. 57.]
+
+[155: The Fortuna.]
+
+[156: _Vide_ Vattel.]
+
+[157: Kent's Com. 123; The Copenhagen, 1 Rob. Adm. Rep. 290.]
+
+[158: _Vide post_. Section IV, and Notes on the Declarations.
+Appendix.]
+
+[159: The Fancy, 1 Dod. Adm. Rep. 448.]
+
+[160: The Nereid, 9 Cranch Rep. 398.]
+
+[161: The Fancy, 1 Dodson's Adm. Rep. 448.]
+
+[162: The Sachs Gesawhistern, 4 Rob. Adm. Rep. 100.]
+
+[163: The Minerva, 6 Rob. Adm. Rep. 399.]
+
+[164: The Noydt Gedart. 2 Rob. 137, (n.)]
+
+[165: 4 Rob. 100.]
+
+[166: See in the Appendix a table of articles of commerce that have
+been declared contraband.]
+
+[167: Grotius, book in. chap. i. sec. v.; Rutherfurd's Instit. book
+ii. chap. ix. sec. xix.]
+
+[168: The Commercen, 1 Wheaton's Rep. 241.]
+
+[169: The Commereen, 1 Wheaton's Rep. 241.]
+
+[170: The Jonge Margaretha, Rob. Adm..Rep. vol. i. p. 192.]
+
+[171: The Charlotte, Rob. Adm. Rep. vol. v. p. 305.]
+
+[172: 2 Wheaton, 194, 210.]
+
+[173: The Haabet, 2 Rob. Adm. Rep. 182.]
+
+[174: The Carolina, Rob. Adm. Rep. vol. iv. p. 256.]
+
+[175: They were officers of distinction.]
+
+[176: The Orozembo, 1 Rob. Adm. Rep. p. 434.]
+
+[177: Idem.]
+
+[178: The Atalanta, Rob. Adm. Rep. vol. vi. p. 440.]
+
+[179: The Caroline. Rob. Adm. Rep. vol. vi. p. 461.]
+
+[180: The Ringende Jacob, Rob. Adm. Rep. vol. i. p. 90.]
+
+[181: The Franklin, Rob. vol. iii, p. 125.]
+
+[182: The Rolla, 6 Rob. 366.]
+
+[183: The Edward, Rob. Adm. Rep. vol. iv. p. 70.]
+
+[184: The Tonina, Rob. Adm. Rep. vol. iii. p. 168.]
+
+[185: The Betsy, The Columbia, 1 Rob. Adm. Rep. pp. 92 and 155.]
+
+[186: The Hoffnung, 6 Rob. 120; see also The Triheton, 6 Rob. 65.]
+
+[187: The Mercurius, 1 Rob. Adm. Rep. p. 83.]
+
+[188: 2 Wheaton, p. 233, citing Rob. Adm. Rep.]
+
+[189: Rob. Adm. Rep. vol. i. p. 156.]
+
+[190: Neptunus, Rob. Adm. Rep. vol. i. p. 171; Neptunus, Hempel. Rob.
+Adm. Rep. vol. ii. p. 112.]
+
+[191: 2 Wheaton, p. 239.]
+
+[192: 2 Wheaton, pp. 242, 244.]
+
+[193: The Betsey, 1 Rob. Adm. Rep. p. 93.]
+
+[194: 1 Rob. Adm. Rep. p. 340.]
+
+[195: See Section iv. on Armed Neutralities.]
+
+[196: 1 Rob. Adm. Rep. p. 340.]
+
+[197: 43 Geo. III. c. lvii. sec. 1; Abbot, on Shipping, pp. 353--356.]
+
+[198: This account of armed neutralities has been extracted
+principally from Kent's Commentaries, vol. i. pp. 126-7; Wheaton on
+International Law, vol. ii. pp. 165-184; Martens on Privateers, pp.
+230-33.
+
+There are also most excellent accounts of these celebrated
+confederacies to be found in the Annual Register, in volumes 23,
+(1780,) and 43, (1801,) in the portion called the Historical
+Chronicle.]
+
+[199: This Note was originally intended to form part of the text, but
+was accidentally omitted.]
+
+[200: Le Louis.]
+
+[201: Vattel, book ii. chap, xviii. sec. 342.]
+
+[202: The Boedes Lust, 5 Rob. Adm. Rep. p. 244.]
+
+[203: 1 Kent's Com. p. 60.]
+
+[204: Lind. _v._ Rodney, Dougl. Rep. p. 614. a.]
+
+[205: Lord Stowell argues the principles at length in the Immanuel, 2
+Rob. Adm. Rep. 198, 100.]
+
+[206: _Vide_ section ii. chap. iii. Contraband of War.]
+
+[207: _Vide_ p. 84.]
+
+[208: See section ii. chap. ii. Blockades.]
+
+[209: This is the doctrine _free ships free goods_, for the first time
+voluntarily adopted by this country, pp. 72, 74.]
+
+[210: According to Vattel, this belligerent right has no existence,
+and
+need not therefore be waived, as it could not legally be exercised;
+but
+see p. 73.]
+
+[211: This grant of general reprisals, though apparently limited in
+its address, (as to action in the war) to Her Majesty's fleets and
+ships, does not exclude non-commissioned captors from taking Russian
+ships, or goods when called upon _by necessity_ to do so. For example,
+any of our armed merchantmen, who in the present war will not be
+allowed letters of marque, would be quite justified when beating off
+the enemy, in also making a capture if possible, and although her
+prize would become a _Droit of Admiralty_, the captor would be
+entitled to apply to the court for some compensation. The second part
+of this declaration is intended to proclaim the preliminary step to
+establishing the court of prize. The declarations with respect to the
+embargo laid upon Russian goods and ships in our ports require no
+comment.]
+
+[212: See pages 11 and 12.]
+
+[213: The Neptunus, 6 Robinson's Adm. Rep. p. 406; also the Nayade,
+4 Rob. p. 251.]
+
+[214: Vide post.]
+
+[215: See page 74.]
+
+[216: See page 75.]
+
+[217: This allows free commerce in neutral bottoms to our ports, from
+Russia. It is difficult to see what is meant by "friendly flags." It
+cannot mean "a flag of the allies," for that would be giving our
+allies more than we take ourselves. It is, perhaps, intended to
+include powers that may not be friendly to Russia, but in that
+position to ourselves, without being allied to us.]
+
+[218: Free trade by British vessels in enemy's property to ports not
+hostile.]
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK THE LAWS OF WAR, AFFECTING COMMERCE
+AND SHIPPING***
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