neutral voyage, how much more so must it be to enlist all our own interests in his service, and hire his arms and his crew in order to prevent the exercise of those rights which, as Neutrals, we are bound to submit to. The doctrine is founded in most perfect justice, that those who adhere to an enemy connection shall share the fate of an enemy."(e) It is true, however, that the Court was composed of four Judges, of whom Mr. Justice Story was one only, and that the other three dissented from his opinion, and, in a subsequent case adhered to this dissent.(ƒ) [*442] North America is concerned, it is competent to a Neutral to put goods on board an armed enemy's ship. *So far, therefore, as the Prize Law of the United States of But with respect to International Law, this case is different. Mr. Justice Story adhered to his opinion; (g) and looking to his subsequent and daily increasing reputation, it is hardly too much to say that his agreement with such an authority as Lord Stowell upon a question of this kind, does constitute a balance in favour of the proposition which these great men have deliberately sanctioned in most elaborate judg ments. CCCXLII. Seventhly. We have to notice some of the principal Treaties which have affirmed, modified, or taken away, between the contracting parties, this Right. The leading Treaty(h) which affirms and incorporates the Common Law of nations upon the subject, is the famous Treaty of the Pyrenees between France and Spain. By the 17th article of this Treaty it is stipulated as follows: "Les navires d'Espagne, pour éviter tout désordre, n'approcheront pas de plus près les Français que de la portée du canon, et pourront envoyer leur petite barque ou chaloupe à bord des navires Français, et faire entrer dedans deux ou trois hommes seulment, à qui [*443] seront montrés les passeports par le maître du navire Français, par lesquels il puisse apparoir, non-seulement de la charge, mais aussi du lieu de sa demeure et résidence, et du nom tant du maître ou patron que due navire même, afin que, par ces deux moyens, on puisse connaître (e) The Nereide, 9 Cranch's (Amer.) Rep., p. 454. (f) In the case of the Atalanta, Chief Justice Marshall said: "On the first question the case does not essentially differ from that of the Nereide. It is unnecessary to repeat the reasoning on which that case was decided; the opinion then given by the three judges is retained by them. The principle of the Law of Nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be, changed, or so impaired as to leave no object to which it is applicable; but so long as the principle shall be acknowledged, this Court must reject constructions which render it totally inoperative."-3 Wheaton's (Amer.) Rep., p. 415. (g) "I have been latterly engaged in drawing up my dissenting opinion in the case of the 'Nereide,' (9 Cranch's Reports, p. 449.) I have now completed it; and never in my whole life was I more entirely satisfied that the Court were wrong in their judgment."-Life of Story, vol. i. p. 256. "Errare mehercule malo cum Platone." (h) It is to be remarked that all treaties which have been concerned with this subject have admitted the exercise of this right in time of war.-De Hautefeuille, t. 3, p. 450. Heffters, 169. s'il porte des marchandises de contrebande, et qu'il appraisse suffisamment tant de la qualité dudit navire que de son maître ou patron; auxquels passeports et lettres de mer, se décret donnera entière foi et créance.”(¿) CCCXLIII. The matter of Convoy was made the subject both of the Treaty of the Armed Neutrality of 1800, and of the Treaty between England and Russia in 1801. The provisions respecting each appear in the following parallel columns : 1800. "Art. V. That the declaration of the officer who shall command the ship of war, or ships of war, of the king or emperor, which shall be convoying one or more merchant ships, that the convoy has no contraband goods on board, shall be sufficient, and that no search of his ship, or the other ships of the convoy, shall be permitted; and the better to ensure respect to those principles, and the stipulations founded upon them, which their disinterested wishes to preserve the prescriptible rights of neutral nations have suggested, the high contracting parties, to prove their sincerity and justice, will give the strictest orders to their captains, as well of their ships of war as of their merchant ships, to load no part of their *ships, or secretly to have on board any articles which, by virtue of the present convention, may be considered as contraband; and for the more completely carrying into execution this command, they will respectively take care to give directions to their Courts of Admiralty to publish it whenever they shall think it necessary; and to this end the regulation which shall contain this prohibition, under the several penalties, shall be printed at the end of the present Act, that no one may plead ignorance.(k) 1801. "Art. IV. The two high contracting parties, wishing also to prevent all subjects of dissention in future, by limiting the right of search of merchant ships going under convoy to those cases only in which the belligerent power might experience a real prejudice by the abuse of the neutral flag, have agreed: "1. That the right of searching merchant ships belonging to the subjects of one of the contracting powers, and navigating under convoy of a ship of war of the same power, shall only be exercised by ships of war of the belligerent party, and shall never extend to letters of marque, privateers, or other vessels, which do not belong to the royal or imperial fleet of their [*444] majesties, but which their subjects shall have fitted out for war. "2. That the proprietors of all merchant ships belonging to the subjects of one of the contracting sovereigns, which shall be destined to sail under convoy of a ship of war, shall be required, before they receive their sailing orders, to produce to the commander of the convoy their passports and certificates, or sea letters, in the form annexed to the present treaty. "3. That when such ship of war, having under convoy merchant ships, shall be met with by a ship or ships of war of the other contracting party, who shall then be in a state of war, in order to avoid all disorder, they shall keep out of cannon-shot, unless the state of the sea, or the place of meeting, render a nearer approach necessary; and the commander of the ship of the belligerent power shall send a boat on board the convoy, where they shall proceed reciprocally to the verification of the papers and certificates that are to prove, on one part, that the ship of war is authorized to take under its escort such or such merchant ships of its nation, laden with such a cargo and for such a port; on the other part, that the ship Dumont, Corps Diplom., t. vi. 2 part. p. 264. (k) See Appendix to Speech of Lord Grenville in the House of Lords, Nov. 13, 1801, (pub. 1802.) [*445] [*446] 1801. of war of the belligerent party belongs to the royal or imperial fleet of their majesties. "4. This verification made, no *search shall take place if the papers are found in form, and if there exists no good motive for suspicion. In the contrary case, the commander of the neutral ship of war (being duly required thereto by the commander of the ship or ships of war of the belligerent power) is to bring to, and detain his convoy during the time necessary for the search of the ships which compose it; and he shall have the faculty of naming and delegating one or more officers to assist at the search of the said ships, which shall be done in his presence on board each merchant ship, conjointly with one or more officers appointed by the commander of the ship of the belligerent party. "5. If it happen that the commander of the ship or ships of war of the belligerent power having examined the papers found on board, and having interrogated the master and crew of the ship, shall see just and sufficient reason to detain the merchant ship, in order to proceed to an ulterior search, he shall notify such intention to the commander of the convoy, who shall have the power to order an officer to remain on board the ship thus detained, and to assist at the examination of the cause of her detention. The merchant ship shall be carried immediately to the nearest and most convenient port belonging to the belligerent power, and the ulterior search shall be carried on with all possible diligence. *"Art. V. It is in like manner agreed, that if any merchant ship thus convoyed should be detained without just and sufficient cause, the commander of the ship or ships of war of the belligerent power shall not only be bound to make to the owners of the ship and of the cargo a full and perfect compensation for all the losses, expenses, damages, and costs occasioned by such a detention, but shall, moreover, undergo an ulterior punishment for every act of violence or other fault which he may have committed, according as the nature of the case may require. On the other hand, the convoying ship shall not be permitted, under any pretext whatsoever, to resist by force the detention of the merchant ship or ships by the ship or ships of war of the belligerent power; an obligation which the commander of a ship of war with convoy is not bound to observe towards letters of marque and privateers.”(1) CCCXLIV. The following Treaties will be found to be among the most important of those which relate to the subject of Visitation and Search in time of War: Austria and Spain, 1725. 66 and Morocco, 1805. Columbia and the United States of North America, 1824. The Two Sicilies and Holland, 1753. and the Ottoman Porte, 1740. 66 The United States and Central America, (federation of,) 1825. and France, 1778 and 1800. France and Great Britain, 1632, 1677, 1713, and 1786. 66 and Morocco, 1682 and 1767. "" and Mecklenburg-Schwerin, 1779. and Holland, 1646, 1662, 1678, 1697, 1713, and 1739. Great Britain and Holland, 1667. and Morocco, 1721, 1750, 1760, and 1801. (1) See Appendix to Speech of Lord Grenville in the House of Lords, Nov. 13, 1801. (Pub. 1802.) Great Britain and Sweden, 1664, 1802, and 1803. (This last Treaty authorizes the exercise of a right of preemption of 10 per cent.) Holland and Morocco, 1683 and 1782. 66 and Sweden, 1781. (( and Tripoli, 1703 and 1728. 66 and Tunis, 1662, 1704, 1708, and 1713.(m) The Treaties which have conferred the right of Visitation and Search, in time of peace, upon the ships of certain States in certain latitudes and under certain conditions, for the purpose of extirpating the Slave Trade, have been mentioned in a former volume of this work.(n) THE RIGHT OF CAPTURE.—THE DUTY OF THE CAPTOR. CCCXLV. THE Right of Capture and the Duty of the Captor are, of course, not dependent upon the element on which they happen to be exercised. For instance, the rules of International Law with respect to the circumstances which are necessary to constitute an actual Capture, the exact time when the contest is at an end, the enemy's property actually acquired, jure victoria, by the conqueror, the recognized signs of surrender, and other questions of the like kind, are equally incident to all war, whether waged by sea or by land. But with respect to the Rights and Duties incident to Capture, as with respect to the tribunal which adjudicates upon them, (a) they have, in maritime affairs, been moulded, by the reason of the thing and by usage, into a regular system of established practice, which has not yet. been attained in matters connected with military operations by land.(b) It is with the consideration of the law as applied to the Rights and Duties springing from Maritime Capture, that this chapter will be principally occupied. CCCXLVI. This subject of Maritime Capture(c) presents for solution the following questions: 1. What may be captured? 3. Where may Capture be made? (m) De Martens et De Cussy, Rec. de Tr. et Conv., vol. i. pp. 46, 47, index explicatif. See also, Rec. des Traités de Commerce et de Navigation de la France, par M. le Compte D'Hauterive et M. le Chevalier F. de Cussy, t. ix. pp. 350-358, tit. Neutralité. (n) Vol. i. chap. xvii. (a) Vide antè, p. 104. (b) Ibid. Effect of War upon the Trade and Property of Neutral and Maritime Capture and Prize, by J. P. Deane, D. C. L. London, 1854. |