to legal principles (1). Upon the whole it should seem, that the genuineness of these adventures is a matter to be judged of, not by any definite and precise criterion, but by the particular circumstances of each particular case. The penalty in these cases of colonial trade, as well as in Breach of this the other cases of illegal commerce carried on by neutrals, is Rule. confiscation. It was for some time the custom that the ship should be restored, and the cargo alone confiscated; but in later times, the strictness of the original principle has been revived, and ship and cargo are both condemned. (2) These are the chief regulations and decisions of a permanent nature, respecting the interference of neutrals with the enemy's colonial trade. I say, of a permanent nature, because it must be apprehended that their principles, being founded in natural justice and the established jurisprudence of nations, will be recurred to, and universally acknowledged by the neutral powers, at all times when neutrals will be permitted to acknowledge any principles at all in questions of international law. The decrees of France and the orders in council of Great Britain, and all those various inventions of aggression and retaliation which have abounded through the late war, do not appear to me to wear the same probability of permanence, adopted as they have been in particular emergencies, and calculated for individual objects. Besides the coasting and colonial trades, there are some other What Interest commercial transactions, of a nature so liable to abuse, that of the Enemy in Property belligerents have felt themselves justified in setting aside the renders it liable claims which neutrals have preferred respecting them. In the to Confiscation. case of the Marianna (3), a hostile ship, which had been bought of a neutral, this neutral put in a claim against the captors, suggesting that the purchase money had not been paid to him, and that he had therefore retained a lien upon the property for the payment of that money. But the Court said, "Such an interest cannot be deemed sufficient to support a claim of (1) Baring on Orders in Council, 81, 2; but quære, if the case of the Essex was decided on this ground. (2) Jonge Thomas, in a note to Rep. 229; and the Volant, note (3) 6 Rob. Rep. 24. Relaxations occasionally allowed. property in a court of prize. Captors are supposed to lay their hands on the gross tangible property on which there may be many just claims outstanding, between other parties, which can have no operation as to them. If such a rule did not exist, it would be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most credible documents, declaring the property to belong to the enemy, would only serve to mislead them, if such documents were liable to be overruled by liens, which could not in any manner come to their knowledge. It would be equally impossible for the Court, which has to decide upon the question of property, to admit such considerations. The doctrine of liens depends very much on the particular rules of jurisprudence which prevail in different countries. To decide judicially on such claims, would require of the Court a perfect knowledge of the law of covenant, and the application of that law in all countries, under all diversities in which that law exists. From necessity, therefore, the Court would be obliged to shut the door against such discussions, and to decide on the simple title of property with scarcely any exceptions." Of the same class is the case of the Josephine (1). Silver had been shipped by a hostile merchant to his agent in Hamburgh, for the purpose, as it was asserted, of satisfying a debt to an American neutral. The cargo was captured: and the American, for whose payment it was thus stated to have been destined, put in a claim in the British court of admiralty. The claim was disallowed: "For," said the Court, "even if the asserted intention on the enemy's part, of applying the silver to the payment of the neutral, were ever so sincere, it always re mained revocable. The hostile merchant retained the power of converting it to any purpose of his own, and the neutral claimant had no document whatever, giving him the control over it. Under these circumstances, the hostile merchant must be taken to be the legal proprietor; and, as his property, this silver must be condemned." The belligerent, when he thinks fit, has of course a power to remit the strictness of any of his own rights, and such remissions are not unfrequently made by orders in council and royal instructions to the commanders of vessels, enjoining them (1) 4 Rob. Rep. 25. to spare certain branches of trade in particular places, or for a particular time. Whenever these relaxations are afforded by the government, the Court of Admiralty shews itself uniformly liberal in their constructions. It will be unnecessary to multiply instances in order to illustrate this favourable temper in the judicial interpretation of public dispensations; one case will be amply sufficient. In the case of the Nostra Signora de Piedade (1.), instructions had been issued by the King in council, directing the commanders of ships not to molest neutral vessels laden solely with corn, and going to Spain, to whomsoever that corn might belong; the ship in question was not laden solely with corn, having on board, besides grain, a few dozen of oars and other insignificant articles; nor was she going to Spain, in the common acceptation of those words, but was captured in a voyage from one Spanish port to another. Sir William Scott gave judgment to the following effect: "The corn constitutes the cargo, and although there were on board some other small articles, they are not material, I think, to affect the privilege of the principal cargo, being corn, going under the humane permission of his Majesty to an enemy afflicted with famine and pestilence. At the same time it is objected, that this eargo does not come under the literal terms of the instructions which are described to be for the importation of corn, &c. But it would, in my opinion, be no more than the fair interpretation of the humane intention of these instructions, to consider them as extending as well to the distribution of corn between the provinces of Spain, as to an importation directly from any other country. Indeed, the indulgence would be in a great measure fruitless without this construction: if cargoes, on board neutral Ships, are entitled to protection in coming from the north of Europe to the northern ports of Spain, they are to be protected also by the same spirit of the same instructions, in being distributed afterwards between the provinces of that kingdom. I am therefore disposed to hold this cargo entitled to protection, Lanless the privilege shall have been forfeited by any fraudulent or improper conduct; since every grant of this kind must be fairly and honourably acted upon; and if fraud is interposed, and the parties resort to subterfuges of ill faith for their protection, they may justly be considered to have forfeited all benefit from the special indulgence which has been granted to them." (1) 6 Rob. Rep. 41. We now arrive at the view of those cases where the law of nations, in consideration of the urgent necessities of war, permits the suspension of some of the absolute rights of neutrals. The absolute rights of neutrals may be summed up in the terms of that rule which has been before mentioned, "that a neutral is not to be placed in a worse situation by the war, than that in which he would have remained if peace had continued uninterrupted." To this rule of absolute right the urgent necessities of war form the only exception. "By virtue of these urgent necessities of war, vessels are frequently detained," says Beawes, in his Lex Mercatoria, "to serve a prince in an expedition; and, for this, have often their lading taken out, if a sufficient number of empty ones are not procurable to supply the state's necessity: and this without any regard to the colours they bear, or whose subjects they are; so that it frequently happens, that many of the European nations may be forcibly united in the same service, at a juncture when most of their sovereigns are at peace and in amity with the nation which they are obliged to serve. Some have doubted of the legality of the thing; but it is certainly conformable to the law both of nature and nations, for a prince, in distress, to make use of whatever vessels he finds in his ports, that are fit for his purpose, and may contribute to the success of his enterprises; but under this condition, that he makes them a reasonable recompence for their trouble, and does not expose either the ships or men to any loss or damage.” "In the law of dominion," says Molloy (1), "extreme necessity seems excepted; hence it is, that the vessels and ships, of what nature and nation soever, that should be found riding in the ports or havens of any prince or state, may be seized on and employed upon any service of that sovereign that shall seize the same; being but a harmless utility, not divesting the owners of their interest or property." After putting a case on this point, he proceeds: "Who would not pluck a shipwrecked man from his plank, or a wounded man from his horse, rather than suffer himself to perish? To slight which, is a sin, and to preserve, the highest wisdom. Besides, in the taking of the vessel, the right is not taken from the owner, but only the use, which, when the necessity is over, there is a condition of re (1) Molloy, b. 1. ch. 6. sec. 1 and 2. than storing annexed tacitly to such a seizure. And, doubtless, the But these are nice points cf casuistry, which few will submit "We can The rights of a belligerent nation against the delinquen- Of Visitation cies of neutrals would exist in vain, if she were not armed and Search, and Consequences of with a practical power, by which those rights may be en- Resistance, (1) forced. Such a power, by the law of nations, regularly exists; and it is called the power of visitation and search. not prevent the conveyance of contraband goods," says Vattel (2), "without searching neutral vessels that we meet at sca. We have, therefore, a right to search them." This is clear and satisfactory. If, upon making this search, the vessel be found employed in contraband trade, or in carrying dispatches or troops, or in any other illegal commerce, she is brought in for (1) As to the right of visitation and search, see the celebrated Letter of the Duke of Newcastle to Persian Secretary, A. D. 1752. 1 Collect. Jurid. 138. and Halli- |