Embargo of enemy. afloat with Great Britain was accordingly executed, (London, 16 Nov. 183159,) whereby the King of Great Britain undertook to recommend to the British Parliament to enable him to continue the payments stipulated in the Convention of the 19th of May, 1815, conformably to the manner, and until the liquidation of the sum therein specified. Notwithstanding that open war arose between Great Britain and Russia in 1854, Great Britain never faltered in her good faith in the matter of the understanding between herself and the other two Powers, as set out in the fifth Article of the Convention; and the interest and instalments of the loan have been regularly voted without the slightest interruption by the British Parliament, and paid by the British Government to the agents of the Russian Government. Further, when a motion was made by Lord Dudley Stuart in the House of Commons in the month of August 1854, during the war with Russia, that Great Britain should renounce her obligation to make any further payments of the loan, upon the ground that Russia had violated the general arrangements of the Congress of Vienna, the motion was rejected on this, amongst other grounds, that "Great Britain being at war with Russia, was bound, by a regard to National Honour, to be more than ever jealous of affording the slightest ground for the accusation, that she wished to repudiate debts justly contracted with the Power which was for the time her Enemy." § 59. The practice of seizing and confiscating the property vessels and cargoes of Enemy-Subjects which may be within the ports of a belligerent at the commenceports of a ment of war, is a tradition of the Admiralty jurisdiction exercised in common by Nations over all ves in the belligerent. 59 Martens, N. R. IX. p. 542. Hertslet, IV. p. 367. sels and their cargoes which may be in creeks, or havens accessible to tidal waters. Mr. Justice Story, in discussing the right of confiscating enemy-property, distinguishes between property which may be water-borne, and property which is on the land, and inclines to hold that, whilst the former may be proceeded against as prize under the Admiralty jurisdiction, the latter, if liable to seizure and condemnation at all in the Courts of the belligerent Power, would have to be proceeded against in the manner applicable to Municipal confiscations 60. It would seem that the Admiralty, which is an Institution of the Law of Nations, exercises an original jurisdiction, exclusively of every other Judicature in matters of prize; and that the Admiralty has from time immemorial exercised its prize jurisdiction over vessels and their cargoes which are afloat in ports and harbours, equally as over those which may be on the High Seas; and that Municipal Courts, as such, cannot enquire into a question of prize or no prize, which has been decided by the Admiralty. By the Law of Nations property, which is afloat on tidal waters within a port or harbour, is not subject to the Municipal Law of a State in the same exclusive manner, as property which is upon the land. Being therefore not subject to the exclusive control of the Sovereign of the territory, it is not within his protection in the same absolute manner as property on the land; and Nations have not been accustomed to regard it as an act of bad faith, if a belligerent Sovereign at the commencement of war should have seized all enemy-vessels which were afloat within his ports. This distinction between the concurrent jurisdiction, 60 Brown v. the United States, 8 Cranch, 139. Conduct of the Allied Powers at the com mencement against Russia in 1854. which all Nations exercise over vessels and cargoes which are afloat within the flux and reflux of the tide, and the exclusive jurisdiction which each individual Nation exercises over all persons and things which have been landed on its soil, may serve to explain in some respects the difference in the treatment, which enemy-property afloat has in practice undergone at the commencement of war, as contrasted with enemyproperty which has been landed and remains on land. The circumstance that the cognisance of all seizures of vessels and their cargoes when afloat, as prize of war, belongs to the Admiralty jurisdiction, is evidence of the high antiquity of the practice of such seizures. The maintenance of this practice is becoming more open to question, as being scarcely reconcilable with that good faith upon which the enlarged commercial intercourse of Nations proceeds. § 60. We find, accordingly, that the Queen of Great Britain, upon the breaking out of war with Russia in 1854, in ordering an Embargo to be laid of the war upon all Russian vessels that should thereafter enter any British port, harbour, or roadstead, being desirous to lessen as much as possible the evils of war, directed by an Order of the same date 2, "that Russian merchant vessels, in any ports or places within her Majesty's dominions, should be allowed six weeks for loading their cargoes and departing from such ports and places; and further, should not be molested, if met at sea by any British cruiser." Great Britain went even further in moderating the exercise of belligerent Right, by directing that "any Russian vessel which should have sailed from a foreign port, prior to the date of her Majesty's Order, bound to any second supplement to the London Gazette of 29 March 1854. 62 Orders in Council of 29 March 1854, published in the Recipro port or place of her Majesty's dominions, should 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 a British cruiser, should be permitted to continue her voyage to any port not blockaded." The conduct of the Emperor of the French was distinguished by the same mildness towards Russian merchants trading in the French dominions; and the Emperor of All the Russias reciprocated the Russian treatment, which Russian subjects had experienced city. in the British and French ports, by proclaiming a similar indulgence to British and French merchants trading in the ports of the Russian Empire. The conduct of the belligerent Powers on this occasion marks an epoch in the practice of Nations in regard to the exercise of belligerent Right at the immediate outbreak of war. There are not found in the Treaties of Commerce 63, which existed between Russia on the one hand and France and Great Britain respectively on the other hand, any stipulations which provide that enemy-merchants shall be treated with forbearance on the outbreak of war. It has been therefore upon the promptings of good faith, that Great Britain and France have set the example on this occasion of renouncing the exercise of belligerent Right in seizing and confiscating the vessels and cargoes of Enemy-Subjects, which were in their ports at the commencement of war. It must be observed, however, that the war on this occasion, which Great Britain and France held themselves compelled to declare against the Emperor of All the Russias, was 63 Treaty of Commerce between Russia and Great Britain (11 January 1843). Martens, N. R. Gén. V. p. 8. Treaty of Commerce between Russia and Immova ble property of enemy-sub a war, not for the redress of injuries received by the Subjects of either of those Powers, but for the protection of the dominions of their Ally, the Sultan of the Ottoman Empire, against the encroachments and unprovoked aggression of the Emperor of All the Russias. It was not a war, therefore, in which Reprisals against the property of Russian Subjects would have been permissible by the practice of Nations, before war had been commenced. The precedent therefore does not apply to cases in which there has been a denial of redress for injuries received, and in which, by the practice of Nations, the Subjects of the State that has inflicted injury upon the Subjects of another State, are liable to have their ships and cargoes seized and confiscated for the indemnification of the injured parties, before war is declared. § 61. With regard to immovable property, such as land and houses, Bynkershoek 6, who is the jects within most strenuous advocate of belligerent Right, whilst the terri- stating that a belligerent Power, on general prinbelligerent. ciples, is entitled to confiscate any real property tory of a 65 which an Enemy-Subject may possess within its territory, admits that the practice throughout Europe has been to sequestrate the profits only during the war, and to reinstate the owner in his property on the return of peace. Vattel to the same effect says, that "he who declares war does not confiscate the immovable property possessed in his country by his Enemy's Subjects. By permitting them to purchase and possess such property, he has in this respect admitted them into the number of his own Subjects. But the income may be sequestrated, in order to prevent its being remitted to the enemy's country."" 64 Bynkershoek, Quæst. Jur. Publ. L. I. c. 7. 65 Droit des Gens, L. III. c. 5. § 76. |