purpose they are considered as part of the domain of the conqueror, so long as he retains the possession and government of them (r). Where part of a country has been wrested by insurgents from the dominion of its sovereign, it cannot be treated by a Court of Prize as no longer forming part of his dominions, though he be an enemy, until the fact has been in some manner recognised by the government to which the Court belongs. Thus, where several parts of the island of St. Domingo were in the actual possession of insurgent negroes, who had detached them as far as actual occupancy could do from the mother country of France and its authority, and maintained therein an independent government of their own: it was contended, that although this new power had not been directly or formally recognised by any express treaty, yet the British government had shewn a favourable disposition towards it, on the ground of its common opposition to France, and seemed to tolerate an intercourse that carried with it a pacific and even friendly complexion; and that St. Domingo could not, therefore, be considered as a colony of the enemy. The Court of Appeal, however, decided, though after long deliberation and with much expressed reluctance, that nothing had been declared or done by the British government that could authorize a British tribunal to consider this island generally, or parts of it, as being other than still a colony, or parts of a colony, of the enemy. Although it was matter of notoriety, that a considerable part of St. Domingo had been emancipated from the dominion of the enemy, there was no sufficient ground to authorize the Court to presume a change in its national character. It always belongs to the government of the country to determine in what relation any other country stands towards it; this is a point upon which Courts of justice cannot decide. But where orders in council had issued permitting British vessels to go to such ports and places in the island of St.

(r) Bentzon v. Boyle, 9 Cranch, 191.

Domingo as shall not be under the dominion and in the actual possession of the enemy; it was held, that those orders contained a recognition on the part of the government, that there were ports and places in St. Domingo not only not in the possession, but not under the dominion of France; that the Court could then look no further than to see whether the port in question comes within that description (s).

(s) The Manilla, Edw. 1; The Pelican, Edw. App. (D).

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CHAPTER III.

OF THE RIGHT OF CAPTURE.

THE right of capture may be considered in respect of: First, The right of search. Secondly, The right of detaining vessels and bringing them in for adjudication. Thirdly, The right of freight. Fourthly, The right of neutrals to costs and damages in case of detention without probable cause, and to compensation for any illegal violence, or other wrongful act, on the part of captors.

First, Of the right of search. Grotius has fallen into an important error respecting the correspondence of Queen Elizabeth and Henry 4 on this subject. He states, that after the peace of Vervins, while the war continued between England and Spain, the English sought permission to visit and search French vessels for the purpose of preventing the importation of contraband into Spain, which was refused, on the ground that they were seeking a pretext for the pillage of vessels and the obstruction of commerce (a). From the diplomatic history of the period, it appears, that a temporary exemption of French vessels from visitation and search was conceded by special favour of Queen Elizabeth to Henry 4, on condition, that they should not supply corn to the Spanish forces. But the mischief, that arose from that concession in consequence of the supply of corn in breach of the condition, and of the assumption of the French flag by Spanish vessels, soon led to its revocation, and a subsequent proposal to em

(a) Grot. iii. 1, v. (n).

body it in the articles of the treaty of 1602 was peremptorily rejected (b).

Every vessel is bound to submit to visitation and search, whether it be the vessel of a friend or of an ally, or even of a subject; and submission may be compelled, if necessary, by force of arms without giving claim to compensation for any damages incurred thereby; if the vessel upon visitation should not be found liable to be detained. No circumstances can dispense with this obligation. A vessel is not exempted either by its built, or by its flag; such circumstances furnish no proof of the national character of the vessel; and if a vessel be neutral, a belligerent is entitled to ascertain, whether there is either enemy's property or contraband of war on board. If the master of a vessel resists search by force, that is a ground of confiscation (c). The French Ordinances of 1584 and 1681, expressly provide that every vessel shall be good prize in case of resistance and combat. The same penalty is provided by the Spanish Ordinance of 1718, in case of resistance or combat; and Valin is of opinion, that the word "and" in the French Ordinance is to be read "or" (d).

The right of visiting and searching merchant ships on the high scas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. Till they are visited and searched, it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points, that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it, who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry, whether there is property that can be legally captured, it is impossible to capture. Even those who

(b) Winwood's Mem. i. 19, 22; Rob. Coll. Mar. 49.

(c) Val. Comm. iii. 9, xii.; Tr. des Pr. iv. 1; The Topaz, 2 Acton, 20. (d) D'Abreu, vii. § 4, p. 91; Val. Tr. v. 8, § 6.

contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right, at least, for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant with subjects of this kind has ever breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force; something in the nature of civil process, where force is employed; but a lawful force, which cannot lawfully be resisted. For it is a wild conceit, that wherever force is used, it may be forcibly resisted; a lawful force cannot lawfully be resisted. The only case, in which it can be so in matters of this nature, is in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative situation of two countries at peace with each other, no such conflicting rights can possibly co-exist. The authority of the sovereign of the neutral being interposed in any manner of mere force cannot legally vary the rights of a lawfully commissioned belligerent cruiser. What may be given, or be fit to be given, in the administration of this species of law to considerations of comity or of national policy, are views of the matter, which a Prize Court has no right to entertain. Legally, it cannot be maintained; that, if a belligerent commissioned cruiser, during the wars of his own country, has a right by the law of nations to visit and examine neutral ships, a neutral sovereign is authorized by that law to obstruct the exercise of that right with respect to the merchant