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learned counsel for the claimant has allotted to such a proceeding, or has in any manner, been punished or even in any degree censured.

of law and custom of that country upon a great maritime subject, I have gone very far to show the law and custom of Europe, or at least what they ought to be; but as my purpose does not require that I should occupy so wide a field, I shall use the English authorities merely as supporting the doctrine (unquestionable in itself), which I have quoted from Rutherforth. and Vattel, and as proving that England has not introduced or made herself a party to those re

possessed upon original principles, by her armed merchant vessels, is alleged to be subject; but, on the contrary, that her government and courts of prize always have asserted, in the most explicit manner, the existence of this right, and always have encouraged its practical exercise.

The notions of Azuni appear, (as far as any intelligible notions can be collected from his work, called a Treatise on the Maritime Law of Europe,) to be similar to those of Vattel, and, consequently, do not touch the point under consideration. This writer has not been able to satisfy himself as to the propriety of the practice of privateering; or rather he is the undis-straints to which the right of offensive warfare, guised advocate, in different parts of his book, of the two opposite opinions, that it is a very bad practice and a very good one. Thus, in Part 2d, ch. 4, s. 13, (p. 232 of the translation,) he inveighs with an amiable vehemence against it, bringing the Abbé Mably to his assistance; and in the next chapter, (p. 350,) gives us a proud panegyric upon it, and stigmatizes its censurers (and of course himself and the "virtuous Mably,") as "pretended philosophers," and as shallow and malignant declaimers. Admit, however, that this member of a score of academies does seem to have been steadily of opinion, that a cruiser without a commission, or something equivalent to a commission, must be regarded as "a pirate or a sea-robber" "Per mare discurrit deprædandi causa," is true, as he tells us, of a privateer as well as of a pirate. They differ, as he also assures us, in this; that the latter pursues all vessels indiscriminately, (as Casaregis expresses it,) "sine patentibus alicujus principis, ex propria tantum ac privata auctoritate;" or as Azuni himself phrases it, "without any commission or passport from any prince or sovereign state;" whilst the former attacks public enemies only, and has a special authority for that object. Now, although I am not convinced that a cruiser against public enemies is necessarily a pirate, because she wants a commission, and am even very sure of the contrary, I content myself with asking if all this is not (as well as what has been quoted from Vattel,) quite aside from the case of an armed merchant vessel sailing under the passport of the sovereign, to whose subjects she belongs, not a cruiser for prize or plunder, not deprædandi causa, but for commercial purposes, and upon a commercial voyage, and only using her authorized force as an assailant when an enemy more feeble than herself comes within her power?

But if a thousand such writers as Azuni, or even writers of a much higher order, had inculcated (as they do not,) the general idea that an armed merchant vessel ought only to defend herself, and can never attack without becoming criminal, I should still have this successful reply, that it is not for a general rule that I am bound to contend; that the Nereide was an English ship; and that it is, therefore, enough for me to show, upon this matter, the law of England, as it has always been held by her prize tribunals and acquiesced in by the rest of the world. I might, indeed, maintain that when I show the unresisted and uncomplained

When the cases to which I am about to refer for this purpose, come to be considered, it will be proper to bear in mind the distinction between the right which a capturing ship acquires in the thing captured and the validity or legality of that capture. Without a constant attention to this distinction, which is manifestly the creature of municipal law, the English authorities cannot be understood. In England it depends upon the prize act and the royal proclamation, who shall be regularly entitled to the benefit of prizes. The property of all prizes is originally in the government, and it grants that property how and to whom it pleases. The interest in prize is guaranteed only to a commissioned captor. A non-commissioned vessel cannot, therefore, take for her own benefit, but she may take, (and that too as an assailant,) for the benefit of the king or lord high admiral, and may expect, and always does receive the whole or a part of the proceeds from the justice, or if you choose, the politic bounty of the crown, judicially not arbitrarily dispensed, as a reward for the capture. If this be so, there is no difference according to the English law, between a commissioned and a non-commissioned captor, so far as regards the legality of the seizures made by them of the property of enemies. The sole difference is that a commissioned captor has a positive title (derived from the previous act of the government) to the thing taken, and that the non-commissioned captor has no such positive title, but is referred altogether for his reward to what is called the discretion of the executive government, which, however, is not a capricious discretion, but is to be guided and carried into effect by the court of admiralty, with a view to the circumstances of each case.

The cases to which I shall refer, (principally in Robinson's Admiralty Reports,) will be found, as I trust, to be perfectly conclusive on this subject.

The case of the Haase, (Rob. Adm. Rep. vol. I. p. 286,) was that of an enemy ship, taken near the Cape of Good Hope, by a non-commissioned captor, and condemned by the high court of admiralty as a droit. The capturing

104

ship, which was a South Sea whaler, was the | no
assailant, and took possession of the prize with-
out resistance. The court gave the whole of
the proceeds to the captors upon the ground of
peculiar merit in following part of the cargo,
which was gunpowder, on shore.
this capture was piratical, the condemnation
Now if
as prize, and the reward decreed to the captors
by way of encouraging them and others to the
perpetration of similar outrages, will require
more apology than the judgments of that great
man, Sir William Scott, are usually supposed to
stand in need of.

equality, not in point of innocence only, but in legal effect, between the acts of a non-comcases could more explicitly assert the missioned vessel and those of a commissioned vessel in attacking and subduing the ship of an vessels were on these occasions considered as enemy. If the acts of the non-commisioned piratical, or in any degree unlawful, or otherwise reprehensible, nothing could have been less admissible than to let in the crown to shares, on the foundation of those acts, to the prejudice of those who had an acknowledged mation, and by act of parliament, to make the captures for their own exclusive benefit. And right by their commission, by the king's proclathis impropriety was particularly manifest in the case of the Spitfire, who, although she chased in concert with the Providence, does not appear to have contributed to the capture otherwise than constructively.

In the same book, in a note to the case of the Rebeckah, p. 231, the orders in council of 1665, containing the grant to the lord high admiral of such prizes as are now called droits of admiralty, are set forth. The second article is, "that all enemies' ships and goods casually met at sea, and seized by any vessel not commissioned, do belong to the lord high admiral." I suppose that nobody can fail to perceive that this article non-commissioned auxiliary captors depended expressly recognizes the validity of the seizures upon and arose out of the authority or out of If it should be said that the authority of the of which it speaks, without regarding who may the principal agency, of the commissioned capbe the assailants, it being sufficient that the tors with whom they acted, the answer is fourships and goods belong to "enemies," and are fold. First. That none of the other cases sup"casually met at sea." recognizes the validity of every such seizure, authority of the commissioned captors was The article not only port such a notion. and its legal effect of producing prize of war not a communicable authority. Thirdly. That Secondly. for the crown, but founds upon it a beneficial if the non-commissioned captors acted in conThat the grant to the lord high admiral. And the sub-templation of law, under the authority of the sequent practice has been in conformity with the article, except only, that the office of lord high admiral being discontinued, the crown now takes the prize, as it originally took it, subject to the captor's claim in the nature of salvage or reward.

commissions of the other ships, there could have been no question about droit; the whole would have been disposed of as prize under the act of Parliament. And, fourthly, that in the case of the Glutton, she having no commission The case of the San Bernardo, in the same ward when the prize hove in sight, and of her volume, p. 178, was that of a recapture, in 1799, using that advantage with promptitude and at all, was, by reason of her being far to windof a Spanish ship out of the hands of the dexterity, without any orders from, or subserFrench, by an English non-commissioned vessel. viency to, the ships that were commissioned, The re-captured vessel being enemy's property, the main cause of the capture, and that it was was condemned as a droit, and a reward out of certified by the commanders of the other ships the proceeds was decreed to the re-captors, al- that this was so, and that but for the Glutton the though they were not, and could not, under the capture would have been impossible. The Glutcircumstances stated, be attacked by either the ton, the non-commissioned vessel, led, thereFrench vessel or the Spanish. Upon this case fore, in this enterprise, and the others simply it is only necessary to remark, that if a non-co-operated with her as a principal. So that the commissioned vessel cannot capture an enemy's vessel without being first assailed, neither can she re-capture unless on the same condition, an enemy vessel from an enemy vessel. In truth, such a re-capture is rather a double capture, with reference to those upon whom it actssince it acts upon two belligerents at the same time.

two cases, taken together, affirm distinctly the
perfect legality of an attack by a non-com-
missioned captor, whether secondarily and in
dependence upon, or primarily and as dux facti,
independently of, a commissioned captor, who
affirm that a non-commissioned vessel may alone
co-operates with him; and, consequently, they
it ought to be observed, that in the principal
case, the Cape of Good Hope, the universal
attack, and if she is able, capture. And here
legality of attack and capture by non-com-
missioned vessels istaken, (as how could it be
otherwise?) for granted by the court, and ad-
as-mitted by everybody. Indeed, I feel confident,
that is now questioned for the first time.

In the second volume of Robinson's Admiralty Reports, p. 284, in a note to the case of the Cape of Good Hope, the cases of the Spitfire and Glutton are reported. In both these cases, shares were allowed on account of the non-commissioned vessels, which not only sailed but chased for a considerable time, as droits of admiralty. These were cases of what is called co-operation between commissioned and non-commissioned vessels; and, consequently,

added that of the Fortuna, Rob. Adm. Rep.
vol. 4, p. 78, as that of a re-capture of an Eng-
To the cases already mentioned, may be

glish ship, with a French cargo on board, by enough in the actual state of the world withnon-commissioned persons who were not as-out its aid? It is with you to sanction this sailed. The ship was restored to her owner, but the cargo was condemned as a droit, and the whole proceeds, of small amount, were decreed to the captors. Another protected and rewarded piracy!

In the case of the Melomasne, Rob. Adm. Rep. vol. 5, p. 41, the law is laid down without any exception, and in the most precise terms, that a capture by a non-commissioned vessel is rightful, although it enures to the benefit of the king in his office of admiralty, in the manner already explained. Exclusively of the consideration that the court, in laying down the general rule in that case, does not limit it to the case of defence, as it would undoubtedly have done if it had conceived the rule to be subject to that limitation, even if the case in which it was pronouncing its judgment was not that of an attack, it is decisive that by its sentence it sustains the capture as a droit, by the non-commissioned captor, who was the sole assailant, and rejects the claim of Captain Aylmer of the Dragon, a king's ship, who claimed the prize against the admiralty, as having been made under his authority, which authority was considered by the court, however, as amounting to no authority at all, and therefore as leaving the case to be dealt with as that of a capture by a non-commissioned boat, and consequently a capture for the benefit of the crown.

anomaly if you choose, and if you do sanction it, the nation must bear the consequences; but I have a firm persuasion that we shall not hastily be saddled with a doctrine so fatal in its tendency, especially as the authority of your judgment, great as it is, will not, undoubtedly will not, obtain for us a reciprocal sacrifice in any country upon earth.

He then proceeded to consider the opposite argument, that the text writers on the law of nations, having made no exception to the general right of neutrals to carry their goods in enemy ships, this right must extend even to armed vessels.

The learned gentlemen refer us, in the first place, to Bynkershoek, and Ward, and Azuni,* and other writers upon the law of nations, who are imagined to have given opinions upon this point. These writers do certainly concur in declaring that neutrals cannot be prevented from employing the vessels of either of the belligerents for the purpose of continuing their lawful commerce; but they lend no color to the doctrine that the armed vessels of a belligerent may, by being so employed, be made the means of withdrawing the cargo from the inspection of the other belligerent, as well as of augmenting the perils to which the unarmed trade of that belligerent would otherwise be exposed. The treatises which have been referred to would be very good authorities to prove, if it were denied that enemy ships do not necessarily make enemy goods. They go so far and no farther. The single purpose of their authors was to investigate and condemn the sweeping rule, adopted by several maritime I could, if it were necessary, cite many other States, and at one time approved by Grotiuscases, some of which will be found in the ap- "ex navibus res prædo subjiciuntur." And pendix to the second volume of Dr. Brown's this purpose did not call upon them to settle, Civil and Admiralty Law, but I hold this matter or even consider, the matter of the present disto be too clear to be gravely contested in a tri-cussion. The question whether a hostile flag bunal like this.

It would be idle upon such a point, to accumulate authorities. It is sufficient to say that the high court of Admiralty of England, which has for many years been adorned by the most illustrious of jurists, and one of the most amiable of mankind, has been in the habit of offering bounties to piracy and temptations to licentious plunder, if my learned friend be warranted in his doctrine.

ought of itself to infect with a hostile character I assume, then, the truth of the position with the goods of a friend, may be answered in the which, in this branch of the argument, I com- negative, without in the least affecting the menced, and I ask with confidence, if it is to question whether, if a hostile force be added to be endured, that reutrals shall assemble, on the flag, a neutral can advisedly hire it without the high road of trade for the purposes of any responsibility for the consequences. The first commerce, whether altogether their own, or question looks exclusively to the national charpartly their own and partly that of a bellige-acter of a commercial vehicle; the second to a rent, as would seem to be the case on this occasion, ships fitted for warlike purposes as well as for defence, belonging to, and commanded and managed by, the subjects of a belligerent, and therefore having power, as far as it goes, and inclination without limit or control, to harm the opposite belligerent by annoying his trade, as well as by resisting his right of search? I ask if it is to be endured, that neutrals shall thus make themselves the allies of the English law of droits, an important portion of the English system of naval hostility, tremendous

military adjunct, which in no degree contributes to constitute that character, or to form that vehicle. A ship is as much an enemy ship, and as completely a conveyance for neutral commodities, without an armament as with it. An armament makes her more than a mere commercial conveyance for the purposes of a

*Bynk. Quæst. Jur. Pub. 1. 1, c. 13. Azuni, vol. 2, p. 194, 196, (Mr. Johnson's Translation.) Vattel, Droit des Gens, L. & c, 7, s. 116, et seq. Grotius, de J. Bac. P. 1. 8, c. 6. Ward on Contraband, p. 186.

neutral, by superinducing warlike accompaniments, and worse than such a conveyance, by introducing an incumbrance unfriendly, nautically speaking, to speed and safety. In a word, the general proposition that the character of the bottom does not, "ipso jure," fix the character of the goods, is entirely wide of a proposition which asserts the effect of hostile equipment and resistance, let the bottom be what it may; and, consequently, nothing is gained to the prejudice of the latter proposition, by showing that jurists are agreed in favor of the former.

tui; sed mihi redde quod meum est, quia amicus tuus sum, et impositione rerum mearum nihil molitus sum in necem tuam." The general position that I have a right to trade with your enemy, and, consequently, to make contracts with him, is here found without any one of the limits which belong to it; but we know that Bynkershoek could not and did not mean to have it so understood. He was aware, and has elsewhere shown, that it was restricted by the state of war. He knew, for example, that a neutral could generally buy, sell, hire, and let to hire, from and to a belligerent; but not hire or sell to a belligerent a vessel of war, or even a passport; or contract to send him contraband, or to carry his despatches, or to supply his blockaded ports, or to disguise is goods as his own, or to send him goods to become his on their arrival, to save the risk of capture in transitu. We can only account for his arguing in this place, upon the general right, without noticing any modification which war imposed upon it, by supposing that he was reasoning upon the common condition of neutral traffic, unassociated with the use of force, or with any other hostile quality, and in no situation to come in collision with any of the parties to the war. And this supposition is confirmed by the

But it is, nevertheless, possible that we may discover, either in the terms in which these great teachers of legal wisdom have enunciated the former proposition, or, in their reasonings upon it, a sufficiently clear indication of their opinion upon the subject of our inquiry. It is, indeed, to be expected, that their language and illustrations will point to a universal conclusion, spreading itself over every variety and combination of circumstances, if such a conclusion was intended; and, on the contrary, that, if a conclusion, applicable simply to the quality and character of the owner of the vehicle employed by a neutral merchant, was in view, we shall find the phraseology which expresses it, and the illustrations which recommend it, suit-quiet assumption, without proof, with which ed to that view.

The thirteenth chapter of the first book of Bynkershoek's Quæstiones Juris Publici, to which we have been referred, professes to treat "De amicorum bonis, in hostium navibus repertis," and by the statement of a doubt ascribed to Grotius "an bona amicorum, in hostium navibus reperta, pro hostilibus essent habenda," announces the question to be disposed of. This question, resting upon the single fact, that the ship in which the friendly goods are found, belongs to an enemy, obviously inquires nothing more than whether, on that account, the goods may be confiscated; and throughout the chapter it is so treated. "Nam cur mihi non liceat ti nave amici mei, quanquam tui hostis, ad transvehendas merces meas? "Quare si ejus navem operamque conduxerim, ut res meas trans mare vehat," &c."pro mercede ejus uti nave ad utilitatem meam," &c. In all this, and in whatever else the chapter contains, there is no allusion to any thing but the mere vehicle "ad transvehendas merces," and to the ownership of that vehicle. The phraseology is appropriate to define a merchant vessel in her ordinary state, with nothing to distinguish her but her enemy character. It is not adapted to convey the idea of a vessel which has passed into a new state by the union of faculties for war, with those for transportation.

As to the reasoning, it manifestly stops at the point I have mentioned. "Licet mihi cum hoste tuo commercia frequentare; quod si liceat, licebit quoque cum eo quoscunque contractus celebrare, emere, vendere, locare, conducere, atque ita porro." "Cape quodcunque est hostis

the observation last quoted concludes, that by the employment of the enemy ship, the neutral attempts nothing to the prejudice of the opposite belligerent. This assumption was not unnatural, if none but an unarmed vessel was in his mind; but if his view extended to a ship provided with warlike equipment, it was rather an extraordinary postulate for so able a reasoner as Bynkershoek to assume.

The passage in the controversial treatise published by Mr. Ward in 1801, on the relative rights and duties of belligerent and neutral powers,* which has been referred to on the other side, runs thus: "The right of an impartial neutral to continue his trade with each belligerent, so long as that trade can in no respect do injury to either, is certainly uncontested and incontestable; and it would be difficult to show the injury, or what interference there is in the war, by placing such goods as are sacred, from their neutrality, and have, therefore, a right of passage all over the world, under the care and protection of a belligerent flag. Something in point of prudence may be urged, to prevent their being exposed to the accidents of war; but if the neutral chooses to risk this, it is impossible, I think, to conceive a well-founded reason for supposing that any confliction of rights between him and the other belligerent can arise from the procedure. This, then, seems an innocent, and therefore a natural right in the neutral; as such formed one of the

The title of this book is "An Essay on Contraband: being a continuation of the Treatise of the Relative Rights and Duties of Belligerent and Neutral Nations in Maritime Affairs.”

provisions of the "consolato," and as such was approved by Bynkershoek," &c., Q. J. Pub. c. xiv. p. 136. Now what is maintained in this passage is, that a neutral may trade in a belligerent vessel and under a belligerent flag, in opposition to the doctrine, that the national character of the ship ought to conclude that of the cargo or as he elsewhere phrases it, "that all should obey the national character of the ship." The author states expressly, that the right of which he is speaking, and which only he had in his view, formed one of the provisions of the "consolato," and was approved by Bynkershoek. What right was approved by Bynkershoek, we have already seen; and every body knows that the "consolato" refers only to the property of the vessel, and makes no provision for the case of a military equipment which nothing but a direct provision could sanction. Besides, the main ground upon which Mr. Ward places the right is that the goods are sacred from their neutrality. Now it is impossible that this should be known without the exercise of that right of visitation and search, to which he insists that every belligerent is entitled; and consequently he must mean that the belligerent vessel which carries the goods, said to be neutral, is not to be in a situation to contest by force the exercise of that right. Moreover, the expressions, "so long as that trade can in no respect do injury to either," show his meaning to be that it is not to be a trade, which provides resistance to the right of search, and increases the hostile means of one of the belligerents on the seas. And, again, when in his reasoning he says, that he cannot conceive how the privilege which he admits can produce "any confliction of rights" between the neutral and the opposite belligerent, it is quite impossible that he should have in his mind the case of a deliberate resistance to that very right of visitation and search which it was the great object of his treatise to uphold.

In truth, Mr. Ward is in this place contending that the principle of "free ships free goods" is not "a natural right," and he endeavors to prove it by showing, among other things, that the principle which is usually associated with it in treaties, that "enemy ships shall make enemy goods," is a violation of natural right. For this purpose it was not necessary to discuss or decide the present question; and, accordingly, he does not meddle with it, unless what he says about "the accidents of war," to which neutral property is exposed in belligerent vessels should be thought to touch it.

The first passage, referred to in Azuni's book, amounts only to this-that neutrals cannot be prevented from employing the vessels of either of the belligerents for the purpose of continuing their peace trade, unless by interfering in the war, "they depart from that perfect neutrality which they are bound to observe." It is a gratuitous supposition that this passage was meant to include vessels fitted for aggression and resistance. Nay, the supposition is

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worse than gratuitous. It is impliedly forbidden by the reference to the peace trade of the neutral as that which is to be authorized in the vessels alluded to, and by the exception of all cases in which the neutral interferes in the war, or in any degree deserts his neutrality.

Such a large exception goes the whole length of my doctrine, if it means any thing; and there was no necessity to make it special, unless it was presumed that common sense had left the world. It was too obvious to require any particular mention, that it was an interposition in the war, and inconsistent with pure neutrality to employ a vessel equipped for battle and certain to engage in it, to exempt the neutral from the observance of his known duties, if it could be done with a prospect of success, and certain also to act offensively, if a suitable occasion presented itself. It was enough to lay down the wide caution against any use or employment of hostile force, which not being capable of any check, on account of the direction to which it is subject, and the disposition which belongs to it, cannot be employed without embarking in the war and taking an unneutral attitude. We are told by Ward, vol. ii. p. 10, in the language of Hubner, who has been called "the great champion of neutral rights," that "Toute neutralite consiste dans une inaction entiere relativement a la guerre." And I know not how a neutral can be said to be wholly inactive relatively to the war, who allies himself by compact with warlike means and hostile dispositions and intentions, which, when he has once connected himself with them, he knows he cannot restrain, and to which he alone gives all the activity and all the power of mischief which they possess. It is difficult to conceive how he who has prepared and hired the power of warlike combat, with a knowledge that the desire, duty and determination to combat are united with that power, can be said to be thus inactive, and especially when combat has actually followed his arrangements as their regular consequence. Self-evident propositions do not require to be set forth in detail, and the wonder is that we should expect it. On the other hand, if a neutral can do this, it is but reasonable to suppose that his right to do so would be stated with precision even by such sciolists as Azuni.

But if the exception in Azuni does not plainly exclude, as I have no doubt it does, from the neutral's privileges, the employment of ships equipped for battle, it does at any rate reduce all that he says as an authority on the extent of that privilege to nothing, since the phraseology in which Azuni has defined the privilege, is at least as equivocal as the excepiton. An ambiguous general rule given by a feeble writer, who qualifies it by an ambiguous general exception, may afford matter for controversy, but can scarcely contribute to settle one.

Heineccius, Grotius, Hubner, Vattel, and others are quoted by Azuni, vol. ii. p. 194, 195, but they simply state, what doubtless Azuni meant to state, the general doctrine, which I do

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