merchandize which was stored in Holstein, to excuse the complacency with which she regarded the ordinances of the king: we cannot complain that she did not relax her tariff in favour of the reluctant importers from the Danish dominions.

"This then is the broad distinction between the cases of Holland and Denmark. The former was a nominal, the latter an actual sovereignty. The intervention of one was merely formal, and was exacted by force; the other was the voluntary pander to French avidity.”

If in any case it was decided that the act complained Municipal Regulations. of was the act of France, the next question considered was whether the act constituted an unlawful seizure, capture, sequestration, confiscation, or destruction of property. Where property was condemned for violation of municipal regulations within municipal jurisdiction this question was answered in the negative. Articles VII. and VIII. of the Berlin decree, preventing the reception of vessels coming directly from British ports, and punishing fraudulent attempts to evade the prohibition, were treated as legal. The enforcement of the Trianon decree at Hamburg in 1810, as above detailed, was likewise held not to afford a ground of claim.

In one class of cases, involving the validity of certain The St. Domingo Cases. alleged municipal regulations, the conclusion of the board was more definite than the reason by which Mr. Kane seeks to explain it. The class in question was that of vessels captured on a voyage to or from ports in St. Domingo (Hispaniola), under the French arrêtés prohibiting trade with ports of the island occupied by the blacks. In some cases the vessels were regularly condemned, while in others the condemnation was irregular or altogether lacking; but in each case it was conceded that the vessel was on a voyage to or from a prohibited port, and, on the rule applied by the board, that irregularities in procedure would not avail a guilty claimant, it was considered that no indemnification could be allowed unless the arrêtés were unlawful. In July 1800 the blacks, who had for some time been in revolt, declared their independence and established a constitution of government. "In the beginning of 1802," says Mr. Kane, “a French army attempted their subjugation, and from that time till the year 1806 the arrêtés in question were published by the French captains-general of the island. The object of all of them was the same-the prohibition of commerce with the revolters, some declaring the island in a state of siege, while others subjected to capture and confiscation all foreign vessels found within a prescribed distance of the coast, or coming out of ports occupied by the rebels, or bound to those ports, whether cleared directly for them or having masked clearances. Shortly after this period the attention of France was diverted from the concerns of St. Domingo, but it was only in 1825 that she for the first time recognized the political independence of the island." The United States never recognized the government of the blacks, and Mr. Kane properly observes that "the question of independent or not is a question for governments, with which citizens have no right to intermeddle." From this premise he draws the conclusion that "the arrétés promulgated by the French authorities were not in themselves unlawful," and then declares:

"It is unnecessary to inquire further into their character. They may have blended municipal remedies with belligerent rights, or may have transcended the proper limits of both; but they certainly interdicted commerce with the blacks, and this interdiction our citizens were bound to

respect. If their property had been seized, condemned, confiscated, it was among the hazards of which they were not ignorant, and which the alternative of large profits stimulated them to encounter. France may have done wrong in arresting them: she may have arrogated a jurisdiction which did belong to her; and for this the United States might have held her answerable. She may have condemned them irregularly; but the citizen has lost nothing by the irregularity, and can have no claim to indemnity."

The indefiniteness of the foregoing statement, in which the lawfulness of the decrees is assumed without regard to whether they may have "transcended the proper limits" both of municipal remedies and belligerent rights, and in which condemnation under them is treated as at most an "irregularity," may be dispelled by stripping the explanation of everything but the sentence in which it is admitted that the United States "might have held" France "answerable," but did not. Municipal interdiets forbidding intercourse with ports in the possession of insurgents or belligerents, as a substitute for a blockade duly instituted and maintained, have generally been treated as invalid. The claims against Spain, settled under the Florida treaty, were largely based on her attempts to enforce her laws, forbidding intercourse with her colonies, against commerce with Spanish-American ports which were in the possesion of belligerents, and which she was unable effectively to blockade. But in the case of San Domingo the United States had seen fit not only to recognize the French arrêtés, but to assist in enforcing them by forbidding intercourse between the United States and every part of the island not in the actual possession or Government of France.2 Back of this fact the board evidently did not deem it proper to go.3

Questions of International Law.

says:

As to the various cases in which the seizure and destruction of American property was justified by the immediate bearing of the law of nations, Mr. Kane

"1st. Confiscations of property contraband of war anterior to the 31st of July 1809, when the treaty of 1800 expired by limitation, and the seizure and detention of vessels containing it, for the purpose of unloading them, were of course decided by reference to that treaty. Those of later date, when the treaty had expired, rested on a different footing; but

1 Mr. Bayard, Sec. of State, to Mr. Becerra, April 24, 1885, For. Rel. 1885, p. 254.

Act February 28, 1806, 2 Stats. at L. 351; act of February 24, 1807, 2 Stats. at L. 421.

*By some manuscript notes of Mr. Campbell, for which I am indebted to one of his descendants, I find that he did not concur to the full extent in the decision of the board in the St. Domingo cases, but read an opinion expressing his dissent on certain points. He admitted the validity of the arrétés as municipal regulations, but contended that as such they could have no effect beyond the territorial jurisdiction. A vessel which had traded with a prohibited port might, on coming out, be captured even on the high seas for the offense committed within the jurisdiction. Such he understood to be the rule of the law of nations as laid down in Hudson v. Guestier, 6 Cranch, 281-285. But he contended that vessels on the outward voyage from the United States, before they had come within the jurisdiction of St. Domingo, and therefore within the operation of the decrees, were not liable to capture.

5627-VOL. 5—6

the liberality of the French courts on the subject of contraband left little occasion to decide the difficult questions which belonged to it. In regard to provisions and supplies generally, the board adopted the rule of the British admiralty and of our own supreme court; and held them illicit, only when they were destined to the military or naval use of an enemy of France, and when they were not the productions of the United States.

"2d. One class only formed an apparent exception to the last part of this rule. During the siege of Cadiz by the French in 1810, 1811 and 1812, numerous cargoes of provisions of American origin were despatched from the United States for traffic with the besieged. The fact of the siege was of course well known to those engaged in these voyages, and formed indeed their principal incentive. A number of vessels with this destination and object were taken by French boats within the limits of the outer harbour of Cadiz, or so immediately in its vicinity as to preclude the excuse that they were ignorant of the continuance of the siege. They were condemned on the ground that they had sailed with an intention of violating the siege, and had thus made themselves allies of the enemy.

No evidence appears to have been offered to the French courts, nor was any presented before the board, to show that this was not their original intention or that it had been abandoned. Their apparent and uncontradicted purpose therefore was to minister to the necessities of the besieged and fortify their resistance.

"The law has long been settled in England and our own country, that a vessel sailing for a blockaded port with knowledge of the blockade is liable to the consequences of a breach of it (1 Robins. 154; 4 Cra. 78; 5 Cra. 335; 6 Cra. 29) and neither in our treaties with foreign powers nor in the treatises of public jurists is there to be found a reason why a sailing with knowledge for a besieged port should not have a similar effect. It was asserted before the board that the investment of Cadiz by the French was only on the landside, and by analogy to some decisions of Sir William Scott in cases of blockade it was contended that a maritime expedition could not be an infraction of the siege. It might however be sufficient to reply, that the capture of so many vessels at the very opening of the port by boats armed for that purpose, was proof in itself that the investment had been more complete than was admitted by the argument. But the analogy on which the argument rests is imperfect. In the cases of the Ocean and the Alert (3 Rob. 297, 4 Rob. 65), which are those referred to, the question was, whether a voyage from an open port became a violation of blockade because the cargo had been brought overland from a blockaded town. Had the goods in those cases been captured before their arrival at the place of exportation by troops stationed by the way for the purpose of intercepting them, the facts would have more nearly resembled those, on which the board was called to decide. It is enough for the vindication of France, that the means which she employed for the investment of Cadiz were such as to make a breach of the investment 'evidently dangerous.' Whether she used ships of war to prevent the introduction of supplies, or whether she relied on her batteries or her boats to produce the same result, is altogether unimportant. Nor has a neutral the right to question the adequacy of the force to the object, if there appears to have been a real intention of seeking the reduction of the place by investment. How can he in such a case complain that the force was insufficient to occasion evident danger of capture, and that he was himself captured by that very force?

"3d. A still more plain dereliction of the neutral character was that of an engagement in the transport service of an enemy of France; as where an American vessel was chartered by a government agent to carry supplies to the British garrisons in the West Indies, and was captured while performing that office. The only difficulty, in cases like this, was in attaining a knowledge of the fact. It rarely presented itself in the evidence before the prize court, and did not perhaps form a part in every instance of the more full development of interests which was exacted by the rules and practice of the commissioners.

"4th. Under the treaty of 1800, the cargo took its national character from the flag under which it was carried; free ships making free goods

and enemy saps enemy goods. But when that treaty expired, the general law of nations obtained as between France and the United States, according to which, the property of an enemy is under all circumstances a legitimate object of seizure and confiscation. Accordingly, when an American had laden his goods on board a British vessel, he could not complain that his voyage was broken up by the capture of the vessel; and for the same reason a British cargo would authorize the arrest and temporary detention of an American vessel. Still, according to the law of nations, the property of the neutral would not be affected in either of these cases by its association with that of a belligerent. The American cargo would be restored, and the American ship released as soon as she could be unladen. The exceptions to this rule were founded on the alleged misconduct of the neutral. If he endeavoured to mask the property of the enemy, by commingling it with his own or by otherwise investing it with a neutral garb, he was punished for the deception by a forfeiture of his national claim to immunity. Thus, where a Swedish ship which had been purchased by an American, entered a port under the dominion of France then at war with Sweden, and exhibited simulated American papers to protect herself from capture as an enemy, her cargo belonging to the same American was held justly liable to condemnation.

"5th. The absence of appropriate documents to establish the American character of a vessel or its cargo, constituted another sufficient ground for its arrest and detention. But it was held by the board that the deficiency was not per se a ground for condemnation. The seventeenth article of the treaty of 1800 provided that such cases should be examined by a proper tribunal, and that their neutrality might be sufficiently established by other proofs admissible by the usage of nations.' The absence of a similar provision in the treaty of 1778, connected with a stipulation that neutrals should in times of war be provided with certain national documents, had given room for a different decision by the French courts. But the commissioners were of opinion that, independent of the treaty of 1800, and of course after it had expired, secondary proofs of nationality could not be rejected in ordinary cases without violating the law of nations. The eleventh article of the French regulations of 26th July 1778, which ordained that 'regard should be had only to the documents found on board' at the time of capture, was regarded as itself an interpolation in the code of public law which no nation had authority to make. It was unnecessary to appeal on this point to the unvarying rules of other countries. The very words of the treaty of 1800 recognize that other proofs are 'admissible by the usage of nations,' and give to the treaty provision a merely declarative character. Whatever may have been at one time contended in the United States, the principle is too clear for argument now, that a nation cannot modify her expressed compacts nor those which are implied by the general usage, without the assent of the parties by whose concurrence they were originally established.

"The Berlin decree was held by the commissioners Berlin Decree. to present no justification for the acts of France, so far. 1. As it interdicted to Americans the trade with England in goods not contraband and to ports not actually blockaded; 2. As it interdicted to them the trade in English manufactured goods; 3. As it condemned American ships for carrying British property; and 4. As it condemned American property, because found on board British vessels, or having been under the protection of British convoy.

7th. There was one class of cases within the operaMilan Decree and tion of the Milan decree which was held to furnish no Recaptures. ground of complaint. It was that of captures made by France of American vessels while in the possession of English captors, after a forcible detention of more than twenty-four hours. It is indeed somewhat doubtful whether the French law of recaptures was at all changed by the decree. According to long established regulations, a French vessel after twenty-four hours' possession by an enemy becomes absolutely the property of a French recaptor, and is not restored on salvage. The same rule has always been applied to the property of allies of

France, when recaptured from her enemy.. But as to neutrals; from the year 1779 the usage for many years was to restore recaptured neutral vessels, provided they were not laden with contraband, or otherwise in circumstances to incur the hazard of confiscation (dans le cas d'etre confisqué) by the enemy.

"It was perhaps, because this hazard was supposed to attach to all neutrals when captured under the earlier orders in council of Great Britain, that the council of prizes at first, in the early part of the present century, pronounced the condemnation of recaptured vessels, with innocent cargoes. Such was the case of the George, Eveleth, captured by the British in January 1808, recaptured by a French privateer in February, and condemned in July following, on the express ground of the recapture, as well as for a breach of the Milan decree. But as all such cases were covered by the language of that decree, the idea of a 'visit from a British cruiser' being included in that of capture by such a cruiser, the French courts, after the decree had been promulgated, generally referred to it as their authority for pronouncing condemnation.

"It is not necessary to seek through the various and conflicting usages of different nations for a general law on the subject of recaptures, nor to inquire whether the Milan decree, in this application of its provisions, violated the rights of neutrals. Under what circumstances the recapturing cruiser is bound to investigate the title by which his enemy held possession of the prize, and how far the principles differ under which an eighth, a third, the half, or the whole of the neutral's property is condemned without reference to any act of his, might at one time have been topics of difficulty as well as interest. But the act of Congress providing for salvage in cases of recapture' (1800, ch. 14, sec. 3), and which our highest court has applied to cases of neutral and belligerent property alike, has decided the only question which could properly claim the notice of the commissioners. This act provides that property belonging to subjects of a foreign state shall, when recaptured by vessels bearing American commissions, be either restored or condemned, on the same terms and by the same rule as would be applied by that foreign state to American property in similar circumstances. Thus adopting the principle of reciprocity, we have admitted the right of other nations to legislate on the subject as they see fit, and cannot complain of the manner in which the discretion is exercised. Whatever may be their law, it is for the time our own: we deal with their citizens as they deal with ours. It is unnecessary therefore, to inquire whether the French law of recaptures is of ancient standing, or a consequence of the Milan decree, nor whether it is essentially reasonable or just our inquires are at an end, when we have ascertained what it is. No reclamation can be founded upon its application to the case of an American citizen."

Character of Injuries
Indemnified.

Assuming that an unlawful act on the part of France was established, was it injurious to the claimant, and was the injury susceptible of pecuniary reparation? The board did not deem it necessary, says Mr. Kane, to distinguish between cases in which the act of France constituted the essential wrong, and those in which the injury was plainly and immediately consequential, as where a vessel unlawfully captured was wrecked in the hands of the captors, or damaged or vexatiously detained. So, in the peculiar circumstances before the board, under which capture was almost equivalent to condemnation, salvage was allowed for the recapture of neutral property.' On the same principles, claims were allowed for ransoms paid to avert confiscation. Usually, however, it was requisite to show that the injury was directly referable to France. It was also necessary to show that the wrong was not of form, merely, but of substance. Irregularities in procedure, where no injustice was done, were not regarded.

1 The War Onskan, 2 Rob. 299; The Sansom, 6 Rob. 410; Talbot v. Seaman, 1 Cranch, 37.