venience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the State, and justice absolutely denied in re minime dubia by all the tribunals and afterwards by the prince.' "Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions, different men think and judge differently; and all a friend can desire, is that justice should be as impartially administered to him, as it is to the subjects of that prince, in whose courts the matter is tried." BY THE OPPO A different doctrine, however, long had been in favour with HOW MODIFIED the government of France. By the Ordinance of 1681 any NENTS OF ship carrying enemy's goods, any enemy's ship carrying the ENGLAND. goods of a friend, were, both ship and cargo, lawful prize of war. This doctrine she modified, to gain the adhesion of other powers; first, in her treaty of 1778 with the United States; and then by general Ordinance in 1779, in favour of the neutral powers of that day; on both occasions adopting the principle of free ships, free goods. The next year, in 1780, appeared the famous declaration of armed neutrality, issued by Russia, and welcomed by almost all the maritime powers of Europe, except this country, and chiefly because they were opposed to us, accepting the same principle of free ships, free goods, as the acknowledged rule of maritime warfare among the adherents; and from that time onwards there has been a fluctuating disposition in Europe, against the policy of Great Britain, to substitute this for one of the established principles of the law of nations. In this state of things, France and Great Britain becoming allies in the war of 1854 against Russia, mutual concession was made by the two powers on the fundamental rules of maritime warfare, this country accepting for the occasion the principle of free ships, free goods,' and France surrendering her claim to confiscate the property of neutrals found in enemies' ships. Grotius de Jur. B. & Pacis, Lib. 3, c. 2, § 4, 5. Liv.3, t. 9, art. 7-4 Pardess. 385. By the Treaty of It was almost as of course that this important subject should come under consideration with the Plenipotentiaries by whom the Treaty of Paris was concluded on the 30th of March, 1856. On the 16th of April following, the High Contracting Powers, Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, by their Plenipotentiaries, "considering, that the maritime law in time of war has long been the subject of deplorable disputes; that the uncertainty of the law and of the duties in such a matter gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties and even conflicts; that it is consequently advan tageous to establish a uniform doctrine on so important a point; and that the Plenipotentiaries assembled in congress at Paris cannot better respond to the intentions by which their Governments are animated, than by seeking to introduce into international relations fixed principles in this respect,"accordingly stipulated, and solemnly declared "1. Privateering is, and remains, abolished; "2. The neutral flag covers enemy's goods, with the excep tion of contraband of war; "3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag. "4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. "The present Declaration is not and shall not be binding, except between those powers who have acceded, or shall accede to it." The United States, whilst recognising the other principles of this declaration as proper to form the basis of international relations in time of war, appear by the President's Message of 1854, to have refused their assent to the abolition of privateering, which they deem a necessary right and constituent arm of their national defence during hostilities. Thus modified, therefore, these are now the leading prin 28th of March, 1854. A similar decla- time by the Emperor of the French. Interference of Princes affecting the rights of ciples of the law of nations as affecting the freedom of Detention by embargo, being in its nature merely a pre- EMBARGO. cautionary measure, which may indeed be converted into an act of reprisals, does not in the meantime operate any dissolution of the contract, whether it be the act of a foreign government or of the sovereign to whom both parties owe allegiance." Hence it has been held that wages run on throughout the detention, and in the absence of express provision to the contrary, time freights must do the same. But where the detention is of a foreign ship by the sovereign of the freighter, this act partakes so much of the nature of hostility, that the freighter may, by notice, determine the contract without liability for damages to the shipowner in consequence; for otherwise the freighter would sustain the evils which were intended by his own sovereign to fall upon foreigners as a premonitory caution that satisfaction must be rendered.* And therefore by the law maritime, where such a ship had commenced her voyage, but was driven back to an English port and detained under embargo, the goods were taken out and forwarded by other conveyances, and freight, even pro ratâ, In fact, the only change introduced upon the principles of the Letter of 1753, is made by article 2, declaring that free ships make free goods. The practice of privateering is but too likely to be resumed by those powers that are driven to such means to supply their lack of naval armaments. And the article relative to blockades is no new principle, but merely a historical reference to the irregularities of the great French war, when, in the spirit of the Milan and Dresden decrees, and the British Orders in Council, blockades were proclaimed as to ports where no ship of war ever appeared to enforce them. The Boedes 3 Beale v. Thompson, 4 East, 546, refused to the master, as it was wholly the fault of the ship that the voyage was not prosecuted to a prosperous termination.' convoy. In an action by the freighter against the owners of the ship Pomona, for not performing their contract in respect of goods put on board The Pomona at Liverpool to be conveyed to Leghorn, the danger of the seas only excepted, the plaintiff having paid 2971. 18s. for insurance on the goods, it appeared that the ship sailed from Liverpool, and put into Falmouth on the 30th of June, 1796, to wait for While she waited there for that purpose, an em bargo was, by Order in Council, dated 27th July, 1796, laid on all ships bound to Leghorn, being one of the ports then in the possession of the French, the embargo to continue until further Order of the board of Privy Council. On the 23rd of August another Order in Council issued, allowing vessels in the situation of The Pomona to return to their ports of lading, and land and warehouse their cargoes there under certain regulations. In the month of August, 1798, and not sooner, The Pomona left Falmouth without the consent of the plaintiff and returned to Liverpool, where, after some dispute, the plaintiff received the goods without prejudice to the question, whether under the circumstances the defendants were excused for the non-performance of their contract. On the 24th October, 1798, the embargo was taken off. At the trial of the cause the plaintiff obtained the verdict of a jury for the amount of the charges of insurance; and afterwards, upon the right of the plaintiff to recover, the full Court were of opinion, that the embargo did not dissolve the contract, being only a temporary restraint, and that the plaintiff was entitled to recover." The same effect, and no greater, is tacitly attributed to embargo by the French law,' which expressly authorises the merchant to unlade the goods at his own expense, if he thinks fit, but upon condition of his relading them, or indemnifying 1 The Werldsborgaren, Lagerholm, 4 C. Rob. Ad. 17; Isabella Jacobina, Sovergren, 4 C. Rob. Ad. 77. 2 Hadley v. Clarke, 8 T. R. 259. See Laws of Oleron, art. 28-1 Par dess. 342. 3 Ord. liv. 3. t. 1. art. 9-4 Pardess. 359; Code de Com. art. 278. the master. Valin' and Pothier, however, are of opinion, that if the goods are of a perishable nature, and cannot be readily replaced by others of the like kind, the embargo will put an end to the contract. In such a case, whatever the rule of law may be, the interest of all parties will, in general, induce them to annul the contract upon reasonable terms. WAR. A declaration of war, according to universal practice and DECLARATION OF opinion, imports a prohibition, by the sovereign to his subjects, of all commercial intercourse and correspondence with the inhabitants of the enemy's country; and a neutral friend, or a natural-born British subject, who remains afterwards in that country, has impressed upon him so much of the character of an enemy, that trading with him is then become illegal and all property so acquired is liable to confiscation." Lord Stowell, in 1799, reviewing the decisions of his predecessors under this rule, sums up the effect of them in these words:"The cases which I have produced prove that the rule has been rigidly enforced where Acts of Parliament have on different occasions been made to relax the navigation law, and other revenue acts; where the government has authorised, Effect of. under the sanction of an Act of Parliament, a homeward trade from the enemy's possessions, but has not specifically permitted an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced where strong claims, not merely of convenience, but almost of necessity, excused it on behalf of the individual; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first 11 Valin, 628. Pothier, Charte-Partie, no. 102. 3 A war between foreign countries must be proved, but the courts take judicial notice of a war when this country is engaged in it; per Lord Eldon, Dolder v. Lord Huntingfield, 11 Ves. 292; Rex v. De Berenger, 3 M. & Sel. 67. The Hoop, Cornelis, 1 C. Rob. Ad. 196 Potts v. Bell, 8 T. R. 548; Esposito v. Bowden, (in error) 7 E. & 5 Willison v. Patteson, 7 Tauut. |